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 protec- tion 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 recog- nition 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 per- sons 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 conse- quences 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 restric- tions 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 re- gard 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 conse- quences by having the Nebraska State Supreme Court expand the concept of what clas- sifications 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 en- abling statutes, the purpose of the commission was to: make a complete study of the Constitution of Nebraska to de- termine 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 al- ready 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).