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 disagrees 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 challenge... 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 purpose."'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 because 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' conclusion 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 protection 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 constitutional 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 process 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 completely 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 without 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 unconstitutional-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 procedure 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 remain 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 constitutional prohibition be created .... " The initiative petition, signed by thousands of Nebraska voters, stated signers "respectfully demand that the following 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. A reader of the foregoing article will find that most of the cited cases are from Missouri-six in number, the earliest decided in 1910, the latest in 1981. But this glittering list of precedents loses much of its luster when we read the following in the majority opinion of the latest case: "It is ... with some interest that we have not been presented with nor have we found a Missouri case where a constitutional amendment has actually been set aside following its adoption by the people."' 5 And in that case the Missouri Supreme Court did not set aside the constitutional amendment under attack either! The Missouri Supreme Court's statement of its role in such cases is as follows: "Since the amendment has already been adopted and the people have demonstrated their will, this Court's duty is not to seek to condemn the amendment, but to seek to up- 16 hold it if possible.' Now let me briefly discuss, in chronological order, each of the six Missouri cases cited as supporting the proposition that people may not add provisions to their constitution which are legislative in nature. In the earliest case, State ex rel. Halliburton v. Roach,17 the disagreeing with its policy would eagerly support the "complete nullity" fate. They may hesitate to espouse openly the nullity conclusion because that vividly informs those who circulated and signed petitions, and those who voted for the amendment, that their efforts were an exercise in futility from the beginning. In fact, reducing Initiative 300 to the lesser dignity of a statute (not a constitutional provision), con- demns it to death, possibly not as quickly but as certainly. See Attorney General Opinions, cited in Brown & Brown, supra note 1, at 236 n.14. This uncertainty about whether an unconstitutional amendment to a constitution survives as a statute is a potent reason for rejecting the preceding article's thesis. 13. No Nebraska cases are cited for this proposition. Another contention in the preceding article, namely, that the preamble limits the nature of constitutional amendments, will be answered later. 14. Brown & Brown, supra note 1, at 237-40. 15. Buchanan v. Kirkpatrick, 615 S.W.2d 6, 12 (Mo. 1981). 16. Id. See also Edwards v. Lesueur, 132 Mo. 410, -, 33 S.W. 1130, 1133 (1896) (quoting with approval the statement of Mr. Justice Brewer, then of the Kansas Supreme Court, and later Associate Justice, Supreme Court of the United States: "When a constitutional amendment has been submitted, the single inquiry for us is whether it has received the sanction of popular approval, in the manner prescribed by law .... We have no veto."). 17. 230 Mo. 408, 130 S.W. 689 (1910). 19841 INITIATIVE 300: AN ANSWER proposed constitutional amendment apportioned the state into senatorial districts which the amendment said would survive "until the United States census of 1920 shall have been taken ... when the districts shall, by a law enacted by the people, or passed by the General Assembly be revised and adjusted on the basis of that census, and every ten years thereafter."18 The court refused to order the Secretary of State to fie petitions containing the above de- scribed amendment. The decision rests on two grounds. First, the proposed amendment failed to comply with Mis- souri's initiative procedure which "expressly requires the full text of the Amendment to be included in the petition."'19 No one con- tends that the Initiative 300 petition failed to include the full text of the proposal. This part of the decision is, therefore, not relevant for the point we are discussing. Second, the court concluded the petition was defective because it proposed only a temporary provision, lasting until the 1920 census. The court opined that nonpermanent, temporary and nonabid- ing provisions were not properly part of a constitution since they '20 would "of necessity demand frequent alterations and changes. Even though one may regret the defeat of the Missouri peoples' attempt to reapportion their senate in view of the legal history of malapportioned legislative bodies,2 ' the holding that "temporary" changes should not appear in the constitution has no relevance to Initiative 300. Nothing on the face of Initiative 300 suggests it is temporary. 22 Not one word from its supporters during the campaign preceding its adoption by the electorate suggested it would self-destruct at some future time. Rather, opponents of Initiative 300, during the campaign and now, mount attacks upon it precisely because it is not temporary, but instead a permanent fixture in the Nebraska Constitution. The case we are discussing also presented the court with a most unusual feature totally absent in the case of Initiative 300. As the Court put it, the proposed amendment contained a "remarkable

18. Id. at-, 130 S.W. at 691. 19. Id. at -, 130 S.W. at 695. 20. Id. at -, 130 S.W. at 694. The court explained what made an amendment temporary in an opinion responding to a petition for rehearing. The petitioner suggested that a pending prohibition amendment might also be "temporary" and void. Not so, said the court-the defect in the apportionment amendment was that "Its temporary character is written upon its face." Id. at -, 130 S.W. at 700. This facial test makes the Secretary of State's task of determining whether or not to file the petition easy. 21. See, e.g., Lucas v. Forty-Fourth Gen. Assembly of Colorado, 377 U.S. 713, 716 (1964); Baker v. Carr, 369 U.S. 186 (1962). 22. See NEB. CONST. art XII, § 8. CREIGHTON LAW REVIEW [Vol. 17 provision."23 The proposed amendment in Roach left intact an existing constitutional provision which was in conflict with the new proposal, and attempted to amend a section of the existing constitution which, as the court said, everyone knew "was self-terminat- ing, and has had no existence since the year 1881."24 The court held this sort of funny business did not comply with Missouri's requirement that the petition include the "full text of the amendment and what provision of the Constitution it undertakes to amend. '25 In the second case, State ex rel Stokes v. Roach,26 the Missouri Secretary of State refused to place on the ballot a liquor prohibition amendment.27 The Secretary of State based his refusal in part on his conclusion that the proposed amendment was "legislative, as distinguished from constitutional in subject matter. ' 28 The court ordered him to place the proposal before the people.29 The seven person court was unable to agree upon an "opinion"--three judges joined in one opinion, three dissented, and one judge concurred in the result without stating his reasons. Thus, this case is a "nullity" as a precedent. The Missouri court itself belatedly realized this, stating in a later case: "It . . . [the case we are discussing] was binding only as to result. ' 30 A case thus treated by its own creator cannot be of much force in a sister state. In the third case, State ex rel State Highway Commission v. Thompson,31 the initiated amendment, approved by the voters, contained detailed authorization for issuing highway bonds. The amendment also treated many incidental concerns of the state highway system including, but not limited to, a widening of some roads near Kansas City and St. Louis, a ceiling on fuel tax at two of ten years, and a requirement that li- cents a gallon for a period 32 cense fees and fuel taxes be spent exclusively on roads. The State Auditor refused to register the bonds, arguing, among other things, that the amendment authorizing the bonds was "null and void" because it was "legislative in character."33 The Missouri Supreme Court rejected this contention, stating:

23. Roach, 230 Mo. at -, 130 S.W. at 693. 24. Id. 25. Id. at -, 130 S.W. at 695. 26. 290 Mo. 578, 190 S.W. 277 (1916). 27. Id. This was probably the proposal mentioned in the rehearing petition in the 1910 case. See notes 17 and 20 supra. 28. 290 Mo. at -, 190 S.W. at 277. 29. Id. at -, 190 S.W. at 280. 30. Moore v. Brown, 350 Mo. 256, -, 165 S.W.2d 657, 661 (1942). 31. 323 Mo. 742, 19 S.W.2d 642 (1929). 32. Id. at-, 19 S.W.2d at 645. 33. Id. at-, 19 S.W.2d at 644. 1984] INITIATIVE 300: AN ANSWER

[T]he question of how far a constitutional amendment shall descend into particulars of government is one of policy only. With respect to matters of details, as affecting validity, it is only necessary that such amendment conform to the requirement ... [that] 'No proposed amendment shall contain more than one amended and revised article ... [and that] one new article which shall not contain more than one subject and matters properly connected therewith.' 34 It is also interesting to note that in Thompson the Missouri court ignored its own 1910 precedent3 5 which held that a temporary provision was legislative in nature. The highway bond amendment ordering the fuel tax to remain at two cents a gallonfor ten years seems as temporary as ordering senatorial districts to remain as prescribed until the next decennial federal census. It is thus quite obvious that State v. Thompson is not authority for voiding constitutional amendments on grounds that they are legislative in nature or temporary on their face. Quite to the contrary, it is authority for the contention that the scope of a constitutional amendment is a question of policy for the people to consider at voting time, and is not a question of concern to courts. In Marsh v. Bartlett,36 a Missouri fisherman was convicted of catching one bass during a closed season set by state statute. He sought release contending the statute he was charged with violat- ing was expressly repealed by an amendment initiated by the people. The amendment expressly repealed all existing fishing statutes and established a Conservation Commission empowered to regulate wild life resources, including seasons. 3 7 The Missouri Supreme Court, unanimously, upheld the amendment and ordered the fisherman freed. The court rejected the contention that the amendment was void because it was "not, in effect, organic law but a legislative act unrelated to and incongruous with the Constitution which creates a three-fold division and separation of governmental powers, a form of constitutional government common to most if not 8 all of the States of the Union."3

34. Id. at -, 19 S.W.2d at 646 (citation omitted). The requirement quoted in this excerpt is found in article 15, § 2 of the Missouri Constitution. No similar provision is found in the Nebraska Constitution. 35. State ex rel. Halliburton v. Roach, 230 Mo. 408, 130 S.W. 689 (1910). 36. 343 Mo. 526, 121 S.W.2d 737 (1938). 37. Id. at -,121 S.W.2d at 740. 38. Id. at-, 121 S.W.2d at 741. Article II of the Nebraska Constitution also es- tablishes a tripartite division of state power. The preceding article does not rely upon article II as support for the argument that amendments are void if legislative in nature, but the argument is easily refuted nonetheless. Article IIestablishes three departments of governments and prohibits one from exercising power belonging to CREIGHTON LAW REVIEW [Vol. 17

The fisherman's case aroused great interest in Missouri. Many amicus curiae argued the issue which the court recognized as "in- volv[ing] a far-reaching interpretation of organic law and af- 3 9 fect[ing] a grave public interest." After listening to this outpouring of legal talent, the court rejected all limits upon the initiative power except those expressly set forth in the state constitution.4° It referred to the initiative power as follows: "It served . . . to recall all legislative power theretofore granted to the end that the whole power to be granted 41 should be subject to the initiative and referendum." In this Missouri case the initiated amendment expressly repealed existing state statutes. Certainly repealing statutes is an exercise of legislative power. This quasi-legislative quality of the act did not influence the court's reasoning. In fact, it termed the amendment a "rightful and permanent entry into the legislative field."42 Hence, a Missouri amendment which enters the "legislative field" is no longer void. Initiative 300 did not, of course, repeal any existing statutes, and is an even clearer case for validly enter- ing the "legislative field." In Moore v. Brown,43 the Missouri court permanently enjoined the Secretary of State from placing on the ballot a constitutional amendment which annually appropriated $29,000,000 to pay monthly grants to incapacitated persons over 65 and to aid depen- dent children. The court enjoined the submission to the electorate because the proposed amendment did not comply with a statutory requirement that it specify the articles or sections changed by the amendment.44 There was no contention that the amendment was another. NEB. CONST. art. II, § 1. Article EI locates the legislative power, and in. cludes within that legislative power the right of the electorate to initiate constitutional amendments. Id. art. II. It is noteworthy that the other two methods of amending the Nebraska Constitution, each requiring action by the legislature, appear in article XVI of the Constitution. Id. art. XVI, §§ 1, 2. Amending the constitution by the initiative process is therefore an exercise of "legislative power" protected from judicial and executive usurpation by the very words of article II! Because the constitution authorizes and recognizes that initiating amendments as provided in sections 2 through 4 of article III is an exercise of legislative power, would it not be strange, to say the least, for a court to hold that when the people use the power given, that power having been denominated legislative, they fail because their effort is legislative in nature. To so argue, or hold, is to make the constitution a snare and a delusion, and to turn words inside out. 39. 343 Mo. at -, 121 S.W.2d at 740. 40. Id. at-, 121 S.W.2d at 742. 41. Id. 42. Id. at-, 121 S.W.2d at 744 (emphasis added). 43. 350 Mo. 256, 165 S.W.2d 657 (1942). 44. Id. at -, 165 S.W.2d at 662-63. 1984] INITIATIVE 300. AN ANSWER

