State ex rel. Loontjer v. Gale

288 Neb. 973

• Court: Nebraska Supreme Court
• Decided: September 5, 2014
• Docket: S-14-684
• Status: Published

Opinion

Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 973 Cite as 288 Neb. 973

lead to absurd results. Due to their failure to fulfill a condition precedent, the Webers were effectively in no different posi- tion during the 2010 season than the area farmers who had no contract at all with North Loup. It cannot be assumed that the Legislature intended to impose criminal liability on persons who refuse to deliver water to those who have no right to receive it. We conclude that the district court did not err in determining that North Loup was entitled to judgment as a matter of law with respect to the Webers’ claims.

V. CONCLUSION For the reasons discussed, we affirm the judgment of the district court. Affirmed.

State of Nebraska ex rel. Patricia A. Loontjer, relator, v. Honorable John A. Gale, Secretary of State of the State of Nebraska, respondent. ___ N.W.2d ___

Filed September 5, 2014. No. S-14-684.

1. Courts: Justiciable Issues. Ripeness is a justiciability doctrine that courts con- sider in determining whether they may properly decide a controversy. 2. Courts. The fundamental principle of ripeness is that courts should avoid entan- gling 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 chal- lenge 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 Nebraska Advance Sheets 974 288 NEBRASKA REPORTS

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 pro- posed 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 use- ful purpose. 13. Constitutional Law: Initiative and Referendum: Legislature. The sin- gle 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. Cont. art. XVI, § 1. 15. Initiative and Referendum. Under a single subject ballot requirement, the gen- eral subject of a proposed ballot measure is defined by its primary purpose. 16. ____. Without a unifying purpose, separate proposals in a ballot measure neces- sarily present independent and distinct proposals that require a separate vote. Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 975 Cite as 288 Neb. 973

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.

Original action. Writ of mandamus granted. L. Steven Grasz and Mark D. Hill, of Husch Blackwell, L.L.P., for relator. Jon Bruning, Attorney General, L. Jay Bartel, and Lynn A. Melson for respondent. Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ. Connolly, J. I. SUMMARY In April 2014, the Legislature passed L.R. 41CA,1 a reso- lution 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 horserac- ing under specified conditions. L.R. 41CA would amend article III, § 24(4)(a), in two ways. First, it would permit wager- ing 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 deter- mined 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

1 See 2014 Neb. Laws, L.R. 41CA. Nebraska Advance Sheets 976 288 NEBRASKA REPORTS

commence an original action in this court to keep the pro- posed 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: •  e conclude that an alleged violation of the separate-vote W provision of Neb. Const. art. XVI, § 1, presents a preelection justiciable issue for a proposed constitutional amendment. •  e also conclude that the separate-vote provision requires W the Legislature to present constitutional amendments to vot- ers in a manner that allows them to vote separately on dis- tinct and independent subjects. •  inally, because L.R. 41CA violates the separate-vote provi- F sion, 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 R eplayed Horseraces Neb. Const. art. III, § 24(1), states that “[e]xcept as provided in this section, the Legislature shall not autho- rize 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

2 See, State ex rel. Stenberg v. Moore, 253 Neb. 535, 571 N.W.2d 317 (1997); State ex rel. Douglas v. Gradwohl, 194 Neb. 745, 235 N.W.2d 854 (1975); Anderson v. Herrington, 169 Neb. 391, 99 N.W.2d 621 (1959). Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 977 Cite as 288 Neb. 973

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 amend- ment 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 prem- ises 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 deci- sion. 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

3 See, Neb. Rev. Stat. § 2-1207 (Reissue 2012); State ex rel. Stenberg v. Omaha Expo. & Racing, 263 Neb. 991, 644 N.W.2d 563 (2002). 4 See Neb. Rev. Stat. §§ 2-1224(2) and 2-1225(7) (Reissue 2012). 5 See 1988 Neb. Laws, L.R. 15. 6 See L.B. 1102, Judiciary Committee, 101st Leg., 2d Sess. (Jan. 21, 2010). 7 See Introducer’s Statement of Intent, L.B. 1102, Judiciary Committee, 101st Leg., 2d Sess. (Feb. 10, 2010). 8 Att’y Gen. Op. No. 10009 (Mar. 29, 2010). 9 See Wyoming Downs Rodeo Events, LLC v. State, 134 P.3d 1223 (Wyo. 2006). Nebraska Advance Sheets 978 288 NEBRASKA REPORTS

Nebraska Attorney General’s office explained the new wager- ing system: The “Instant Racing” system allows bettors to wager on the results of previously run or “historic” races through electronic “Instant Racing Terminals” [“IRTs”]. The machines reportedly can access over 200,000 historic races. Wagers are made by coin or currency. Players can utilize [a] limited Daily Racing Form [for] past per­ formance data (i.e. winning percentages, average earn- ings per start, trainer and jockey success, etc.) provided in graphic form before making their selections. The data is provided in such a way that bettors cannot identify the exact race. The machines contain a video screen which allows bettors to view the entire race after plac- ing their wagers, or only a short clip of the stretch run of the race. . . . Unlike most parimutuel wagering, where many wagers are made on a single race, Instant Racing involves wagers on many different races. Winners receive gradu- ated payoffs based on their correct selection of the order of finish. Payoffs are also determined by timing - the bet- tor who hits first receives the highest payoff. In appearance and operation, IRTs resemble slot machines or video lottery devices. The “bells and whis- tles” associated with slot machines or video lottery devices are all present (except for the pull-handle).10 The Attorney General’s office concluded that wagering through instant racing terminals (IRT’s) was inconsistent with the type of wagering allowed under article III, § 24. The opin- ion pointed out that § 24 allows bettors to wager on simulcast horseraces from another state, but not on races conducted at another time. Ultimately, the office concluded that because of the similarity between IRT’s and slot machines, this court would probably agree with the Wyoming Supreme Court that IRT’s were impermissible gambling devices. After this opinion

10 Att’y Gen. Op. No. 10009, supra note 8. Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 979 Cite as 288 Neb. 973

was issued, the historic horseracing bill was indefinitely post- poned in April 2010.11 In January 2013, Senator Scott Lautenbaugh introduced L.R. 41CA, the current proposed constitutional amendment to article III, § 24(4).12 In his statement of intent, Senator Lautenbaugh stated that the proposed measure, together with a bill he was also introducing, would ensure the use of IRT’s at horseracing facilities in Nebraska. The IRT’s, as an additional mode of wagering on horseracing, would provide revenue to the state and its licensed racetracks.13 L.R. 41CA would expand the type of wagering the Legislature can authorize to include “live or replayed” horseraces. Originally, the resolution did not appropriate any new or existing tax revenues.14 Instead, the taxes and appropriations of tax revenues were set out in L.B. 590,15 the bill that accompanied L.R. 41CA. Currently, the Legislature places a tax on parimutuel wager- ing. Neb. Rev. Stat. § 2-1209 (Reissue 2012) authorizes the State Racing Commission to pay its own expenses and staff compensation out of these revenues first. It also requires the Commission to maintain a reserve fund that does not exceed 10 percent of the funds used for the commission’s expenses. And any excess funds must be credited to the state’s gen- eral fund.16 If it had passed, L.B. 590 would have immediately autho- rized the installation of IRT’s. It would not have changed the existing tax scheme, but it would have imposed a separate and new tax on historical horseracing wagers. After paying admin- istrative expenses, one-half of the new tax revenues would

