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Constitutionality of Initiative 300: an Answer

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Constitutionality of Initiative 300: an Answer CONSTITUTIONALITY OF "INITIATIVE 300": AN ANSWER* JAMES A. LAKE, SR.** INTRODUCTION In pleading, an answer often agrees with part of a petition or complaint, avoids agreeing or disagreeing with other parts, and dis- agrees with the remaining points. Although this article responds to legal arguments (not factual allegations), it imitates an answer in pleading. It agrees with some of the legal arguments discussed in the preceding article,' avoids others, and disagrees entirely with the remainder. This technique should clarify the areas of disagree- ment concerning the constitutionality of Initiative 300. First, let me delineate the areas of agreement. Obviously, a conflict between Initiative 300 and any part of the United States Constitution voids the former.2 This is true even if the Initiative is part of the Nebraska Constitution, and even though the Initiative originated with the people, in lieu of some other origin.3 Moreover, I agree with the preceding article's assessment of the success of fourteenth amendment and commerce clause challenges. As stated therein, attacking Initiative 300 on fourteenth amendment equal protection clause grounds will fail because it is "difficult to chal- lenge... on the ground that its provisions... [are] not rationally related to ... [its purpose]," 4 and it is "unlikely" one may success- fully contend Initiative 300's objective is not a "legitimate state pur- pose."'5 Because the Initiative will be "subject to a similar * This article answers parts of the immediately preceding article, Brown & Brown, Constitutionality of Nebraska's Initiative Measure Prohibiting Corporate Farmingand Ranching, 17 CREIGHTON L. REV. 233 (1983-84). "Initiative 300" is no longer merely a proposal-it is, more accurately, article XII section 8 of the Constitution of the State of Nebraska. ** Professor of Law, University of Nebraska, College of Law. 1. Brown & Brown, Constitutionalityof Nebraska's InitiativeMeasure Prohibit- ing CorporateFarming and Ranching, 17 CREIGHTON L. REV. 233 (1983-84). 2. The Supremacy Clause settles this. See U.S. CONST. art. VI. Nor can Initia- tive 300 conflict with a federal statute. The words of the Supremacy Clause also settle this. The United States Supreme Court so held in Railway Employees Dep't v. Hanson, 351 U.S. 225, 232 (1955) where a federal labor law was held valid although it conflicted with the Nebraska Constitution's "right to work" provision. 3. Lucas v. Forty-Fourth Gen. Assembly of Colorado, 377 U.S. 713, 737 (1964) (Amendment to Colorado Constitution adopted by the electorate held invalid be- cause it conflicted with the fourteenth amendment). 4. Brown & Brown, supra note 1, at 246. 5. In effect these two conclusions mean Initiative 300 is not contrary to the CREIGHTON LAW REVIEW [Vol. 17 assessment,' 6 challenging it on fourteenth amendment due process grounds will also fail. And finally, I agree with the authors' conclu- sion that a commerce clause challenge will not "be any more '7 successful. Second, let me turn to the parts of the preceding article with which I do not propose to agree or disagree. First, I do not deign to discuss whether the Nebraska amendment is contrary to the Na- tional Bank Act,8 or any other federal statute. Neither will I discuss whether Initiative 300 would violate the Nebraska Constitution if it were a statute, nor whether a corporation is a "citizen" as that word is used in article I, section 25 of the Nebraska Constitution. 9 And, I concede, for purposes of this discussion, that the preamble to the Nebraska Constitution is part of the Constitution. Lastly, and most importantly, I turn to the part of the preceed- equal protection clause of the fourteenth amendment. Apparently some are still grasping at this equal protection weapon to destroy Initiative 300. See Note, An Equal ProtectionAnalysis of the Classificationsin Initiative 300: The Family Farm Amendment to the Constitutionof the State of Nebraska, 62 NEB. L. REV. 770 (1983). A comprehensive "answer" to this Note will have to wait, but I am impelled to call attention now to the fact that the Note's entire equal protection conclusion is based on the contention that between December 1980 and February 1982 the United States Supreme Court decided four cases which completely altered the existing equal pro- tection test for laws which involve neither a suspect classification nor a denial of any fundamental constitutional right. The Note's conclusion not only fails to explain why the Court would overrule a half-century of prior jurisprudence without any ad- mission or warning that it was effecting a major shift in constitutional doctrine, but it also ignores the fact that in three of the four cases the law was upheld, and in the fourth case the decision is easily explained as a denial of procedural due process. In addition the state line-drawing in the fourth case was so lacking in a state purpose that it was clearly "arbitrary and capricious." 