"legislative" in character, and therefore improper or invalid. Suc- cinctly stated, the case is not on point. Finally, in the case of Buchanan v. Kirkpatrck,45 petitioners sought to enjoin the Secretary of State from placing on the ballot a constitutional amendment putting a "lid" on taxing and spending. One objection was that the amendment was a "legislative act" and not properly part of the state constitution. 46 This argument was alleged to rest on the case of State ex rel. Halliburtonv. Roach with which we began this survey of Missouri cases. The court brushed this argument aside saying that the 1910 case held the amendment "legislative" because "[o]n its face . . . [it] was to operate for a 47 finite period of time." The face of Initiative 300 does not limit its life to a finite time. Thus even if Missouri jurisprudence were binding in Nebraska (which, of course, it is not) Initiative 300 does not fail the Missouri requirement that an amendment must not be facially finite. In conclusion, at most these Missouri cases establish two via- ble arguments for enjoining the filing of an initiative petition or submitting the issue to the electorate. The first is that the amendment carries on its face a finite time for effectiveness; the second is that the amendment violates an express restriction on the initiative process (such as singleness of subject matter). Neither argument applies to Initiative Petition 300. It is neither temporary on its face, nor did its proponents violate any express restriction upon Ne- braska's initiative procedure. Next, I shall examine the Kentucky and Maryland cases cited in the preceding article for the proposition that matters legislative in nature cannot be placed in the constitution. In Stovall v. Gartrel148 a taxpayer sued state officers for injunc- tive and declaratory relief concerning a purported constitutional amendment which had been proposed by the state legislature, not by the people through the initiative procedure.4 9 The amendment provided for a means of financing a veterans' bonus. The Kentucky Court of Appeals held that the attempt to amend the constitution failed for several reasons. First, the legislature itself, not the Attor- ney General, framed the question which appeared on the ballot. Kentucky statutes required the Attorney General (as is true in Ne- braska)5 0 to perform that function. The court said: "[N]o proper

45. 615 S.W.2d 6 (Mo. 1981). 46. 615 S.W.2d at 16. 47. Id. 48. 332 S.W.2d 256 (Ky. 1960). 49. Id. at 258. 50. See NEB. REV. STAT. § 32-707 (Reissue 1978). CREIGHTON LAW REVIEW [Vol. 17 question was submitted to the voters for a constitutional amendment."51 In the case of Initiative 300, the proper official (the Attor- ney General) prepared the question which appeared on the ballot. Second, the abortive amendment attempted to authorize a sales tax on "all" sales, and the court deemed this an amendment of an existing constitutional provision devoting motor fuels taxes exclusively to highway purposes. The purported amendment made no reference to this existing constitutional section and the court deemed this fatal to the attempt to amend the constitution. There is, in Nebraska, no requirement that initiated amendments state expressly what sections of the existing constitution are repealed or amended. I fail to see how this case supports the argument that amendments initiated by the people fail if legislative in nature. In Cheeks v. Cedlair Corp.,52 the Maryland Court of Appeals determined the validity of a people initiated city charter amendment which established a comprehensive system of rent control, including creating a new agency to administer the program. Al- though the city possessed "home rule" powers by virtue of the state constitution, the home rule charter vested "full power and authority" over legislative matters in the mayor and the city council. A state law gave city voters power to make charter changes, but expressly stated that the grant "[should not be] construed to take away or limit any power which is now vested in the Mayor and City Council. '53 The court invalidated the rent control charter amendment holding that the voters amending power was restricted by the state law. The court also invalidated the charter amendment because it conflicted with several sections of the state constitution granting home rule powers to cities. Cheeks thus involved the extent of the freedom enjoyed by city voters to make rules for their government versus the power of the state, either through legislation or constitutional provision, to make decisions for the inhabitants of the municipal corporation. It is hornbook law that municipal corporations are creatures of the

51. 332 S.W.2d at 263. The court's discussion of the legislative nature of the proposal was related to the following point. The purpose of the purported amendment was to raise funds for the bonus by issuing bonds in excess of the constitutional debt limit of $500,000. The court said "a constitutional amendment is neither necessary nor proper to accomplish this result." Id. at 262. As the court later held, an approving vote of the people removed the bonds from the debt ceiling. It was not necessary to amend the constitution to accomplish that purpose. The court held the people's vote had that effect. As the preceding article admits, there was no way to accomplish what Initiative 300 aimed to do except to amend the state constitution. 52. 287 Md. 595, 415 A.2d 255 (1980). 53. Id. at -, 415 A.2d at 258. 1984] INITIATIVE 300: AN ANSWER

state, and subject to its powers. Home rule, of course, is an attempt to alter this, but it is often, as in this case, found wanting. The main point is that the relationship of voters of a city to a state is not at all like the relationship of state voters to the state. The former generally are servants of the state doing its work-the latter are masters of the state and the ultimate source of state power. A decision de- ciding the power of city voters is simply not relevant in an argument concerning the power of state voters.

