City of Fremont v. Kotas

781 N.W.2d 456, 279 Neb. 720
CourtNebraska Supreme Court
DecidedApril 23, 2010
DocketS-09-448
StatusPublished
Cited by95 cases

This text of 781 N.W.2d 456 (City of Fremont v. Kotas) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Fremont v. Kotas, 781 N.W.2d 456, 279 Neb. 720 (Neb. 2010).

Opinion

781 N.W.2d 456 (2010)
279 Neb. 720

CITY OF FREMONT, Nebraska, appellant,
v.
Wanda KOTAS et al., appellees.

No. S-09-448.

Supreme Court of Nebraska.

April 23, 2010.

*458 J.L. Spray and Stephen D. Mossman, Lincoln, of Mattson, Ricketts, Davies, Stewart & Calkins, and Dean Skokan, Fremont City Attorney, for appellant.

Kris W. Kobach, Immigration Reform Law Institute, University of Missouri-Kansas City School of Law, for appellees.

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

WRIGHT, J.

NATURE OF CASE

The defendants, Wanda Kotas, Jerry Hart, and John Wiegert, circulated a city initiative petition (Measure) which sought to enact an ordinance that would prohibit the harboring and hiring of illegal aliens in the City of Fremont. Fremont filed for declaratory relief on the grounds that the *459 Measure was unconstitutional and violated the single subject rule.

The district court dismissed Fremont's first cause of action, granted the defendants' motion for summary judgment on the second cause of action, and concluded that the Measure should be put before the electors of Fremont during a special election. Fremont appeals.

SCOPE OF REVIEW

Aside from factual findings, which are reviewed for clear error, the granting of a motion to dismiss for lack of subject matter jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(1) is subject to de novo review. Leach v. Dahm, 277 Neb. 452, 763 N.W.2d 83 (2009).

In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence. Johnson v. Anderson, 278 Neb. 500, 771 N.W.2d 565 (2009).

FACTS

The defendants circulated a petition proposing a Measure that would make it unlawful for any person or business entity in Fremont to knowingly or recklessly lease or rent property to an illegal alien unless expressly permitted by federal law. The Measure would require tenants and occupants to obtain an occupancy license from the Fremont Police Department prior to occupying any leased or rented dwelling unit. The Fremont Police Department would be required to contact the federal government to determine whether each potential occupant is lawfully present in the country. Additionally, all businesses in Fremont would be required to register with the "E-Verify Program."

The defendants filed completed petitions in support of the Measure with the Fremont city clerk on February 23, 2009. On March 11, Fremont filed for declaratory judgment with the Dodge County District Court pursuant to Neb.Rev.Stat. § 18-2538 (Reissue 2007). Fremont's amended complaint, filed March 23, alleged Fremont lacked the requisite authority to enact the proposed Measure because it violated the Supremacy Clause of the U.S. Constitution and was preempted by federal law. Fremont also alleged that the Measure was improper because it contained more than one subject.

The defendants moved to dismiss the first cause of action pursuant to § 6-1112(b)(1) and (6), and moved for summary judgment with respect to the second cause of action.

Relying on our decision in Stewart v. Advanced Gaming Tech., 272 Neb. 471, 723 N.W.2d 65 (2006), the district court held that substantive constitutional challenges are not justiciable before an initiative is approved by the voters. It dismissed Fremont's first cause of action. The court granted the defendants' motion for summary judgment on the second cause of action, concluding that even though the Measure addressed both housing and employment, it had only one general subject—the regulation of illegal aliens in Fremont—and therefore did not violate the single subject rule. Fremont appeals, and we affirm.

ASSIGNMENTS OF ERROR

Fremont alleges, combined and restated, that the district court erred in finding that it lacked subject matter jurisdiction and in failing to find that the Measure contained multiple subjects, in violation of the single subject rule.

*460 ANALYSIS

PREELECTION DECLARATORY JUDGMENT

Fremont first challenges the district court's finding that it lacked subject matter jurisdiction because the Measure is not justiciable until after voters approve it. Essentially, the issue is whether § 18-2538 authorizes preelection judicial review of substantive challenges to municipal initiatives. Statutory interpretation presents a question of law, which an appellate court decides independently of the determination made by the lower court. In re Interest of Elias L., 277 Neb. 1023, 767 N.W.2d 98 (2009).

The right to an initiative vote to enact laws independent of the Legislature is the first power reserved by the people in the Nebraska Constitution. See Neb. Const. art. III, § 2. The Legislature provides for initiatives and referendums for municipal subdivisions in chapter 18, article 25, of the Nebraska Revised Statutes. See Neb.Rev. Stat. §§ 18-2501 through 18-2538 (Reissue 2007). An initiative or referendum may be used to enact a "[m]easure," defined as "an ordinance, charter provision, or resolution which is within the legislative authority of the governing body of a municipal subdivision to pass, and which is not excluded from the operation of referendum by the exceptions in section 18-2528." § 18-2506.

Circulators may seek to enact a measure via initiative by soliciting signatures for an initiative petition. See § 18-2503. If the circulators collect enough signatures, the municipal subdivision's governing body must consider passage of the measure. See §§ 18-2524 and 18-2525. If the governing body does not pass the measure, it is put before the voters. It must be put on the ballot at the next scheduled primary or general election if the petition receives signatures from at least 15 percent of the qualified electors. See § 18-2524. If the petition requests a special election and received signatures from at least 20 percent of the qualified electors, the measure must be put before the voters in a special election. See § 18-2525.

After an initiative petition is filed, "[t]he municipality or any chief petitioner may seek a declaratory judgment 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." § 18-2538. If an action for declaratory judgment is brought under § 18-2538, such action is governed generally by the Uniform Declaratory Judgments Act, Neb.Rev.Stat. §§ 25-21,149 to 25-21,164 (Reissue 2008). See § 18-2538.

In the case at bar, the defendants collected 3,343 valid signatures, which was in excess of 20 percent of the qualified electors in Fremont. The circulated petition also called for the initiative to be referred to the voters at a special election.

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Bluebook (online)
781 N.W.2d 456, 279 Neb. 720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-fremont-v-kotas-neb-2010.