Amendment One: the Nebraska Equal Protection Clause

AMENDMENT ONE: THE NEBRASKA EQUAL PROTECTION CLAUSE

JASON W. HAYESt

I. INTRODUCTION "No State shall'.., deny to any person within its jurisdiction the equal protection of the laws."1 This clause, found in the Fourteenth Amendment of the United States Constitution, grants equal protection of the laws to all citizens of the United States. 2 In 1997, the Ne- braska Legislature adopted a state legislative resolution 3 to place similar equal protection wording into the Nebraska State Constitution if approved by the voters. 4 In November 1998, the Nebraska voters

t Graduated from the University of Nebraska College of Law in 1998. Admitted to the Nebraska State Bar Association, September 1998. The author gratefully acknowl- edges the support from Senator Witek's Legislative Office and her Legislative Aide, Rob Hotz, in providing legislative material. Additional thanks are given to Professors Rich- ard Duncan and Josephine Potuto at the University of Nebraska College of Law for providing background on constitutional law issues. A special thanks is given to Profes- sor John Gradwohl at the University of Nebraska College of Law for his guidance and editorial skills, and my wife, Tanya Boijes-Hayes. The author was the recipient of the Robert G. Simmons Nebraska Law Practice Writing Competition award given in recognition of this article. 1. U.S. CONST. amend. XIV, § 1. This provision was adopted in 1868, after the American Civil War, as a means to end unequal treatment of laws against citizens of the United States within all state boundaries. 2. The definition of"equal protection clause" provides: "This clause requires that persons under like circumstances be given equal protection in the enjoyment of personal rights and the prevention and redress of wrongs." BLAcK's LAw DICTIoNARY 537 (6th ed. 1990). The phrase "equal protection of the law" signifies that: "no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and in their pursuit of happiness." Id. 3. LR 20CA, 95th Leg., 1st Sess. (Neb. 1997). Senators Kristensen, Warner, Withem, and Schimek introduced LR 2OCA, and it provides: The members of the ninety-fifth legislature of Nebraska, first session, resolve that: Section 1. At the general election in November 1998 the following proposed amendment to the Constitution of Nebraska shall be submitted to the electors of the State of Nebraska for approval or rejection: To amend Article I, section 3: 1-3 "No person shall be deprived of life, liberty, or property, without due process of law, nor be denied equal protection of the laws." Sec. 2. The proposed amendment shall be submitted to the electors in the manner prescribed by the Constitution of Nebraska, Article XVI, section 1, with the following ballot language: "A constitutional amendment to provide that no person shall be denied the equal protection of the laws. For/Against." Neb. LR 20CA. 4. 1997 NEB. LEGIS. J., 95th Leg., 1st Sess. 2190 (1997). LR 20CA was voted on by the Nebraska Legislature on May 21, 1997, during the Final Reading, the last vote CREIGHTON LAW REVIEW [Vol. 32

approved Amendment One, which contained the equal protection clause provision. 5 Now the question arises: What improvement will be gained by placing an identical equal protection clause into the Ne- braska State Constitution, considering that equal protection of the laws already applies to all states under the Federal Constitution? Sponsors of the proposed amendment have conceded that Ne- braska citizens are currently protected by the Equal Protection Clause found in the Fourteenth Amendment. 6 However, the need for this du- plicative clause was proclaimed by a Nebraska state senator - in ar- guing that the state should adopt the Equal Protection Clause into its own constitution - because Nebraska is a separate sovereign entity and should follow restrictions placed upon it by its own constitution rather than that of the federal Constitution. 7 Another state senator referred to the adoption of the amendment as a "slam dunk," claiming that such an amendment "shouldn't be controversial."s What are the ramifications since the Nebraska electorate has adopted the equal protection clause amendment placed before it by the Nebraska Legislature? Is it a "slam dunk" with minor reservations, if any, or will the enactment of the amendment have dramatic consequences on the legal foundational rights of Nebraskans?9 which the Nebraska Unicameral takes before either a bill goes to the Governor to be signed into law, or in this case, a constitutional amendment goes to the Secretary of State to be placed on the ballot for a vote by the citizens of Nebraska. On Final Read- ing, the vote was forty-two for, two opposed and five votes either abstaining or absent for the vote. Id. The two votes against were cast by Senator Witek and Senator Dierks. LR 20CA was presented to the Secretary of State of Nebraska on May 21, 1997. Id. at 2207. 5. Amendment One (LR 20CA) was adopted by the voters of Nebraska just prior to the publication of this article. On November 3, 1998, of the 93% of the votes counted up to the time of printing, Amendment One passed 331,337 (73%) for its adoption, to 125,023 (27%) against its adoption. See Vote 1998 Unofficial Election Returns by Race (Nov. 4, 1998) (on file with author). 6. Transcript Prepared by the Clerk of the Legislature, 95th Leg., 1st Sess. 3609 (Apr. 9, 1997) (pertaining to the LR 20CA floor debate). 7. Transcript of the Clerk, supra note 6, at 541-42, 609 (hereinafter Transcript of the Clerk] (regarding the LR 20CA floor debate comments by Senator Ernie Chambers). However, this goes against the very foundation of the Supremacy Clause of the Federal Constitution, and the wording of the Fourteenth Amendment itself places direct restrictions on the actions of states in regard to the equal protection of the laws. 8. Transcript of the Clerk, supra note 6, at 544-45. Comments made during floor debate by Senator Schimek referring to a phrase coined by Senator Eric Will with regard to the passage of LR 20CA being a "slam dunk;" in other words, a belief that the amendment would be uncontroversial. 9. Nebraska State Senator Kate Witek of the 31st Legislative District was the primary opponent of the amendment. In a lengthy floor debate, Senator Witek argued that adding such a provision to the state constitution would result in mischievous consequences by having the Nebraska State Supreme Court expand the concept of what classifications the Equal Protection Clause would apply to. Transcript of the Clerk, supra note 6, at 537-39. 1998] NEBRASKA EQUAL PROTECTION CLAUSE

II. BACKGROUND

A. PROPOSAL BY THE CONSTITUTIONAL REVISION COMMISSION The Equal Protection Clause Constitutional Amendment origi- nally was proposed by the Nebraska Constitutional Revision Commis- sion, comprised of twelve members with the task of revising and updating the Nebraska State Constitution.1 0 According to the enabling statutes, the purpose of the commission was to: make a complete study of the Constitution of Nebraska to determine what changes, if any, should be made. [Further,] the commission shall place special emphasis on simplifying and condensing the constitution for the purpose of giving the Leg- islature broad powers, rather than numerous individual amendments." 1 Additional themes were noted in a later report by the commission to include "[e]xpanding protection for individual citizen constitutional 1 2 rights. During the February 16, 1996, hearing of the Constitutional Revi- sion Commission, the equal protection proposal was discussed and passed with little debate - other than several statements of emphatic support by each of the commission members present.1 3 The members expressed astonishment that the equal protection clause was not already in the body of the Nebraska Constitution; one member even stated he "was amazed to discover that it isn't in the Nebraska Consti- tution.1 4 This debate included statements of praise for the proposal

10. NEB. REV. STAT. §§ 49-1601 to -1602 (Cum. Supp. app. The enabling statutes went into effect on September 9, 1995. As noted, the commission was made up of twelve members; six were named by the Legislature with whom three were sitting Legislators, three were named by the Governor, and the remaining three were chosen by the Ne- braska Supreme Court. The members were as follows: Dick Herman - Chairman, from Lincoln; Richard Fellman, from Omaha; Dean Hascall, from Bellevue; Senator Douglas Kristensen, from Minden; Norman Krivosha, from Lincoln (former Chief Justice of the Nebraska Supreme Court); Peter Longo, from Kearney; Robert Mullin, from Scottsbluff; Michael Nelson, from Omaha; W. Don Nelson, from Lincoln; James C. Stecker, from Columbus; Senator Jerome Warner, from Waverly (now deceased); and Speaker of the Legislature Ron Withem, from Papillion. There was some controversy regarding the appointment of these twelve individuals, because they were all white men. A proposal was introduced in the Legislature to expand the membership but that proposal never reached floor debate in the 1996 Session. See Report of the Nebraska Constitutional Revision Commission, 95th Leg., 1st Sess. (June 6, 1997). 11. NEB. REV. STAT. § 49-1602 (Cum. Supp. app. 12. Report of the Nebraska Constitutional Revision Commission, 95th Leg., 1st Sess. 4 (June 6, 1997). 13. Transcript of the Constitutional Revision Commission, 95th Leg., 1st Sess. 34- 38 (Feb. 16, 1996) [hereinafter Transcript of Revision Comm'n]. The proposal passed with all eight members present at the meeting voting for the equal protection clause insertion. 14. Transcript of Revision Comm'n, supra note 13, at 36 (comment by commission member Dick Fellman). CREIGHTON LAW REVIEW [Vol. 32 by all eight members present at the hearing, but overall there was a lack of critical analysis and reflection with regard to the legal consequences of the proposal when applied to the laws of Nebraska.1 5 The debate included a minor discussion regarding the future effects of the amendment on the financing of education within the 16 state. One member pointed out that "when the argument is made that children are entitled to an education and when it was pointed out that there is a tremendous difference in the amount of expenditure per pupil from district to district in this state, I think a clever lawyer could say that that raises an equal protection question."1 7 Addition- ally, another member believed that the proposal "could create problems for [Nebraska's] school financing because I'm not sure [school financing] is equal among all the people and maybe it should be addressed."1 8 Thus, there was an apparent awareness by the commission members - based on these limited statements - that the result of placing an equal protection clause within the Nebraska Con- stitution could have a possible impact on the school financing structure within the state.

