State ex rel. Bruning v. Gale

STATE EX REL. BRUNING v. GALE 	257
Cite as 284 Neb. 257
purpose of summary judgment is not to cut litigants off from
their right of trial by jury if they really have issues to try.29 A
motion for summary judgment is not a substitute for a motion
for a directed verdict or for error proceedings taken after a full
trial.30 When viewing the evidence presented at the summary
judgment hearing in a light most favorable to the nonmoving
party, in this case the defendant, the plaintiff-movant failed to
establish each element of his cause of action as a matter of law.
Therefore, the district court erred in granting partial judgment.
Because we reverse the partial summary judgment in favor of
Green and remand the cause for a new trial which will include
the issues of negligence and liability, we need not address the
parties’ remaining assignments of error concerning damages
and costs.
VI. CONCLUSION
For the foregoing reasons, we reverse the judgment below
and remand the cause for a new trial.
R eveRsed and Remanded.
WRight, J., not participating in the decision.
29 Ingersoll v. Montgomery Ward & Co., Inc., 171 Neb. 297, 106 N.W.2d 197
(1960).
30 Illian v. McManaman, 156 Neb. 12, 54 N.W.2d 244 (1952).
state of nebRaska ex Rel. Jon bRuning, attoRney
geneRal of the state of nebRaska, RelatoR, v.
John a. gale, secRetaRy of state of the
state of nebRaska, R espondent.
817 N.W.2d 768
Filed August 3, 2012. 	No. S-11-933.
1. Constitutional Law: Statutes. Whether a statute is constitutional is a question
of law.
2. ____: ____. The general rule is that when part of an act is held unconstitutional,
the remainder must likewise fail, unless the unconstitutional portion is severable
from the remaining portions.
3. Constitutional Law: Statutes: Proof. Laws that burden political speech are
subject to strict scrutiny, which requires the government to prove that the
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

258 	284 NEBRASKA REPORTS
restriction furthers a compelling interest and is narrowly tailored to achieve
that interest.
4. Constitutional Law: Statutes: Presumptions. A statute is presumed to be con-
stitutional, and all reasonable doubts are resolved in favor of its constitutionality.
5. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitu-
tionality of a statute is on the one attacking its validity.
6. ____: ____: ____. The unconstitutionality of a statute must be clearly established
before it will be declared void.
7. Constitutional Law. The parameters of the constitutional right to freedom of
speech are the same under both the federal and the state Constitutions.
8. Statutes: Constitutional Law. The public financing provisions of the Campaign
Finance Limitation Act impose a substantial burden on the free speech rights of
Nebraska citizens without serving a compelling state interest.
9. Statutes: Constitutional Law: Legislature: Intent: Appeal and Error. To
determine whether an unconstitutional portion of a statute may be severed, an
appellate court considers (1) whether a workable statutory scheme remains with-
out the unconstitutional portion, (2) whether valid portions of the statute can be
enforced independently, (3) whether the invalid portion was the inducement to
passage of the statute, (4) whether severing the invalid portion will do violence
to the intent of the Legislature, and (5) whether the statute contains a declaration
of severability indicating that the Legislature would have enacted the bill without
the invalid portion.
10. Statutes: Constitutional Law. The unconstitutional portions of the Campaign
Finance Limitation Act are not severable from the remaining portions, and there-
fore, the entire act is unconstitutional.
Original action. Judgment for relator.
Jon Bruning, Attorney General, Dale A. Comer, and Lynn A.
Melson for relator.
Jeffry D. Patterson and Robert F. Bartle, of Bartle & Geier
Law Firm, for respondent.
Andre R. Barry, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for amici curiae Common Cause Nebraska
and League of Women Voters of Nebraska.
heavican, c.J., connolly, stephan, and mccoRmack, JJ.,
and iRWin, cassel, and piRtle, Judges.
heavican, c.J.
I. NATURE OF CASE
In this original action, the court is asked to determine the
constitutionality of Nebraska’s Campaign Finance Limitation

STATE EX REL. BRUNING v. GALE 	259
Cite as 284 Neb. 257
Act 	(CFLA).1 After 	the 	U.S. 	Supreme 	Court 	declared 	a
campaign finance statute in Arizona to be unconstitutional,
the 	Nebraska 	Accountability 	and 	Disclosure 	Commission
(Commission) sought an opinion from the Nebraska Attorney
General as to the constitutionality of the CFLA. The Attorney
General opined that the CFLA would likely be found to be
unconstitutional by a court, and the Commission determined it
would not enforce the CFLA.
Pursuant to Neb. Rev. Stat. § 84-215 (Reissue 2008), the
Attorney General was then directed to file an action in court
to determine the validity of the CFLA. Section 84-215 charges
the Secretary of State with defending the action. We find that
the CFLA substantially burdens the First Amendment rights of
Nebraska citizens and that it is, therefore, unconstitutional.
II. FACTUAL BACKGROUND
In 1992, the Nebraska Legislature passed the CFLA as
2009 Neb. Laws, L.B. 556. Under the CFLA, candidates
for certain covered elective offices, including the Governor,
State Treasurer, Secretary of State, Attorney General, and
Auditor of Public Accounts, as well as members of the
Legislature, Public Service Commission, Board of Regents
of the University of Nebraska, and State Board of Education,
may choose to abide or to not abide by voluntary spending
limits.2 A candidate who abides by the limits and raises and
spends qualifying amounts in accordance with the CFLA
becomes eligible for public funds.3 That candidate is then
entitled to receive public funds depending on the estimated
maximum expenditures or reported expenditures filed by any
of the candidate’s opponents.4
In 2011, in Arizona Free Enterprise Club v. Bennett,5 the
U.S. Supreme Court, by a vote of 5 to 4, found that a provision
1 Neb. Rev. Stat. §§ 32-1601 to 32-1613 (Reissue 2008 & Supp. 2011).
2 §§ 32-1603 and 32-1604.
3 § 32-1604.
4 Id.
5 Arizona Free Enterprise Club v. Bennett, 564 U.S. 721, 131 S. Ct. 2806,
180 L. Ed. 2d 664 (2011).

