State ex rel. Collar v. Evnen

1

317 Neb. 608

State of Nebraska ex rel. Latasha Collar, Relator, v. Robert Evnen, Nebraska Secretary of State, respondent and Jenni Benson et al., Intervenors.

No. S-24-658

Supreme Court of Nebraska

September 13, 2024

1. Mandamus. In an original action before the Nebraska Supreme Court seeking issuance of a writ of mandamus, when a verified petition's averments are insufficient to support issuance of either an alternative or peremptory writ, the petition is properly denied.

2. Mandamus: Words and Phrases. Mandamus is a law action and represents an extraordinary remedy, not a writ of right.

3. Mandamus: Proof. Mandamus is available if the relator can show (1) there exists a clear right to the relief sought, (2) the respondent has a corresponding clear duty to perform the act requested, and (3) no other plain and adequate remedy is available in the ordinary course of the law.

4. Mandamus. Whether to grant a writ of mandamus is within the court's discretion, and the writ will be issued only when the duty to act is clear.

5. Constitutional Law: Initiative and Referendum. The constitutional provisions with respect to the right to referendum reserved to the people should be construed to make effective the powers reserved.

6. __ __. It is fundamental that the exception in article III § 3, of the Nebraska Constitution should be given strict construction in light of the fundamental purpose of the referendum provision to give the people the right to vote on specific legislation.

7. Constitutional Law. Generally, the exception in article III, § 3, of the Nebraska Constitution must be construed to mean the ordinary running expenses of the state government and existing institutions, and not to include money or appropriations or funds created or acts that have as their design a new or different scheme for the revenue raising and financing of state delegated and created local units of self-government.

8. ___. The Nebraska Constitution requires a specific appropriation made by law to authorize the expenditure of public funds.

9. Constitutional Law: Public Officers and Employees. An appropriation, within the meaning of the Nebraska Constitution, is the setting apart by law of a certain sum from the public revenue for a specified purpose so that the executive officers are authorized to expend that sum, and no more, for that purpose, and no other.

10. Constitutional Law. It is the settled law of Nebraska that there can be no implied appropriation.

11. __. A promise to make an appropriation is not an appropriation.

Original action. Writ of mandamus denied. Petition dismissed.

Kamron T.M. Hasan, Marnie A. Jensen, and Aubrey L. Wells, of Husch Blackwell, L.L.P., Brenna M. Grasz, of Keating, O'Gara Nedved & Peter, P.C., L.L.O., and Thomas Venzor for relator.

Michael T. Hilgers, Attorney General, Eric J. Hamilton, Zachary A. Viglianco, and Zachary B. Pohlman, for respondent.

Daniel J. Gutman, Sydney L. Hayes, and Alexander S. Arkfeld, of Law Office of Daniel Gutman, L.L.C., and Scott J. Norby, of Norby Welding Hunzeker, L.L.P., for intervenors.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

PER CURIAM.

NATURE OF CASE

In this original action docketed in the Nebraska Supreme Court Latasha Collar (Relator) seeks issuance of a writ of mandamus directing Robert B. Evnen, Nebraska's Secretary of State, to withhold from the general election ballot the "Private Education Scholarship Partial Referendum." The referendum seeks to repeal 2024 Neb. Laws, L.B. 1402, § 1, passed by the 108th Legislature in 2024, which established a program to provide $10 million in education scholarships to eligible students to pay the costs associated with attending qualified private elementary and secondary schools. Relator's verified petition for writ of mandamus avers that the Secretary of State has a clear duty to withhold the measure from the 2024 general election ballot because the referendum petition violates article III, § 3, of the Nebraska Constitution and is thus legally insufficient.

Because we conclude that Relator's verified petition fails to show a clear right to performance of the duty sought to be enforced and further fails to show that the Secretary of State has a corresponding clear duty to perform the act requested, we deny issuance of the writ and dismiss the verified petition.

BACKGROUND

L.B. 14 02

The 108th Legislature passed L.B. 1402 in April 2024. Because the referendum petition at issue here seeks to repeal only § 1 of that act, we summarize only that section.