B. ADOPTION OF LR 20CA BY THE NEBRASKA LEGISLATURE

In order for the Constitutional Revision Commission's proposal to be placed on the ballot, Nebraska law requires that the proposal first be passed by the Nebraska Legislature, or be placed on the ballot through a citizen initiative process. 19 The proposal was introduced on the floor of the Nebraska Legislature on January 9, 1997, as Legisla-

15. Id. at 34-38. 16. Id. at 36-38. Senator Warner, now deceased, also raised the issue - in addition to school financing - as to the recognition of a corporation as an individual under the equal protection clause with regard to equality of taxation between corporations and individuals within the state. Senator Warner was unsure as to whether such application would apply. 17. Transcript of Revision Comm'n, supra note 13, at 36 (comment by commission member Dick Fellman). 18. Id. 19. NEB. CONST. art. XVI, § 1. If the proposal is passed with a three-fifths majority of the members elected to the legislature, then such proposed amendment will be submitted to the voters in ballot format. Id. Proper notice is required with printing of the proposed amendment in the newspapers of each county across the state. Id. The amendment, once adopted by the state legislature, is then placed on either a general or primary ballot. Id. For the placement on a ballot during a special election, a four-fifths majority vote of the legislature is required. Id. The voters also have a process by which constitutional amendments can be placed on the general ballot through an initiative process. NEB. CONST. art. III, §§ 2, 4. This process requires a petition be signed by at least 10% of the registered voters. Such petition must be distributed to include at least 5% of the registered voters of each of two-fifths of the counties of the state. 19981 NEBRASKA EQUAL PROTECTION CLAUSE tive Resolution 20CA ("LR 20CA").20 The bill's primary sponsor, Sen- ator Douglas A. Kristensen, proclaimed that the need for the equal protection clause in the state constitution was "a matter of fairness."2 1 Senator Kristensen noted that the Nebraska Supreme Court had already interpreted a clause in the Nebraska Constitution as providing for equal protection of the laws, but that the provision was enmeshed in "archaic language" and needed to be clearly stated. 22 Other proponents of LR 20CA commented as to the need to provide a symbolic

20. 1997 NEB. LEGIS. J. at 138. Constitutional Amendment proposals are introduced as legislative resolutions. The "CA" after the designation denotes that it is a constitutional amendment. Resolutions -are numbered in the order in which they are first read in the legislative chamber. 21. Transcript Prepared by the Clerk of the Legislature, 95th Leg., 1st Sess. 532 (Jan. 30, 1997) [hereinafter Transcript of the the Clerk II]. 22. Transcript of the Clerk II, supra note 21, at 533-34. Senator Kristensen was referring to article III, section 18 of the Nebraska Constitution. Speaker Kristensen was correct, because the Nebraska Supreme Court had interpreted article III, section 18 as providing equal protection of the laws to citizens of Nebraska. See Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991) (holding unconstitutional a law affecting a closed class as constituting special legislation); Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989) (stating that article III, section 18 of the state constitution prohibited the Nebraska legislature from enacting laws that waste special or exclusive privileges where a general law can be applicable). Article III, section 18 of the Nebraska Constitution provides: The Legislature shall not pass local or special laws in any of the following cases, that is to say: For granting divorces. Changing the names of persons or places. Laying out, opening altering and working roads or highways. Vacating roads, Town plats, streets, alleys, and public grounds. Locating or changing County seats. Regulating County and Township offices. Regulating the practice of Courts of Justice. Regulating the jurisdiction and duties of Justices of the Peace, Police Magistrates and Constables. Providing for changes of venue in civil and criminal cases. Incorporating Cities, Towns and Villages, or changing or amending the charter of any Town, City, or Village. Providing for the election of Officers in Townships, incorporated Towns or Cities. Summoning or empanelling Grand or Petit Juries. Providing for the bonding of cities, towns, precincts, school districts or other municipalities. Providing for the manage- ment of Public Schools. The opening and conducting of any election, or designating the place of voting. The sale or mortgage of real estate belonging to minors, or others under disability. The protection of game or fish. Chartering or licensing ferries, or toll bridges, remitting fines, penalties or forfeitures, creating, increasing and decreasing fees, percentage or allowances of public officers, during the term for which said officers are elected or appointed. Changing the law of descent. Granting to any corporation, association, or individual, the right to lay down railroad tracks, or amending existing charters for such purpose. Granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise'. whatever; Provided, that notwithstanding any other provisions of this Constitution, the Legislature shall have authority to separately define and classify loans and installment sales, to establish maximum rates within classifications of loans or installment sales which it establishes, and to regulate with respect thereto. In all other cases where a general law can be -made applicable, no special law shall be enacted. NEB. CONST. art. III, § 18. CREIGHTON LAW REVIEW [Vol. 32

reference that the State of Nebraska supported the concept of Equal Protection of the Laws. 23 In contrast to the proponents' arguments of symbolically adopting the resolution, Senator Kate Witek, of Omaha, led the debate against the adoption of LR 20CA. 24 The argument that Witek advocated con- sisted of two prongs. The first argument stressed that by adding an explicit equal protection clause to the state constitution, Nebraskans would merely be obtaining rights that they already possessed under the Fourteenth Amendment. 25 The second argument cautioned that having such a clause in the state constitution would enable the Ne- braska Supreme Court to define equal protection of the law according to its own interpretation rather than the one proscribed by the United States Supreme Court. 26 Senator Witek commented, "at worst state court judges will assume that it must have been intended to go beyond the federal provisions, [and] that's more likely to be mischievous than 2 7 helpful." The opponents warned that adding an explicit equal protection clause to the Nebraska Constitution would allow for the expansion of equal protection to other areas of the law not already provided for by the United States Constitution.28 Not heeding the concerns of the opponents, LR 20CA was adopted by the Nebraska Legislature and subsequently placed on the ballot for voter approval. 2 9

23. Transcript of the Clerk II, supra note 21. Some state senators were worried about what the national media would think if Nebraska rejected the adoption of the equal protection clause for its own state constitution. Id. at 553, 559-60. 24. Transcript of the Clerk II, supra note 21, at 537-39, 548-49, 556-58, 562-64, 3609-16. 25. Id. at 537. 26. Id. at 538. 27. Id. 28. Id. at 548-49. Senator Witek argued that such expansion would reach into the areas of same-sex marriages and equality based financing of school systems. The senator made references to the school-financing debate that occurred in Nebraska during the 1996 election year. In that debate there was an initiative to place a quality of education requirement into the Nebraska State Constitution. Senator Witek referred to the issue as having potentially similar result in requiring the shifting of property tax revenue from wealthy school districts to those districts at an inherent disadvantage. 29. 1997 NEB. LEGIS. J. at 440. Four votes are required in the Nebraska Legisla- ture before a bill or resolution may advance. The first vote is to advance the item out of committee. Regarding LR 20CA, the bill came before the Committee on the Judiciary. In that committee the resolution advanced on a vote of 7-0-1, with one senator absent for the vote. The second vote is taken to advance the item from General File to Select File in the Nebraska Unicameral. On the General File vote, LR 20CA advanced on a vote of 37-1-11. 1997 NEB. LEGIS. J. at 482. The third vote was taken during Select File to advance the measure to Final Reading, which won approval to advance but was not a recorded vote. Id. at 1437. On Final Reading the resolution passed 42-2-5. See supra note 4 and accompanying text. 1998] NEBRASKA EQUAL PROTECTION CLAUSE

III. ANALYSIS Are the opponents of the proposed equal protection clause justified in believing that Amendment One's equal protection language will lead to changes in Nebraska law? Or are the proponents correct in stating that Nebraskans need increased equal protection not already provided for by the Federal Constitution? To analyze these competing arguments, I will focus on the impact and ramifications in various states that have adopted equal protection clauses into their state constitutions. This focus is required given the tens of thousands of cases that have reviewed the equal protection clause and the levels of scrutiny that courts use to validate governmental actions. 30 The cases reviewed here are the ones granting equal protection rights surpassing the Federal Constitution that entail interpretations by state supreme courts of their own state equal protection clauses. However, instances where state supreme courts used opinions or theories already established by the United States Supreme Court will not be analyzed because they do not adequately answer the general question of what voters in Nebraska can expect as a result of such an expansion on the rights found in a state equal protection clause.

A. ADEQUATE AND INDEPENDENT STATE GROUNDS CONSIDERATION States are free to afford their citizens greater equal protection of the law under their own state constitutions than is granted by the Federal Constitution. In Michigan v. Long,3 1 the United States Supreme Court held that where a judgment of a state court rests upon two grounds, one which is federal and another which is nonfederal in character, the Supreme Court's jurisdiction fails if the nonfederal ground is independent of the federal ground and adequate to support a judgment.32 However, where the judgment of a state court rests upon two grounds, and the nonfederal ground is so interwoven with the federal ground as to not be of an independent matter, or is not of a suffi- cient breadth to sustain a judgment without any decision of the other, the Supreme Court has jurisdiction.3 3 Thus, if a state supreme court rests a judgment on a provision found within its state constitution, and that judgment is adequate and independent to support the judgment of the state supreme court, then the United States Supreme

30. A search resulted in at least 77,150 cases that employed the equal protection language within its text, based upon a general Westlaw query of "Equal Protection" in the ALLCASES database, which includes all state and federal cases after 1944. 31. 463 U.S. 1032 (1983). 32. Michigan v. Long, 463 U.S. 1032, 1032-33 (1983). 33. See Murdock v. Memphis, 87 U.S. 590, 636 (1875) (describing the basic principle that state court decisions on issues solely concerning state law cannot be reviewed by the United States Supreme Court). 618 CREIGHTON LAW REVIEW [Vol. 32

Court does not have jurisdiction to overturn the state court's decision. This result arises from the principle that state supreme courts are the 34 final expositors of the meaning of state law. According to the Adequate and Independent State Grounds doctrine, if a state then chooses to provide a greater degree of due process protection under its own constitution, the United States Supreme Court will not reverse the ruling of the state supreme court (unless the state proceeding deals with certain sentencing issues).3 5 How- ever, if a state supreme court affords protection beneath the level found in the Federal Constitution, then such a ruling would be unconstitutional, because the Federal Constitution would require a greater threshold of protection.

B. THE EQUAL PROTECTION CLAUSE IN STATE CONSTITUTIONS The clauses granting Equal Protection of the Law in various state constitutions come in many different forms. A total of forty-five states have either an Equal Protection Clause similar to the Fourteenth Amendment, or a clause which the state's supreme court has interpreted to provide equal protection of the law. 36 In studying the effects