DECISIONS IN OTHER JURISDICTIONS REJECT THE PRECEDING ARTICLE'S CONCLUSION Not only do none of the cases cited in the preceding article support the argument that state voters may not add legislative material to a state constitution, but cases in other jurisdictions have expressly held that there is no such limit on the power of the people. The eighteenth amendment was attacked many years ago on grounds that it was legislative in nature and unrelated to the form or structure of government. The United States Supreme Court rejected the argument.54 In the case of City of Jackson v. Nims,55 the people of Michigan initiated a state constitutional amendment which returned one cent of state sales tax to cities, villages and schools. The amendment was challenged in court as "an attempt to initiate legislation under the guise of an amendment to the Constitution. '5 6 The Michigan court found no merit in this argument, pointing out there was nothing in the state constitution providing that "what might otherwise be considered as legislation cannot be initiated by petition ... as an amendment to the Constitution."5 7 The court noted that what is legislative and what is constitutional is too indefinite as a test for what may be added validly to a constitution. Moreover, the court said it was not "unmindful of the fact that to now declare the amendment a nullity would thwart the expressed will of the

54. National Prohibition Cases, 253 U.S. 350 (1920). It would seem that the argument that a constitutional amendment cannot be legislative in nature would apply to amendments proposed by conventions, those submitted by legislatures, as well as those initiated by the people. Once the argument that an amendment cannot be legislative in nature is accepted, all constitutional amendments will be vulnerable to the charge. Much uncertainty and extensive litigation will result. In addition, many expressions of the popular will, will be thwarted either permanently or temporarily while litigation winds its way to the final tribunals for ultimate decisions. Freedom from these sobering realities clearly outweighs any possible benefit which might be gained by accepting the argument. 55. 316 Mich. 694, 26 N.W.2d 569 (1947). 56. Id. at -, 26 N.W.2d at 575. 57. Id. CREIGHTON LAW REVIEW [Vol. 17

voters." 58 In 1955, when the Oklahoma legislature refused to pass a statute providing for county option in the sale and distribution of 3.2 beer, the defeated proponents simply copied all of the unenacted bill into an initiative petition for a constitutional amendment, omit- ting only the emergency clause. Opponents of the petition contended the proposed amendment was "drawn in the language and form of a statute and ... its 'substance' deals with statutory matter."59 The Oklahoma court was unimpressed with this argument.60 It decided the proposal was perfectly all right as a constitutional amendment. The court quoted approvingly a prior opinion reading as follows: The power to propose and adopt a proposition of any nature and to amend their Constitution is vested in the people of the state, and in the exercise of such power they constitute the legislative branch of the government and are 6 1 not subject to interference or control by the judiciary. During the "depression" Alabamans amended their constitution to suspend all constitutional provisions prohibiting the legislature from diminishing public officers' salaries. The amendment by its terms operated from September 1, 1933 until October 1, 1935. During that time it placed a $6000 ceiling on the salary of the city officer who attacked the amendment as beyond the power of the electorate. The Alabama court upheld the amendment as self exe- cuting and valid even if legislative, stating: "By conferring on the legislative department the exclusive power to legislate, the people did not deprive themselves of doing so by and through the Consti- tution itself either in a new one or by means of an amendment to '62 the old one. These cases demonstrate there is much respectable and force-

58. Id. at -, 26 N.W.2d at 576. 59. In re Initiative Petition Number 259, 316 P.2d 139, 141-42 (Okla. 1957). During the Initiative 300 campaign someone took pains to count its words-concluding they numbered 1,126. As soon as that task was accomplished the total was urged as a reason to defeat the amendment. See, e.g., Omaha World Herald, Sept. 12, 1982, at 12-A, col. 5 (1,126 "words, abbreviations and symbols"). But ef. Omaha World Her- ald, Sept. 19, 1982, at 22-A, col. 1 (1,126 "words"). Whatever the total number of words (or words plus other items) in Initiative 300, if it gave opponents a "length" headache, they would have been exhausted and suffered apoplexy after counting the words in Oklahoma's Initiative Petition 259. See 316 P.2d at 147 (the text of Oklahoma's Initiative Petition 259 is quoted in full). 60. In re Initiative Petition Number 259, 316 P.2d at 147. 61. Id. at 144 (emphasis added), quoting Cress v. Estes, 43 Okla. 213, 142 P. 411 (1914). 62. Downs v. City of Birmingham, 240 Ala. 177, -, 198 So. 231, 236 (1940). 19841 INITIATIVE 300: AN ANSWER ful authority decisively rejecting the argument that amendments cannot be legislative in nature.

THE HISTORY OF THE INITIATIVE PROCEDURE IN NEBRASKA IS CONTRARY TO THE PRECEDING ARTICLE'S CONCLUSION

The limitations on the initiative power proposed in the preceding article are severe encroachments upon the power of Nebraska voters to alter their constitution. Before accepting these limitations one should be convinced they comport with the intention of the initiative's original drafters, and with the intentions of subse- quent official bodies that reviewed the procedure and retained it in the constitution. A survey of the history of Nebraska's initiative procedure not only fails to reveal adoption of any of the limits proposed by the preceding article, but demonstrates a rejection of such limitations. Arguments concerning the legitimacy, the necessity, and the proper scope of the initiative procedure have occupied political scientists for years. The United States Constitution, of course, does not recognize the initiative procedure as a way to amend the Con- stitution or to enact a federal statute. Indeed only a minority of state constitutions (Nebraska being one) today contains the initiative procedure. The initiative first appeared in Nebraska when the 1911 Nebraska legislature submitted an initiative amendment to the people and the electorate ratified it in 1912.63 The 1919-20 Nebraska Constitutional Convention continued the initiative procedure-in fact, made it easier to use by reducing the percentage of signatures required.64 The 1970 Nebraska Constitutional Revision Commission recommended some changes (both stylistic and substantive) in the initiative. None of its recommendations was ever adopted, but one suggested change is worth noting. The Commission recommended limiting the initiative process in the area of "revenue and appropri- ation" 65 because such measures were "too complicated. ' 66 Failure

63. NEBRASKA CONSTrrUTIONS OF 1866, 1871 & 1875, Nebraska Legislative Refer- ence Bureau & Nebraska State Historical Society, Bulletin No. 13 (A. Sheldon ed. 1920) [hereinafter cited as Bulletin]. The vote by the electorate was 92% in favor- 189,200 for and 15,515 against. 64. Id. at 17 (The percentage of petition signers for constitutional amendments was reduced from 15% to 10%. The change carried by 74%, 56,046 for and 19,734 against). 65. REPORT OF THE NEBRASKA CONsTrriTmoNAL REVISION COMMISSION 13-16 (1970). 66. Id. at 29-30. CREIGHTON LAW REVIEW [Vol. 17

of this recommendation to achieve legal acceptance in Nebraska not only answers the contention in the foregoing article that Initia- tive 300 is void because Nebraska voters did not understand what they were doing when they approved it, but it also demonstrates that courts should not place restrictions on the initiative process which are not based upon express words in the constitution. In short, the proper way to add words limiting the initiative process is to add them to the constitution, and the fate of the Commission's recommendations demonstrates that Nebraskans are not yet dis- posed to add limitations to the initiative procedure. The initiative process has always been viewed by some as a dangerous governmental procedure. Its detractors have employed every argument imaginable to prevent its adoption, or, after adoption, to burden it with costs and time-consuming procedures. Argu- ments against it range from the contention that it violates the concept of a "republican" form of government to fear that the voters are incapable of rational decision-making.6 7 Some opponents even argue that the "majority" will use it to deprive a minority of its fundamental constitutional rights. The preceding article argues that the initiative power to amend the Nebraska Constitution should not extend to "minority rights" in the Bill of Rights. 68 There are no words (in either the constitution or implementing statutes) upon which to base this argument. This same argument was presented in the 1919-20 Nebraska Consti- tutional Convention. Hoping to afford more protection to minority

67. It is remarkable that arguments questioning the intellectual ability of the electorate continue to appear. Possibly the intellectual attainments of "the people" in the nineteenth century were such that the argument was not outlandish then. Since "universal" education and recent technological advances in communication tend to make the people more informed, those who continue to argue that people lack the ability to govern should bear the burden of proving their argument by em- pirical evidence instead of relying on unsubstantiated assertions. I am sure those who rail against the initiative would vociferously and emphatically require anyone arguing that legislators often do not know what they are doing to substantiate their conclusions. I strongly suspect that the real objection to Initiative 300 is not that the electors did not know what they were doing, but, whether they knew or not, the rule they enacted "pinches." The amount of editorial and news column ink spent discussing Initiative 300 during the campaign, plus the time the non-print media devoted to it (particularly that bought by its opponents) set Nebraska records for an "issue" campaign. The preceding article's suggestion that the amendment's effect upon the right of corporations to own Nebraska farm and ranch land was not foreseen by Nebraska voters simply is not creditable. The issue of interference with the corporate rights, which the preceding article says was unknown to voters, was frequently and forcefully raised during the election. On that point, I have no doubt Nebraska voters knew precisely what the amendment would do! 68. NEB. CONsT. art. I. 1984] INITIATIVE 300: AN ANSWER rights, statesmen objected to making the initiative procedure easier. Their objections failed to carry the day. Arguably, the minority rights then thought placed in jeopardy by the initiative procedure were much more appealing than the right of a corporation to own farm and ranch land. During convention debate a delegate called his colleagues' attention to the fact that the Nebraska Constitution protected "reli- gious freedom, '69 and he admonished them to consider seriously the following question: "Are you willing to submit that to the pass- ing judgment of a majority of the people at any given hour?" 70 The speaker urged that the required percentage of signers on petitions to amend the constitution should be raised to fifteen (it then was at ten).71 He argued that: "We should not make it easier for those things to be submitted to the public. The Constitution ought to be sacred and inviolable. '72 The move to increase the percentage to 73 fifteen failed, 36 in favor of the increase, 48 against. This delegate obviously concluded the Bill of Rights was subject to initiative amendments, else he would not have protested as he did. And when he did protest (as we have just seen) no one contended that his fears were unfounded because the Bill of Rights was off limits to the initiative process. And no one informed him that the preamble (or anything else in the constitution under debate) limited in any way the initiative procedure. The conclusion is

