COURT DOCUMENT: Fremont response to motion to dismiss

This is the City of Fremont’s response to a motion to dismiss its case involving the petition initiative to hold a special election on a proposed ordinance dealing with illegal immigration.

The copy of this document was supplied by City Attorney Dean Skogan and was scanned electronically to publication on the Fremont Tribune’s Web site. All efforts have been made to correct any errors that may have been introduced during the scanning process.

IN THE DISTRICT COURT OF DODGE COUNTY, NEBRASKA

CITY OF FREMONT, NEBRASKA, Plaintiff

vs. WANDA KOTAS, JERRY HART, and JOHN WIEGERT, Defendants.

Case No. CI09-189

PLAINTIFF’S BRIEF IN OPPOSITION TO MOTION TO DISMISS

INTRODUCTION

This matter is before the Court on the Defendants/Petitioners’ Wanda Kotas, Jerry Hart and John Wiegert ("Petitioners") Motion to Dismiss.

Initially, it is important to recall that there are at least three basic types of initiative petitions authorized in Nebraska law. Initiative petitions to amend the State constitution and petitions to enact state statutes (Statewide Initiatives) are reserved to the people by Article III, Section 2 of the Nebraska Constitution. The procedures for the enactment of initiative measures are generally governed by Chapter 32, Article 14, R.R.S. Petitions to enact local laws (Municipal Initiatives) are governed by Chapter 18, Article 25 R.R.S. There are various other initiatives as well, such as sales tax initiatives, which are not at issue here.

There are significant differences in the statutes controlling the various initiative processes. Important to this case, in statewide initiatives, the Secretary of State may refuse to file some initiative petitions, §32-1405 R.R.S. and may refuse to place other initiative measures on ballot, §32 1412 R.R.S.; State ex rel. Brant v. Beermann, 217 Neb. 632, (1984). The remedy in such cases, set out in §34-1212(1) R.R.S. is an application for a Writ of Mandamus which may be brought by "any resident." In contrast, a City Clerk reviews only the form of a proposed initiative, §18-2512 R.R.S., and is given no discretion to refuse to accept or file an initiative which is in proper form, and has no statutory authority to refuse to place an initiative on the ballot. By statute, only a chief petitioner or the municipality is given standing to "seek a declaratory judgment action regarding any questions arising under Chapter 18, article 25 ... including whether a measure may be enacted by initiative." (§18-2538).

In evaluating the relevance of prior court decisions, it is important to first consider the type of initiative which is being litigated as well as the time frame of the prior decision. The statutes and even the constitutional provisions have been amended and it is important to consider any precedent in accordance with the law existing at the time. For example, the single subject rule for municipal initiatives discussed in some older cases, e.g. Munch v. Tusa, 140 Neb. 457 (1941), was not directly included in the Nebraska Constitution until the amendment of Art. Ill, §2 in 1998. Similarly, the statutes establishing the municipal initiative process were first written in 1982 through the passage of LB 807, and §18-2538 was enacted in 1984 through the passage of LB 1010. Before the enactment of these statutes, municipal Initiative procedures were "a hodge-podge scattered all over the statute books". Introducer’s statement. Urban Affairs Committee February 3, 1982. The power reserved to the people for a statewide initiative, on the other hand, dates back to 1912.

The Petitioners’ arguments rest heavily, almost exclusively, on Stewart v. Advanced Gaming Technologies, Inc., 272 Neb. 471 (2006). That reliance is misplaced. Stewart dealt with a statewide initiative to enact state statutes legalizing video keno. Such statewide initiatives are specifically authorized by Art. Ill, § 2 of the Nebraska Constitution, and governed by Sections 32-1401 through 32-1417 R.R.S. Neb. (the "Statewide Initiative Statutes"). The Petitioners attempt to "bootstrap" the statutory findings of Stewart into constitutional dictates applicable to all initiatives. Notwithstanding that attempt, there is no citation of authority, and there is no authority, which will stand for the proposition that municipal initiatives are governed or regulated by the Art. Ill, § 2 or the Statewide Initiative Statutes used by the Court to decide Stewart. Municipal initiatives are independent and separate and are governed by §18-2501 through 18-2538 (the "Municipal Initiative Statutes").

ARGUMENT

I. THE DISTRICT COURT HAS SUBJECT MATTER JURISDICTION TO

DETERMINE PLAINTIFF’S FIRST CAUSE OF ACTION

A. Petitioners’ Arguments to Dismiss Plaintiff’s First Cause of Action are Governed by Neb.Ct.R.Pldg. 12(b)(l)

The Petitioners’ premise their Motion to Dismiss the First Cause of Action in Plaintiffs Amended Complaint pursuant to Neb.Ct.R.Pldg. 12(b)(l) on the grounds of subject matter jurisdiction. "Subject matter jurisdiction is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject matter involved." State v. Thomas, 268 Neb. 570, 584, (2004). Essentially, the Petitioners claim that issues raised in the First Cause of Action are not justiciable. All doctrines of justiciability - including standing, mootness, ripeness, and political question - are legal principles that arise out of prudential considerations of the proper role of the judiciary in democratic government. Nebraska Coalition/or Educational Equity and Adequacy v. Heineman, 273 Neb. 531, 546 (2007). However, the issues raised in the First Cause of Action are properly justiciable through a statute that is part and parcel of the Municipal Initiative Statutes which grant the Petitioners the right to petition for a municipal ordinance in the first place. Thus, this Court clearly possesses subject matter jurisdiction over Plaintiffs First Cause of Action.

B. The Municipal Initiative Statutes Clearly Allow Pre-EIection Judicial Review

The language of § 18-253 8 is controlling. It provides:

18-2538 Declaratory judgment; procedure; effect.

The municipality or any chief petitioner may seek a declaratory judgment regarding any questions arising under Chapter 18, article 25, as it may be from time to time amended, including, but not limited to, determining whether a measure is subject to referendum or limited referendum or whether a measure may be enacted by initiative. If a chief petitioner seeks a declaratory judgment, the municipality shall be served as provided in section 25-510.02. If the municipality seeks a declaratory judgment, only the chief petitioner or chief petitioners shall be required to be served. Any action brought for declaratory judgment for purposes of determining whether a measure is subject to limited referendum or referendum, or whether a measure may be enacted by initiative, may be filed in the district court at any time after the filing of a referendum or initiative petition with the city clerk for signature verification until forty days from the date the governing body received notification pursuant to section 18-2518. If the municipality does not bring an action for declaratory judgment to determine whether the measure is subject to limited referendum or referendum, or whether the measure may be enacted by initiative until after it has received notification pursuant to section 18-2518, it shall be required to proceed with the initiative or referendum election in accordance with sections 18-2501 to 18-2537 and this section. If the municipality does file such an action prior to receiving notification pursuant to section 18-2518, it shall not be required to proceed to hold such election until a final decision has been rendered in the action. Any action for a declaratory judgment shall be governed generally by sections 25-21,149 to 25-21,164, as amended from time to time, except that only the municipality and each chief petitioner shall be required to be made parties. The municipality, city clerk, governing body, or any of the municipality’s officers shall be entitled to rely on any order rendered by the court in any such proceeding. Any action brought for declaratory judgment pursuant to this section shall be given priority in scheduling hearings and in disposition as determined by the court. When an action is brought to determine whether the measure is subject to limited referendum or referendum, or whether a measure may be enacted by initiative, a decision shall be rendered by the court no later than five days prior to the election. The provisions of this section relating to declaratory judgments shall not be construed as limiting, but construed as supplemental and additional to other rights and remedies conferred by law.