34. See Judiciary Act of 1789 (Rules of Decision Act), 1 Stat. 73 (codified as amended at 28 U.S.C. § 1652 (1994) (establishing the jurisdiction of the United States Supreme Court under the conditions provided for in article III, section 2 of the United States Constitution). 35. See State v. Le Grand, 249 Neb. 1, 541 N.W.2d 380, 385-86 (1995) (holding that the Nebraska Supreme Court recognizes the Independent and Adequate State Grounds Doctrine). 36. Forty-five states constitutions contain clauses from which equal protection of the law protrudes: ALASKA CONST. art. I, § 1 (see Leege v. Martin, 379 P.2d 447, 451 (Alaska 1963)); CAL. CONST. art. I, § 7(a) (see San Bernadino County v. Way, 117 P.2d 354 (Cal. 1941)); GA. CONST. art. I, § 2 (see Georgia R.R & Banking Co. v. Wright, 54 S.E. 52 (Georgia 1906)); ILL. CONST. art. I, § 2 (see People v. Nicholson, 82 N.E.2d 656 (Ill. 1948); ME. CONST. art. I, § 6-A (see Lambert v. Wentworth, 423 A.2d 527 (Me. 1980)); Mo. CONST. art. I, § 2 (see State v. Stokely, 842 S.W.2d 77 (Mo. 1992)); S.C. CONST. art. I, § 3 (see Harrison v. Caudle, 139 S.E. 842 (S.C. 1927)); UTAH CONST. art. I, § 2 (see Purdie v. University of Utah, 584 P.2d 831 (Utah 1978)); ALA. CONST. art. I, § 1 (see Dillon v. Hamilton, 160 So. 708 (Ala. 1935)); N.H. CONST. pt. 1, art. 1 (see State v. Amyot, 407 A.2d 812 (N.H. 1979)); N.J. CONST. art. I, § 1 (see Washington Nat'l Ins. Co. v. Board of Review of N.J. Unemployment Compensation Comm'n, 64 A.2d 443, 445 (N.J. 1949)); OKLA. CONST. art. II, § 2 (see Wilson v. Foster, 595 P.2d 1329, 1332-33 (Okla. 1979)); PA. CONST. art. I, § 1 (see Dansby v. Thomas Jefferson Univ. Hosp., 623 A.2d 816, 820 (Pa. 1993)); TEX. CONST. art. 1, § 3 (see Burroughs v. Lyles, 181 S.W.2d 570, 574 (Tex. 1944)); VT. CONST. ch. 1, art.,9 (see Clark v. City of Burlington, 143 A. 677, 685-86 (Vt. 1928)); Wis. CONST. art. I, § 1 (see Kallas Millwork Corp. v. Square D Co., 225 N.W.2d 454, 458 (Wis. 1975)); ARK.. CONST. art. 2, § 3 (see Poe v. State, 470 S.W.2d 818, 819-20 (Ark. 1971)); CONN. CONST. art. 1, § 20 (see Brunswick Corp. v. Li- quor Control Comm'n, 440 A.2d 792 (Conn. 1981)); FLA. CONST. art. I, § 2 (see Caldwell v. Mann, 26 So. 2d 788 (Fla. 1946)); HAw. CONST. art. I, § 5 (see Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)); LA. CONST. art. I, § 3 (see Whitnell v. Silverman, 686 So. 2d 23 (La. 1996)); MAss. CONST. pt. 1, art. 1 (see Murphy v. Commissioner of the Dep't of In- dus. Accidents, 612 N.E.2d 1149, 1154 (Mass. 1993)); MICH. CONST. art. I, § 2 (see Fox v. 1998] NEBRASKA EQUAL PROTECTION CLAUSE of equal protection clauses in different states, it is necessary to differentiate between the categories into which the various clauses can be organized. This is an important step, because a state may have a clause which provides for equal protection, but may also have additional language in the clause itself that would grant the interpreting court justification for expanding the scope outside of the protections previously interpreted under the Fourteenth Amendment. The impor- tance of analyzing the additional wording in each clause is that the wording may provide the grounds for a state supreme court to go beyond the protections granted in the Fourteenth Amendment by the United States Supreme Court, whereas a similar result may not occur in the application of Nebraska's Amendment One due to its distinct 3 7 wording.

1. Basic Components The primary component of the equal protection clause is the language that establishes the right to have laws that apply equally to those similarly situated. This can be recognized as "the equality language."38 Using the Fourteenth Amendment to demonstrate, such

Michigan Employment Sec. Comm'n, 153 N.W.2d 644 (Mich. 1967)); MONT. CONST. art. II, § 4 (see Godfrey v. State, 631 P.2d 1265 (Mont. 1981)); N.M. CONST. art. II, § 18 (see Board of Trustees of Las Vegas v. Montano, 481 P.2d 702 (N.M. 1971)); N.Y. CONST. art. I, § 11 (see Medical Bus. Associates, Inc. v. Steiner, 183 A.2d 86 (N.Y. 1992)); N.C.. CONST. art. I, § 19 (see S.S. Kresge Co. v. Davis, 178 S.E.2d 382 (N.C. 1971)); R.I. CONST. art. I, § 2 (see City of Warwick v. Almac's, Inc., 442 A.2d 1265 (R.I. 1982)); Wyo. CONST. art. I, § 3 (see Johnson v. State, 838 P.2d 158 (Wyo. 1992)); ARiz. CONsT. art. 2, § 13 (see Valley Nat'l Bank of Phoenix v. Glover, 159 P.2d 292, 299 (Ariz. 1945)); IDAHO CONST. art. I, § 2 (see Fisher v. Masters, 83 P.2d 212 (Idaho 1938)); IND. CONST. art. I, § 23 (see Fountain Park Co. v. Hensler, 155 N.E. 465, 467 (Ind. 1927)); IOWA CONST. art. 1, § 6 (see Beeler v. Van Cannon, 376 N.W.2d 628 (Iowa 1985)); KAN. BILL OF RIGHTS § 2 (see Harris v. Shanahan, 390 P.2d 772, 776 (Kan. 1964)); MINN. CONST. art. 1, § 2 (see Thomas Oil, Inc. v. Onsgaard, 215 N.W.2d 793, 796 (Minn. 1974)); N.D. CONST. art. I, § 21 (see Hamich, Inc. v. State ex rel. Clayburgh, 564 N.W.2d 640, 647-48 (N.D. 1997)); OHIO CONST.art. I, § 2 (see State ex rel. Bateman v. Bode, 45 N.E. 195 (Ohio 1896)); OR. CONST. art. I, § 20 (see Plummer v. Donald M. Drake Co., 320 P.2d 245, 248 (Or. 1958)); S.D. CONST. art. 6, § 18 (see Standard Oil Co. v. Jones, 205 N.W. 72 (S.D. 1925)); TENN. CONST. art. XI, § 8 (see Tennessee Small Sch. Sys. v.McWherter, 851 S.W.2d 139, 152 (Tenn. 1993)); WASH. CONST. art. I, § 12 (see DeFunis v. Odegaard, 507 P.2d 1169, 1184- 85 (Wash. 1973)); NEB. CONST. art. III, § 18 (see Haman v. Marsh, 467 N.W.2d 836, 846 (Neb. 1991)); Ky. CONST. § 59 (see Tabler v. Wallace, .704 S.W.2d 179, 183 (Ky. 1985)); CoLo. CONST. art. II, § 25 (see Colorado Auto & Truck Wreckers Ass'n v. Department of Revenue, 618 P.2d 646, 655 n.7 (Colo. 1980)); W. VA. CONST. art. 3, § 10 (see Thorne v. Roush, 261 S.E.2d 72, 74 (W. Va. 1979)). 37. However, under the Adequate and Independent State Grounds Doctrine, state courts are still able to expand their interpretations of the state constitutional clause even where such language is verbatim to the language found in the Fourteenth Amendment. 38. To differentiate and describe the categories of state equal protection clauses more precisely, I will refer to them as: (1) "the equality language;" (2) "the accountable party language;" and (3) "specified rights language." This terminology, to the best of the CREIGHTON LAW REVIEW [Vol. 32 language is clearly apparent in the following phrase when stating "nor deny ... the equal protection of the law."'39 This language gives the interpreting court the grounds to establish that equal protection of the law can be found within the clause. Without such a component in the equal protection clause, the clause itself would lack the essential element necessary for establishing equal application of the law. The next component consists of language that indicates to which group the equality language applies. This can be called "the accountable party language."40 In other words, the accountable party is the group that must answer when equal protection scrutiny is applied by the courts to the group's actions. In the case of the Fourteenth Amendment, such language is denoted in the phrase, "nor shall any state."4 1 Such language indicates to which entity, person or group these actions are scrutinized by the courts under the equal protection clause. In some instances, states have included corporations and firms under this accountable party language. 4 2 In the case of the Fourteenth Amendment, actions taken by the states are scrutinized in the courts to determine whether a governmental classification violates the equal protection clause. 43 The significance of placing an equal protection clause in a state constitution is that it may be written to affect actions of private individuals, whereas the Fourteenth Amend- ment in the Federal Constitution affects only the actions of federal, state and local governments. The final component of the equal protection clause is the language, which can be referred to as the "specified rights language."4 4 This language consists of explicitly stated rights that the equal protection clause is meant to protect with regard to classifications of individuals. For instance, if sex is included as a fundamental right in a state's equal protection clause, then a state court could interpret such language as requiring the designation of sex as a suspect class, thereby granting the application of strict or intermediate scrutiny author's knowledge, has not been used in any other manuscript to describe the component parts of the state equal protection clauses and consists of original terms. 39. U.S. CONST. amend. XIV, § 1. 40. See supra note 38 and accompanying text. 41. See supra notes 1, 38 and accompanying text. 42. MONT. CONST. art. II, § 4. Montana's Constitution provides: "The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas." Id. 43. See Kathryn A. McAluney, Equal Protection,27 RUTGERS L.J. 1074 (1996) (listing cases deciding equal protection issues in the civil and criminal arena). 44. See supra note 38 and accompanying text. 1998] NEBRASKA EQUAL PROTECTION CLAUSE 621 when given the court's review of the accountable group. 4 5 By as- signing an enhanced level of scrutiny, a government trying to uphold its action under the equal protection clause would be required to establish that the action was necessary to achieve a compelling government interest. Without such enhancement, the government would only be required to show that its action rationally relates to a legitimate government interest. In the Fourteenth Amendment, such language is absent; the development of suspect criteria and fundamental rights is reserved for the United States Supreme Court to pronounce. A number of states have placed specified rights terminology into their constitutions as a means of limiting the scope of the clause or, in the alternative, to provide for a classification that the courts would not 46 have otherwise provided.

2. Categorization

With the component parts defined, state equal protection clauses can next be categorized into six different groups based upon similari- ties of their component parts. The first group consists of state constitutional clauses that explicitly provide for equal protection of the law without defining suspect classifications, which is comparable to the language found in the Fourteenth Amendment; eight states have such clauses.4 7 The clauses have similar component parts as found in the Fourteenth Amendment, including the "equality" language out of which the protection arises.48 Just like the Fourteenth Amendment, these clauses also lack the specified rights language, leaving such in-

45. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (holding that by its plain language the Hawaii Constitution Equal Protection Clause prohibits state-sanctioned discrimination against any person in exercise of his or her civil rights on the basis of sex). 46. See infra note 53 (listing states with such specified rights). 47. Eight states have explicit equal protection clauses that exclude suspect classifications within the language of the clause, similar in format to the Fourteenth Amend- ment: ALAsKA CONST. art. I, § 1 (see Leege v. Martin, 379 P.2d 447, 451 (Alaska 1963)); CAL. CONST. art I, § 7(a) (see San Bernadino County v. Way, 117 P.2d 354 (Cal. 1941)); GA. CONST. art. I, § 2 (see Georgia R.R & Banking Co. v. Wright, 54 S.E. 52 (Ga. 1906)); ILL. CONST. art. I, § 2 (see People v. Nicholson, 82 N.E.2d 656 (Ill. 1948)); ME. CONST. art. I, § 6-A (see Lambert v. Wentworth, 423 A.2d 527 (Me. 1980)); Mo. CONST. art. I, § 2 (see State v. Stokely, 842 S.W.2d 77 (Mo. 1992)); S.C. CONST. art. I, § 3 (see Harrison v. Caudle, 139 S.E. 842 (S.C. 1927)); UTAH CONST. art. I, § 2 (see Purdie v. University of Utah, 584 P.2d 831 (Utah 1978)). Utah's clause is somewhat different from the others in stating that all political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit. UTAH CONST. art I, § 2. Amendment One will be included in this group when it becomes operative. 48. For instance, Illinois' Constitution states: "No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws." ILL. CONST. art. I, § 2. The equal protection language is clear and explicitly stated but does not define the suspect classifications such as race or sex. The scope of the equal protection is left to the interpretation of the court. CREIGHTON LAW REVIEW [Vol. 32

terpretation to the courts. Amendment One, Nebraska's amended equal protection clause, falls within this category.49 In the second group, the constitutional clauses provide for inalienable rights to be held by citizens of their state, out of which equal protection of the law is interpreted to emanate; eight states have such language in their state constitutions. 50 These clauses provide for equal protection of the law in that the citizens of the state are said to have inalienable rights and it is presumed that these rights are shared equally. 51 Certain "specified rights" are listed, but they are only mentioned with regard to inalienable rights, or such basic rights as life, liberty and the pursuit of happiness, and do not define the suspect classifications. 52 A third group is comprised of clauses that contain explicit equal protection provisions, but unlike the first category, this group defines the suspect classifications under their included specified rights language; thirteen states have this type of clause contained in their state constitutions.53 Such language is similar to the Fourteenth Amend-

