Senator Don Wesely Room 808 State Capitol Lincoln, Nebraska 68509
Dear Senator Wesely:
In your letter of January 12, 1981, you call the provisions of Neb. Rev. Stat. § 32-1001.33 and § 32-1001.29 (Reissue 1978) to our attention.
Specifically you direct our attention to that portion of Neb. Rev. Stat. § 32-1001.33 (Reissue 1978), which requires the filing of a corporate surety bond by the unsuccessful candidate for the office of member of the Legislature seeking a recount and solicit our opinion as to whether this section is constitutional given the fact corporate surety bonds are not required of unsuccessful candidates for other elective offices. You indicate a desire to amend this section if it is our opinion that this provision is constitutionally infirm.
As to Neb. Rev. Stat. § 32-1001.29 (Reissue 1978), you direct our attention to the final portion of that section which allows the unsuccessful party in such recounts to recover costs including attorneys fees up to a maximum of $500.00. You ask our opinion of this section's constitutionality given the fact that successful candidates facing recounts in elections for other offices are not entitled to reimbursement for such costs. As in the case of the corporate surety bond requirement provision, you indicate a desire to delete this language if it is in our opinion unconstitutional.
We do not believe that either section is constitutionally suspect. Neither the Constitution of the United States nor the Constitution of the State of Nebraska requires that all persons in all instances be treated identically.