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AGO Opinion 97036

Neb. Const. art. XVIII -- Whether failure of legislators to support a proposed term limit provision constitutes violation of the legislators' oath of office under Neb. Const. art. XV, § 1.
Opinion 97036

DATE: June 30, 1997

SUBJECT: Neb. Const. art. XVIII -- Whether failure of legislators to support a proposed term limit provision constitutes violation of the legislators' oath of office under Neb. Const. art. XV, § 1.

REQUESTED BY: Senator Kate Witek

WRITTEN BY: Don Stenberg, Attorney General




You have requested an official Attorney General's Opinion

concerning whether failure of a State Senator to support a proposed

resolution concerning a term limits amendment would violate a

Senator's duty to support the Nebraska Constitution. Specifically,

you have asked "Under what circumstances would a State Senator's

failure to support LR 1...constitute a violation of a State

Senator's oath of office to support the Constitution of the State

of Nebraska?" You note in your opinion request that,




Legislative Resolution 1 was introduced by Senator Withem

in relation to the passage of Initiative 409 in the

general election of 1996, now codified as Article XVIII

of the Constitution of the State of Nebraska. LR 1 was

advanced to General File by the Executive Board on March

3, 1997. The Resolution was not debated during the 1997

Legislative Session nor was it placed on the agenda by

the Speaker of the Legislature. It is possible that this

Resolution will be voted upon during the 1998 Legislative

Session. It has been suggested that, among other things,

a vote against LR 1 would constitute a violation of the

oath of office taken by members of the Legislature under

Article XV, Section 1, of the Constitution of the State

of Nebraska, wherein it is required that members swear or

affirm that they will support the Constitution of the

State of Nebraska.




Discussion




In considering the question presented, one must first review

the applicable provisions of the Nebraska Constitution and the

proposed Legislative Resolution:




Neb. Const. art. XV, § 1 provides:




Executive and judicial officers and members of the

legislature, before they enter upon their official duties

shall take and subscribe the following oath, or

affirmation. "I do solemnly swear (or affirm) that I

will support the constitution of the United States, and

the constitution of the State of Nebraska, and will

faithfully discharge the duties of . . . according to the

best of my ability, and that at the election at which I

was chosen to fill said office, I have not improperly

influenced in any way the vote of any elector, and have

not accepted, nor will I accept or receive, directly or

indirectly, any money or other valuable thing from any

corporation, company or person, or any promise of office,

for any official act or influence (for any vote I may

give or withhold on any bill, resolution, or

appropriation)." Any such officer or member of the

legislature who shall refuse to take the oath herein

prescribed, shall forfeit his office, and any person who

shall be convicted of having sworn falsely to, or of

violating his said oath shall forfeit his office, and

thereafter be disqualified from holding any office of

profit or trust in this state unless he shall have been

restored to civil rights.




(Emphasis added).




Neb. Const. art. XVIII, § 4(1) provides: "We the Voters of

the State of Nebraska hereby instruct each member of the

Legislature to use all of his or her delegated powers to pass an

application . . . as set forth in section (2) of this section. . .

."




Neb. Const. art. XVIII, § 4(3) provides:




All primary and general election ballots shall have

the information "DISREGARDED VOTERS INSTRUCTION ON TERM

LIMITS" printed adjacent to the name of any respective

member of the Legislature who:

(a) Fails to vote in favor of the application set

forth in subsection (2) of this section when brought to

a vote;

(b) Fails to second the application if it lacks for

a second;

(c) Fails to vote in favor of all votes bringing the

application before any committee or subcommittee upon

which he or she serves;

(d) Fails to propose or otherwise bring to a vote of

the full legislative body the application if it otherwise

lacks a legislator who so proposes or brings to a vote of

the full legislative body the application;

(e) Fails to vote against any attempt to delay,

table, or otherwise prevent a vote by the full

legislative body on the application;

(f) Fails in any way to ensure that all votes on the

application are recorded and made available to the

public;

(g) Fails to vote against any change, addition, or

modification to the application;

(h) Fails to vote in favor of the congressional term

limits amendment if it is sent to the states for

ratification; or

(i) Fails to vote against any term limits amendment

with longer terms if such amendment is sent to the states

for ratification.




LR 1 (95th Legislature, 1st Session) provides:




To implement initiative measure 409 approved by the

voters of Nebraska in November 1996, we, the people, and

the Legislature, due to our desire to establish term

limits on Congress, hereby make application to Congress,

pursuant to our power under Article V of the United

States Constitution, to call a convention for proposing

amendments to the United States Constitution.




The question, then, is whether the failure of a State Senator

to support LR 1 would violate his or her oath to support the

Nebraska Constitution, since LR 1 contains the application

referenced in Article XVIII, which legislators are "instructed" to

support.




One of the keys to this question is the meaning of the phrase

"the Voters . . . hereby instruct . . ." in Article XVIII. Does

this phrase mean that Senators are constitutionally mandated to

vote for LR 1, or does it mean that the voters have given a

nonbinding instruction expressing the people's collective

desire that Senators should vote for the proposed term limit

provision? The word "instruct" is not defined in Article XVIII,

and it is not clear whether the "instruction" is to be advisory or

mandatory. Nebraska case law does not provide any precedent on

this question. Thus, one must consider the alternative

interpretations and determine which is most appropriate under

Nebraska law.