49. See supra note 3 and accompanying text. 50. Eight states have equal protection clauses that arise out of language expressly providing for inalienable rights: ALA. CONST. art. I, § 1 (see Dillon v. Hamilton, 160 So. 708 (Ala. 1935)); N.H. CONST. pt. 1, art. 1 (see State v. Amyot, 407 A.2d 812 (N.H. 1979)); N.J. CONST. art. I, § 1 (see Washington Nat'l Ins. Co. v. Board of Review of N.J. Unem- ployment Compensation Comm'n, 64 A.2d 443, 445 (N.J. 1949)); OKLA. CONST. art. II, § 2 (see Wilson v. Foster, 595 P.2d 1329, 1332-33 (Okla. 1979)); PA. CONST. art. I, § 1 (see Dansby v. Thomas Jefferson Univ. Hosp., 623 A.2d 816, 820 (Pa. 1993)); TEX. CONST. art. 1, § 3 (see Burroughs v. Lyles, 181 S.W.2d 570, 574 (Tex. 1944)); VT. CONST. ch. I, art. 9 (see Clark v. City of Burlington, 143 A. 677, 685-86 (Vt. 1928)); Wis. CONST.art. I, § 1 (see Kallas Millwork Corp. v. Square D Co., 225 N.W.2d 454, 458 (Wis. 1975)). In this category, equal protection is not explicitly stated in the clause, nor are suspect classifications included in the text of the clause. 51. For example, Alabama's Constitution sets forth "[t]hat all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness." ALA. CONST. art. I, § 1. The clause includes the inalienable rights of life, liberty and the pursuit of happiness shared by its citizens, from which the courts have read equal protection of the law. See Dillon v. Hamilton, 160 So. 708 (Ala. 1935). 52. The clause of the Texas Constitution varies from the group listed in footnote 50. The Texas clause states: "All free men, when they form a social compact, have equal rights. . . ." TEX. CONST. art. 1, § 2. It is from these rights equally shared that equal protection of the law arises. See Burroughs, 181 S.W.2d 570 at 574. 53. Thirteen states have equal protection clauses that expressly define suspect and protected classifications: ARK. CONST. art. 2, § 3 (see Poe v. State, 470 S.W.2d 818, 819- 20 (Ark. 1971)); CONN. CONST. art. 1, § 20 (see Brunswick Corp. v. Liquor Control Comm'n, 440 A.2d 792 (Conn. 1981)); FLA. CONST. art. I, § 2 (see Caldwell v. Mann, 26 So. 2d 788 (Fla. 1946)); HAw. CONST. art. I, § 5 (see Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)); LA. CONST.art. I, § 3 (see Whitnell v. Silverman, 686 So. 2d 23 (La. 1996)); MAss. CONST. pt. 1, art. 1 (see Murphy v. Commissioner of the Dep't of Indus. Accidents, 612 N.E.2d 1149, 1154 (Mass. 1993)); MICH. CONST. art. I, § 2 (see Fox v. Michigan Employ- ment Sec. Comm'n, 153 N.W.2d 644 (Mich. 1967)); MONT.CONST. art. II, § 4 (see Godfrey v. State, 631 P.2d 1265 (Mont. 1981)); N.M. CONST. art. II, § 18 (see Board of Trustees of Las Vegas v. Montano, 481 P.2d 702 (N.M. 1971)); N.Y. CONST. art. I, § 11 (see Medical 1998] NEBRASKA EQUAL PROTECTION CLAUSE 623 ment, but in this group definite specified rights are listed with regard to the classifications under which courts apply a heightened scrutiny.54 These specified rights are contained in the actual text of each clause and cover a wide range of rights, including (in some cases) race, color, sex (gender), culture, creed (social origin), political and religious ideas, and physical handicap. 55 Under this category, the specified rights language clearly denotes the classifications included within the scope of each clause. Another group consists of state constitutional clauses deriving equal protection from language requiring that no "privileges or immunities" be granted unless they belong equally to all citizens; twelve states have this "privilege and immunities" language contained in their constitutions. 56 By including the "privileges and immunities" language, courts are left to determine the appropriate circumstances under which classifications will arise due to the fact that this category does not include specified rights language. 57 Another important char-

Bus. Associates, Inc. v. Steiner, 183 A.D.2d 86 (N.Y. 1992)); N.C. CONST. art. I, § 19 (see S.S. Kresge Co. v. Davis, 178 S.E.2d 382 (N.C. 1971)); R.I. CONST. art. I, § 2 (see City of Warwick v. Almac's, Inc., 442 A.2d 1265 (R.I. 1982)); Wyo. CONST. art. I, § 3 (see John- son v. State, 838 P.2d 158 (Wyo. 1992)). Note that in a different section of its constitution, Illinois has equal protection of the laws for discrimination on the basis of sex. ILL. CONST. art. I, § 18. Washington has a similar clause in its state constitution. WASH. CONST. art. 31, § 1. Given these two examples, other specified rights may also be found in other clauses contained within state constitutions - particularly as a result of clauses enacted during the gender equal rights movement of the 1970's. 54. The constitution of Massachusetts provides: "Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." MASS. CONST. pt. 1, art. 1. Equal protection of the law is explicitly stated with the classifications of sex, race, color, creed or national origin that defines the scope of suspect classifications included under this clause. See Murphy, 612 N.E.2d at 1154. 55. See supra note 53 and accompanying text. 56. Twelve states have equal protection clauses that arise out of a privilege and immunities clause: ARiz. CONST. art. 2, § 13 (see Valley Nat'l Bank of Phoenix v. Glover, 159 P.2d 292, 299 (Ariz. 1945)); IDAHO CONST. art. I, § 2 (see Fisher v. Masters, 83 P.2d 212 (Idaho 1938)); IND. CONST. art. I, § 23 (see Fountain Park Co. v. Hensler, 155 N.E. 465, 467 (Ind. 1927)); IOWA CONST. art. 1, § 6 (see Beeler v. Van Cannon, 376 N.W.2d 628 (Iowa 1985)); KAN. BILL OF RIGHTS § 2 (see Harris v. Shanahan, 390 P.2d 772, 776 (Kan. 1964)); MINN. CONST. art. 1, § 2 (see Thomas Oil, Inc. v. Onsgaard, 215 N.W.2d 793, 796 (Minn. 1974)); N.D. CONST. art. I, § 21 (see Hamich, Inc. v. State ex rel. Clayburgh, 564 N.W.2d 640, 647-48 (N.D. 1997)); OHIO CONST. art. I, § 2 (see State ex rel. Bateman v. Bode, 45 N.E. 195 (Ohio 1896)); OR. CONST. art. I, § 20 (see Plummer v. Donald M. Drake Co., 320 P.2d 245, 248 (Or. 1958)); S.D. CONST. art. 6, § 18 (see Standard Oil Co. v. Jones, 205 N.W. 72 (S.D. 1925)); TENN. CONST. art. XI, § 8 (see Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 152 (Tenn. 1993)); WASH. CONST. art. I, § 12 (see DeFunis v. Odegaard, 507 P.2d 1169, 1184-85 (Wash. 1973)). Article 1, section 1 of the Minnesota Constitution provides a variant in this category by stating that "[n]o member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof. .. ." MINN. CONST. art. 1, § 2. 57. Oregon's Constitution states: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." OR. CONST. art. I, § 20. Equal protection is implicit, in that by CREIGHTON LAW REVIEW [Vol. 32

acteristic is that clauses in this group expressly state the parties to which equal protection of the laws may be extended. For instance, the language may include limits or grants from being enacted unequally to a private citizen, class of citizens, or corporations (other than municipals). 58 By having such parties listed in the text of the clause, this group expands the scope to which equal protection of the laws 5 9 may be granted. The fifth category is comprised of clauses requiring that no special legislation will be proposed or adopted by the state's legislature. Only two states have such provisions in their state's constitutions under which equal protection has been applied. Nebraska - up until the adoption of Amendment One - was included in this category.6 0 Such language generally states that the legislature shall not pass local or special acts concerning particular matters.6 1 Equal protection is

the clause restricting the ability of the state government to grant special privileges and immunities to citizens, it creates an inverse result because all laws must apply equally. It is out of this inverse result that equal protection of the law protrudes from the clause. See Plummer, 320 P.2d at 248. 58. Arizona has a good example of this included in its Constitution: "No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations." ARIz. CONST. art. 2, § 13. The language is included to provide that such a clause restricts actions of the state that concern citizens and corporations. In Arizona, given this language, the state is prevented from granting special privileges and immunities to corporations, and thereby, such corporations are required to be treated equally. It is from this result that equal protection of the law protrudes because this clause impacts the parties included directly. See Valley Nat'l Bank, 159 P.2d at 299. 59. Valley Nat'l Bank, 159 P.2d at 299. The expansion of the scope of the clause to extend to parties other than just the citizens of the state occurs by the inclusion of the additional parties. Although other clauses may implicitly provide for this expansion, this group of clauses does so expressly in its language. 60. Two states have equal protection clauses emanating from sections that prohibit special legislation: NEB. CONST. art. III, § 18 (see Haman v. Marsh, 467 N.W.2d 836, 846 (Neb. 1991)); Ky. CONST. § 59 (see Tabler v. Wallace, 704 S.W.2d 179, 183 (Ky. 1985)). The courts in Haman v. Marsh, 467 N.W.2d 836, 846 (Neb. 1991), and Printing& Pack- aging Co. v. Cox, 443 N.W.2d 566 (Neb. 1989), have interpreted article III, section 18 of the Nebraska Constitution to provide for equal protection of the laws in Nebraska. Note that Kentucky also has a provision stating that all men are equal. Ky. CONST. § 59. In Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1993), this clause was used, in part, by the Kentucky Supreme Court to say that an equal protection of the laws existed. Per- haps given such application by the Kentucky Court, Nebraska could be the only state to find equal protection of the laws solely within its special legislation statute. 61. The Nebraska Constitution, prior to enactment of Amendment One (LR 20CA), provided in article III, section 18: The Legislature shall not pass local or special laws in any of the following cases, that is to say: For granting divorces. Changing the names of persons or places. Laying out, opening altering and working roads or highways. Vacating roads, Town plats, streets, alleys, and public grounds. Locating or changing County seats. Regulating County and Township offices. Regulating the practice of Courts of Justice. Regulating the jurisdiction and duties of Justices of the Peace, Police Magistrates and Constables. Providing for changes of venue 1998] NEBRASKA EQUAL PROTECTION CLAUSE 625

found due to the reasoning that by passing special legislation for one entity or class, the legislature creates an unequal application of the law that restricts additional classifications or groups from also obtaining special consideration. 62 Such equality language is not specifically present and is left for interpretation by the courts, which was one of the reasons proponents gave for the necessity of enacting 63 Amendment One in Nebraska. A final category consists of equal protection of the laws, which is derived from a due process clause. West Virginia and Colorado have constitutions that contain the precise language of the Fourteenth Amendment with regard to its due process protection text, but they do not explicitly require equal protection of the law. 64 Regardless of such omission, West Virginia and Colorado courts have interpreted their clauses to imply equal protection of the laws.6 5 Nebraska also has a similar due process clause in its constitution, but the courts in Ne-

in civil and criminal cases. Incorporating Cities, Towns and Villages, or changing or amending the charter of any Town, City, or Village. Providing for the election of Officers in Townships, incorporated Towns or Cities. Summoning or empanelling Grand or Petit Juries. Providing for the bonding of cities, towns, precincts, school districts or other municipalities. Providing for the manage- ment of Public Schools. The opening and conducting of any election, or designating the place of voting. The sale or mortgage of real estate belonging to minors, or others under disability. The protection of game or fish. Charter- ing or licensing ferries, or toll bridges, remitting fines, penalties or forfeitures, creating, increasing and decreasing fees, percentage or allowances of public officers, during the term for which said officers are elected or appointed. Chang- ing the law of descent. Granting to any corporation, association, or individual, the right to lay down railroad tracks, or amending existing charters for such purpose. Granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever; Provided, that notwithstanding any other provisions of this Constitution, the Legislature shall have authority to separately define and classify loans and installment sales, to establish maximum rates within classifications of loans or installment sales which it establishes, and to regulate with respect thereto. In all other cases where a general law can be made applicable, no special law shall be enacted. NEB CONST. art. III, § 18. Note that the language does include the "privileges and immunities" language in its text. This may be where the equal protection of the law ema- nates, and if not for the additional special legislation wording, section 18 would be included in the Privileges and Immunities Category of equal protection clauses. 62. See Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991). 63. Transcript of the Clerk II, supra note 21, at 533-34 (comments by Senator Kristensen). 64. Two states have equal protection of the law that has been determined to reside within their respective states' due process clauses: CoLo. CONST. art. II, § 25 (see Colo- rado Auto & Truck Wreckers Ass'n v. Department of Revenue, 618 P.2d 646. 655 n.7 (Colo. 1980)); W. VA. CONST. art. 3, § 10 (see Thorne v. Roush, 261 S.E.2d 72, 74 (W. Va. 1979)). 65. ColoradoAuto & Truck, 618 P.2d at 655 n.7; Thorne, 261 S.E.2d at 74. CREIGHTON LAW REVIEW [Vol. 32 braska have never interpreted the due process clause as providing 6 6 equal protection. As stated previously, the reason for such in-depth analysis of the components of the equal protection clause is to provide a more accu- rate analysis of Nebraska's adopted Amendment One (LR 20CA). A detailed analysis also provides an explanation for various state courts' interpretations of their own state equal protection clauses. For instance, opponents of Nebraska's Amendment One have argued that the amendment could make Nebraska vulnerable to the imposition of same-sex marriages by the courts - similar to the situation in Ha- waii. 67 However, Amendment One does not specify sex as a suspect class, whereas Hawaii's equal protection clause does. 68 In order to determine if same-sex marriages and other consequences could arise in Nebraska as a result of Amendment One, a study of the applicable case law must be undertaken to determine how other state courts have interpreted similar provisions in their own state equal protection clauses. In addition, the differences between Amendment One and other state equal protection clauses must be examined in the context of the previous categories outlined above, in order to determine if such contrasts explain the variations in outcome by the interpretations of state courts.

C. CASE LAW APPLYING STATE EQUAL PROTECTION CLAUSES

1. Method Used

In researching the effects that state equal protection clauses have on state laws and under what circumstances state courts will use these clauses to expand the equal protection guarantees beyond that of the United States Supreme Court, the search of case law was tai- lored. My search was limited to include only cases that contained an expansion of the rights provided by the equal protection clause when interpreted by state courts. In addition, the overall research focused primarily on cases that involved arguments used by the opponents of Amendment One to determine if such claims were relevant. The research also incorporates a small sampling of cases to show other effects of an expanded equal protection clause beyond that of Amendment One's opponents' arguments.

66. The Nebraska Constitution provides: "No person shall be deprived of life, liberty, or property, without due process of the law." NEB. CONST. art. I, § 3. This is where Amendment One will be inserted upon its enactment. 67. Transcript of the Clerk II, supra note 21, at 548-49. 68. HAW. CONST. art. I, § 5. 1998] NEBRASKA EQUAL PROTECTION CLAUSE 627

2. Application of the Same-Sex MarriageArgument

The first argument often made against Amendment One is that the provision will allow the Nebraska Supreme Court to interpret the equal protection clause in a manner that will find statutory restrictions on same-sex marriages to be unconstitutional. The only case currently involving the application of a state equal protection clause to allow same-sex marriages is Hawaii's decision in Baehr v. Lewin.6 9 In the Baehr case, same-sex couples filed applications for marriage licenses in the State of Hawaii and were denied solely on the basis that the applicants were of the same sex. 70 The same-sex couples filed a complaint, alleging that their right to privacy and equal protection 7 1 - as guaranteed by the Hawaii Constitution - had been violated. The Hawaii Supreme Court held that there was no fundamental right to a same-sex marriage under the Hawaii Constitution with regard to privacy considerations. 72 Notwithstanding, the court found that sex was a suspect classification under the Hawaii Equal Protection Clause 7 3 and that classifications based on sex are subject to strict scrutiny. The court remanded the case for a determination of whether the state could show that the statute's sex-based classification was justified under a compelling state interest, and whether the statute was nar- rowly drawn to avoid unnecessary abridgments of the applicant couples' constitutional rights under Hawaii's equal protection 7 4 clause. 75 On remand, the Circuit Court of Hawaii found in Baehr v. Miike that the state had "failed to sustain [its] burden to overcome the pre- sumption that [the statute was] unconstitutional by demonstrating or proving that the statute furthers a compelling state interest."76 Thus, the court on remand found that restrictions against same-sex marriages are unconstitutional under Hawaii's equal protection clause. The Hawaii Supreme Court, in applying strict scrutiny to the marriage statute at issue in Baehr, noted: The equal protection clauses of the United States and Hawaii Constitutions are not mirror images of one another. The fourteenth amendment to the United States Constitution somewhat concisely provides, in relevant part, that a state

69. 852 P.2d 44 (Haw. 1993). 70. Baehr v. Lewin, 852 P.2d 44, 49 (Haw. 1993). 71. Baehr, 852 P.2d at 57-58. 72. Id. at 57. 73. Id. at 67. 74. Id. at 68. 75. Civ. No. 91-1394, 1996 WL 694235, at *1 (Haw. Cir. Ct. Dec. 3, 1996). 76. Baehr v. Miike, Civ. No. 91-1394, 1996 WL 694235, at *21 (Haw. Cir. Ct. Dec. 3, 1996). Note, this case is currently pending before the Hawaii Supreme Court. CREIGHTON LAW REVIEW [Vol. 32

may not "deny to any person within its jurisdiction the equal protection of the laws." Hawaii's counterpart is more elabo- rate. Article I, section 5 of the Hawaii Constitution provides in relevant part that "[n]o person shall . .. be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminatedagainst in the exercise thereof because of race, religion, sex, or ancestry." (Em- phasis added.) Thus, by its plain language, the Hawaii Constitution prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex.77 Given this rationale, the court distinguished the expanded scope of Hawaii's Equal Protection Clause due to the specified rights language found in the Hawaii Constitution, which is not included in the Four- teenth Amendment. In Nebraska, Amendment One does not include specified rights language within the text of the clause. 78 Also, Nebraska has no additional clauses in its state constitution specifying that classifications based on sex or gender are suspect classifications. Thus, the Nebraska Supreme Court could not use the same justification that the Hawaii Supreme Court used in Baehr to support a finding that a state statute banning same-sex marriages was subject to a strict scrutiny review. However, the Nebraska Supreme Court has the ability - under the Adequate and Independent State Grounds Doctrine - to pronounce that classifications based on sex are subject to strict scrutiny review. If the Hawaii Supreme Court can find that restrictions against same- sex marriages are afforded strict scrutiny review, then it is just one step removed for the Nebraska Supreme Court to determine that Amendment One can be interpreted as providing the same protection based on the classification of sex. The court only needs to find that sex is a suspect classification implied within the clause. Once such a conclusion is made, the Nebraska Supreme Court can then apply a strict scrutiny review to the Nebraska Statute prohibiting same-sex marriages if it is challenged. 7 9 The state then would have to show that the statute is necessary to achieve a compelling government interest. The end result of such a decision by the court, if the state was unable to show a compelling government interest, would be the ability of same-sex couples to be married in the State of Nebraska.

77. Baehr, 852 P.2d at 59-60. 78. See supra note 3 and accompanying text. 79. LB 280, 95th Leg., 1st Sess. (1997). In 1997, the Nebraska State Legislature attempted to place a ban on same-sex marriages by stating that same-sex marriages would render the marriage void. Id. The bill was delayed until the 1998 Session of the Legislature, at which time it failed to advance and was indefinitely postponed. 1998] NEBRASKA EQUAL PROTECTION CLAUSE

A case not involving the same-sex marriage issue is Common- wealth of Kentucky v. Wasson,8 0 in which the Supreme Court of Ken- tucky held that a criminal statute proscribing consensual homosexual sodomy violates the privacy and equal protection guarantees of the Kentucky Constitution. 81 The court based its decision on the rationale that the court was "not bound by decisions of the United States Supreme Court when deciding whether a state statute impermissibly infringes upon individual rights guaranteed in the State Constitution so long as state constitutional protection does not fall below the federal floor, meaning the minimum guarantee of individual rights under the United States Constitution."8 2 The court in Wasson used this rationale to overturn its ban on sodomy by requiring a rational basis test under its equal protection clause.8 3 However, such a ruling conflicts with the United States Supreme Court's decision in Bowers v. Hard- wick,8 4 where the Court, under the Fourteenth Amendment, found that the Federal Constitution did not confer a fundamental right upon homosexuals to engage in sodomy.8 5 Nevertheless, the Kentucky Supreme Court was still able to find in its state constitution an ave- nue for the expansion of equal protection rights encompassing the ac- tivity of sodomy. Thus, the Wasson case illustrates the ability of states to expand equal protection rights beyond those interpreted by the United States Supreme Court under the Fourteenth Amendment.

3. Application of the Equal School FinancingArgument The second argument made against Amendment One is that, by adopting the provision, it will enable the Nebraska Supreme Court to interpret equal protection in such a way as to find that the state man- dated financing schemes of public education - which do not result in equal distributions of money - are unconstitutional. Under this sce- nario, a currently well-funded school district in Nebraska would be required to receive an equal apportionment of educational financing per pupil the same as a smaller, currently less-funded school district. The end result would shift property tax dollars for public education from school districts with a large tax base, and redistribute those funds to school districts that have a smaller tax base. A case on point is Tennessee Small School Systems v. McWherter.8 6 In McWherter, the Tennessee Supreme Court applied

80. 842 S.W.2d 487 (1993). 81. Commonwealth v. Wasson, 842 S.W.2d 487, 488-89 (Ky. 1993). 82. Wasson, 842 S.W.2d at 492. 83. Id. at 500. 84. 478 U.S. 186 (1986). 85. Bowers v. Hardwick, 478 U.S. 186, 191 (1986). 86. 851 S.W.2d 139 (Tenn. 1993). CREIGHTON LAW REVIEW [Vol. 32

its state equal protection clause containing the "privileges and immunities" language.8 7 The court held that state funding of public school systems violated the equal protection provision of the state constitution, and therefore the funding statutes were unconstitutional.8 8 The court noted that funds spent per pupil by each county varied from $1823 to $3669, and most of the variance was a result of the state's reliance on local governments to fund education. The variation was a result of the fact that school districtswith more sales, higher property values and commercial development had more funds to educate their children.8 9 The court also found that the Tennessee Equal Protection Clause imposed an obligation on the State Assembly to maintain and support a system of free public schools that afforded substantially equal educational opportunities. 90 The court, in applying its state equal protection clause, held that "[tihe proof before us fails to show a legitimate state interest justifying the granting to some citizens, educational opportunities that are denied to other citizens similarly situated, and, thus, fails to satisfy even the 'rational basis' test applied in equal protection cases."9 1 Thus, even under a rational basis test, the State of Tennessee was unable to meet the standard necessary to uphold its state-financing scheme for public education. Under a similar ruling in Dupree v. Alma School DistrictNo. 30 of Crawford County,92 the Arkansas Supreme Court, using its state equal protection clause containing specified rights language, found that its state public education financing scheme was in violation of the provision.9 3 The court found that the statutory public school financing system denied equal protection to those school districts which were property poor, and that there was a rational relationship between the disparity caused by the system and the need of the individual districts.94 The court noted that it could "find no legitimate state purpose to support the system. It bears no rational relationship to the educational needs of the individual districts, rather it is determined primarily by the tax base of each district."95 Therefore, the court in Dupree, like McWherter, found a state public education-financing scheme based on local property tax financing unconstitutional under its state equal protection clause.

87. Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 152-53 (Tenn. 1993). 88. McWherter, 851 S.W.2d at 156-57. 89. Id. at 143. 90. Id. at 140-41. 91. Id. at 156. 92. 651 S.W.2d 90 (Ark. 1983). 93. DuPree v. Alma Sch. Dist. No. 30 of Crawford County, 651 S.W.2d 90, 91 (Ark. 1983). 94. DuPree, 651 S.W.2d at.93-95. 95. Id. at 93. 1998] NEBRASKA EQUAL PROTECTION CLAUSE 631

Some courts have even interpreted the language of state equal protection clauses to require strict scrutiny of state educational financing schemes. In Horton v. Meskill,96 the Connecticut Supreme Court found that a system of public education financing, which de- pended primarily on local property taxes without regard to disparity in the economic ability to finance an education program, could not pass the test of strict judicial scrutiny. 97 The court noted that such disparity in per pupil expenditures between school systems averaged between $813 and $1245. 9 8 The court held under a provision in the state constitution (other than the equal protection clause) that education was a fundamental right of the citizens of the State of Connecti- cut. 99 After labeling the right to an education as a fundamental right, the court applied strict scrutiny to determine if the financing scheme was acceptable under the state equal protection clause.10 0 In Horton, the court used a state provision providing for education as a fundamental right and applied a strict scrutiny test in interpreting its state equal protection clause in order to overturn a school-financing scheme. In addition, the West Virginia Supreme Court - in Pauley v. Kelly' 01 - utilized the state's due process clause providing for equal protection and overturned a state education financing scheme, because the state failed to show the requisite compelling state interest. 10 2 In doing so, the court established education as a fundamental right. The plaintiffs in Pauley claimed that funding was "out of bal- ance" in property poor counties as compared to school districts in more wealthy counties. 10 3 The court noted that under the United States Supreme Court's decision in San Antonio Independent School District v. Rodriguez,10 4 the United States Constitution does not provide a fundamental right to education.10 5 Taking this into account, the West Virginia Supreme Court stated that "a state is not constrained by the federal constitutional standard, but must examine its own constitution to determine its education responsibilities." 0 6 The court rea- soned "Ib]ecause education is a fundamental constitutional right in

96. 376 A.2d 359 (Conn. 1977). 97. Horton v. Meskill, 376 A.2d 359, 374-75 (Conn. 1977). 98. Horton, 376 A.2d at 376. 99. Id. at 373-74. 100. Id. at 374-75. 101. 255 S.E.2d 859 (W. Va. 1979). See also State v. Bailey, 453 S.E.2d 368 (W. Va. 1994) (holding that education was a fundamental right and teacher financing scheme was subject to application of strict scrutiny under the West Virginia Equal Protection Clause). 102. Pauley v. Kelly, 255 S.E.2d 859, 878 (W. Va. 1979). 103. Pauley, 255 S.E.2d at 861. 104. 411 U.S. 1 (1973). 105. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). 106. Pauley, 255 S.E.2d at 863-64. CREIGHTON LAW REVIEW [Vol. 32 this State, then, under our equal protection guarantees any discrimi- natory classification found in the educational financing system cannot stand unless the State can demonstrate some compelling State interest to justify the unequal classification. 10 7 The court in Pauley, echo- ing the opinion in Horton, applied strict scrutiny to the education financing scheme, thereby establishing education as a fundamental right within its state. There are additional cases dealing with school financing 08 schemes.1 The primary consideration for courts in such cases is the disparity in per pupil input between "wealthy propertied" school districts and "poorer propertied" school districts. Nebraska public school systems receive a substantial amount of funding from local property taxes, which are distributed through the state tax system according to an amount per pupil for average daily attendance. 10 9 Under the current structure of Nebraska's school financing scheme, the Nebraska Supreme Court, using rationales similar to those found in Pauley and Horton, could reasonably hold that the method used to finance Ne- braska schools is unconstitutional under the equal protection clause found in Amendment One. Furthermore, the Nebraska Constitution contains a provision requiring that "[tihe legislature shall provide for the free instruction in the common schools of this state of all persons between the ages of five and twenty-one years." 0 Thus, the Nebraska Supreme Court could, at some point, use this clause to construe education as a fundamental right in Nebraska. At present, the Nebraska Supreme Court has not chosen to declare education as a fundamental right, but with the enactment of Amendment One, the court could revisit its prior decisions in order to determine if the amendment changes the prior application of the law."' If the court chose to recognize education as a fundamental right, it must apply a strict scrutiny test whereby a compelling

107. Id. at 878. 108. Washakie Community Sch. Dist. No. One v. Herschler, 606 P.2d 310 (Wyo. 1980) (holding that the state's system of financing public education, based on local property taxes, was unconstitutional because it failed to afford equal protection in violation of the state constitution); Serrano v. Priest, 557 P.2d 929 (Cal. 1977) (declaring that the California public school financing system for public schools, which conditioned accessi- bility of funding upon district wealth, was violative of the state's equal protection clause); Robinson v. Cahill, 303 A.2d 273 (N.J. 1973) (holding that public school financing leading to a great disparity in dollar input per pupil and also having no apparent relation to a mandate calling for equal educational opportunities, violated the state constitution). 109. NEB. REV. STAT. § 79-1060 (1996). 110. NEB. CONST. art. VII, § 1. 111. Kolesnick ex rel. Shaw v. Omaha Pub. Sch. Dist., 251 Neb. 575, 558 N.W.2d 807 (1997) (declaring that in the context of student discipline cases, there is no fundamental state or federal constitutional right to education). 1998] NEBRASKA EQUAL PROTECTION CLAUSE 633

state interest would have to be shown to allow Nebraska's school financing system to continue in its present form. Applying a strict scrutiny test would have the effect of placing a significant burden on the state to justify a financing system that did not provide equal funding with regard to per pupil expenditures. In consideration of the relevant case law involving school financing issues, it appears the opponents of Amendment One made a credi- ble argument with regard to equal protection challenges. As noted in this analysis, there are numerous instances in which state courts have applied their state equal protection clauses to mandate redistribution of school district funds. Under Amendment One, it is a real possibility that the Nebraska Supreme Court could rule similarly with regard to school financing. Considering the language contained in the Educa- tion Article of the Nebraska Constitution, such an expansion of the equal protection clause could also result in a strict scrutiny standard and, ultimately, in the unconstitutionality of the current school financing system in Nebraska. Nonetheless, even without a finding that education is a fundamental right, the courts in McWherter and Dupree altered the education financing scheme in their respective states based on the failure of the state statutes to meet even a rational basis review.

4. Other Possible Effects of a State Equal Protection Clause In researching the potential effects of Amendment One on Ne- braska law, a number of additional cases were found which primarily involve ceilings on liability limits and statutes of repose. For example, in Hanson v. Williams County,1 12 the North Dakota Supreme Court applied the state's "privileges and immunities" clause and held that statutes of repose limiting a plaintiffs ability to seek relief in a product liability suit were subject to an intermediate standard of equal protection analysis. 113 The court further held that statutes of repose violated the equal protection provision of the state constitution. 114 The court established that the right to recover for damages was not a fundamental right, but an important substantive right which necessi- tated an intermediate standard of equal protection review when applied to actions restricting the ability of a plaintiff to seek relief on such a claim. 1 5 Subsequently, the court in Hanson, using its state equal protection clause, found that the statute which did not allow

112. 389 N.W.2d 319 (N.D. 1986). 113. Hanson v. Williams County, 389 N.W.2d 319, 321-25 (N.D. 1986). 114. Hanson, 389 N.W.2d at 328. 115. Id. at 323-25. CREIGHTON LAW REVIEW [Vol. 32

causes of action on products outside of ten years after the purchase 1 16 date were unconstitutional. Likewise, the Montana Supreme Court used its state's equal protection clause (containing specified rights language) to invalidate a statute that limited tort liability of both the state and other political subdivisions. In Pfost v. State,11 7 the court held that a statute passed by the Montana Legislature limiting tort claims on political subdivisions was an invasion of a fundamental right granted under the Mon- tana State Constitution."18 The court stated that "[a]ny state statute that restricts, limits, or modifies full legal redress for injury to person, property or character therefore affects a fundamental right and the state must show a compelling state interest if it is to sustain the constitutional validity of the statute."1 19 Thus, the court in Pfost held that the ability to recover for an injury is a fundamental right. Although the question of liability award restrictions was not one of the arguments posed by the opponents of Amendment One, the holdings of Pfost and Hanson indicate that this area of Nebraska law could be impacted by Amendment One. Such a result may affect the ability of statutes of repose and other liability restricting statutes to impose limits on the amount of legal awards. 120 The Nebraska Supreme Court has previously held, in Radke v. H.C. Davis Sons' Manufacturing Co., Inc.,121 that neither Nebraska's due process nor equal protection clause were violated by a ten-year statute of repose for product liability.' 22 However, with the enactment of Amendment One, the Nebraska Supreme Court may be compelled to revisit its decision in Radke and rule that the statutes of repose are unconstitu- 23 tional under the equal protection clause found in Amendment One.1

