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AGO Opinion 94066

August 26, 1994
Opinion 94066



SUBJECT:
Effect of a purported late filing, under Neb. Rev. Star. $ 32-707.01 (1988), of ballot explanations for constitutional amendments proposed by the Legislature.

REQUESTED BY:
Allen J. Beermann
Nebraska Secretary of State

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



During the 1994 legislative session, the Nebraska Legislature passed several legislative resolutions which proposed amendments to the state constitution. Under the provisions of Neb. Rev. Star. $ 32-707.01 (1988), the Executive Board of the Legislative Council is to prepare an explanatory statement for each of those proposed constitutional amendments which "in clear, concise language, [explains on the ballot] the effect of a vote for and against" the proposal. Those explanatory statements are to be "submitted to the Secretary of State not less than four months prior to the general election for certification to the county clerks and election commissioners along with the ballot titles." On July 8, 1994, the Chairman of the Legislature's Executive Board filed the requisite explanatory statements for the proposed constitutional amendments with your office. The general election will be held on November 8, 1994.

We have now received a copy of a letter from a Grand Island attorney, dated August 11, 1994, and directed to you, Governor Nelson and Attorney General Stenberg. In that correspondence, the attorney presents various arguments supporting his position that the ballot explanations prepared for the 1994 legislative resolutions proposing state constitutional amendments were filed with your office after the deadline established by Section 32-707.01. The attorney also argues that one specific constitutional change proposed by the Legislature, LR2CA dealing with arbitration, is unconstitutional. For these various reasons, the attorney asks you and the other constitutional officers involved to withhold the constitutional amendments proposed by the Legislature from the ballot. Alternatively, he also threatens a mandamus action should you and the other state officials place the proposed amendments on the ballot or otherwise not undertake a declaratory judgment action to litigate the matters raised in his letter. You have now asked for our views, in light of the attorney's correspondence, as to whether the constitutional amendments proposed by the Legislature should be placed on the ballot. We believe that they should be submitted to the voters in the November general election.

The attorney initially argues that the ballot explanations in question should have been filed with your office by July 6, 1994, in order to meet the requirements of a filing "not less than four months prior to the general election." This argument is based upon the notion that a minimum four-month time period must elapse from the filing of the statements to the date of general election, and on the application of Neb. Rev. Stat. $ 25-2221 (1989) which generally governs the computation of time and provides that the first day of any statutory time period is excluded in time computation while the last day is included.

The argument based on Section 25-2221 notwithstanding, we believe that this situation is clearly governed by the previous decision of the Nebraska Supreme Court in State ex rel. Morris v. Marsh, 183 Neb. 521, 162 N.W.2d 262 (1968). In that case, the court considered whether an initiative measure was timely filed on July 5, 1968, for the general election on November 5, 1968, under a constitutional provision which required that "the [initiative] petition shall be filed with the Secretary of State~ who shall submit the measure . . . at the first general election held not less than four months after such petition shall have been filed." The court ultimately stated,

There is little or no dispute that in terms of a full day and an exact date, November 5 is a date exactly 4 months after July 5. The respondent attempts to read the language of the Constitution as requiring the election to be held more than 4 months after the filing of the petition, instead of "not less than 4 months." (Emphasis ours.) The district court's computation was correct.

We hold that a requirement than an initiated measure be submitted at the first general election held not less
than 4 months after filing of the petition is satisfied by a filing on July 5 for a general election to be held November 5.

Id. at 526, 527, 162 N.W.2d at 266, 267. (Emphasis in original). In a similar fashion, we believe that the filing by the Executive Board on July 8 for a general election on November 8 satisfies the requirements of Section 32-707.01.

Apart from the question of whether the filing of ballot explanations by the Executive Board was timely under the statutes, there is a greater question as to the effect of a late filing. In other words, if we assume, for the sake of argument, that the July 8 filing was late under Section 32-707.01, does that late filing authorize you to refuse to place the constitutional amendments ..... proposed by the Legislature on the November ballot? Based upon our research, we do not believe that such a late filing would warrant that result.

The Nebraska Supreme Court has stated that,

The two important, vital elements in any constitutional amendment are the assent of two-thirds of the Legislature and a majority of the popular vote. Beyond these, other provisions are mere machinery and forms. They may not be disregarded, because, by them, certainty as to the essentials in secured. But they are not themselves the essentials.

State ex rel. Thompson v. Winnett, 78 Neb. 379, 388, II0 N.W. 1113, 1116 (1907). Based, in part, upon this reasoning, the Nebraska Supreme Court has indicated that substantial compliance with the constitutional requirements regarding amendment of the state constitution is sufficient to amend that document. Duggan v. Beermann, 245 Neb. 907, N.W.2d (1994); Swanson v. State, 132 Neb. 82, 271 N.W. 264 (1937); State ex rel. Hall v. Cline, 118 Neb. 150, 224 N.W. 6 (1929); State ex rel. Thompson v. Winnett, supra. For example, in the Swanson case, the court indicated that notice of a constitutional amendment was sufficient even though newspaper publications in one county of the state were not made on the correct dates and newspaper publications in three other counties were not made the required number of times.

The filing requirements in Section 32-707.01 are statutory rather than constitutional. If substantial compliance with constitutional requirements is sufficient for amendment of the state constitution, then surely substantial compliance with statutory requirements is satisfactory as well. Given that premise, we believe that filing ballot explanations two days late is substantial compliance with Section 32-707.01, and would not
justify removing the proposed constitutional amendments from the ballot.

