State v. Gale

734 N.W.2d 290

273 Neb. 889

STATE of Nebraska ex rel. Harland H. JOHNSON et al., Appellants, v. Honorable John A. GALE, Secretary of State of the State of Nebraska, et al., Appellees.

No. S-06-224.

Supreme Court of Nebraska.

July 6, 2007.

Alan E. Peterson, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellants.

Jon Bruning, Attorney General, Charles E. Lowe, and Dale A. Comer, Lincoln, for appellees.

L. Steven Grasz, of Blackwell, Sanders, Peper & Martin, L.L.P., and Donald B. Stenberg, of Erickson & Sederstrom, P.C., Omaha, for amici curiae U.S. Term Limits, Inc., and Don't Touch Term Limits-Nebraska.

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and CARLSON, Judge.

PER CURIAM.

I. NATURE OF CASE

This is a mandamus and declaratory judgment action filed by voters wishing to reelect three state legislators whose 2005 candidate filings for placement on the ballot were rejected by the Secretary of State, John A. Gale. Gale rejected the filings because he determined the legislators were ineligible to serve a third consecutive term under Neb. Const. art. III, § 12. This term limits section was added to the state Constitution when voters approved Initiative 415 at the general election on November 7, 2000.

Appellants claim that § 12 must be read to disqualify only incumbent legislators halfway through their second term. They contend that § 12 therefore unnecessarily burdens the right of voters to choose among political candidates because challengers to second-term legislators do not face this risk. Appellants also contend that § 12 denies them equal protection under the law because first-term legislators are not disqualified halfway through their term. The State claims that § 12 does not prevent an incumbent legislator from serving a full second term.

The district court agreed with the State's interpretation of § 12 and accordingly denied appellants' requests for (1) a declaration that § 12 infringes upon their federal constitutional rights and (2) a peremptory writ of mandamus requiring Gale to revoke his decision that the legislators were disqualified from seeking another term of office. We affirm.

II. CONSTITUTIONAL PROVISION

Neb. Const. art. III, § 12, provides:

(1) No person shall be eligible to serve as a member of the Legislature for four years next after the expiration of two consecutive terms regardless of the district represented.

(2) Service prior to January 1, 2001, as a member of the Legislature shall not be counted for the purpose of calculating consecutive terms in subsection (1) of this section.

(3) For the purpose of this section, service in office for more than one-half of a term shall be deemed service for a term.

III. BACKGROUND

In November 2005, Senators Dennis Byars, Marian L. Price, and Ernie Chambers submitted to Gale candidate filings for reelection. Byars and Price asked to be placed on the primary ballot in 2006; Chambers asked to be placed on the primary ballot in 2008. Byars and Price were first elected to the Legislature in 1998 and reelected in 2002. Chambers was first sworn in on January 5, 1971, and was reelected to consecutive terms thereafter, including reelections in 2000 and 2004. Also in November, Gale rejected all three filings because he determined the legislators were ineligible to serve another consecutive term.

In December 2005, appellants, who are registered voters in the districts represented by Byars, Price, and Chambers, filed this action. They asked for an alternative writ of mandamus requiring Gale to revoke his decision or to show cause for his failure to do so. In addition, they asked for (1) a peremptory writ of mandamus after the court had considered the evidence¹ and (2) a declaration that article III, § 12, violated their constitutional rights under the 1st and 14th Amendments to the U.S. Constitution. Appellants named Byars, Price, and Chambers as necessary parties, and the legislators later asked to be aligned with appellants.

1. APPELLANTS' ALLEGATIONS

Appellants alleged that Gale had exceeded his authority and violated their First Amendment rights of free speech and free association under the U.S. Constitution— to vote for the representative of their choice—by enforcing article III, § 12. They further alleged that their senators had been unconstitutionally denied their right to run for office and unconstitutionally placed at risk of being found ineligible to serve before the end of their 4-year terms.