Obviously, there are significant differences in the municipal and statewide initiative procedures. For example, neither Art. Ill, § 2 nor the Statewide Initiative Statutes contain a time limit for gathering signatures, but §18-2518(2) limits the time for municipal initiatives to six months. Statewide initiatives for enactment of a state statute require seven percent of the registered voters of the State (Art. Ill, § 2), but municipal initiatives require verified signatures of at least twenty percent of the qualified electors of a municipal subdivision. (§18-2518) Additionally, the Court in Stewart initially discussed the Constitutional Resubmission Clause in Art. Ill, § 2, yet municipal initiatives are subject to different, non-constitutional restrictions in §18-2519. Finally, circulators of a Statewide initiative are required to submit a "sworn statement listing the names and addresses of the sponsors", Loontjer v. Robinson, 266, Neb. 502 (2003), there is no corresponding requirement in the municipal initiative statutes. If Petitioner’s assertions that Art. Ill, § 2 applies to municipal initiatives are correct nearly all of Chapter 18, Article 25 is unconstitutional.

To the extent that Stewart contradicts the statutory procedures set forth in the municipal initiative statutes it is simply not valid precedent.

In considering Stewart, it should also be noted that the Court did not specifically overrule Brant v. Beermann, 217 Neb. 632 (1984), a statewide initiative case in which the court upheld a pre-election determination by the Secretary of State as to the validity and constitutionality of a proposed initiative. The Court held that the Secretary of State could refuse to file a proposed initiative that was, on its face, invalid or unconstitutional. Brant at 637. Brant has been cited with approval as recently as 2006 in Nebraska, State ex rel. Lemon v. Gale, 111 Neb. 295 (2006), and in five other states: Alaska, Yute Air Alaska, inc., Et al., Appellants, v. Stephen A. Mcalpine, Lieutenant Governor of the State of Alaska, et al.. Appellees. 698 P.2d 1173 (Alaska 1985); California, Nancy Bramberg et al.. Petitioners, v. Bill Jones, as Secretary of State, etc., Respondent, 978 P.2d 1240 (Cal. 1999); Oklahoma, In re Initiative Petition No. 364, 930 P.2d 186 (Okla. 1996); Tennessee, City of Memphis v. Shelby County Election Com’n., 146 S.W.3d 531 (Term. 2004); and Washington, Philadelphia IIv. Gregoire, 128 Wn.2d 707 (1996) (other citations omitted).

It is also important to note that the Petitioners themselves chose the municipal initiative process. The petition is entitled "City Initiative Petition." In the cover letter submitted to the City Clerk, The Chief Petitioners state "In accordance with Nebraska Revised Statute 18-2512 et. seq., we the undersigned submit the ordinance we propose to the voters..." (emphasis added). Whether the Petitioners chose the Chapter 18 Article 25 process or determined it was the only option provided in the statutes, that selection carries with it a certain legal framework, in this case, the Municipal Initiative Statutes.

In the Petitioners’ Brief, (Section 1B, pp. 5-9) it is asserted that the Declaratory Judgment provisions in §18-2538 permit only an examination of the measure to determine that it is not excluded by §18-2528. That is simply not the case. Quoting from Petitioners’ Brief (p 5) "Section 18-2538 R.R.S. provides for pre-election review regarding any questions arising under Chapter 18 article 25,... including, but not limited to determining whether a measure is subject to referendum or limited referendum or whether a measure may be enacted by initiative." Petitioners then leap to a discussion of the exclusions of §18-2528. This discussion completely misses the point of the City’s case. The City does not contend that the justicibile issue in this case lies in §18-2528, but rather in §18-2506 which defines a measure as "an ordinance, charter provision, or resolution which is within the authority of the governing body of a municipal subdivision to pass..." The City contends that it lacks the authority to enact the measure proposed by the initiative. That is the question arising under Chapter 18 article 25, which the City seeks to litigate here, and it is a question that the Court has the jurisdiction to consider and resolve.

Petitioners allege in their brief that the opinion sought by the City is an advisory opinion, barred by the separation of powers doctrine. This is not the case. Declaratory judgments may be said to be an exception to the prohibitions against advisory opinions. The Nebraska Supreme Court has held that, A declaratory judgment is by definition forward-looking, for it provides "‘preemptive justice’ designed to relieve a party of uncertainty before the wrong has actually been committed or the damage suffered." Barelmann v. Fox, 239 Neb. 771,788 (1992). In addition, "the function of a declaratory judgment is to determine justiciable controversies which either are not yet ripe for adjudication by conventional forms of remedy or, for other reasons, are not conveniently amenable to the usual remedies." Ryder Truck Rental, Inc. v. Rollins, 246 Neb. 250,257 (1994).