11 See Legislative Journal, 101st Leg., 2d Sess. 1229, 1467 (2010). 12 See Legislative Journal, 103d Leg., 1st Sess. 280-81 (2013). 13 See Introducer’s Statement of Intent, L.R. 41CA, General Affairs Committee, 103d Leg., 1st Sess. (Feb. 11, 2013). 14 See Legislative Journal, supra note 12. 15 See L.B. 590, General Affairs Committee, 103d Leg., 1st Sess. (Jan. 23, 2013). 16 See § 2-1209. Nebraska Advance Sheets 980 288 NEBRASKA REPORTS

have been paid to the State Racing Commission’s cash fund for equine therapy programs (for veterans and youths). The other half would have been credited to the Compulsive Gamblers Assistance Fund.17 After contentious floor debates, L.B. 590 was indefi- nitely postponed at Senator Lautenbaugh’s request.18 But the Legislature advanced L.R. 41CA to the select file19 and car- ried it over to the next session.20 In March 2014, Senator Lautenbaugh filed an amendment to L.R. 41CA.21 Amendment 1910 included appropriations for all proceeds from taxes on “wagering by the parimutuel method.”22 Similar to the appro- priation schemes under the current statutes and the unsuc- cessful L.B. 590, the proposed new appropriations under the amendment would require “regulatory expenses” to be paid first from the tax revenues.23 But unlike the proposed new tax and appropriations under L.B. 590, amendment 1910 does not limit its proposed new appropriations to tax revenues from only historical horseracing wagers. Instead, amendment 1910 would also change the way that existing tax revenues from live horseracing wagers must be appropriated. That is, those rev- enues would not be used to maintain a reserve fund, and excess funds would not be credited to the state’s general fund. In April 2014, L.R. 41CA, as modified by amendment 1910, passed by the required three-fifths majority of the Legislature.24 The final version would amend article III, § 24, as follows: (4)(a) Nothing in this section shall be construed to pro- hibit (a) the enactment of laws providing for the licens- ing and regulation of wagering on the results of live or

17 See L.B. 590, General Affairs Committee, 103d Leg., 1st Sess. (Jan. 23, 2013). 18 See Legislative Journal, supra note 12, 1st Sess. 652, 684. 19 See id. at 683-84, 716-18. 20 See Legislative Journal, 103d Leg., 2d Sess. 2, 69 (2014). 21 See id. at 757. 22 Id. 23 Id. 24 See id. at 1428-29. Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 981 Cite as 288 Neb. 973

replayed horseraces, wherever run, either within or out- side of the state, by the parimutuel method, when such wagering is conducted by licensees within a licensed racetrack enclosure. The state’s proceeds from a tax placed on wagering by the parimutuel method shall be appropriated by the Legislature for the costs of regulating wagering by the parimutuel method and for the follow- ing purposes: (i) Forty-nine percent of the money remaining after the payment of regulatory expenses shall be used for elemen- tary and secondary education statewide; (ii) Forty-nine percent of the money remaining after the payment of regulatory expenses shall be used to reduce property taxes statewide; and (iii) Two percent of the money remaining after the pay- ment of regulatory expenses shall be transferred to the Compulsive Gamblers Assistance Fund.25 Section 2 of L.R. 41CA requires the resolution to be submit- ted to the electors with the following ballot language: A constitutional amendment to provide for enactment of laws providing for licensing and regulation of wager- ing on live or replayed horseraces, wherever run, either within or outside of the state, by the parimutuel method, when such wagering is conducted by licensees within a licensed racetrack enclosure, and to require appropriation of certain parimutuel taxes for regulation of parimutuel wagering, for education, for property tax relief, and for the Compulsive Gamblers Assistance Fund. For Against26 2. Laws and Facts R elevant to R elator’s Challenge to P roposed Amendment Neb. Const. art. XVI, § 1, governs the procedure by which the Legislature may propose amendments to the constitution. Generally, a proposed amendment must be published and

25 2014 Neb. Laws, L.R. 41CA. 26 See id., § 2. Nebraska Advance Sheets 982 288 NEBRASKA REPORTS

submitted to the electorate on a separate ballot for approval or rejection at the next general election or at a special elec- tion if called for by a four-fifths vote of the Legislature. And under the separate-vote provision, “[w]hen two or more amendments are submitted at the same election, they shall be so submitted as to enable the electors to vote on each amend- ment separately.”27 In addition, except for special elections, Neb. Rev. Stat. § 49-202.01(1) (Reissue 2010) imposes a statutory require- ment: The Executive Board of the Legislative Counsel must submit to the Secretary a clear, concise statement explaining the effect of a vote for or against a proposed constitutional amendment. The board must submit this statement 4 months before the general election at which the voters will decide whether to amend the constitution, and the statement must pre- cede the proposed amendment on the ballot. Under Neb. Rev. Stat. § 32-801 (Reissue 2008), the Secretary must certify the contents of a statewide ballot 50 days before a primary or gen- eral election. Here, the parties stipulated that the general elec- tion takes place on November 4, 2014, and that the certification date falls on September 12, 2014. They also stipulated that the Executive Board of the Legislative Council submitted the following statement to pre- cede the proposed amendment: A vote FOR this constitutional amendment would authorize the Legislature to enact laws providing for licensing and regulation of wagering on live or replayed horseraces, wherever run, either within or outside of the state, by the pari-mutuel method, when such wagering is conducted by licensees within a licensed racetrack enclo- sure and require appropriation of certain parimutuel taxes for regulation of parimutuel wagering, for education, for property tax relief, and for the Compulsive Gamblers Assistance Fund. A vote AGAINST this constitutional amendment would not change existing provisions on wagering on the results of horseraces.

