DIVISION OF LEGISLATIVE
Binding the Hands of Future Legislators:
The Nebraska v. Moore Case
Joan E. Putney, Senior Attorney
On March 8, 1996, the Nebraska Supreme Court issued an opinion in the case of Nebraska ex rel. Stenberg v. Moore, 249 Neb. 589, 544 N.W.2d 344. The Attorney General of Nebraska asked for declaratory judgment on the constitutionality of a Nebraska statute enacted in 1993. The statute required future legislation projected to increase total inmate population in state correctional facilities to include cost-estimates. It also required that separate appropriations bills to cover such costs be enacted during the same legislative session. The Supreme Court of Nebraska found the statute to be an impermissible restriction of the constitutional power of succeeding legislatures to legislate. To understand the court's decision, one must review the facts of the case, the applicable statutory language, and the court's analysis.
Facts of the Case
Attorney General Don Stenberg of Nebraska filed a petition on June 20,1995, for an original action in the Nebraska Supreme Court, seeking a declaratory judgment finding that 1993 Nebraska Laws, L.B. 507 violated certain articles of the Nebraska Constitution. The court granted the application to commence an original action. The respondent in the case was the Nebraska Secretary of State, Scott Moore.
The Nebraska Legislature passed L.B. 507 on May 24, 1993, and the bill was codified as Sections 50-129 and 50-130 of Nebraska's Code. Two years later, the legislature passed 1995 Nebraska Laws, L.B. 371, which could have affected the total inmate population of the state correctional facilities. According to the estimate prepared by the legislature's fiscal analyst, L.B. 371 contained provisions addressing the second-degree murder penalty, habitual offenders, deadly weapon offenses, and "good time" changes that could result in an increase in the average daily adult and juvenile inmate population. However, no cost estimates were included in the legislation, as required by Section 50-129, and no separate appropriations bill was submitted, as required by Section 50-130.
Section 50-129 requires an estimate of the operating costs resulting from an increase in the total adult inmate population or total juvenile population in state correctional facilities to be included in proposed legislation. It also instructs the legislature to provide, in a bill that does not contain appropriations for other programs, for the fiscal year or years for which it could make valid appropriations, an amount sufficient to meet the cost indicated in the estimate contained in the legislation for such fiscal year or years by specific itemized appropriation. Further, it provides that any legislation enacted after June 30, 1993, that does not include the cost estimates required by this section and is not accompanied by the appropriation is null and void.
Section 50-130 provides that funds appropriated for increased correctional operating costs pursuant to section 50-129 be reserved in a separate budget program and used as contingency funds by the Department of Correctional Services. Contingency funds are to be expended only on adult inmate and juvenile per diem and medical expenses.
The Attorney General asserted that L.B. 507 violated the Nebraska Constitution by impermissibly binding future legislatures and imposing additional requirements on future legislatures for valid enactment of legislation beyond the requirements established in the Constitution. He pointed out that L.B. 507 required future legislation to include estimates regarding operating costs and to be accompanied by a specific itemized appropriations bill. Without such items, the legislation would have been null and void.
In its analysis, the court cites 82 C.J.S. Statutes s 9 at 24-25 (1953), setting out the general rule as:
The court cited supporting cases from Iowa, Michigan, and Georgia, all of which in effect said the legislature derives its power from the constitution, and one legislature cannot bind, restrict or limit a future or succeeding legislature. The court went on to say that the Nebraska Constitution is not a grant, but a restriction on legislative power, and the legislature may legislate on any subject not prohibited by the Constitution. Therefore, without a constitutional restriction, one legislature cannot restrict or limit the right of a succeeding legislature to exercise the power of legislation.
Based on this rule, the court reasoned that L.B. 507, with its appropriations requirements, violated the Nebraska Constitution by attempting to restrict the constitutional power of a succeeding legislature to legislate in a manner that would allow such legislature to determine what correctional laws to pass and how much, if any, appropriation was necessary.
During the 1993 General Assembly Session, House Bill 1768, creating § 30-19.1:4, was passed as follows:
§ 30-19.1:4. Increase in terms of imprisonment; appropriations for operating costs.
Comparison of Virginia and Nebraska Law
Section 14 of Article IV of the Virginia Constitution addresses the powers and limitations of the General Assembly. It provides, in part, "that the authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject." A state legislature is held to have all legislative powers not forbidden it. Strawberry Hill Land Co. v. Starbuck, 124 Va. 76, 97 S.E. 362. This supports the general rule that one legislature cannot bind a succeeding legislature or restrict or limit the power of its successors to enact legislation. A comparison of Virginia's Section 30-19.1:4 and Nebraska's Sections 50-129 and 50-130 reveals how much more flexible Virginia's statute is, thereby avoiding constitutional and statutory issues.
While at first reading Virginia's and Nebraska's statutes seem very similar, a second look discloses important differences. Obviously, both require the preparation of fiscal impact statements when a corrections bill may create additional costs. After that, the similarities cease.
According to Virginia's law, a one-year appropriation is to be made as part of the total budget bill in the year the legislation is enacted. Under Nebraska's law, a separate appropriations bill is required.
In Virginia, the appropriated funds are placed in a special Virginia Public Safety Fund but are used for any corrections need. In Nebraska, section 50-130 requires the appropriated funds to be reserved and used as contingency funds, only for adult inmate and juvenile per diem and medical expenses, by the Department of Correctional Services.
Nebraska also has a provision in Section 50-129 that declares any legislation enacted after June 30, 1993, which fails to include the required estimates and appropriation to be null and void. Virginia's statute contains no such language.
Finally, there is a provision in Virginia's budget, §4-11:00, Conflict with Other Laws, that would save Virginia's statute if there was a constitutional problem with it. It provides that this act (the budget) shall prevail over all other laws of the Commonwealth which may be in conflict therewith until July 1, 1998, at which time this act shall expire. This provision appears in every budget for Virginia. Therefore, if an argument was made that paragraph C of § 30-19.1:4 binds the hands of a succeeding legislature because it allows an adjustment to be made in the original appropriation and if none is made, the previous amount shall be repeated, the succeeding legislature can do whatever it pleases in the succeeding year through the budget bill because of § 4-11:00. In other words, paragraph C is not binding; it would be overruled by the budget bill.
The Nebraska Supreme Court decided that the Nebraska Legislature tried to extend its power too far §§ 50-129 and 50-130 when it (i) required future legislatures to appropriate funds for correctional costs resulting from legislation enacted in the past and (ii) expressly limited the purpose for which such funds could be used. Such additional requirements created an impermissible restriction of constitutional power of succeeding legislatures to legislate. While Virginia's § 30-19.1:4 does not have such problems, the Nebraska case is a good reminder to all legislatures to take care in their law-making not to bind the hands of future legislatures.
© Commonwealth of Virginia.