69. 1 Proceedingsof the Constitutional Convention 1919-20 510 (1920). 70. Id. 71. Id. at 507. 72. Id. at 511. The percentage of signatures required for petitions proposing a constitutional amendment has always been greater than the percentage needed to initiate a statute (from 1912 to 1920 the respective percentages were fifteen and ten- since 1920 they have been ten and seven). Requiring a larger percentage for constitutional amendments has been the Nebraska method of protecting the "sacred and inviolate" quality of the constitution. Persons desiring to protect the constitution's nature from the popular will often have sought to increase the percentage, but have universally failed in their attempts. See, e.g., NEBRASKA HOUSE JouRNAL, 32d Sess. 457 (1911); 1 Proceeding of the ConstitutionalConvention 1919-20 500-07 (1920). This history not only demonstrates Nebraskans generally oppose limiting the initiative process, but also shows that the additional percentage requirement is the tool they employ to protect the constitution's sacred and inviolate nature. One must not forget that any proposed amendment must be approved by the Nebraska electorate before becoming part of the constitution. Throughout the Initi- ative 300 campaign many words warned the electorate the amendment was "legislation" which should not be placed in the constitution. See, e.g., Not a Real Solution: Rejection of Initiative 300 Is Best Coursefor Voters, Sunday World Herald (Omaha), Sept. 19, 1982, at 22-A, col. 1; The Lincoln Star, Sept. 14, 1982, at 8, col. 1; Lincoln Journal, Sept. 8, 1982, at 10, col. 1. These were perfectly legitimate appeals to the electorate, but the electorate approved Initiative 300 nevertheless. The electorate rejected the argument that Initiative 300 violated the sacred and inviolate nature of the constitution. 73. 1 Proceeding of the Constitutional Convention 1919-20 514 (1920). CREIGHTON LAW REVIEW [Vol. 17 inescapable from the history of the 1919-20 convention that the initiative reached all parts of the constitution (including the Bill of Rights), and that nothing in the constitution limited the subject matter of an initiated amendment. A reading of the complete 1919-20 debates about the initiative procedure demonstrates an intent to create an initiative procedure which grants power of the "widest possible latitude" to the people and power to take action when the legislature failed to do what the people wanted.7 4 For a decade, attempts to obtain legislation restricting corporate farm and ranch land ownership were unsuccess- 7 5 ful. Therefore, the method used to add Initiative 300 to the Nebraska Constitution is the exact role the 1919-20 convention visu- alized for the initiative procedure. The 1919-20 Constitution Convention created a "Correction and Comparison Committee" 76 empowered to "correct any overlapping or any conflicts"7 7 present in the convention's work product. This committee dealt specifically with Proposal 108-the initiative proposal adopted by the convention 78 and later approved by the voters. At no time did this committee report any conflict between the initiative proposal and other language in the constitution. If there was any conflict between the initiative and the preamble, or the Bill of Rights, at this time, and through this mechanism, that conflict would have been called to the attention of the delegates. At the time the committee reported, the preamble and the Bill of Rights were identical to the present Nebraska Constitution, and Proposal 108 was identical to the initiative provision contained in the same 7 9 document.

74. Id. at 481, 503-06. One delegate who stated "I do not believe in it [the direct initiative] and I never did" conceded that the "people themselves are the ultimate source of power." Id. at 506. In 1911 when the initiative was proposed by the legislature as a constitutional amendment, some objected to its terms on grounds the constitution is the "foundation of all our laws and of our legal rights and remedies, and should therefore not be changed for light and transient causes or by methods within easy reach of a small portion of the people." NEBRASKA HOUSE JOURNAL, 32d Sess. 457 (1911). These were the words of a delegate explaining his vote against the initiative-a vote which was on the losing side! Id. 75. Brown & Brown, supra note 1, at 233 & n.1. 76. 2 Proceedingsof the Constitutional Convention 1919-20 2651 (1920). 77. Id. at 2649. 78. Id. at 2647-48. 79. The initiative method of amending the Nebraska Constitution originated in an amendment proposed by the 1911 legislature and overwhelmingly adopted by the electorate in 1912. See note 63 and accompanying text supra. The preamble to the Nebraska Constitution has not been changed since its current words were first adopted in 1875. Bulletin, supra note 63, at 7. If anyone in the 1911 legislature thought the proposed initiative amendment conflicted with the existing preamble, none noted the conflict. Some 1911 legislators were hostile to the initiative and cer- 19841 INITIATIVE 300: AN ANSWER

The authors of the preceding article apparently have better in- sight than the members of the Correction and Comparison Com- mittee, and also superior to the members of the 1919-20 convention, because there is nothing in the committees report, or the debates of the members, that even hints a conflict exists. Official bodies which originated, as well as those which later reviewed, the initiative and the referendum power have considered, and sometimes adopted, restrictions upon those powers. Thus, these bodies knew full well how to qualify or condition the right of the people to rule directly. For example, the 1911 amendment (adopted by popular vote in 1912) subjected initiated laws to the same "scope and subject matter" restriction which the constitution imposed upon laws enacted by the legislature.80 The 1919-20 convention disallowed the referendum with respect to laws "making appropriations for the expense of the state government or a state institution existing at the time of the passage of such act."81 These limitations still exist, as does the restriction which has continu- ously existed that the people may not submit the same measure '82 "affirmatively or negatively, oftener than once in three years. One searches the legal history of the initiative procedure, and the text of article II of the Nebraska Constitution in vain for any historical or textual support for limiting the procedure to amendments which are "constitutional" in nature, or restricting its use where the proposal might be thought to conflict with the Nebraska Bill of Rights or preamble. A search for similar restrictions in the statutes implementing the initiative procedure is just as fruitless. 83 The authors of the preceding article would have a court create these limitations despite their total absence from the text of the constitution and from the implementing statutes, and squarely in the face of the afore- mentioned legal history which demonstrates that the appropriate Nebraska bodies know how to create limitations upon the initiative tainly they would have pointed out any conflict which existed as part of their opposition effort. 80. See NEB. CONST. of 1875, art. II, § 1A, NEB. REv. STAT. at 25-26 (1913). 81. See 2 Proceedings of the ConstitutionalConvention 1919-20 2892 (1920). 82. NEB. CONST. art. III, § 2. The Nebraska Constitution Revision Commission recommended an additional restriction upon the initiative power, but it never became part of the constitution. See REPORT OF THE NEBRASKA CONSTITUTIONAL REVI- SION COMISSION 13, 29 (1970). 83. See NEB. REv. STAT. §§ 32-701 to -713.01 (Reissue 1978). Section 32-704.01 or- ders the Secretary of State to reject any initiative petition interfering with the "legislative prerogative contained in the Constitution [pertaining to raising revenue]." See NEn. CONST. art. VIII, § 1. This limitation, obviously, has no application to Initia- tive 300. Its presence in the statutes, however, proves the legislature knows how to limit the initiative! CREIGHTON LAW REVIEW [Vol. 17

procedure-by express words-when they want to do so. Judicial acceptance of and action on this challenge would not be judicial interpretation of words in a legal document-it would be judicial law-making of the boldest order. It also would result in a judicial restriction of the rights of the people-a result one may rationally argue violates the command of section 26 of the Nebraska Bill of Rights that "all powers not herein delegated, remain with the '84 people.