27 See Neb. Const. art. XVI, § 1. Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 983 Cite as 288 Neb. 973

3. Secretary R ejects Challenge In July 2014, Loontjer’s counsel in this action asked the Secretary to exercise his authority to review the legal suf- ficiency of the proposed amendment. He contended in part that the measure violated the separate-vote provision of article XVI, § 1. He argued that L.R. 41CA presented at least two amendments: one that authorizes a new type of gambling on replayed horseraces, and one that directs tax revenues from new and currently authorized wagering to be used for property tax relief and education funding. He argued that some vot- ers who strongly opposed the new form of gambling might strongly support redirecting existing tax revenues on pari- mutuel wagering to property tax relief. He argued that the Legislature was unconstitutionally presenting two separate and independent changes to the constitution for voters to approve or reject in a single vote. And he contended that the Secretary could decide a challenge to the legal sufficiency or facial con- stitutionality of a proposed amendment before submitting it to the electorate. In a memorandum dated July 22, 2014, the Secretary denied Loontjer’s counsel’s request. He stated that this court’s deci- sions have held that challenges to the substantive constitution- ality of a proposed ballot issue are not ripe for deciding before an election. But he recognized that the Secretary can decide, before an election, whether a ballot measure is legally suffi- cient. He concluded that the challenge of whether the proposed amendment violated the separate-vote provision was a chal- lenge to the legal sufficiency of the ballot measure. But the Secretary noted that unlike Nebraska’s statutes gov- erning voter-initiated ballot measures, no statutes gave him the authority to address, before an election, the legal sufficiency of the Legislature’s proposed constitutional amendments. Relying on a 1996 opinion from the Attorney General’s office,28 the Secretary concluded that this lack of statutory authority meant he could address constitutional defects in the Legislature’s proposed amendments only if they were patently clear from the face of the petition.

28 See Att’y Gen. Op. No. 96005 (Jan. 8, 1996). Nebraska Advance Sheets 984 288 NEBRASKA REPORTS

The Secretary agreed that article XVI, § 1, is intended to prevent logrolling, which he described as the practice of entic- ing voters to vote for a proposition by combining a popular measure with a dissimilar measure and requiring voters to vote for or against the entire package. And the Secretary recognized that to constitute a single subject matter, the provisions of a proposed law must have a natural and necessary connection. But he concluded that our case law provided no clear answer as to whether L.R. 41CA satisfied the natural and necessary test. Because he believed our case law supported reasonable pro and con arguments to that question, he concluded that L.R. 41CA was not “patently unconstitutional on its face.” The Secretary stated that he would place the proposed amendment on the November 2014 general election ballot “‘unless restrained from doing so by the Courts.’” III. ANALYSIS 1. Justiciability [1,2] Challenges to proposed ballot measures present an initial issue of ripeness, and we have not previously decided whether a separate-vote challenge can be decided before an election. Ripeness is a justiciability doctrine that courts con- sider in determining whether they may properly decide a controversy.29 The fundamental principle of ripeness is that courts should avoid entangling themselves, through prema- ture adjudication, in abstract disagreements based on contin- gent future events that may not occur at all or may not occur as anticipated.30 [3,4] 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.31 In contrast, a claim that a

29 Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008). 30 Id. 31 See Duggan v. Beermann, 249 Neb. 411, 544 N.W.2d 68 (1996). Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 985 Cite as 288 Neb. 973

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.32 Such challenges are ripe for resolution before an election.33 For example, in State ex rel. Lemon v. Gale,34 we decided a preelection challenge that two voter-initiated ballot measures to amend the constitution violated the resubmission clause of article III, § 2. The resubmission clause is a constitutional limitation on voter-initiated ballot measures, which clause prohibits the electorate from resubmitting the “same measure, either in form or in essential substance” more than once in 3 years. In State ex rel. Lemon, one ballot measure would have authorized casino gambling; the other would have required the Legislature to appropriate tax revenues from casino gambling for kindergarten through 12th grade education. The Secretary concluded that the measures were so similar to voter-initiated measures submitted to the electorate 2 years earlier that they violated the resubmission clause. He refused to place them on the ballot. In a mandamus action, the district court con- cluded that the casino measure was not barred by the constitu- tion. On appeal, we held that the resubmission clause barred both measures. In deciding that the controversy was justiciable, we explained that we were not deciding whether the measure would “violate one or more substantive provisions of the state or federal Constitution.”35 Instead, the issue was “whether the measure is legally sufficient to be submitted to the vot- ers” under the resubmission clause.36 And we relied, in part, on two concurring opinions in an earlier decision that had

32 See, State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 347 (2006); Lootnjer v. Robinson, 266 Neb. 902, 670 N.W.2d 301 (2003); Duggan, supra note 31. 33 See id. 34 State ex rel. Lemon, supra note 32. 35 Id. at 302, 721 N.W.2d at 355. 36 Id. Nebraska Advance Sheets 986 288 NEBRASKA REPORTS

concluded an alleged violation of the single subject require- ment for voter-initiated measures presents a preelection jus- ticiable issue.37 We implicitly concluded that the rules were similar in their restrictions of content or form. That is, under these rules, a ballot measure’s contents are considered only to determine whether it complies with the separate-vote require- ment, regardless of the measure’s subject matter. The issue is not whether the proposed measure’s provisions violate sub- stantive constitutional law.38 [5] Contrary to the Secretary’s position, State ex rel. Lemon is not distinguishable because it governs voter-initiated bal- lot measures. Like the resubmission clause of article III, § 2, the separate-vote provision of article XVI, § 1, is not focused on whether a proposed constitutional amendment would violate substantive constitutional laws—such as the Equal Protection Clause or a prohibition against the impairment of contracts. Instead, regardless of the measure’s subject matter, the ­eparate-vote provision prohibits a ballot measure from s being presented to the voters unless its form requirements are satisfied. The provision is directed at the manner of holding the election itself. We conclude that an alleged separate-vote violation challenges a ballot measure’s legal sufficiency and presents a justiciable controversy before an election.

2. Secretary Has Authority to R eview the Legal Sufficiency of the Legislature’s P roposed Constitutional Amendments Even for Defects That Are Not Obvious The Secretary contends that unlike his statutory duty to determine the legal sufficiency of voter-initiated bal- lot meas­ res, he has no clear statutory authority to review u the legal sufficiency of the Legislature’s proposed consti- tutional amendments. So he contends that the invalidity or

37 See Lootnjer, supra note 32 (Hendry, C.J., concurring in result) (Wright, J., concurring; Gerrard, J., joins). 38 See Stewart v. Advanced Gaming Tech., 272 Neb. 471, 723 N.W.2d 65 (2006). Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 987 Cite as 288 Neb. 973

unconstitutionality of the Legislature’s proposed constitu- tional amendments must be “‘patently’ clear.” We disagree that a heightened standard for legal defects applies. First, the Secretary relies on our 1984 decision State ex rel. Brant v. Beermann39 to support his argument that the invalidity of a proposed ballot measure must be patently clear on its face before he can review its validity. In that case, we considered a voter-initiated ballot measure. We set out a rule of facial invalidity and provided an example of a facially invalid proposal: Unless the subject of the proposed petition on its face is invalid or unconstitutional, [the Secretary] cannot pass upon the validity or construction of any proposed law, when the proposed petition is presented for filing pursu- ant to § 32-704. An example of the Secretary of State’s determining the validity of an initiative measure would be found in an initiative petition proposing a statutory aboli- tion of a constitutional office.40 Relying on this language, the Attorney General’s office deter- mined in 1996 that the Secretary had authority to reject a ballot measure only for obvious constitutional defects.41 But the example we cited in State ex rel. Brant shows that we assumed the Secretary could reject a proposed ballot measure for its substantive constitutional defects. To limit the substantive challenges that the Secretary could address, we set out narrowing principles, including the one above. In 1996, however, we held in Duggan v. Beerman42 that a substantive challenge to a proposed ballot measure was not ripe for judicial decision before an election. So our implicit conclusion in State ex rel. Brant that the Secretary could only reject a proposed ballot measure for an obvious, substantive constitutional defect was abrogated by our later decision in Duggan.

39 State ex rel. Brant v. Beermann, 217 Neb. 632, 350 N.W.2d 18 (1984). 40 Id. at 637, 350 N.W.2d at 21. 41 See Att’y Gen. Op. No. 96005, supra note 28. 42 Duggan, supra note 31. Nebraska Advance Sheets 988 288 NEBRASKA REPORTS

Although in a couple of our cases we have repeated the “facial invalidity” requirement,43 we have never held that the Secretary cannot address a challenge to a ballot measure’s legal sufficiency unless the defect is obvious on the face of the measure. Such a requirement would be contrary to our reason- ing in State ex rel. Wieland v. Beermann.44 There, we held that the Secretary had a ministerial duty to review his own records to determine whether explanatory statements describing the proposed amendments were timely filed, to withhold propos- als that did not meet the filing deadline, and to supervise the conduct of general elections. We explained that the Secretary’s duty to act was not discretionary just because he needed to make factual determinations to carry out his statutory duties. We noted that the Secretary also must make inquiries to determine the sufficiency of signatures collected on initia- tive petitions. Our analysis in State ex rel. Wieland illustrates that a legal defect in a proposed ballot measure will frequently not be obvious. But if the Secretary has a duty to determine the legal sufficiency of a proposed ballot measure, the necessity of “[l]egal or factual determinations made at the outset of the inquiry” do not affect the nature of his duty.45 We conclude that State ex rel. Brant has no application to a challenge that a ballot measure is legally defective in its failure to comply with rules governing its form or procedural requirements. Next, the Secretary argues that chapter 32, article 14, of the Nebraska Revised Statutes more specifically authorizes him to review the legal sufficiency of voter-initiated ballot measures than does chapter 49, article 2, which governs constitutional amendments proposed by the Legislature. For example, the Secretary points to Neb. Rev. Stat. § 32-1409(3) (Reissue 2008), which gives him authority to “total the valid signa- tures and determine if constitutional and statutory requirements have been met.” While § 32-1409(3) supports the Secretary’s

43 See, Loontjer, supra note 32 (Wright, J., concurring; Gerrard, J., joins); Duggan, supra note 31. 44 State ex rel. Wieland v. Beermann, 246 Neb. 808, 523 N.W.2d 518 (1994). 45 Id. at 815, 523 N.W.2d at 524. Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 989 Cite as 288 Neb. 973

position that he has statutory authority to review voter initia- tives, that section is primarily aimed at rules governing the required signatures for voter-initiated ballot measures. And we have concluded that the Secretary’s authority to determine the legal sufficiency of ballot measures exceeds these types of defects.46 Moreover, the Secretary’s statutory authority to review voter-initiated ballot measures for their legal sufficiency is not as explicit as it was before 1995. As we noted in Duggan, the Legislature overhauled the election laws in January 1995.47 Before then, Neb. Rev. Stat. §§ 32-703.01 and 32-704(3) (Reissue 1993) explicitly required the Secretary to determine if an initiative was valid and sufficient. And no corresponding statute exists under the current voter initiative statutes at chap- ter 32, article 14. Instead, under Neb. Rev. Stat. § 32-1411 (Reissue 2008), the Secretary must place a measure on the ballot when it is “regularly and legally filed.” Under Neb. Rev. Stat. § 32-1412 (Reissue 2008), if the Secretary refuses to place the meas­ ure on the ballot, then any resident may apply for a writ of mandamus from the district court for Lancaster County. This statute assumes that the Secretary can reject an initia- tive for failing to satisfy rules governing its presentation to the voters, but it imposes no explicit duty to make this determination. Nonetheless, we held in State ex rel. Lemon that the Secretary had authority to determine whether a voter- initiated ballot meas­ re violated the resubmission clause under u the Constitution. It is true that we noted the Secretary’s authority to reject a proposed measure under § 32-1409(3). But more broadly, the Secretary’s authority is consistent with the Secretary’s duties under Neb. Rev. Stat. § 32-201 (Reissue 2008). Chapter 32, article 2, of the Nebraska Revised Statutes deals with the Secretary’s duties for the conduct of all statewide elections, and § 32-201 sets out his primary duty in that regard: “The Secretary of State shall decide disputed points of election

46 See State ex rel. Lemon, supra note 32. 47 See Duggan, supra note 31. Nebraska Advance Sheets 990 288 NEBRASKA REPORTS

law. The decisions shall have the force of law until changed by the courts.” And in State ex rel. Wieland, we stated that under Neb. Rev. Stat. §§ 32-1051 and 32-1052 (Reissue 1993), the Secretary had a clear statutory duty to “‘decide disputed points of election law,’” and to “‘supervise the conduct of primary and general elections in this state.’”48 Section 32-1051 is now § 32-201, and the Secretary’s duty to supervise elections is now found at Neb. Rev. Stat. § 32-202(1) (Reissue 2008). Although the statutes governing the Legislature’s proposed constitutional amendments are in chapter 49, article 2, of the Nebraska Revised Statutes, these provisions were also separate from the general election laws when we decided State ex rel. Wieland.49 And contrary to the Secretary’s argument, we find no reason to distinguish between his duties dealing with statutory deadlines and com- pliance with the separate-vote provision. Moreover, § 49-207 (Reissue 2010) requires the Secretary to provide the form for the ballot: Whenever at a session of the Legislature more than one amendment to the Constitution or proposition is sub- mitted to a vote of the people, it shall be the duty of the Secretary of State to provide the form of the ballots con- taining such propositions or proposed amendments, which are to be submitted to a vote of the people. . . . If more than one amendment to the Constitution or proposition is received at the same time, they shall be submitted in the order they were approved by the Legislature. It is true that part of § 49-207 clearly pertains to separate resolutions to amend the constitution. But the consecutive numbering required for separate proposals to amend the consti- tution does not negate the Secretary’s statutory duty to provide the form for all the Legislature’s proposed amendments. Additionally, § 32-801 requires the Secretary to certify the contents of all statewide ballots. His certification of proposed ballot measures would be meaningless if this duty carried no