Appellants' allegations centered on subsections (1) and (3) of § 12. They alleged that when read together, these subsections disqualify any representative after he or she has served more than half of a second 4-year term. Because Byars and Price had served more than half of their 2002 terms when the complaint was filed in December 2005, appellants alleged that these senators were presently subject to disqualification. Appellants claimed the plain language of the statute would require political appointees to complete the second term of any incumbent representative. Although Gale had accepted Byars' and Price's filings to seek 4-year terms in 2002, appellants alleged that this fact showed Gale had inconsistently and discriminatorily applied § 12.

Appellants also alleged that Gale had denied them equal protection of the law. They claimed the district court could not save § 12 by construing it in a "nonliteral" manner because to do so would deny Byars and Price equal protection of the law. That is, Gale had already determined that Byars and Price had served more than half of a term between January 2001 and January 2003, so applying the law any differently for other senators would present an equal protection problem. Appellants further alleged that voters in Chambers' district would be particularly injured by losing an effective representative for the only non-Caucasian majority district in the state.

2. SECRETARY OF STATE'S RESPONSE

The court issued an alternative writ of mandamus. In Gale's answer and response, he alleged that because article III, § 12, did not define the word "term," it must be read in conjunction with article III, § 7. Section 7 provides that "all members shall be elected for a term of four years." When so read, Gale alleged that subsection (1) of § 12 provides that no person may serve more than two consecutive 4-year terms and that subsection (3) only clarifies whether a legislator's service at the expiration of a 4-year term counts as a "full term" in determining whether the legislator is disqualified from serving a third term.

3. APPELLANTS' POSITION AT SHOW CAUSE HEARING

At the show cause hearing, appellants specified they were not claiming that § 12 was racially discriminatory. They also conceded that challenges to term limits had failed in other jurisdictions. But they argued they were not claiming term limits were inherently unconstitutional—only that Nebraska's term limits were unconstitutional because of the way § 12 was drafted. Appellants agreed with the district court's statement that if it decided § 12 did not make legislators ineligible to continue after they had been in office for more than half of their second term, then their argument failed.

4. DISTRICT COURT'S ORDER

In a written order, the district court concluded that § 12 could be interpreted as disqualifying a senator after 6 years only if subsection (3) altered the meaning of a "term" for purposes of term limits. The court declined to interpret subsection (3) to be inconsistent with the 4-year definition of a term provided in article III, § 7. It reasoned that subsection (3) addressed, in part, circumstances requiring a political appointment to fill a vacancy in the Nebraska Unicameral. The court concluded that subsection (3) was intended to resolve whether "a term counts in computing consecutive terms, and not to determine how long a term lasts. . . . It is only by torturing the plain language of the amendment that it could mean anything else."

IV. ASSIGNMENTS OF ERROR

Appellants assign, restated, that the district court erred in (1) concluding that subsection (3) of article III, § 12, does not modify and qualify the meaning of "term" in subsection (1); (2) failing to find that article III, § 12, is unconstitutional on its face and as applied; (3) failing to find that Gale is construing and enforcing § 12 in a manner inconsistent with its plain language; (4) failing to reach the issue of whether voters in Chambers' district, in particular, were denied their First Amendment and equal protection rights, and to decide this issue in favor of appellants; and (5) failing to grant appellants' requested order for a peremptory writ of mandamus and declaratory judgment.

V. STANDARD OF REVIEW

Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary course of law.²

When a declaratory judgment action presents a question of law, an appellate court has an obligation to reach its conclusion independently of the conclusion reached by the trial court with regard to that question.³

Here, whether the district court properly denied a peremptory writ of mandamus and declaratory relief turns upon the meaning of article III, § 12, of the Nebraska Constitution. Constitutional interpretation presents a question of law.⁴

VI. ANALYSIS

The people have the power to amend the Nebraska Constitution by the initiative process pursuant to Neb. Const. art. III, § 2, which provides in part: "The first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted...