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AGO Opinion 93040

May 18, 1993
Opinion 93040



SUBJECT:
LB 507; Can the Legislature constitutionally establish requirements for future legislation projected to increase inmate population in correctional facilities in Nebraska?

REQUESTED BY:
Senator Kate Witek
Nebraska State Legislature

WRITTEN BY:
Don Stenberg, Attorney General
Dale A. Comer, Assistant Attorney General



LB 507 is a bill which establishes certain requirements for future legislation projected to increase the inmate population in state correctional facilities in Nebraska. When any legislation enacted after June 30, 1993, is projected to increase the total adult or juvenile population in suc5 correctional institutions,

Section 1 of LB 507 would require the Legislature to include estimates of the operating costs resulting from the increased adult or juvenile inmate population in the legislation. The estimates would be based upon fiscal notes prepared by the Legislative Fiscal Analyst with the assistance of the Department of Correctional Services.

Section (3) of LB 507 provides further:

The Legislature shall provide by specific itemized appropriation, for the fiscal year or years for which it can make valid appropriations, an amount sufficient to meet the cost indicated in the estimate contained in the legislation [projected to increase inmate populations] for such fiscal year or years. -The appropriation shall
legislation is enacted and shall be contained in a bill which does not contain appropriations for other programs.

Section (4) of LB 507 also provides,

Any legislation enacted after June 30, 1993, which does not include the estimates required by this section and is not accompanied by the required appropriation shall be null and void.

You have now requested our opinion on the constitutionality of LB 507. For the reasons stated below, we believe that LB 507 is unconstitutional under the pertinent provisions of the Nebraska Constitution.

LB 507 clearly purports to place strictures upon future Legislatures with respect to requirements for legislation which would increase the adult and juvenile inmate population in Nebraska's correctional facilities. The general rule concerning such attempts by one legislature to bind or restrict succeeding legislatures is set out in 82 C.J.S. Statutes S 9:

One legislature cannot bind a succeeding legislature or restrict or limit the power of its successors to enact legislation, except as to valid contracts entered into by it, and as to rights which have actually vested under its acts, and no action by one branch of the legislature can bind a subsequent session of the same branch.

This statement of the rule is amply supported by cases from a number of jurisdictions. See Newton w. State, 375go.2d 1245 (Ala. Cram. App. 1979}; Maine State Housing Authority v. Depositors Trust Company, 278 A.2d 699 IMe. 1971); Frost w. State, 172 N.W.2d 575 (Iowa 1969}; Village of North Atlanta v. Cook; ~19 Ga. 316; 133 S.E.2d 585 (1963); Atlas v. Wayne County, 281 Mich. 596, 275 N.W. 507 (1937}; Iowa-Nebraska Light & Power Co. v. City of Villisca, 220 Iowa 238, 261 N.W. 423 (1935); Harsha v. City of Detroit 261 Mich. 586, 246 N.W. 849 (1933}. As stated in the Cook case from Georgia, the rule is as follows:

One Legislature cannot lawfully provide that, whenever a subsequent Legislature enacts a statute with reference to a g~~~ subject, such statute shall embrace certain specified provisions. It cannot tie the hands of its successors, or impose upon them conditions with reference to subjects upon which they have equal power to legislate.

Village of Horth Atlanta v. Cook, 219 Ga. at 320, 321, 133 S.E.2d at 589.


The Council has the authority to adopt and promulgate rules and regulations in order to carryout the purposes of the Low-Level Radioactive Waste Disposal Act (Neb. Rev. Stat S 81-12,100(1987)). The obvious legislative intent of S 81-15,104(3) is to provide a mechanism for enforcing payments of fees and surcharges assessed by the Council. The proposed change in the rules-and regulations gives effect to this section. Therefore, it is our determination that the Council has the authority to make the proposed amendment to departmental rules and regulations.

Sincerely,

DON STENBERG
Attorney General