48 State ex rel. Wieland, supra note 44, 246 Neb. at 816, 523 N.W.2d at 525. 49 See Neb. Rev. Stat. ch. 49, art. 2 (Reissue 1993). Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 991 Cite as 288 Neb. 973

responsibility to ensure that they satisfied legal requirements for their presentation to the voters. [6,7] Summed up, we conclude that the Secretary’s statu- tory 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 dis- puted points of election laws, clearly require him to consider whether a proposed amendment complies with the separate- vote provision. 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.50 So, the Secretary incorrectly argues that he lacks clear statutory authority to address the legal sufficiency of the Legislature’s proposed constitutional amendments before an election. He has authority to determine whether they meet form and procedural requirements. Accordingly, the Secretary also incorrectly concluded that because he lacked this author- ity, he can address such defects only if they are “‘patently’ clear” from the face of the petition. Instead, the standard that a challenger must satisfy to keep a voter-initiated amendment off the ballot should also be the standard that applies to the Legislature’s proposed amendments. Applying the same stan- dard to all proposed ballot measures is consistent with our holdings that under the Nebraska Constitution, the Legislature and electorate are coequal sources of legislation.51 [8] We hold that the Secretary cannot determine the sub- stantive 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 fail- ing to satisfy form and procedural requirements. There is no

50 See, e.g., Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010); L. J. Vontz Constr. Co. v. City of Alliance, 243 Neb. 334, 500 N.W.2d 173 (1993); 73 C.J.S. Public Administrative Law and Procedure § 109 (2004). 51 See, e.g., City of North Platte v. Tilgner, 282 Neb. 328, 803 N.W.2d 469 (2011); Stewart, supra note 38. Nebraska Advance Sheets 992 288 NEBRASKA REPORTS

requirement that the proposed amendment be “patently uncon- stitutional on its face” before the Secretary must act. Having determined the justiciability of the issue and the Secretary’s authority to determine whether a legislatively pro- posed amendment violates the separate-vote requirement, we turn to the meaning of that requirement.

3. Separate-Vote P rovision Imposes a Single Subject R equirement for the Legislature’s P roposed Amendments The separate-vote provision requires that “[w]hen two or more amendments are submitted at the same election, they shall be so submitted as to enable the electors to vote on each amendment separately.”52 Lootnjer contends that L.R. 41CA violates this requirement because voters cannot separately vote on its separate provisions, i.e., its proposed amendment to per- mit a new form of gambling and its proposed amendment to restrict the Legislature’s appropriation authority. By dissecting its appropriation requirements, Loontjer argues that L.R. 41CA presents several different proposals for the voters to decide and about which they could disagree. She contends that the separate-vote provision is akin to a single subject rule, which is intended to prohibit logrolling, and that L.R. 41CA fails to meet the “‘natural and necessary connection’” test for deter- mining whether a proposed measure presents a single subject for a single vote. The Secretary does not dispute that the separate-vote pro- vision constitutes a single subject rule for the Legislature’s proposed constitutional amendments. But he contends that L.R. 41CA pertains to only one general subject: parimutuel wagering on replayed horseraces. He contends that both pro- visions of L.R. 41CA—authorizing wagering on replayed horseraces and requiring parimutuel tax proceeds from wager- ing on horseraces to be used for property tax relief and kin- dergarten through 12th grade education—have a natural and necessary connection to the same subject matter.

52 See Neb. Const. art. XVI, § 1. Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 993 Cite as 288 Neb. 973

We agree with the parties that the separate-vote provision under article XVI, § 1, imposes the same requirements as the single subject provision under article III, § 2. But because we have not previously decided this issue, we take the time to explain our decision.

(a) Independent Subjects Must Be Separately Presented to Voters Under separate-vote provisions in state constitutions, courts have almost invariably characterized unrelated sub- ject matters within a single proposition as separate amend- ments that must be submitted to the voters separately.53 An early Wisconsin case influenced many other state courts. In State ex rel. Hudd v. Timme,54 the Wisconsin Supreme Court rejected an argument that any change to an existing constitu- tional provision and any new provision must be considered a separate amendment to be voted on separately in a ballot. It reasoned that if each provision of a single plan had to be sep- arately submitted to the voters and a crucial provision failed, the provisions that passed might be effectively defeated. It pointed out that in amendments under consideration, the proposals to change the legislative session from annual to biennial meetings was intimately connected to the provision to change a legislator’s tenure from 1 to 2 years. Otherwise, some legislators would have no duties. Voter approval of only one provision would be absurd, so the provisions should stand or fall together. Similarly, the proposed increase in legislators’ salaries, while not intimately connected to the session change, was sufficiently connected because the leg- islators’ duties would be enlarged. The court set forth the following rule: We think amendments to the constitution, which the [separate-vote provision] requires shall be submitted sep- arately, must be construed to mean amendments which have different objects and purposes in view. In order to

53 See Annot., 94 A.L.R. 1510 (1935). 54 State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N.W. 785 (1882). Nebraska Advance Sheets 994 288 NEBRASKA REPORTS

constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other. . . . [Legislators] are not compelled to submit as separate amendments the separate propositions necessary to accomplish a sin- gle purpose.55 And the Arizona Supreme Court pointed out in 1934 that numerous early state court decisions cited the Wisconsin case with approval.56 Agreeing with the Wisconsin court, it held that “‘to constitute more than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other.’”57 [9-11] This court has decided only one case under the separate-vote provision of article XVI, § 1. That decision was issued in 1889 when the separate-vote provision was found at Neb. Const. art. XV, § 1 (1875), and the Legislature had two houses. But In re Senate File No. 3158 established two impor- tant points that are relevant here. First, it illustrates that 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. However, the proposals under consideration were obviously contrary to each other, so the case does not give much guidance for determining independent subjects. Second, the court held that the consti- tutional requirements for legislative bills do not apply to the Legislature’s proposed amendments. Thus, the “single subject” rule that applies to legislative bills under article III, § 14, does not apply to ballot measures for constitutional amendments.

55 Id. at 336-37, 11 N.W. at 791. 56 See Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934). See, also, 94 A.L.R., supra note 53. 57 Kerby, supra note 56, 44 Ariz. at 217, 36 P.2d at 553. 58 In re Senate File No. 31, 25 Neb. 864, 41 N.W. 981 (1889). Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 995 Cite as 288 Neb. 973

(b) Single Subject Rule for Legislative Bills Does Not Apply to Proposed Amendments Other courts have held that the same standard that governs single subject rules for ballot measures also applies to separate- vote rules for constitutional amendments.59 Like single subject rules, a separate-vote provision is often said to be aimed at the practice of logrolling.60 We have said logrolling is the practice of combining dissimilar propositions into one proposed amend- ment so that voters must vote for or against the whole package even though they would have voted differently had the propo- sitions been submitted separately.61 It is sometimes described as including favored but unrelated propositions in a proposed amendment to ensure passage of a provision that might other- wise fail.62 As explained below, we conclude that under the Nebraska Constitution, the single subject rule for proposed voter ini- tiatives should be the same as the separate-vote rule for the Legislature’s proposed amendments. But consistent with our decision in In re Senate File No. 31, we conclude that the single subject rule for legislative enactments has no applica- tion here. That provision is found in article III, § 14, which provides that “[n]o bill shall contain more than one subject . . . .” We construe this requirement quite liberally: “If an act has but one general object, no matter how broad that object may be, and contains no matter not germaine thereto, and the

