State ex rel. Loontjer v. Gale

853 N.W.2d 494

State of Nebraska ex rel. Patricia A. Loontjer, relator

v.Honorable John A. Gale, Secretary of State of the State of Nebraska, respondent.

No. S–14–684

Supreme Court of Nebraska.

Filed September 5, 2014

L. Steven Grasz and Mark D. Hill, of Husch Blackwell, L.L.P., Omaha, for relator.

Jon Bruning, Attorney General, L. Jay Bartel, and Lynn A. Melson, Lincoln, for respondent.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Courts: Justiciable Issues.Ripeness is a justiciability doctrine that courts consider in determining whether they may properly decide a controversy.

2. Courts.The fundamental principle of ripeness is that courts should avoid entangling themselves, through premature adjudication, in abstract disagreements based on contingent future events that may not occur at all or may not occur as anticipated.

3. Constitutional Law: Initiative and Referendum: Justiciable Issues.Because the outcome of an election is a contingent future event, a challenge that a proposed ballot measure will violate the substantive provisions of the U.S. or Nebraska Constitution does not present a justiciable controversy. It is not ripe for judicial determination because the voters might vote to reject the measure.

4. Constitutional Law: Initiative and Referendum.A claim that a proposed ballot measure violates a constitutional or statutory rule that governs the form of the measure or the procedural requirements for its placement on the ballot is a challenge to the legal sufficiency of a ballot measure. Such challenges are ripe for resolution before an election.

5. Constitutional Law: Initiative and Referendum: Justiciable Issues.An alleged separate-vote violation under Neb. Const. art. XVI, § 1, challenges a

ballot measure's legal sufficiency and presents a justiciable controversy before an election.

6. Constitutional Law: Initiative and Referendum: Public Officers and Employees.The Secretary of State's statutory duties to provide the ballot form for the Legislature's proposed constitutional amendments and to certify its contents, coupled with his duties to supervise elections and decide disputed points of election laws, clearly require the Secretary to consider whether a proposed amendment complies with the separate-vote provision of Neb. Const. art. XVI, § 1.

7. Public Officers and Employees: Statutes.Power vested in a governmental body or officer carries with it the implied power to do what is necessary to accomplish an express statutory duty, absent any other law that restrains the implied power.

8. Constitutional Law: Initiative and Referendum: Legislature: Public Officers and Employees.The Secretary of State cannot determine the substantive merits of the Legislature's proposed constitutional amendment. But in a legal sufficiency challenge, he has a duty to reject a proposed amendment as legally defective for failing to satisfy form and procedural requirements. There is no requirement that the proposed amendment be “patently unconstitutional on its face” before the Secretary must act.

9. Constitutional Law: Initiative and Referendum: Legislature.The Legislature's independent proposals to amend the constitution must be presented to the voters for a separate vote even if they are proposed in a single resolution.

10. Constitutional Law: Legislature.The constitutional requirements for legislative bills do not apply to the Legislature's proposed amendments.

11. Constitutional Law: Initiative and Referendum.The “single subject” rule that applies to legislative bills under Neb. Const. art. III, § 14, does not apply to ballot measures for constitutional amendments.

12. Constitutional Law.It is a fundamental principle of constitutional interpretation that each and every clause within a constitution has been inserted for a useful purpose.

13. Constitutional Law: Initiative and Referendum: Legislature.The single subject rule for voter initiatives and the separate-vote provision for the Legislature's proposed amendments should be construed as imposing the same ballot requirements: A voter initiative or a legislatively proposed constitutional amendment may not contain two or more distinct subjects for voter approval in a single vote.

14. Constitutional Law: Administrative Law: Initiative and Referendum.The natural and necessary connection test that applies to proposed amendments for city charters and municipal ballot measures also applies to the single subject requirement for voter initiatives under Neb. Const. art. III, § 2, and the separate-vote provision of Neb. Const. art. XVI, § 1.15. Initiative and Referendum.Under a single subject ballot requirement, the general subject of a proposed ballot measure is defined by its primary purpose.

16. Initiative and Referendum.Without a unifying purpose, separate proposals in a ballot measure necessarily present independent and distinct proposals that require a separate vote.