Section 1 of L.B. 1402 directs the Nebraska State Treasurer to "establish a program to provide education scholarships to eligible students to pay the costs associated with attending a qualified school."^[1] It defines "[e]ducation scholarship" to mean "a financial grant-in-aid to be used to pay all or part of the cost to educate an eligible student attending a qualified school."^[2]And it defines "[q]ualified school" to mean "any nongovernmental, privately operated elementary or secondary school located in this state"^[3] that meets certain statutory criteria.

Section 1 of L.B. 1402 states, among other things, "It is the intent of the Legislature to appropriate ten million dollars from the General Fund for fiscal year 2024-25 and each fiscal year thereafter to the State Treasurer for the purpose of providing education scholarships as provided in this section."^[4] And it is undisputed that in a separate appropriations bill, the Legislature made an appropriation of $10 million "from the General Fund . . . to the State Treasurer" for fiscal year 2024-25 and for fiscal year 2025-26 "to aid in carrying out the provisions of Legislative Bill 1402."^[5] L.B. 1402 and L.B. 1402A were passed by the Legislature on April 18, 2024, and both were approved by the Governor on April 24.

Referendum Petition

On April 30, 2024, sponsors of the "Private Education Scholarship Partial Referendum" filed documentation with the Secretary of State for a referendum petition to be placed on the 2024 general election ballot. The stated object of the referendum petition is to "[r]epeal Section 1 of LB 1402, passed by the 108th Nebraska Legislature in 2024, which directs $10 million dollars [sic] annually for financial grants-in-aid for eligible students to attend a qualifying privately operated elementary or secondary school in Nebraska."

On or about July 17, 2024, the sponsors submitted signatures to the Secretary of State for verification and certification. It is undisputed that after verifying and counting the signatures the Secretary of State determined the signature requirements were met for the referendum petition to be placed on the 2024 general election ballot. And although the record contains no express determination by the Secretary of State that the referendum has met constitutional and statutory requirements, and no express finding that the referendum petition is valid and sufficient,^[6] the parties agree that such determinations and findings are implicit in the Secretary of State's decision to place the measure on the 2024 general election ballot.

Verified Petition for Writ of Mandamus

On September 5, 2024, Relator filed an application for leave to commence an original action in this court, accompanied by a verified petition for writ of mandamus. Relator's verified petition avers that her daughter currently attends a private high school in Omaha, Nebraska, and that if the referendum petition is placed on the general election ballot it "could jeopardize the future of Nebraska students, including her daughter or those like her, by eliminating crucial support and funding necessary for their education."

Relator's verified petition alleges the Secretary of State has a "clear duty to withhold legally insufficient and unconstitutional measures from the ballot" and further avers the referendum petition is legally insufficient because it violates article III, § 3, of the Nebraska Constitution.

As we discuss in more detail later in the opinion, article III, § 3, of the Nebraska Constitution provides that the power of referendum "may be invoked, by petition, against any act or part of an act of the Legislature, except those making appropriations for the expense of the state government or a state institution existing at the time of the passage of such act." Relator's verified petition avers that the referendum petition violates article III, § 3, because "Section 1 of LB 1402 appropriates funds for the education of Nebraska students in kindergarten through twelfth grade." Relator's verified petition seeks issuance of a writ of mandamus requiring the Secretary of State to withhold the referendum petition from the 2024 general election ballot or, in the alternative, to "abstain from certifying the election results of the proposed referendum."

Attached to Relator's verified petition are true and correct copies of (1) the sponsors' sworn statement regarding the referendum petition at issue; (2) § 1 of L.B. 1402, as well as L.B. 1402A; and (3) a press release from the Secretary of State dated August 30, 2024, which states the referendum "will qualify for the general election ballot once verification and certification has been completed."

On September 6, 2024, we granted Relator's motion for leave to commence an original mandamus action in this court, and we ordered expedited service, expedited briefing, and expedited oral argument. In a separate order, also dated September 6, 2024, we directed Relator to show cause why the verified petition for writ of mandamus should not be denied on the ground it is legally insufficient to support such relief.

On September 9, 2024, the referendum sponsors moved for leave to...