Summary
The Nebraska Supreme Court affirmed summary judgment upholding statutes authorizing the Governor to appoint election commissioners in Lancaster, Douglas, and Sarpy Counties. The court held that article IX, section 4, of the Nebraska Constitution grants the Legislature broad discretion to create and define county offices and officers, and that the Legislature did not intend election commissioners or chief deputy election commissioners to be county officers subject to election.
Topics
Practice areas
Questions Presented
- Whether election commissioners and chief deputy election commissioners are county officers within the meaning of article IX, § 4, of the Nebraska Constitution.
- Whether Neb. Rev. Stat. §§ 32-207 and 32-209, and related Election Act provisions authorizing gubernatorial appointment of election commissioners and chief deputies, violate article IX, § 4, of the Nebraska Constitution.
- Whether the district court properly granted summary judgment to the respondents and intervenors.
Holdings
- Article IX, § 4, gives the Legislature broad discretionary authority to create and define county offices and to determine who qualifies as a county officer, subject to constitutional limits.
- Election commissioners and chief deputy election commissioners are not county officers under article IX, § 4; the Legislature did not intend to classify them as county officers.
Key quotations
“Upon this court’s review of the record, we conclude that under the plain text of article IX, § 4, the Legislature has broad discretion and authority in creating and defining county offices and officers.” (11)
“we hold that the Legislature possesses the discretionary authority to create and define county offices, a power which includes the ability to define or identify who is a county officer.” (14)
“Thus, because the intent of the Legislature may be found through its omission of words from a statute, we find that through its omission of election commissioners and chief deputy election commissioners from the language contained in §§ 23-1114.01 to 23-1114.07, the Legislature did not intend for election commissioners or the chief deputies to be classified as county officers.” (15-16)
Factual background
Nebraska statutes authorize the Governor to appoint election commissioners in counties with populations exceeding 100,000, including Lancaster, Douglas, and Sarpy Counties, and authorize the appointment of chief deputy election commissioners. The Attorney General contended that election commissioners and chief deputies are county officers under article IX, § 4, of the Nebraska Constitution, which requires the Legislature to provide for the election of necessary county and township officers. The district court concluded that election commissioners are not county officers and that the appointment statutes are constitutional.
Procedural history
After the Attorney General issued an opinion concluding that election commissioners and chief deputies were county officers required by article IX, § 4, of the Nebraska Constitution to be elected, the Governor declined to exercise his statutory appointment authority. The Attorney General sought to challenge the appointment statutes; leave to commence an original action in the Nebraska Supreme Court was denied after the parties could not reach a complete stipulation of facts. The Attorney General then filed an action in Lancaster County District Court. The district court granted summary judgment to the respondents and intervenors, later amended the judgment to clarify that all claims were resolved, and the Attorney General appealed.