Attorney General of Nebraska — Opinion
DATE: January 5, 1978
SUBJECT: Dear Senator:
You have asked for our opinion on LB 638 which you have introduced in this legislative session. LB 638 amends LB 532, section 45, Eighty-fifth Legislature, First Session, 1977. Your amendment, in effect, reestablishes the former method of appropriation of state aid for local schools.
In Section 1(3) your amendment proposes the following language:
“There is included in the amount shown $45,000,000 General Funds which are appropriated to the School Foundation and Equalization Fund, which fund is hereby appropriated and $10,000,000 General Funds for distribution under sections 79-4,160 to 79-4,168.”
This is the identical language that has been used in the recent past in appropriating state aid money for distribution to local school districts. The School Foundation and Equalization Fund is distributed under a formula established by sections 79-1330 through 79-1344, R.R.S. 1943. Section 79-4,160 through section 79-4,168 provide for a distribution of sums appropriated for their purposes. By the enactment of LB 33 last year, the Legislature sought to amend the provisions of both of the above sets of statutes concerning the distribution of state aid money to local school districts. In addition, LB 33 contemplated an increase in state support for local school districts of $20,000,000 for the fiscal year 1977-1978. As you know, a referendum petition was circulated successfully thereby suspending LB 33 pursuant to Article III, section 3 of the Constitution. In LB 532, the appropriations bill of the last session intended to fund state aid to local school districts, the Legislature appropriated $55,000,000 in General Funds to the School Foundation and Equalization Fund. The further language of that section appropriating the money which you propose to amend appropriated the amounts allocated under LB 33 and, of course, that appropriation was ineffective as set forth in our prior opinions to Senators Koch and DeCamp.
The question that arises by virtue of the attempt to correct the problems introduced into the distribution of state aid by the method of appropriation utilized by the Legislature last year is the extent of the power of the Legislature to act where a referendum vote is pending. In Nebraska the case that offers the most guidance in this area is Klosterman v. Marsh, 180 Neb. 506, 143 N.W.2d 744
(1966). In that case a referendum action had been initiated against the enactment of an income tax law. The general income tax law was first enacted during the session, passed and became law without the Governor’s signature. Later in the session an additional bill was enacted which amended section 1 of the income tax law. The only effect of the amendment was to change the definition of income for cooperatives in the State of Nebraska. The question presented to the court was whether the referendum and initiative provisions and the legislative power were concurrent or consecutive. The court held that the power of the people and the Legislature to enact legislation could be exercised concurrently. In addition, the court stated the often repeated rule that:
“Constitutional provisions with respect to the right of initiative and referendum reserved to the people should be construed to make effective the powers reserved. . . .”
However, the court also recognized that legislative power to act still existed. They stated:
“In this case we are not faced with the problem of a referendum petition against a specific legislative act in which changes or amendments made by the Legislature in a subsequent amending act might be such as to make them inseverable. Nor is this a case where the later amendment was so major and extensive as to make the issue to be presented to the voters unintelligible or so misleading as to be unfair or constitute fraud. Neither is this a case in which rejection of the act under referral by the voters would create confusion or upset the orderly process of legislation.”
There is a very similar situation in Klosterman to that which is proposed under your amendment in that the amendment you propose does not affect LB 33 directly. Your amendment is of an appropriations bill which has the effect of appropriating money to be distributed under the legislation that would have been repealed or amended by LB 33. In effect, your bill maintains the status quo as it had existed prior to the adoption of LB 33. It is also corrective in that it authorizes the Department of Education in subsection 2 to distribute the money under the existing statutes regulating the distribution of state aid to school districts essentially in the same manner that the distributions have been made in previous years. For these reasons as well as for the reasons pointed out in our letter to Senator DeCamp of October 26, 1977, it is our opinion that your proposed amendment is not in violation of the power of initiative or referendum reserved to the people by Article III, section 3 of the Constitution.