59 See, Andrews v. Governor of Maryland, 294 Md. 285, 449 A.2d 1144 (1982); Missourians to Protect Init. Proc. v. Blunt, 799 S.W.2d 824 (Mo. 1990); In re Initiative Petition No. 314, 625 P.2d 595 (Okla. 1980). 60 See, e.g., Kerby, supra note 56; Andrews, supra note 59; State ex rel. Clark v. State Canvassing Bd., 119 N.M. 12, 888 P.2d 458 (1995). 61 City of North Platte, supra note 51; City of Fremont v. Kotas, 279 Neb. 720, 781 N.W.2d 456 (2010), abrogated in part on other grounds, City of North Platte, supra note 51. 62 See, Advisory Opinion re Use of Marijuana, 132 So. 3d 786 (Fla. 2014); Carter v. Burson, 230 Ga. 511, 198 S.E.2d 151 (1973). Nebraska Advance Sheets 996 288 NEBRASKA REPORTS

title fairly expresses the subject of the bill, it does not violate Article III, section 14, of the Constitution.”63 But as Chief Justice Hendry pointed out in 2003, this court has previously recognized that a stricter standard should apply when considering the validity of a constitutional amendment, as distinguished from a legislative bill to enact or amend a statute.64 In State, ex rel. Hall, v. Cline,65 we held that the Legislature’s proposed amendment was not validly adopted when the Legislature followed a statute for publishing notice of the vote to amend, but the statutory requirements did not comply with the constitutional requirements for notice. In considering whether the Legislature had substantially com- plied with constitutional requirements, we stated that a court should “consider the seriousness of the business in which we are engaged. A legislative act may be amended or repealed at any succeeding session of the Legislature. A constitutional provision is intended to be a much more fixed and perma- nent thing.”66 Similarly, in Omaha Nat. Bank v. Spire,67 we stated that the significant difference between labeling an initiative petition as a proposed statute or constitutional amendment would obvi- ously affect whether a petition signer or voter would support the initiative: The differences between a law enacted by the initia- tive procedure and an amendment are obvious and great. While a law enacted by the initiative process may not be vetoed by the Governor of the state (article III, § 4), any law may later be repealed by the Legislature. An amend- ment to the Constitution, on the other hand, may not be repealed by the Legislature, but only by the people in a subsequent amendment to the Constitution.

63 Anderson v. Tiemann, 182 Neb. 393, 408-09, 155 N.W.2d 322, 332 (1967). 64 See Loontjer, supra note 32 (Hendry, C.J., concurring in result), quoting State, ex rel. Hall, v. Cline, 118 Neb. 150, 224 N.W. 6 (1929). 65 See State, ex rel. Hall, supra note 64. 66 Id. at 155, 224 N.W. at 8. 67 Omaha Nat. Bank v. Spire, 223 Neb. 209, 218-19, 389 N.W.2d 269, 276 (1986). Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 997 Cite as 288 Neb. 973

Like the labeling of an initiative petition, the separate-vote provision of article XVI, § 1, is a rule intended to avoid voter confusion when deciding whether to support a proposed change in the constitution. But more important, it is intended to prevent the practice of logrolling in amending the State’s fundamental law. Because constitutional amendments are difficult to change once enacted, we hold that the liberal single subject standard that applies to legislative bills under article III, § 14, does not apply to proposed constitutional amendments. We now turn to what that standard should be. 4. Natural and Necessary Test Applies to Separate-Vote P rovision

(a) History of Constitutional Amendments Shows Single Subject Requirements for Voter Initiatives Should Govern Legislature’s Proposed Amendments Article III, § 2, governs voter-initiated proposals for laws and constitutional amendments and imposes two form requirements that are relevant here: “The constitutional limitations as to the scope and subject matter of statutes enacted by the Legislature shall apply to those enacted by the initiative. Initiative meas­ ures shall contain only one subject.” In contrast, the separate- vote requirement of article XVI, § 1, for the Legislature’s proposals provides that “[w]hen two or more amendments are submitted at the same election, they shall be so submitted as to enable the electors to vote on each amendment separately.” But as explained, despite the different language of these provi- sions, single subject and separate-vote ballot rules are aimed at the same logrolling problem. This conclusion is supported by a 1998 amendment to article III, § 2. The requirement in article III, § 2, that voter-initiated stat- utes shall be governed by the same constitutional limitations on their scope and subject matter as statutes enacted by the Legislature has been part of the Constitution since 1912.68 So the single subject requirement that applies to legislative bills also applies to voter-initiated statutes.

68 See 1911 Neb. Laws, ch. 223, § 1A, p. 671. Nebraska Advance Sheets 998 288 NEBRASKA REPORTS

[12] But the second sentence of the quoted requirements for initiatives—i.e., that initiative measures shall contain only one subject—was adopted by the voters in 1998.69 Because it was added later, it necessarily implies a requirement that exceeds the requirement that the subject matter of initiatives shall be subject to the same requirements as legislative enactments. It is a fundamental principle of constitutional interpretation that each and every clause within a constitution has been inserted for a useful purpose.70 And the legislative history of the reso- lution proposing the amendment shows that it was intended to equalize the requirements for ballot measures proposed by the voters and constitutional amendments proposed by the Legislature. The amendment was apparently a response to two opinions from the Attorney General in 1995 and 1996.71 In short, the Attorney General concluded that we would probably apply the same test to all constitutional amendments—whether pro- posed by the Legislature or the voters—and that we would require a separate vote on its provisions unless they met the test for a single subject. But at that time, article III, § 2, did not explicitly include a separate-vote provision or a single subject provision. The committee hearing shows that senators were concerned about the potential for voter confusion and fraud in the initiative process. The amendment was intended to clarify that all ballot measures to enact or change laws or con- stitutional provisions, whether voter initiatives or legislatively proposed constitutional amendments, were subject to the same requirement of presenting only one subject to the electorate for a single vote.72 [13] In sum, our constitutional history and the opinions of other state courts support our conclusion that the single

69 See 1997 Neb. Laws, L.R. 32CA. 70 Banks v. Heineman, 286 Neb. 390, 837 N.W.2d 70 (2013). 71 See Att’y Gen. Ops. Nos. 95089 (Nov. 13, 1995) and 96005, supra note 28. 72 See Government, Military and Veterans Affairs Committee Hearing, L.R. 32CA, 95th Leg., 1st Sess. (Jan. 24, 1997). Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 999 Cite as 288 Neb. 973

subject rule for voter initiatives and the separate-vote provi- sion for the Legislature’s proposed amendments should be construed as imposing the same ballot requirements: A voter initiative or a legislatively proposed constitutional amend- ment may not contain two or more distinct subjects for voter approval in a single vote.

