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AGO Opinion 93041

May 27, 1993
Opinion 93041





SUBJECT:
LB 632 and AM1909: Creation of Handicapped Parking Civil Violation

REQUESTED BY:
Senator Scott Moore
Nebraska State Legislature

WRITTEN BY:
Don Stenberg, Attorney General
Jan E. Rempe, Assistant Attorney General



LB 632 (1993), as amended by AM1909 (1993), creates a "handicapped parking civil violation" for the violation of any statute or ordinance regulating the use of parking spaces designated for handicapped or disabled persons. LB 632, $ 1. The bill allows peace officers to issue citations for alleged violations, but also grants cities and villages the authority to designate b~ ordinance "any person" to issue such citations. Id. commission of such a violation is classified as a civil matter and is punishable by monetary penalty. AM1909, $$ 2, 3.

LB 632 and AM1909 set forth detailed procedures regarding the manner in which alleged violations are handled. After the alleged violator is served with a citation, the county attorney or other legally authorized person either files a complaint regarding the violation or chooses not to do so. AM1909, S 7. The alleged violator then appears in court to admit or deny the allegations of the complaint. If the allegations are admitted, the court enters judgment for the state and imposes a civil sanction. If the allegations are denied, the court sets the matter for an informal hearing without a jury. Id.







At this informal hearing, the state must prove the alleged violation by a preponderance of the evidence, and the rules of evidence generally do not apply. The alleged violator may be represented by counsel. Id. Although not explicitly outlined in the bill, we assume that the alleged violator would have the rights to confront and cross-examine witnesses called to testify against him or her and to present evidence on his or her own behalf. The court may dismiss the allegation or impose a civil sanction which conforms with the range provided in section 3 of AM1909. Id. Any party may appeal the judgment of the court to the Nebraska Court of Appeals. AM1909, $ 8.

You have requested our opinion regarding the constitutionality of (1} classifying the above-described violations as civil matters, and (2} allowing municipalities to enact ordinances which designate that certain civilians may issue citations for alleged violations of the proposed law. You are especially concerned that these provisions might violate principles of due process. For the reasons outlined below, we believe the Legislature has the authority to classify offenses as civil or criminal and to authorize municipalities to designate civilian personnel who may issue citations for handicapped parking civil violations.

The Legislature has plenary legislative authority, which is limited only by the Nebraska and U.S. Constitutions. The state constitution is not a grant of power like the federal constitution, but is instead a limitation of power. State ex reel. Creighton Univ. v. Smith, 217 Neb. 682, 353 N.W.2d 267 (1984}; Lenstrom v. Thone, 209 Neb. 783, 311 N.W.2d 884 (1981); Consumers Coal Co. v. City of Lincoln, 109 Neb. 51, 189 N.W. 643 (1922}.

We look . o : in the Constitution of the state to ascertain if any limitations have been imposed upon the complete powers with which the legislative department of the state is vested in its creation The law-making power of the state recognizer no Defendant, and is bound, by none-, except such' as are imposed by the Constitution.

Consumers, 109 Neb. at 64-65, 189 N.W. at 648 (emphasis deleted}. Thus, the Legislature may legislate on any subject not inhibited by the state or federal constitutions, and restrictions on this legislative power will not be inferred unless the restriction is clearly implied. Creighton, 217 Neb. at 688, 353 N.W.2d at 271; Lenstrom, 209 Neb. at 789-90, 311 N.W.2d at 888.

We find nothing in the state or federal constitutions which would inhibit or restrict the Legislature in classifying cases involving handicapped parkinq violations as civil matters and in
testimony and the consideration of numerous factors. In school financing cases, the Nebraska Supreme Court has repeatedly stressed the rule that statutes are presumed to be constitutional and unconstitutionality must be clearly established by those challenging its validity.- See Ewing v. Scotts Bluff County Board of Equalization, 227 Neb. 798, 814, 420 N.W.2d 685 (1988). Finally, it is significant that the Barrels court stated, "Neither $ 79-1302 nor $ 79-1303 provides the method of how school lands shall be valued for the purpose of in-lieu-of tax payments. Consequently, the plaintiffs are not entitled to any relief on this basis." Barrels v. Lutjeharms, 236 Neb. at 868.

In sum, we conclude there is no facial constitutional infirmity in section 43 of LB 348 and the Commissioner, in the absence of a court order to the contrary, could distribute in lieu of tax funds in the manner prescribed in section 43 of LB 348.

Sincerely yours,

DON STENBERG
Attorney General