17. Constitutional Law: Jurisdiction: Declaratory Judgments: Appeal and Error.When a party has invoked the Nebraska Supreme Court's original jurisdiction under one of the causes of action specified in Neb. Const. art. V, § 2, the court may exercise its authority to grant requested declaratory relief under the Uniform Declaratory Judgments Act or injunctive relief.

18. Mandamus.A court issues a writ of mandamus only when (1) the relator has a clear right to the relief sought, (2) a corresponding clear duty exists for the respondent to perform the act, and (3) no other plain and adequate remedy is available in the ordinary course of law.

Connolly, J.

I. SUMMARY

In April 2014, the Legislature passed L.R. 41CA,¹ a resolution to amend the Nebraska Constitution. Neb. Const. art. III, § 24, generally prohibits the Legislature from authorizing games of chance, but it contains an exception for live horseracing under specified conditions. L.R. 41 CA would amend article III, § 24(4)(a), in two ways. First, it would permit wagering on “replayed” horseraces in addition to wagering on live horseraces. Second, it would specify how the Legislature must appropriate the proceeds from a tax placed on wagering for both live and replayed horseraces.

Secretary of State John A. Gale, respondent, denied a request to withhold the proposed amendment from the November 2014 general election ballot. The Secretary determined that the amendment was not facially invalid under the “separate-vote” provision of Neb. Const. art. XVI, § 1. After that, Patricia A. Loontjer, relator, applied for leave to

commence an original action in this court to keep the proposed amendment off the ballot. We granted the petition and expedited the proceeding.

We exercise original jurisdiction under Neb. Const. art. V, § 2, because this is a cause of action relating to revenue, in which the State has a direct interest, and because Loontjer has requested a writ of mandamus.² We hold as follows:

• We conclude that an alleged violation of the separate-vote provision of Neb. Const. art. XVI, § 1, presents a preelection justiciable issue for a proposed constitutional amendment.

• We also conclude that the separate-vote provision requires the Legislature to present constitutional amendments to voters in a manner that allows them to vote separately on distinct and independent subjects.

• Finally, because L.R. 41CA violates the separate-vote provision, we conclude that article XVI, § 1, bars its placement on the November 2014 general election ballot.

II. BACKGROUND

1. Legislative Efforts to Authorize Wagering on Replayed Horseraces

Neb. Const. art. III, § 24 (1), states that “[e]xcept as provided in this section, the Legislature shall not authorize any game of chance....” Section 24 (2) specifically authorizes the state lottery. And § 24 (4) provides that the games-of-chance prohibition does not apply to wagering on live horseraces and specified bingo games. Subsection (4)(a) relates to horseracing. It currently authorizes the Legislature to enact “laws providing for the licensing and regulation of wagering on the results of horseraces, wherever run, either within or outside the state, by the parimutuel method, when such wagering is conducted by licensees within a licensed racetrack enclosure.”

Article III, § 24, does not define “parimutuel” betting. Generally, it is a gambling system in which the bettor has

a stake in all wagers placed on a race in proportion to the money that the bettor waged.³ Section 2–1207 allows a licensee to deduct a percentage from all wagers placed on a race and divide the remaining pool among those holding winning tickets. The Legislature has authorized parimutuel betting on live horseraces at enclosed, licensed racetracks. The race can be conducted at that track or simulcast from another licensed track.⁴ In 1988, the voters adopted an amendment to article III, § 24, to permit wagering on “horseraces, wherever run, either within or outside of the state, ... when such wagering is conducted by licensees within a licensed racetrack enclosure.”⁵

In 2010, three senators introduced a bill to authorize the State Racing Commission to “license and regulate parimutuel wagering on historic horseraces.”⁶ In the bill's statement of intent, the introducer stated that the bill would provide “an additional mode of horse race wagering inside the premises of a licensed horse racetrack” by allowing the operators to “install and operate Instant Racing Terminals.”⁷ But the Attorney General's office issued an opinion that this court would likely determine the bill was unconstitutional under article III, § 24.⁸

The Attorney General's office concluded that historical horseracing referred to a patented wagering system that was discussed by the Wyoming Supreme Court in a 2006 decision. That court held that instant racing parimutuel wagering terminals were illegal gambling devices and that the Wyoming Pari-mutuel Commission had no power to authorize them.⁹ The

Nebraska Attorney General's office explained the new wagering system:

The

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