Under Nebraska law, it is a cardinal rule of construction that

where two differing interpretations are possible, a court must

favor a saving construction that renders the provision

constitutional. Callan v. Balka, 248 Neb. 469, 481, 536 N.W.2d 47

(1995); State ex rel. Bouc v. School Dist. of City of Lincoln, 211

Neb. 731, 739, 320 N.W.2d 472 (1982); School Dist. No. 54 v. School

Dist. of Omaha, 171 Neb. 769, 774, 107 N.W.2d 744 (1961) ("the

validity of a statute is favored and when susceptible of two

constructions the one holding such statute valid will ordinarily be

followed."). See also Porta v. Mayor, City of Omaha, 593 F.Supp.

863, 867 (D.Neb. 1984). Similarly, under Nebraska law, "a statute

is presumed to be constitutional, and all reasonable doubts will be

resolved in favor of constitutionality." State ex rel. Shepherd v.

Neb. Equal Opp. Comm., 251 Neb. 517, 520, 557 N.W.2d 684 (1997)

(emphasis added).




This rule favoring a saving construction is so strong that,

"even when a law may be constitutionally suspect, a court will

attempt to interpret it in a manner consistent with the

Constitution." Id. (emphasis added); Findaya W. v. A-T.E.A.M. Co.,

249 Neb. 838, 841, 546 N.W.2d 61 (1996); Centra, Inc. v. Chandler

v. Ins. Co., 248 Neb. 844, 859, 540 N.W.2d 318 (1995); State ex

rel. Grape v. Zach, 247 Neb. 29, 42, 524 N.W.2d 788 (1994); Bamford

v. Upper Republican Nat. Resources Dist., 245 Neb. 299, 307, 512

N.W.2d 642 (1994)(quoting Kwik Shop v. City of Lincoln, 243 Neb.

178, 182-183, 498 N.W.2d 102, 106 (1993)).




Under these rules of construction, a reviewing court should

ascertain whether a construction of Article XVIII is fairly

possible by which its constitutionality may be upheld. Johnson v.

Robison, 415 U.S. 361, 366-367, 94 S.Ct. 1160 (1974). If a law is

susceptible of a reasonable interpretation which supports its

constitutionality, the court must accord the law that meaning.

United States v. National Dairy Prod. Corp., 372 U.S. 29, 32, 83

S.Ct. 594, 597 (1963); In Re Applications A-16027 et al., 242 Neb.

315, 327, 495 N.W.2d 23 (1993).




Article XVIII specifically contemplates that some legislators

will oppose the proposed amendment, and expressly provides for

informing the voters of this occurrence. See Neb. Const. art.

XVIII, § 4. Furthermore, there is no express language in the

Nebraska Constitution which states that legislators who oppose the

proposed amendment violate their oath of office. The only

consequence provided is to have a legislator's position disclosed

to voters. The provisions in Article XVIII providing for such

disclosure are specific and would control over more general

provisions elsewhere even if otherwise applicable. Consequently,

it is illogical to interpret Article XVIII as mandating support for

LR 1. Furthermore, if failure to support the amendment was grounds

for removal from office, it would be unnecessary to provide a

mechanism to inform the electorate of legislators' voting records.

Thus, it is illogical to interpret Article XVIII as mandating

support for LR 1 upon threat of forfeiture of office.




Furthermore, it is possible that a provision which mandated

State Senators to vote a particular way on a particular issue or

piece of legislation would be found unconstitutional under the

First Amendment. See Bond v. Floyd, 385 U.S. 116 (1966) ("the oath

gives [the State] no interest in limiting its legislators' capacity

to discuss their views on local or national policy."). However, a

nonbinding statement expressing the will of the people as to how

legislators should vote on an amendment is perfectly valid. Kimble

v. Swackhamer, 439 U.S. 1385, 1386 (1978) (Rehnquist, Circuit

Justice).




Thus, since two interpretations of Article XVIII are possible,

choosing the interpretation which construes the provision as

mandating support for LR 1 would violate cardinal rules of

construction. As discussed previously, it is a cardinal rule of

construction that where two differing interpretations are possible,

a court must favor a saving construction that renders the provision

constitutional. Porta v. Mayor, City of Omaha, 593 F.Supp. 863,

867 (D.Neb. 1984). See also State v. Edmunds, 211 Neb. 380, 386,

318 N.W.2d 859 (1982) ("If possible, a statute should be construed

in such a way as to negate any constitutional infirmity.").




Further validating this saving construction of the provisions

in question is the fact that Article XVIII is a constitutional

amendment approved by an overwhelming majority of Nebraska voters.

The Nebraska Supreme Court has stated that in such cases the

presumption in favor of validity and of a saving construction are

particularly strong. Parker v. Roth, 202 Neb. 850, 861, 278 N.W.2d

106 (1979) ("it is incumbent on this court, when reasonably

possible and consistent with constitutional rights, to resolve all

doubts as to a statute in favor of its constitutional validity. If

possible, a statute should be construed in such a way as to negate

any constitutional infirmity [citation omitted]. If such rule

properly applies to a statute adopted by the Legislature, all the

more should it apply to an amendment to the Constitution approved

by an overwhelming majority of the people." (emphasis added);

Anderson v. Tiemann, 182 Neb. 393, 397, 155 N.W.2d 322 (1967),

("Constitutional provisions should receive even broader and more

liberal construction than statutes, and constitutions are not

subject to rules of strict construction. . . . `Where a statute is

susceptible of two constructions, one of which renders it

constitutional and the other unconstitutional, it is the duty of

the court to adopt the construction which, without doing violence

to the fair meaning of the statute, will render it valid'.")

(quoting State ex rel. Meyer v. Lancaster County, 173 Neb. 195, 113

N.W.2d 63 (1962)) (emphasis added).




Therefore, Nebraska State Senators who fail to support LR 1 in

the next legislative session do not violate their oath of office,

and thus would not forfeit their offices.




Sincerely,




Don Stenberg

Attorney General