(b) Natural and Necessary Connection Test Applies to All Single Subject Ballot Requirements Our conclusion that all ballot measures for laws or consti- tutional amendments are limited by the requirement that they present only one subject matter to the voters does not end our analysis. We have never decided what test should apply for the single subject requirement under article III, § 2 (for voter- initiated proposals), or article XVI, § 1 (for the Legislature’s proposed amendments). But in Loontjer v. Robinson,73 three concurring justices opined that our decision in Munch v. Tusa74 should govern the single subject requirement. In Munch, we considered the validity of a proposed amend- ment to a city charter. We adopted a rule that courts have applied to state constitutional amendments. We cited a general rule providing that if the separate provisions of a proposed amendment are all “‘germane’” to the general subject matter, they may be submitted to the voters in a single vote.75 And we cited a case concluding that the controlling consideration is an amendment’s singleness of purpose and the relationship of the details to its general subject. We adopted the following test for the single subject requirement: “[W]here 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.”76

73 See Loontjer, supra note 32 (Hendry, C.J., concurring in result) (Wright, J., concurring; Gerrard, J., joins). 74 Munch v. Tusa, 140 Neb. 457, 300 N.W. 385 (1941). 75 Id. at 463, 300 N.W. at 389. 76 Id. Nebraska Advance Sheets 1000 288 NEBRASKA REPORTS

We have also applied a common-law single subject test to municipal voter initiatives: “The common-law single sub- ject rule of form that we adopted in Drummond [v. City of Columbus77] preserves the integrity of the municipal electoral process by invalidating proposed ordinances that require vot- ers to approve distinct and independent propositions . . . .”78 We reasoned that “if a proposed ballot measure combines two distinct proposals so that voters are compelled to vote for or against both when they might not do so if separate questions were submitted, then they cannot express a clear preference on both proposals.”79 We held that a proposed municipal ballot measure is invalid if it would (1) compel voters to vote for or against distinct propo- sitions in a single vote—when they might not do so if presented separately; (2) confuse voters on the issues they are asked to decide; or (3) create doubt as to what action they have authorized after the election.80 The first component of the test for municipal ballot meas­ ures reflects the prohibition against logrolling that is the primary purpose of the separate-vote provision. And we spe- cifically stated that “a municipal ballot measure with separate provisions does not violate the single subject rule if the provi- sions have a natural and necessary connection with each other and together are part of one general subject.”81 [14] It would be a strange result if we were more concerned about the integrity of municipal elections than state-wide votes to amend the fundamental law of Nebraska. And other courts agree that separate provisions in proposed constitutional amendments must be closely related in purpose to be presented

77 Drummond v. City of Columbus, 136 Neb. 87, 285 N.W. 109 (1939). 78 City of North Platte, supra note 51, 282 Neb. at 348, 803 N.W.2d at 486-87. 79 Id. at 349, 803 N.W.2d at 487. 80 Id. 81 Id. at 350, 803 N.W.2d at 487 (emphasis supplied), citing City of Fremont, supra note 61. Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 1001 Cite as 288 Neb. 973

to the electorate for a single vote.82 We conclude that 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 initia- tives under article III, § 2, and the separate-vote provision of article XVI, § 1. We turn to its application here. 5. Application of Natural and Necessary Connection Test To recap, Loontjer contends that L.R. 41CA violates the natural and necessary connection test because voters cannot separately vote on its separate provisions to permit a new form of gambling and to change the appropriation of taxes collected from parimutuel wagering. The Secretary contends that L.R. 41CA does not violate the natural and necessary connection test because its “broad, general subject matter” is parimutuel wagering on horseracing and all aspects of the amendment have a natural and necessary connection to this general subject matter.83 [15] Of course, whether a proposed amendment’s provisions deal with a single subject matter depends on how narrowly or broadly the subject matter is defined. But we reject the Secretary’s argument that the subject matter of L.R. 41CA is broad enough to encompass any topic connected to parimutuel wagering related to horseracing. Under this reasoning, the Legislature could propose in a single amendment to change any law dealing with a subject as broad as gambling, or the organization of government or schools. Instead, as we said in Munch, “the controlling consideration in determining the singleness of an amendment is its singleness of purpose and the relationship of the details to the general subject.”84 Clearly,

82 See, e.g., McLaughlin v. Bennett, 225 Ariz. 351, 238 P.3d 619 (2010); Moore v. Shanahan, 207 Kan. 645, 486 P.2d 506 (1971); Cambria v. Soaries, 169 N.J. 1, 776 A.2d 754 (2001); Pennsylvania Prison Soc. v. Com., 565 Pa. 526, 776 A.2d 971 (2001). 83 Reply brief for respondent at 2. 84 Munch, supra note 74, 140 Neb. at 463, 300 N.W. at 389. Nebraska Advance Sheets 1002 288 NEBRASKA REPORTS

the intent of this rule was to clarify that under a single subject ballot requirement, the general subject of a proposed ballot measure is defined by its primary purpose, and the facts of Munch support that conclusion. In Munch, a city council proposed an amendment to the city’s charter to create a uniform system of pensions for fire- fighters and police officers. The employees’ pensions were set out in different articles of the charter, and the firefighters had previously received better pension benefits. So to equalize the plans, the amendment necessarily proposed several changes. But all the amendment’s provisions were closely related to the amendment’s single purpose “to place the firemen and police- men of the city on the same pension basis.”85 We rejected the plaintiff’s argument that the amendment presented a dual proposition and that voters should be able to decide whether to change each plan separately. We concluded that voters were asked to decide a single proposition, i.e., whether to adopt a unified pension fund plan. In contrast, we held that a municipal ballot measure in City of North Platte v. Tilgner86 violated the common-law single subject rule because the voters were asked to approve of distinct and independent propositions in a single vote. There, the city had previously approved an occupation tax to pay for a visitor center and indefinitely fund its operation. It then entered into an option contract to purchase a visitor center from a private group, and the private group obtained a loan to fund the project. The initiative’s proponents sought to amend the occupation tax ordinance so that tax revenues could only be used to pay off the loan to fund the project. After the debt was retired, the initiative would have prohibited the city from using the revenues to operate the center. Instead, it would have required the city to use the revenues for property tax relief. We concluded that the two proposals—prohibiting the use of an occupation tax for a visitor center’s operating expenses and