There are few prior cases involving the Municipal Initiative Statutes. The analysis in Judge Wright’s dissenting opinion, joined by Justice Gerrard, in Sydow v. City of Grand Island, 263, Neb. 389 (2002), is essentially the clearest statement of the City’s case. The gist of Justice Wright’s dissenting opinion is that the initial question is whether the City has the authority to enact the measure. If, in Justice Wright’s view, the City lacks the authority to enact the measure, the number of signatures is irrelevant, and the issue should not be placed before the voters. As the leading municipal law treatise, McQuillin, Municipal Corporations, has stated, "Generally, ordinances or measures that are unconstitutional or void or beyond the power or authority of a municipality to enact, are not subject to initiative or referendum." McQuillin, Municipal Corporation, 3Ed. Section 16:53, p. 396. (Emphasis added).

Justice Wright’s reasoning is borne out by the legislative history of the Municipal Initiative Statutes. §§18-2501 - 2537 were enacted by LB 807, (1982). Prior to the passage of LB 807, municipal initiative and referendum procedures varied according to the size of the city, the nature of the change sought and other factors. During legislative deliberations. Senators were repeatedly told that the bill corrected a hodge-podge of statutes and provided a uniform procedure for dealing with such matters. See e.g., Introducers Statement of Purpose; Testimony before Urban Affairs Committee, February 3,1982. Plaintiff asserts that §18-2501 - 2538, are precisely what they purport to be, a unique group of statutes controlling municipal initiative and referendum petitions. They are separate from and independent of statutes governing statewide initiative and referendum processes. It is important to note that § 18-2538, the section which allows for pre-election review of municipal petitions was not a part of LB 807 (1982) it was added two years later in LB 1010 (1984). The legislative history of LB 1010 (1984) is instructive. In the Introducer’s Statement of Intent, a written statement filed by the Senator introducing LB101, Senator Landis wrote that one of the purposes of the bill was to "Clarify court jurisdiction relating to a declaratory judgment by the petitioners of (sic) the municipality and provide for specific provisions relating to such declaratory judgment." Senator Landis’ testimony before the committee was more direct. In defining me purposes of the bill he stated "It clarifies court jurisdiction relating to declaratory judgments and permits courts to rule, as a matter of fact, encourages courts to rule on whether or not an election should be held..." A clearer statement of legislative intent is hard to imagine.

Given such clear evidence of legislative intent, Plaintiff asserts that the Court should "place a sensible construction upon a statute to effectuate the object of the legislation, as opposed to a literal meaning that would have the effect of defeating the legislative intent." Keller v. Tavarone, 265 Neb. 236 (2003), see also: Metro Movers v. Egr, 264 Neb. 291 (2002). A court must place on a statute a reasonable construction which best achieves me statute’s purpose, rather than a construction which would defeat the statute’s purpose. Premium Farms v. County of Holt, 263 Neb. 415 (2002). A sensible construction will be placed upon a statute to effectuate the object of the legislation rather than a literal meaning that would have the effect of defeating the legislative intent. Fontenelle Equip, v. Pattlen Enters., 262 Neb. 129 (2001).

For these reasons, the Court should overrule the Petitioners’ Motion to Dismiss the First Cause of Action brought pursuant to Neb.Ct-R.Pldg. 12(b)(l)

II. PLAINTIFF’S SECOND CAUSE OF ACTION STATES A CLAIM UPON WHICH RELIEF CAN BE GRANTED; THE MATTER SHOULD PROCEED TO TRIAL.