6. Brown & Brown, supra note 1, at 247. 7. The preceding article's gloomy assessment of the success of federal consti- tutional attacks upon Initiative 300 accords with my own conclusions which were widely distributed in printed form prior to the November 1982 election. See Lake, Analysis of Initiative 300 (Released October 7, 1982 under the auspices of the Farm- ers Union of Nebraska-probably the major sponsor of Initiative 300) (on file with CREIGHTON L. REV.). 8. National Bank Act, 12 U.S.C. § 29 (1982). 9. I do not agree the Nebraska Supreme Court has clearly decided that issue in the cases cited in footnote 30 of the preceding article. Lincoln Dairy Co. v. Finigan, 170 Neb. 777, 789, 104 N.W.2d 227, 235 (1960) held void a state law in conflict with article I, § 3 of the Nebraska Constitution. This expressly protects "persons" which I agree includes corporations. Section 25 was not involved. In Nelsen v. Tilley, 137 Neb. 327, 335, 289 N.W. 388, 393 (1939) the court held void a law which conflicted with the fourteenth amendment to the United States Constitution and with sections 1, 3, 16 and 25 of article I of the Nebraska Constitution. Of course, the federal due pro- cess and equal protection clauses protect "persons" (as do sections 1 and 3 of article I, Nebraska Constitution). Section 16, article I of the Nebraska Constitution is com- pletely silent concerning who is protected. Article I, section 25 expressly protects "citizens." In Nelsen v. Tilley, a "human" plaintiff (A.C. Nelsen) was a party and sought the protection of section 25. As a citizen, he was protected by section 25 with- out doubt. 1984] INITIATIVE 300: AN ANSWER ing article with which I cannot possibly agree. The article argues that Initiative 300 is not part of the Constitution of Nebraska. It advances this argument notwithstanding the fact that adding the words of the Initiative to the Nebraska Constitution was the ex- plicit goal of its supporters during the election campaign. It em- braces this argument notwithstanding the fact that the ballot informed voters they were either voting "for" or "against" making the Initiative's words a part of their constitution. 10 The argument centers on the contention that Initiative 300, even though intended to be an amendment to the Nebraska Constitution, is of itself un- constitutional-in conflict with that same constitution! This same argument floated aloft during the 1982 campaign, but I did not then think anyone took it seriously." Such a contention, I concluded, was part of the bombast and exaggeration which tradi- tionally accompanies hard fought American political campaigns. Now the same argument is presented in a law review article and for the first time an attempt to support the conclusion appears in print. Thus it is time to examine this argument carefully and critically, and this I propose to do. This answer will challenge the preceding article on four grounds: 1) its conclusion is not supported by the cases cited in its behalf; 2) the conclusion has been rejected in other jurisdictions; 3) the conclusion is directly contrary to the intent of the bodies which originated, and periodically reviewed, the initiative proce- dure in Nebraska; and 4) the conclusion is bad policy and should be rejected. THE DECISIONS CITED BY THE PRECEDING ARTICLE DO NOT SUPPORT ITS CONCLUSION The foregoing article states the issue as follows: The issue ... is whether the provisions of Initiative 300 re- main statutory in nature or, as stated in the initiative peti- 12 tion, are part of the constitution. 10. The whole amendment did not appear on the ballot. See NEB. REV. STAT. § 32-707 (Reissue 1978). The short summary on the ballot commenced: "Shall a con- stitutional prohibition be created .... " The initiative petition, signed by thousands of Nebraska voters, stated signers "respectfully demand that the follow- ing constitutionalamendment... be submitted to the voters ...." Initiative Peti- tion 300. See the appendix to the immediately preceding article, Brown & Brown, supra note 1, at 256 (emphasis added). 11. See, e.g., statement of Terry R. Schaaf, Nebraska Assistant Attorney Gen- eral, quoted in Omaha World Herald, Sept. 12, 1982, at 12-A, col. 4. 12. See Brown & Brown, supra note 1, at 236-37. I do not intend to discuss whether Initiative 300 might be a complete nullity, rather than magically trans- formed into a statute, if it fails as a constitutional amendment. I suppose persons CREIGHTON LAW REVIEW [Vol. 17 It argues that Initiative 300 is statutory, not constitutional, in nature and that cases in other jurisdictions have held this fatal to an at- 13 tempt to add words to a constitution. Have courts in other states so limited their amending process? The preceding article answers, "Yes," citing cases from Missouri, Kentucky and Maryland.14 I do not agree the cited cases so hold.
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