Finally, the attorney from Grand Island takes specific issue with LR2CA, a proposed constitutional amendment which would permit arbitration in Nebraska. He argues that this constitutional amendment would, in itself, be unconstitutional in several respects. On that basis, he asks that you exercise your authority and refuse to place that proposed amendment on the ballot.

The Nebraska Supreme Court has indicated that, unless the subject of a proposed initiative or referendum petition is invalid or unconstitutional on its face, the Secretary of State cannot pass upon the validity or construction of any proposed law when the petition is presented for filing and placement on the ballot. State ex rel. Brandt v. Beermann, 217 Neb. 632, 350 N.W.2d 18 (1984). This rule includes initiatives to amend the state constitution. By analogy, we believe that this rule applies equally in the present situation where the Legislature has presented duly enacted resolutions amending the constitution for placement on the ballot. In our view, unless those legislative resolutions exhibit some facial flaw, you do not have the authority to pass upon their constitutionality and to refuse to place them on the ballot. In that regard, we do not believe that LR2CA is unconstitutional on its face. Consequently, you should place it on the ballot for consideration by the people of Nebraska.

Sincerely yours,

DON STENBERG
Attorney General




SUBJECT:
Processing fee for County Prisoners

REQUESTED BY:
Ellen L. Totzke, Hall County Attorney

WRITTEN BY:
Don Stenberg, Attorney General
Joseph P. Loudon, Assistant Attorney General



You have asked whether absent specific statutory authority a county can charge other political subdivisions (e.g. State of Nebraska, cities, villages) a processing, or booking, fee for booking prisoners into the county jail when they are arrested by any law enforcement agency other than the county sheriff's office.

A county, even though a body politic and corporate, is a creature of statute and has only such powers as are conferred by the legislature. Lindburg v. Bennett, 117 Neb. 66, 7.7, 219 N.W. 851, 855 (1928); City of Grand Island v. Willis, 142 Neb. 686, 695, 7 N.W.2d 457, 462 (1943); State ex rel. Johnson v. Gage County, 154 Neb. 822, 826, 49 N.W.2d 672, 675 (1951). See also Neb. Rev. Stat. § 23-101 (1991). After reviewing the Nebraska statutes, no statute can be found that permits county governments to charge other political subdivisions for the booking of prisoners into county jails. As a result, it must be concluded that counties do not possess such authority. The following statutes, however, most closely confer and limit a county's authority in relation to this issue.



Peace officers have the duty to arrest and detain any person found violating any law of this state or any legal ordinance of any city or village. Neb. Rev. Stat. § 29-401 (1989), amended by LB 451, S i, Laws 1994. Furthermore, Neb. Rev. Stat. S 29-1001 (1989) provides that whenever a person is in lawful custody, the custodian of that person may confine him or her in the jail of any county in this state, or other secure and convenient place of confinement, to be procured by such custodian. Moreover, Neb. Rev. Stat. § 29-410 (1989) states that any officer having in lawful custody any person accused of an offense may, for the purpose of bringing the prisoner before a magistrate, detain the prisoner in any county jail of this state for one night or longer. Finally, except in counties where a county board of corrections exists, the sheriff shall have charge and custody of the jail. Neb. Rev. Stat. § 23-1703 (1991). The sheriff is required to receive those lawfully committed and to keep them until discharged by law. Id.

The cost of keeping and maintaining of any prisoner is to be paid by the county in which the offense was committed or alleged to have been committed. Neb. Rev. Stat. § 29-1004 (Supp. 1993). Neb. Rev. Stat. § 47-120 (Cum. Supp. 1992) states in pertinent part that "[t]he county board or county board of corrections serving pursuant to chapter 23, article 28, shall provide proper quarters and adequate equipment for the preparation and serving of all meals furnished to all prisoners confined in the county jail. The county sheriff shall have full charge and control of such services and the county board shall provide for all washing, fuel, lights, and clothing for prisoners, subject to the right of the county to be paid by the state for state prisoners at the rate of three dollars and fifty cents per day, and subject the right of the county to be paid by the city or federal government for city or federal prisoners at actual cost to the county .... " See also City of Grand Island v. County of Hall, 196 Neb. 282, 242 N.W. 2d 858 (1976). We have found no other statutes arguably relevant to the question at hand.

Section 47-120 specifically authorizes counties to charge the state, city or federal government for certain enumerated costs in the area of prisoner care. (i.e., meals, washing, fuel, lights, and clothing). However, nowhere within the items listed in S 47-120 does the legislature make any reference to booking fees or any other expense of imprisonment that does not directly relate to prisoner care. Because the legislature apparently chose to exclude booking fees, it is implicit that a county cannot charge other political subdivisions for such fees.

There is an instance where a county may be able to charge a booking or processing fee. The county board of a county and the mayor and legislative authority of a city located within the county are authorized to jointly construct and maintain a jail. See Neb. Rev. Stat SS 47-301-308 (1988). "[W]here any such county or any such city shall build such jail . . . independently of the other, such county or such city as does not own or manage a jail for the detention of prisoners . . . shall have the right to contract with the other for its use ." Neb. Rev. Stat. S 47-306 (1988).
A contractual agreement to provide that such a booking fee may
be charged. Of course, if such a contract does exist, you will
have to refer to the terms of the contract to determine if a
booking or processing fee may be assessed by the county and to the
statutes to determine whether such a contractual provision is allowed by law.

Sincerely,

DON STENBERG
Attorney General