D. APPLICATION BY THE NEBRASKA SUPREME COURT 1. Nebraska Constitution Article III, Section 18 Even prior to Amendment One, Nebraska has had a clause in its Constitution prohibiting special legislation and allowing equal protec-

116. Id. at 328. 117. 713 P.2d 495 (Mont. 1985). 118. Pfost v. State, 713 P.2d 495, 500, 505 (Mont. 1985). 119. Pfost, 713 P.2d at 503. 120. See Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991) (holding that the state equal protection clause was violated by imposing an $875,000 cap in personal injury actions for non-economic losses). 121. 241 Neb. 21, 486 N.W.2d 204 (1992). 122. Radke v. H.C. Davis Sons' Mfg. Co., Inc., 241 Neb. 21, 486 N.W.2d 204, 205-06 (1992). 123. Allhusen v. State, 898 P.2d 878 (Wyo. 1995) (holding that provisions of licensing act of mental health professionals granting licensing exemptions violated Wyoming state equal protection clause). 1998] NEBRASKA EQUAL PROTECTION CLAUSE tion. 124 Article III, section 18 "guarantees to Nebraskans equal protection of the law. This means the law must apply equally to everyone or, if some people are penalized or benefited by the law, there must be a rational basis for the exception." 12 5 Two cases essentially outline the parameters of equal protection found in article III, section 18. 1 2 6 In the first case, Distinctive Printing & Packaging Co. v. Cox, the Nebraska Supreme Court upheld the parental liability statute under the Fourteenth Amendment of the United States Constitution and article III, section 18 of the Nebraska Constitution. 12 7 In Cox, a company sued the parents of a minor child for property damages alleg- edly caused by the minor child in setting a fire. In accordance with the parental liability statute, parents may be held liable for damages caused by their children. 128 In regard to this statute, the court stated: article III, § 18, concerns itself with disparate treatment in much the same manner as does the language of U.S. Const. amend. XIV, which prohibits a state from making or enforc- ing any law which denies any person within its jurisdiction "the equal protection of the laws." (citations omitted). Although the power of classification rests with the Legis- lature of this state, a statute which makes an artificial and baseless classification violates article III, § 18. (citations omitted). The Legislature is permitted to classify persons as long as, absent implication of a fundamental right or suspect classification, the legislative categorization has a rational basis.129 In Cox, the court applied a rational basis test and found that the purpose of the statute was not meant to impose vicarious liability. Thus, the statute was rationally related to the legitimate governmental purposes of compensating victims and deterring juvenile delin- quency. 130 Accordingly, Nebraska clearly has had an equal protection clause which - in circumstances involving a baseless or artificial classification made by the Legislature - will be reviewed under a rational basis test as delineated in the Cox opinion. The second case on point is Haman v. Marsh,13 1 in which the Ne- braska Supreme Court struck down a statute that reimbursed deposi-

124. NEB. CONST. art. III, § 18. 125. ROBERT D. MIEWALD & PETER J. LONGO, THE NEBRASKA STATE CONSTITUTION: A REFERENCE GUIDE 71 (Greenwood Press 1993). 126. 232 Neb. 846, 443 N.W.2d 566 (1989). 127. Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 854-55,443 N.W.2d 566, 572-73 (1989). 128. Cox, 232 Neb. at 848-49, 443 N.W.2d at 569. 129. Id. at 849, 443 N.W.2d at 570. 130. Id. at 854-55, 443 N.W.2d at 573. 131. 237 Neb. 699, 467 N.W.2d 836 (1991). 636 CREIGHTON LAW REVIEW [Vol. 32

tors for losses incurred while investing their money with Commonwealth Savings Company. 132 In Haman, the court held that such legislation was invalid as special legislation under article III, section 18, because it gave the state's credit to a private corporation in "contravention" of the state constitution. 13 3 The defendants argued that the rational basis test of article III, section 18 should be applied. 13 4 The court disallowed such application of the rational basis test and noted: "In Nebraska both equal protection and the prohibition against special legislation emanate from that constitutional provision. "135 Thus, instead of applying the equal protection part of article III, section 18, the court applied the special legislation portion and stated that "[t]he test of validity under the special legislation prohibition is more stringent than the traditional rational basis test."1 36 The significance of Haman is that the court again recognized that article III, section 18 provides for equal protection of the law, while alterna- tively utilizing the special legislation provision providing for a higher level of scrutiny to reach its holding in the case.

2. If Nebraska already has a State Equal Protection Clause, why did we need Amendment One?

If interpretations of the Nebraska Constitution currently provide equal protection, then why was it necessary for the Legislature to adopt LR 20CA and place Amendment One before the voters? Senator Kristensen answered this in his opening statement on LR 20CA: Nebraska does have an equal protection concept in our constitution. It is called our special legislation clause.... The Nebraska Supreme Court, in several cases, has used our special legislation language in the constitution as our equal protection clause. We want to make sure that by taking out the old, archaic language in the other portion of the constitution, we do not destroy the concept of equal protection that is already in this state and, thus, that is the reason we put in some place else specifically equal protection under the law. 1 3 7 Senator Kristensen stated that his intention in proposing the constitutional amendment was to ensure that equal protection continued to exist in the state constitution upon a possible amendment to article

132. Haman v. Marsh, 237 Neb. 699, 703-04, 722, 467 N.W.2d 836, 841-42, 852 (1991). 133. Haman, 237 Neb. at 711-12, 467 N.W.2d at 846. 134. Id. at 712, 467 N.W.2d at 846. 135. Id. 136. Id. at 713, 467 N.W.2d at 846-47. 137. Transcript of the Clerk II, supra note 21, at 533. 1998] NEBRASKA EQUAL PROTECTION CLAUSE 637

III, section 18.138 However, according to the transcript of the hearing held by the Constitutional Revision Commission in its discussion and approval of LR 20CA, there is no mention of the need to adopt LR 20CA as a basis to ensure that such protection would be included after a revision of article III, section 18 occurred. 13 9 As noted previously, Dick Fellman, a member of the Constitutional Revision Commission, stated in the February 20, 1996, hearing:

138. See Report of the Constitutional Revision Commission, 95th Leg., 1st Sess. 25- 27 (June 6, 1997) (containing the proposed revisions to article III, section 18). The designation of the proposal in the Legislature was LR 18CA. This proposal stated: The Members Of The Ninety-Fifth Legislature Of Nebraska, First Session, Re- solve That: Section 1. At the general election in November 1998 the following proposed amendment to the Constitution of Nebraska shall be submitted to the electors of the State of Nebraska for approval or rejection: To amend Article III, section 18: 111-18 "The Legislature shall not pass local or special laws in afty of the following eoos, that is to so. For granting diveres. Chogf-g the names of peroonsorpplaco. Laying ouit, opnn altering an.d wal,, 5 red or hig wy.Vacating roads, Town plat, stees aley, and pul gr,,t...cL. Locat o cnhantging Couints scats. Regulating County and Towsi efficos. Regulating tho praofcoe of Couirts of Justico Reg-u1ating the juidition and dutios of Justicos of the Pooco, Polico Magistrate ad C t Hbe Prov-iding er ...... l ...... ue.I t. g ,Townsofis. and Vilages, or .. g..g- r amending the ehar-er f Tny..... Ct1, or 1Ai. logo. Providing for the oloction of Officoro int Towsi ifte p t d EPW4e Citios. Sti 5 ~ ~llingfte Crand e tJ P d o h beadig o...... ts, school dist..... tr other muniiPaloties Pre- vidiag for the mnanogomont of Putblic Schools The oeig d Pi-ct6igd1 of any o , si g . of voting. The..... or ... tg.go ef real ostote belonging to mrs , or other tiador disability. Theoprotoction of games or fish. ChoAoring or lioorsirng ferris, or toll bridges, remitting finos, penol tios or forfcitxros, oreating, increasing and dooroasing fees, ...... or ol lowonoes of public ffier, during the term for which said effiees ae lotcd or app.nted. Changing the low of.d.sont. Cranting to any e- t------,ass@ tien, o..idivdual, thc right t y d --. lodt...... tJ., af...... o :tin-g chortcrs for suc.h pur..... Gr- - a^p.i...... indi'd tel when a general law can be made applicable. The Legislatureshall not grant any special or exclusive privileges, immunity, or franchise whatever to any corporation, association, or individual, except; PROGqDED, that notwithstanding any other provisions of this Constitution, the Legislature shall have authority to separately define and classify loans and installment sales, to establish maximum rates within classifications of loans or installment sales which it establishes, and to regulate with respect thereto. In all other eases wher a gentral law .. lx. ma^d.e ...... s r1a,~T shall.be--tet.d." Section 2. The proposed amendment shall be submitted to the electors in the manner prescribed by the Constitution of Nebraska, Article XVI, section 1, with the following ballot language: "A constitutional amendment to prohibit special legislation and eliminate references to certain categories of special legislation. For/Against." Neb. LR 18CA. Note that LR 18CA advanced to General File during the 1997 Legisla- tive Session, but it failed to get passed during the 1998 Legislative Session. For the resolution to be adopted, it must be re-introduced during the 1999 Legislative Session. 139. Transcript of the Constitutional Revision Commission, 95th Leg., 1st Sess. 34- 38 (Feb. 16, 1996). CREIGHTON LAW REVIEW [Vol. 32

I was amazed to discover that [the equal protection clause] isn't in the Nebraska Constitution.... I think there could be some interesting applications [of the equal protection clause]. For instance, just as an example, when the argument is made that children are entitled to an education and when it was pointed out that there is a tremendous difference in the amount of expenditure per pupil from district to district in this state, I think a clever lawyer could say that that raises an equal protection question .... I think there would be countless other examples and it would seem to me that the Constitution of the state should have this clause in it for reasons that are obvious.., and, frankly, for opening the door to a discussion and expansion of [the equal protection of 140 the law] in many other areas. Thus, the discussion of the Constitutional Revision Commission indicates that the intent of Amendment One is not to ensure that state equal protection of the laws be maintained after a revision of article III, section 18. Rather, it appears the intention (of at least one member of the commission) was for expansion of equal protection of the laws into areas not currently applicable under article III, section 18, such as the redistribution of school district educational funds. A previous attempt was made in 1993 to alter Nebraska's current school financing scheme under an equal protection argument. In Gould v. Orr,14 1 the plaintiffs filed a petition stating that the state's statutory scheme for financing public schools denied them equal protection of the law in violation of the Nebraska Constitution. 14 2 The plaintiffs in Gould alleged that approximately 75% of the budget of each school district was financed by local tax revenue and that the remaining 25% was provided by the state.' 43 The plaintiffs established that the disparity between the school districts was $7119.97 per pupil expenditure for the wealthiest property district - as compared to only $1313.46 per pupil for poorer school districts within the state. 4 4 After reviewing the petition, the court held that the plaintiffs failed to state a claim under article III, section 18, because the petition did not show that unequal funding of schools affected the 14 5 quality of education students were receiving. The enactment of Amendment One may give the court additional grounds upon which to find a legitimate claim. With Amendment One, the Nebraska Supreme Court could hold that a proper claim was

140. Id. at 36 (emphasis added). 141. 244 Neb. 163, 506 N.W.2d 349 (1993). 142. Gould v. Orr, 244 Neb. 163, 164, 506 N.W.2d 349, 350 (1993). 143. Gould, 244 Neb. at 165, 506 N.W.2d at 351. 144. Id. 145. Id. at 168-69, 506 N.W.2d at 353. 1998] NEBRASKA EQUAL PROTECTION CLAUSE established in circumstances like those presented in Gould - as courts have done in similar cases across the United States - under an explicit equal protection clause rather than an implied equal protection clause like the one found in article III, section 18. If such a scena- rio were to occur, the current state financing scheme could be held unconstitutional and property tax revenue would then be redis- tributed among school districts to provide for equalization of school 146 financing.