85 Id. at 459, 300 N.W. at 387. 86 City of North Platte, supra note 51. Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 1003 Cite as 288 Neb. 973

requiring the city to use the revenues for property tax relief— did not have a natural and necessary connection: These amendments were not separate provisions of the same law. But even if they could be construed as such, we conclude that they presented independent and distinct proposals instead of having a natural and neces- sary connection. . . . Because the petition presented dis- tinct but dual propositions for a single vote, voters could not express a preference on either without approving or rejecting both. Because the appellants’ referendum peti- tion would not permit voters to express a clear preference on dual propositions, it violated the single subject rule and was invalid.87 [16] Our conclusion in City of North Platte that the ini- tiative’s proposals were not separate provisions of the same law under the single subject requirement was clearly tied to their lack of any unifying purpose. Without a unifying purpose, separate proposals in a ballot measure necessar- ily present independent and distinct proposals that require a separate vote. Here, the Legislature’s primary purpose in L.R. 41CA is to legalize a new form of wagering under Neb. Const. art. III, § 24. That purpose is apparent from the text of the proposed amendment and its legislative history. Senator Lautenbaugh and other proponents argued at the committee hearing that the proposed amendment would save jobs in the struggling horseracing industry by allowing yearlong wagering at race- tracks. Neither the amendment’s text, the statement of intent,88 nor the legislative history showed that a primary purpose for the amendment was to create new funding for property tax relief and education by requiring that all tax revenues from parimutuel wagering be used for such purposes. The possibility of using existing parimutuel tax revenues for property tax relief and education was not even proposed until the resolution faced

87 See id. at 351, 803 N.W.2d at 488. 88 See Introducer’s Statement of Intent, L.R. 41CA, General Affairs Committee, 103d Leg., 1st Sess. (Feb. 11, 2013). Nebraska Advance Sheets 1004 288 NEBRASKA REPORTS

substantial opposition from some members of the Legislature. So the question is whether the proposal to use tax revenues from parimutuel wagering for property tax relief and education had a natural and necessary connection to legalizing a new form of wagering. The answer is no. The appropriation proposal’s only con- nection to the wagering proposal was to enhance the odds that voters would approve the new form of wagering. Many voters who might oppose proposals for new forms of wager- ing, standing alone, might nonetheless want new funding for property tax relief and kindergarten through 12th grade edu- cation. But they would be presented with a take-it-or-leave-it proposition. And this type of proposition is at the heart of the prohibition against logrolling. Conversely, even voters who would support the new type of wagering might prefer that the parimutuel tax revenues continue to be credited to the state’s general fund, instead of devoted exclusively to property tax relief and education. That voters might reasonably diverge on these separate proposals was amply illustrated in 1991, when the Legislature presented two separate ballot issues for the 1992 general elec- tion. The first ballot measure asked voters to authorize a state lottery. The second one asked voters to approve a specified distribution of the funds, if the lottery were approved.89 The voters approved the first proposal, but not the second. Later, in 2004, the Legislature successfully passed a proposal to amend the constitution to appropriate lottery funds under the cur- rent method.90 The 1992 election illustrates that even if a majority of vot- ers want to authorize a new form of wagering, they would not necessarily agree on the appropriations of tax revenues from it. That election also shows that the Legislature had previ- ous experience with the proper means of presenting voters with distinct and independent proposals. We hold that because L.R. 41CA’s provisions did not have a natural and necessary

89 See 1991 Neb. Laws, L.R. 24CA. 90 See, Neb. Const. art. III, § 24(3); 2004 Neb. Laws, L.R. 209CA. Nebraska Advance Sheets STATE EX REL. LOONTJER v. GALE 1005 Cite as 288 Neb. 973

connection, the Legislature was required to present the propos- als to the voters for separate votes. 6. Secretary Must Withhold L.R. 41CA From the Ballot In Loontjer’s petition, she sought a writ of mandamus requiring the Secretary to deny certification and withhold the proposed amendment from the ballot. Under the Uniform Declaratory Judgments Act,91 she also sought a declaration that the ballot language was invalid for three reasons: (1) the bal- lot language violates the separate-vote provision under Neb. Const. art. XVI, § 1; (2) the explanatory statement and ballot title violates the statutory requirements under § 49-202.01(1); and (3) the ballot language violates the free election clause under Neb. Const. art. I, § 22. Finally, she sought attorney fees and costs under Neb. Rev. Stat. §§ 25-2165 (Reissue 2008) and 25-21,158. [17] We granted jurisdiction for an original cause of action involving revenue, in which the State has a direct interest, and a request for a writ of mandamus. When a party has invoked our original jurisdiction under one of the causes of action spec- ified in Neb. Const. art. V, § 2, we may exercise our author- ity to grant requested declaratory relief under the Uniform Declaratory Judgments Act or injunctive relief.92 [18] Although the appropriate relief might be character- ized in part as declaratory or injunctive, Loontjer argues that the Secretary was required by law to refuse to certify the Legislative proposal for placement on the November 2014 ballot, that he refused, and that this court should compel him to do so. Thus, she seeks a writ of 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

91 See Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2008). 92 See, e.g., Omaha Expo. & Racing, supra note 3; State ex rel. Wieland v. Moore, 252 Neb. 253, 561 N.W.2d 230 (1997); State ex rel. Stenberg v. Douglas Racing Corp., 246 Neb. 901, 524 N.W.2d 61 (1994); Henry v. Rockey, 246 Neb. 398, 518 N.W.2d 658 (1994); State, ex rel. Smrha, v. General American Life Ins. Co., 132 Neb. 520, 272 N.W. 555 (1937). Nebraska Advance Sheets 1006 288 NEBRASKA REPORTS

exists for the respondent to perform the act, and (3) no other plain and adequate remedy is available in the ordinary course of law.93 Because we have held that the Secretary had the duty to determine whether a legislatively proposed amendment vio- lates the separate-vote requirement, that the Legislature was required to present L.R. 41CA’s proposals to the voters for sep- arate votes, and that the resolution does not satisfy that require- ment, we have recognized that Loontjer had a clear right to the relief she sought and that the Secretary had a corresponding clear duty to perform the act—that is, to refuse to certify the proposal for submission to the voters at the November 2014 election. The Secretary does not contend that Loontjer had any other plain and adequate remedy available to her in the ordinary course of law, and we also conclude that she did not. Thus, she has established all of the elements of mandamus and is entitled to a writ of mandamus requiring the Secretary to deny certification and withhold the proposed amendment from the ballot. Because we conclude that the resolution is uncon- stitutional under the separate-vote provision, we do not address Loontjer’s additional claims that it was invalid because it vio- lated the free election clause and because the accompanying explanatory statement was legally insufficient.94 IV. CONCLUSION We conclude that L.R. 41CA violates the separate-vote pro- vision of Neb. Const. art. XVI, § 1. We express no opinion on the substantive merits of either provision of the proposal. We issue a writ of mandamus directing the Secretary to not certify the proposal presented by L.R. 41CA for placement on the ballot for the November 2014 general election and to withhold the proposed amendment from the ballot. Writ of mandamus granted.

93 Mid America Agri Products v. Rowlands, 286 Neb. 305, 835 N.W.2d 720 (2013). 94 See J.M. v. Hobbs, ante p. 546, 849 N.W.2d 480 (2014).