THE PRECEDING ARTICLE'S CONCLUSION IS BAD POLICY The statutes implementing the initiative provision in the constitution order the Secretary of State to determine the initiative petition's "validity."85 If Initiative 300's Petition was "invalid" the Secretary of State should not have accepted it for filing nor placed it on the ballot. I know of no hesitancy by the Secretary of State in either filing the petition or in ordering it to appear on the ballot. Thus, the Secretary of State must have concluded that the petition was valid. Anyone urging limits on the power of Nebraskans to amend their constitution using the power reserved in article Inl, faces a Herculean task. Recognizing the immensity of the burden, the preceding article argues that the preamble limits the peoples' power, and also that the Bill or Rights cannot be touched by the power to 86 amend the constitution reserved to the people in article Mn. Let me focus upon these two points. The preceding article stops short of saying the preamble itself cannot be amended. You must stop short, or you assign words in a constitution a permanence which is at war with our constitutional theory that all power comes from the people. Nor does the article contend that the Bill of Rights 87 cannot be changed by constitutional amendment. It recognizes that "constitutional change is 88 necessary."

84. NEB. CONST. art. I, § 26. 85. See NEB. CONST. art. II, § 4 (authorizing implementing §§ 32-703.01 and 32- 704); NEB. REV. STAT. §§ 32-703.01 to -704 (Reissue 1978). 86. NEB. CONST. art. II, § 1. 87. Id. art. I. 88. See Brown & Brown, supra note 1, at 243. The preceding article accords amendments originating in a convention, or in the legislature, greater significance than those originating with the people. Id. at 243-45. Not only does this turn upside down our theory of where ultimate power lies, see NEB. CONST. art. I, § 26, but it ignores the following words in article I, § 4; "The method of submitting and adopting amendments to the Constitution provided by this section shall be supplemen- tax-y to the method prescribed in the article of this Constitution, entitled, 'Amendments' and the latter shall in no case be construed to conflict herewith." Id. 19841 INITIATIVE 300: AN ANSWER

If the constitution may be amended, isn't that exactly what the people did when they proposed and adopted Initiative 300? Is that not especially true because Initiative 300 states expressly its provisions were to govern "notwithstanding any other provisions of this Constitution?" A reader of the Nebraska Constitution as contained in either the Revised Statutes,89 or in a pamphlet "edited and distributed" by the Secretary of State,90 will not find the words "notwithstanding any other provisions of this Constitution." By some unexplained mystery these words have disappeared, although they were very clearly part of the petition approved by the Secretary of State91 and signed by thousands of Nebraska voters; were included in the same Secretary of State's pre-election publication of the "text" of the amendment;92 and were expressly included in Gover- nor Thone's post-election proclamation of what was "part of the Constitution of the State of Nebraska. '93 The preceding article is content to include the omitted phrase in the constitution, while admitting its presence creates a "more difficult" question.94 Indeed it does, because one must then explain why the phrase does not amend the preamble and the Bill of Rights. It does not, according to the preceding article, because it art. III, § 4. To separate in efficacy the three methods of amending the Nebraska Constitution (two in article XVI, and one in article III) would make them conflict-a result not permitted by the above quoted provision. 89. See NEB. CONsT. art. XII, § 8, in NEB. REV. STAT. (Supp. 1983) at 2-4. 90. See NEB. CONST. art. XII, § 8, in Constitution of the State of Nebraska 39-42 (A. Beermann ed. 1983), which was edited and distributed by Allen J. Beermann, Nebraska's Secretary of State. 91. See NEB. REV. STAT. § 32-704 (Reissue 1978). This section grants the Secre- tary of State's approval power. Id. 92. Id. § 32-711. The Secretary of State has a duty to publish the text prior to the general election. Id. 93. Id. § 32-712. This section authorizes the governor to proclaim the proposal as part of the constitution. Id. The proclamation itself is filed with the secretary of state, and bears his signature as well as the Great Seal of the State of Nebraska. The statute requires the governor to proclaim "such measures as are approved by the constitutional number.., to be in full force and effect as the law of the State of Nebraska." Id. 94. Whoever decided to omit from the constitution the phrase could not have been one who supported Initiative 300. Supporters included it in the petition, and relied upon it during the campaign. Ironically, the preceding article uses the omitted phrase as foundation for an argument that the amendment does not amend the preamble or the Bill of Rights. Perhaps the recent and unexplained omission is more harmful to Initiative 300's en- emies than to its friends! Nevertheless, the phrase is part of the constitution and should be included in future publications. If public officials are uncertain what is part of the constitution, they should present the issue to the judicial system for determination. What be- longs in a constitution is a judicial question and far too important to be left to private resolution by executive officers. CREIGHTON LAW REVIEW [Vol. 17 doubts the people voting for Initiative 300 "understood that they were amending basic provisions of the Bill of Rights or wished to do SO."95 This argument is untrue factually and bad policy if it requires courts to determine or guess the subjective mental state of the 290,000 plus people (56% of those voting) who voted for the amendment. If there was any one singular point emphatically made by the opponents of Initiative 300 during the campaign, it was that it denied the property rights of non-family farm corporations. I do not see how any court can possibly determine the validity of a constitutional provision by ascertaining how many voters subjectively knew what they were doing. Courts do not do that even when the handiwork of much smaller bodies, such as legislatures, is brought before them for review. 9 6 Nor should they! Lastly the preceding article argues that the phrase, "notwithstanding any other provisions of this Constitution," can "not be squared with the requirement that any amendment must be set forth at length.' '97 There is no express requirement in Nebraska (either in the constitution or in the implementing statute) that sections of the existing constitution altered or repealed be specifically noted in the amendment.9 8 No previous constitutional amendments have done this. Since the constitution equates the three amending procedures-convention, legislative and initiative-by requiring the latter not to be in conflict with the other two,99 adoption of this point would subject all amendments since 1875 to legal attack.