3. Future Application of Amendment One

Now that Amendment One has been adopted, the Nebraska Supreme Court will be required to interpret the equal protection clause under a number of guidelines. As mentioned earlier, under the Adequate and Independent Grounds Doctrine, the court will not be able to construe Amendment One as providing for less protection than afforded by the United States Constitution. However, the court may provide for a greater degree of protection than afforded by the United States Constitution, because states may interpret provisions in their own state constitutions on independent grounds, whereas a similar review by the United States Supreme Court is not permissible. 147 Thus, if the Nebraska Supreme Court uses an adequate and independent state ground when applying Amendment One, then the United States Supreme Court would not be able to overturn a decision that enhanced the scope of Nebraska's equal protection of the laws. The Nebraska Supreme Court may be limited in its expansion of Amendment One's equal protection of the laws if the amendment is shown to be ambiguous, unclear, or where the intent of the electorate does not support such an expansion. The adoption by the legislature of a proposed amendment does not per se amend the Nebraska Consti- tution - only the electorate can amend the constitution by subsequently adopting the proposal by a majority vote. Because of this process, the courts look to the intent of the electorate in determining

146. Senate Speaker Withem stated during Select File floor debate that in order to have the courts apply LR 20CA "you have to have a set of judges who have a desire to find a state funding formula unconstitutional .... In our state, our court to date has indicated they don't have a desire to do this. They were given the opportunity in the Gould case, they chose not to do this." See Transcript of the Clerk, supra note 6, at 3613. Speaker Withem's comments fail to take into account that the Nebraska Supreme Court's membership is forever changing in its makeup. Two justices either resigned or were removed in 1996. By changing the constitution and stating that such application by the Nebraska Supreme Court will not occur because of its membership during the Gould case in 1993 attempts to shift focus away from what effects the amendment would have on future courts in the state. 147. See supra note 31 and accompanying text. CREIGHTON LAW REVIEW [Vol. 32 how to apply a constitutional amendment. 148 Under Nebraska Re- vised Statute section 49-205, the law requires that in order for a legislative resolution to become a constitutional amendment, a majority of electors must adopt the amendment, "provided the votes cast in favor of such amendment shall not be less than thirty-five percent of the total votes cast at such election ...,,149 Once adopted, the Nebraska Supreme Court will only construct a constitutional provision when it has been demonstrated that the meaning of the provision is not clear and construction is necessary. 150 Where the words of the amendment are plain, direct and unambiguous, no interpretation is needed to as- certain the meaning and a mere reading will suffice. 15 1 To determine the intent of the voters in adopting a constitutional provision, the Ne- braska Supreme Court reviews the words of the initiative amendment itself.152 In determining the intent of an amendment, the court must 153 hold that the voters intended what the language employed imports. Thus, the court will only apply the intent of the electorate if the amendment - on its face - is broad and ambiguous. In addition, under Nebraska Revised Statute section 49-202.01, the Nebraska Legislature outlined the procedure by which ballot language is placed into a constitutional amendment proposal. 154 The statute specifies: When any proposal submitted by the Legislature is placed on the ballot for a vote of the electorate of the entire state, a statement in clear, concise language explaining the effect of a vote for and a vote against the proposal shall be printed im- mediately preceding the ballot title. Such statement shall be prepared by the Executive Board of the Legislative Council. . .. 155 The statute requires that the Executive Board of the Legislative Council prepare the language to be incorporated alongside the text of

148. See Cunningham v. Exon, 207 Neb. 513, 300 N.W.2d 6 (1980) (holding that because the adoption of a constitutional amendment is determined by the electorate, voter intent must be considered). 149. NEB. REV. STAT. § 49-205 (Reissue 1993). 150. See State ex rel. Stenberg v. Douglas Racing Corp., 246 Neb. 901, 524 N.W.2d 61 (1994) (holding that the statutes were unambiguous and thus, no construction was necessary). 151. See State ex rel. Caldwell v. Peterson, 153 Neb. 402, 45 N.W.2d 122 (1950). 152. See State ex rel. Spire v. Public Employees Retirement Bd., 226 Neb. 176, 410 N.W.2d 463 (1987) (holding that to determine voter intent in adopting an amendment, the words of the initiative must be reviewed). 153. See Ramsey v. Gage County, 153 Neb. 24, 43 N.W.2d 593 (1950) (holding that the words of a constitutional provision are to be read according to their obvious meaning). 154. NEB. REV. STAT. § 49-202.01(1) (Cum. Supp. 1994). 155. Id. 19981 NEBRASKA EQUAL PROTECTION CLAUSE the constitutional amendment. 156 It is from this language, and the language of the resolution itself, that the Nebraska Supreme Court will interpret the intent of the electorate if it finds that Amendment One - by itself - is not plain, direct and unambiguous. Because Amendment One does not provide explicitly for protections of classifications based on race, color, sex, creed or handicap, and if the court finds that Amendment One is not plain, direct or unambiguous with regard to such classifications, then the court will apply the amendment based on the intent of the electorate. 15 7 In determining this intent, the court must not hold that the electorate intended any- thing different from what the language employed imports. 158 If it can be shown that it was not the intent of the voters to pass an equal protection clause amendment that would include acceptance of same-sex marriages or equitable distribution of school property tax dollars within the state of Nebraska, then the Nebraska Supreme Court would be obligated (under its previous rulings) to disallow such an expansion of the equal protection clause. Therefore, the ballot language drafted by the Executive Board of the Legislature is important, because the Nebraska Supreme Court could use that language to ascer- tain the intent of the electorate. Such ballot language could have an effect on the application of Amendment One if the court chooses to take into account the intent of the electorate in order to determine the scope of the state equal protection clause. 159

156. The makeup of the Executive Board of the Legislative Council is defined under Nebraska Revised Statute section 50-401.01. Section 50-401.01(1) provides: The Legislative Council shall have an executive board, to be known as the Ex- ecutive Board of the Legislative Council, which shall consist of a chairperson, a vice-chairperson, and six members of the Legislature, to be chosen by the Leg- islature at the commencement of each regular session of the Legislature when the speaker is chosen, and the Speaker of the Legislature. The Legislature at large shall elect two of its members from legislative districts Nos. 1, 2, 15, 16, 21, 23 to 30, 32, 34, 35, and 46, two from legislative districts Nos. 3 to 14, 20, 31, 39, and 45, and two from legislative districts Nos. 17 to 19, 22, 33, 36 to 38, 40 to 44, and 47 to 49. The Chairperson of the Committee on Appropriations shall serve as a nonvoting ex officio member of the executive board whenever the board is considering fiscal administration. NEB. REV. STAT. § 50-401.01(1) (Supp. 1997). 157. See supra note 150 and accompanying text. 158. See supra note 153 and accompanying text. 159. The language used on the November 1998 General Election Ballot for LR 20CA was decided on May 20, 1998, during a meeting of the Executive Board of the Legisla- ture. The ballot language read as follows: A vote FOR this proposal will amend section 3, Article I (the Bill of Rights), by adding to the due process of law clause an equal protection clause providing that no person shall be denied "the equal protection of the laws." A vote AGAINST this proposal will not add an equal protection of the laws clause to section 3 of Article 1. CREIGHTON LAW REVIEW [Vol. 32

IV. CONCLUSION

The purpose of this analysis is not to determine whether same-sex marriages should be allowed, or whether a school finance tax scheme should be based on principles of equitability. Rather, the article is intended to focus on the potential changes that could occur in Ne- braska Law now that Amendment One has been adopted. The proponents of Amendment One have declared that there will be little substantive change under the adopted amendment, because Nebraska already has an equal protection clause in article III, section 18. However, this declaration fails to take into account that, by in- serting a new clause into the Nebraska Constitution, the Nebraska Supreme Court is no longer bound by its prior decisions in which equal protection of the laws was found in article III, section 18. In light of Amendment One's passage, the Nebraska Supreme Court will be obligated to revisit its application of the law of equal protection under the Nebraska Constitution. 160 Amendment One explicitly defines equal protection. Where the court previously might have been tacitly cautious or conservative in its approach by using an implied equal protection of the laws analysis found within a special legislation clause under article III, section 18, the court will not have these similar restraints under Amendment One. The word "equal," in and of itself, is often inconsistently used by the courts when interpreting equal protection clauses. Whether the word means equal under the law, equally applied, all persons are equal, equal rights, or equal amounts of financing for schools, are the concepts often confused and left to the courts for a determination of which connotation is relevant. Clearly, there are questions which arise as to the manner and intent members of the Constitutional Revision Commission had in proposing and adopting Amendment One. Was it purely a symbolic attempt to explicitly define equal protection of the laws, or was it a backdoor attempt to institute same-sex marriages and a property tax system of redistribution within the state via the judiciary? Whatever

The language is required to be delivered to the Nebraska Secretary of State's office for placement on the ballot at least four months prior to the actual election, according to Janice Satra, Executive Board Committee Counsel. 160. At his testimony to the Committee on the Judiciary during hearing resolutions LR 20CA and LR 19CA, Nebraska Attorney General Don Stenberg testified that "[ijf... the Legislature and the people put this in the constitution, the court is going to look at that and say, well, they must have meant to do something in addition to what we've already said. They must have intended us to somehow go farther or be more active in doing this because surely they wouldn't go to the trouble of amending the constitution to change nothing. The court is going to look at this and say something here is new." See Transcript of the Committee on the Judiciary, 95th Leg., 1st Sess. 88 (Jan. 22, 1997). 1998] NEBRASKA EQUAL PROTECTION CLAUSE 643 the true nature of Amendment One, the reality remains that now that Amendment One has been adopted by the electorate, this will enable the Nebraska Supreme Court to review the concept of equal protection anew. Therefore, the impact from a possible enlargement of the scope of the law of equal protection under the state constitution could drasti- cally change the institution of marriage and the school financing system (to name only two) within the State of Nebraska. 644 CREIGHTON LAW REVIEW [Vol. 32