A. Petitioners’ Arguments Exceed the Scope of Neb. Ct. R. Pidg. § 6-1112 (b)(6).

As an initial matter, the Petitioners have styled their Motion to Dismiss Plaintiff’s Amended Complaint as being pursuant to Neb. Ct. R. Pidg. §§ 6-112 (b)(l) and 6-112 (b)(6). The Petitioners’ Brief appears to argue that the First Cause of Action in Plaintiffs Amended Complaint should be dismissed pursuant to Neb. Ct. R. Pidg. §§6-112 (b)(l) as not subject to pre-election judicial review. However, it appears the argument regarding the Second Cause of Action is limited to Neb. Ct. R. Pidg. § 6-112 (b)(6) - that the Second Cause of Action fails to state a claim upon which relief can be granted.

Under that standard, the Petitioners’ arguments well exceed this Court’s initial determination. A Neb. Ct. R. Pidg. § 6-112 (b)(6) motion tests the legal sufficiency of the complaint, not the complaint’s substantive merits. Ferrer v. Erickson, Sederstrom, 272 Neb. 113 (2006). Therefore, a Court may look only at the face of the complaint to decide a motion to dismiss. Id. Dismissal under Neb. Ct. R. Pidg. § 6-112 (b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Spear T Ranch v. Knaub, 269 Neb. 177 (2005).

Finally, the Petitioners’ styling of their Motion to Dismiss the Second Cause of Action as "incorrect as a matter of law" finds no support in the Nebraska case law interpreting Neb. Ct. R. Pldg.§ 6-1112(b)(6).

Based upon the face of the Second Cause of Action in Plaintiffs Amended Complaint, this is not such an unusual case and the Petitioners’ arguments go well beyond the legal sufficiency of the Amended Complaint. The Second Cause of Action should be allowed to be tried to this Court.

B. The Petitioners Are Simply Wrong to Argue that the Single Subject Standard Here is That Found in Art. Ill, § 2 of the Nebraska Constitution.

As argued above, the single subject argument made by the Petitioners is premised incorrectly on the assumption that this initiative measure was proposed pursuant to Art. Ill, § 2 of the Nebraska Constitution.

By its clear terms. Neb. Const. Art. Ill, § 2 is limited to statewide amendments to Nebraska statutes and the Nebraska Constitution. This is clear from the text of Art. Ill, § 2 which states, "The first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted by the people independently of the Legislature." (Emphasis Added).

Art. Ill, § 2 sets the percentage of registered voters required to sign an initiative as being those voters "of the State". Art. Ill, § 2 further places restrictions on the ability for the Legislature to amend, repeal, modify or impair laws passed through the initiative. Therefore, the entire argument regarding the distinctions between the single subject standard for initiative measures and measures adopted by the Legislature is irrelevant. Both the Colorado Supreme Court and a California Appeals Court have held that the single subject rules in the Colorado and California Constitutions do not control municipal initiatives. See, Bruce v. City of Colorado Springs, 200 P.3d 1140 (Col. 2008); Hernandez v. County of Los Angeles, 84 Cal. Rptr. 3d 10 (Cal. App. 2d Dist. 2008). Instead of the Nebraska Constitutional single subject restriction, what the Plaintiffs Amended Complaint alleges is a Nebraska common law standard enunciated by the Nebraska Supreme Court in two cases.

C. The Second Cause of Action States A Claim for Relief Under Drummond and Munch.

The Nebraska Supreme Court has discussed and laid down the standard for a single subject rule to be applied to municipal initiatives in two pronouncements: Drummond v. City of Columbus, 136 Neb. 87 (1939) and Munch v. Tusa, 140 Neb. 457 (1941).

In Drummond, a taxpayer in the City of Columbus brought an action to enjoin the City from issuing bonds that were part of a proposal passed by election based upon a petition for special election filed with the City Clerk. The questions submitted to the voters involved the construction, purchase or acquiring of an electric light and power distribution system and/or transmission lines by Columbus as well as the issuance of revenue bonds. After the election was held, Drummond filed suit to enjoin Columbus from issuing the bonds. Of importance here is the allegations in Drummond’s Petition that the resolution was "insufficient, indefinite, confusing, ambiguous and drawn in such a matter as to leave to the determination of the city council whether distribution systems should be constructed, purchased or otherwise acquired..." Id. at 89.