95. See Brown & Brown, supra note 1, at 245. 96. One wonders what the answer would be if Initiative 300 had been defeated by the voters in 1982, and if its supporters obtained enough signatures to put it to a vote in 1983 (despite the three year wait period specified in article III, § 2) arguing voters in 1982 did not understand the measure or intend to vote the way they did! See NEB. CONST. ART. IlT, § 2. 97. See Brown & Brown, supra note 1, at 244. 98. The situation was similar in Oklahoma and the court stated: Since the Constitution and statutes make no requirement that a proposed amendment refer to the Constitution or to the section to be amended, and since the proposed amendment would, if adopted, amend any section of the Constitution in conflict therewith, we conclude that it is not necessary for the text of the proposed amendment to refer to the Constitution or any section thereof. In re Initiative Petition Number 259, 316 P.2d 139, 145 (1957). Compare MICH. CONsT. art. 12, § 2. The Michigan Constitution requires that the ballot show the "existing provisions of the constitution which would be altered or abrogated." Id. and Jackson v. Nims, 316 Mich. 394, -, 26 N.W.2d 569, 579 (1947). If a proposed provision amends or replaces a specific constitutional provision, only the specifically amended portion of the constitutional provision must be published along with the proposal. 99. See note 88 and accompanying text supra. 19841 INITIATIVE 300: AN ANSWER

Courts faced with a requirement that an amendment specify parts of an existing constitution which are amended or abrogated have found difficulty applying such a rule in practice. In Missouri, for example, the court now applies it only to "cognate provisions which are in direct conflict." 10 0 Otherwise, the court said, such a rule would "tend to stifle the constitutional initiative process."''1 And there the defect must be objected to before the election by enjoining the Secretary of State from certifying or printing the matter on the ballot. 0 2 The Missouri experience, where the requirement has been implied, and the experience in other states, where it is expressed in the constitution, counsels Nebraska's judicial system to keep out of the thicket--especially since Nebraska has not expressly added the requirement to any of the three methods of 0 3 amending the constitution.

CONCLUSION Initiative 300 stirred up a very sizeable hornet's nest of opposition during the 1982 campaign. Obviously Initiative 300 altered the status quo by interfering with the private plans of some corporations. Once the election was over, and Initiative 300 became article XII, section 8 of the Nebraska Constitution, the opposition shifted the battle to a new arena-the courts. Despite the new arena the arguments are essentially the same as those used during the campaign. During the campaign people were told the proposal was legislative in nature, too long for the constitution, too complex for people to understand and too destructive of both private property rights and freedom from governmental regulation. The same contentions now exist as legal arguments, not campaign oratory. In the fall of 1982 these contentions were reasons why people should not vote for the amendment-now they are reasons why people could not vote for the amendment even if they thought it was good policy.

100. Buchanan v. Kirkpatrick, 615 S.W.2d 6, 15 (Mo. 1981). The Missouri court is alone in implying the requirement from the command that the "full text" of the amendment be shown. Id. The Missouri court felt obliged to go to the "verge of construction" because the prior opinion so holding was decided before a constitutional convention which referred to the case. See Moore v. Brown, 350 Mo. 256, -- 165 S.W.2d 657, 663 (1942). 101. Buchanan v. Kirkpatrick, 615 S.W.2d at 15. The amendment in the case actually listed 28 affected sections, but arguably 79 more should have been listed. Id. at 20. Such extensive and elaborate listings cannot possibly contribute much to voter understanding and in fact serves only to confuse and terrorize the voter and to trap the amendment's sponsors. 102. Moore v. Brown, 350 Mo. 256, -, 165 S.W.2d 657, 659 (1942). 103. In Missouri the requirement applies only to people initiated amendments. Id. at -, 165 S.W.2d at 658, 661. CREIGHTON LAW REVIEW [Vol. 17

A contention that the people are not supreme, flies squarely in the face of our theory of where power comes from in a democracy. This contention is contrary to the Nebraska Constitution. It violates the role drafters of the initiative power envisaged for it when it was first placed in the constitution, and the role given it by those who retained the procedure every time it was reviewed. If the limits on the initiative power suggested in the preceding article are to be adopted in Nebraska, the people should accomplish it-not the court system. No other state which has the initiative limits it in the manner suggested by the preceding article, and certainly no prior Nebraska opinion comes close to imposing such limits upon the initiative power. Opponents of Initiative 300 argued voters should defeat it because the amendment would spawn many lawsuits. The same may be said for adopting the arguments of the preceding article. The validity of every future constitutional amendment, no matter how proposed, will be brought to court for resolution under the vague concepts of legislative-versus constitutional-in nature, or by assessing whether the people knew what they were doing. Over the main entrance of Nebraska's capitol building, carved in stone to indicate its enduring quality, are the words: THE SALVATION OF THE STATE IS WATCHFULNESS IN THE CITIZEN. This indicates a faith in the capacity of Nebraska people to govern-a faith which the preceding article apparently does not share. Of course, the people may err as the Twenty First Amendment demonstrates. But courts may err too, as many examples would demonstrate. Within their respective spheres courts and people possess the means to correct past mistakes. If the people erred by placing Initiative 300 in the constitution, those who so conclude may soon ask the people to reconsider. In the meantime, as the inscription over the capital door states, the state is committed to giving heed and supremacy to the voice of the people. A court would violate that concept by adopting the position espoused in the preceding article.