The opinion by the Nebraska Supreme Court focused exclusively on the language of the resolution. The Court relied on decisions from the Kansas Supreme Court including Leavenworth v. Wilson, 76 P. 400 (1904). Paraphrasing Leavenworth, the Court held that the case stood for the proposition that "the ballot should clearly state the substance of the proposition submitted, and if the proposition on the ballot is stated in equivocal terms the purpose of the election is vitiated in advance." Id. at 97.

In adopting a single subject rule for municipal petition measures in Drummond, the Nebraska Supreme Court held:

The question of the accuracy and sufficiency of the statements made in the preamble of the petition which the voters were asked to sign, as well as the form and contents of the ballot submitted to the electors at the special election, have all been fairly raised and carefully considered. In our opinion, these instruments did not fully, clearly, and frankly disclose to the electors just what the city officials proposed to do, and action has been brought for relief in this case. In our opinion, the petition and the ballot presented statements of facts which were unfounded, and the voters relied upon these statements in casting their ballots. The propositions presented to the voters were multiple and obscure, and were not fairly and candidly stated, the voters would be confused upon the propositions submitted. Id. at 99.

Relying on the standard, the Court concluded that since there was more than a simple question submitted to the voters, the special election was so defective that it was null and void.

Munch, supra, dealt with a proceeding to enjoin the election commissioner from placing a proposal to amend the home rule charter of the City of Omaha on the ballot. The Omaha City Council passed the proposed charter revision to be placed on the general election ballot. Munch’s petition alleged that the proposed ordinance contained a dual proposition and was invalid as an impairment on the rights of Plaintiff’s to have their causes submitted separately. Again relying on common law, the Nebraska Supreme Court discussed the requirement regarding a single subject for a proposal to be submitted to the voters. In laying out the standard, the Court held:

The rule followed by a majority of American jurisdictions is to the effect that where the limits of a proposed law, having natural and necessary connection with each other, and, together, are a part of one general subject, the proposal is a single and not a dual proposition. 140 Neb. at 463.

While the Nebraska Supreme Court discussed the Drummond case in Munch, it did not comment on the continued applicability of the Drummond holding. Ultimately, the Nebraska Supreme Court found that the proposed Omaha charter revision did not contain dual propositions and therefore dissolved the injunction granted by the District Court. In doing so, the explicitly rejected the argument that the consideration of whether a municipal measure contains more than one subject should not be determined before an election. Specifically, the Court held:

While the appellants contend that equity cannot enjoin a matter which has not taken a concrete form and over which no controversy exists, the answer of the appellees is that the proposition to be submitted was dual in character and would, therefore, come under the rule: To enjoin elections, as set forth in Solomon v. Fleming, 34 Neb. 40, 51 N.W. 304, and in 18 Am.Jur. 254, § 117, which states: "Most of the courts, while conceding that the holding of elections is a political matter, not ordinarily cognizable by a court of equity, hold that were a proposed election is to be held on a question *** and the ordinance or statute under which it is to be held is void, or the election is without apparent authority of law, equity will enjoin the holding of such election upon the ground of an unlawful expenditure of public funds." Id. 465-466.

The Petitioners here do not appear to dispute that the single subject challenge should be decided prior to any election being held on the municipal initiative measure. Indeed, given the controversy this measure has engendered and the almost certainty that the City of Fremont will be sued if the measure is passed, this case is a perfect example of avoiding an unlawful expenditure of public funds.

Under either the standard enunciated in Drummond or the standard enunciated in Munch, the Second Cause of Action in the Amended Complaint states a claim upon which relief can be granted. The Second Cause of Action is legally sufficient and therefore should proceed to trial on the merits.

CONCLUSION

For the reasons set forth herein. Plaintiff respectfully requests the Court overrule in its entirety Petitioners’ Motion to Dismiss.