260 	284 NEBRASKA REPORTS
of Arizona’s public campaign funding law, which granted
matching funds to candidates, substantially burdened political
speech and was not sufficiently justified by a compelling state
interest. The Court held that the Arizona statutory scheme vio-
lates the First Amendment to the U.S. Constitution.
In response to the Bennett opinion, the executive director
of the Commission requested an opinion from the Nebraska
Attorney General as to the effect of the Bennett decision on the
CFLA. Section 84-215 provides that the Attorney General may
issue a written opinion as to the constitutionality of an act of
the Legislature.
In the Attorney General’s opinion, he found it “likely” that
the matching funds provisions of the CFLA would be found to
impose a substantial burden on the speech of privately financed
candidates and that a court would “likely” find that the match-
ing funds provisions of the CFLA are unconstitutional.6 The
opinion also stated that the public financing provisions would
not be severable and that the portion of the CFLA providing
for a limit on aggregate contributions from independent com-
mittees, businesses, associations, and political parties could not
be enforced independently.7 The opinion concluded that under
Bennett, the public financing provisions of the CFLA sub-
stantially burden the political speech of those candidates who
choose to not abide by the voluntary spending limits and that
this burden was not sufficiently justified by a compelling state
interest. The Attorney General opined that the CFLA creates
a public financing system which unconstitutionally abridges
the free speech rights of Nebraska citizens and that the public
financing provisions of the CFLA are not severable, making
the CFLA unconstitutional in its entirety.8
Under § 84-215, if the Attorney General issues a written
opinion that an act is unconstitutional and any state officer
charged with the duty to implement the act, in reliance on the
opinion, refuses to implement the act, the Attorney General is
6 Att’y Gen. Op. No. 11003 (Aug. 17, 2011).
7 Id.
8 Id.

STATE EX REL. BRUNING v. GALE 	261
Cite as 284 Neb. 257
required to file a court action to determine the act’s validity. In
reliance upon the opinion, the Commission adopted a resolu-
tion refusing to implement, administer, or enforce the CFLA
in connection with the 2012 state election cycle or subsequent
election cycles. The Commission also notified the Attorney
General of its resolution.
The Attorney General then instituted this original action.
The parties stipulated that the action is a civil one in which the
State of Nebraska is a party and that it involves public funds;
therefore, it is a case relating to the revenue of the State under
Neb. Rev. Stat. § 24-204 (Reissue 2008).
III. ISSUES BEFORE COURT
(1) Whether the public financing provisions of the CFLA
violate the free speech provisions of article I, § 5, of the
Nebraska Constitution and the Free Speech Clause of the First
Amendment to the U.S. Constitution.
(2) Whether the public financing provisions of the CFLA
are severable or whether the CFLA is unconstitutional in its
entirety.
IV. STANDARD OF REVIEW
[1] Whether a statute is constitutional is a question of law.9
[2] The general rule is that when part of an act is held
unconstitutional, 	the 	remainder 	must 	likewise 	fail, 	unless
the unconstitutional portion is severable from the remaining
portions.10
V. ANALYSIS
1. JuRisdiction
The Secretary of State asserts that there is a question as
to whether this court has jurisdiction. Under § 84-215, the
Attorney General is responsible for filing an action in court to
determine the validity of a statute after the Attorney General
has issued an opinion as to the constitutionality of a statute
9 See, Sarpy Cty. Farm Bureau v. Learning Community, 283 Neb. 212, 808
N.W.2d 598 (2012); Kiplinger v. Nebraska Dept. of Nat. Resources, 282
Neb. 237, 803 N.W.2d 28 (2011).
10 Jaksha v. State, 241 Neb. 106, 486 N.W.2d 858 (1992).

262 	284 NEBRASKA REPORTS
and a state officer or agency that is charged with implement-
ing the statute relies on the opinion and refuses to imple-
ment it.
In this case, the Attorney General did not issue a definitive
opinion stating that the CFLA is unconstitutional. Rather, he
surmised that a court “would likely find the public financ-
ing provisions of the [CFLA] to be unconstitutional” and
that “a court could find” the entire CFLA invalid, because
the offending provision is not severable. The Secretary of
State argues that § 84-215 requires a definitive conclusion of
unconstitutionality before an agency can reasonably rely on
the Attorney General’s opinion and refuse to implement the
act in dispute.
We find that the court has jurisdiction to determine the
constitutionality of the CFLA, and we decline to parse the lan-
guage of § 84-215 to require that an Attorney General’s opin-
ion must definitively state that a statute is unconstitutional. Our
review arises from the decision of the Commission to refuse to
implement the CFLA. We are asked to determine whether the
statute is unconstitutional, not to decide whether the Attorney
General’s opinion is correct.
The amici curiae, Common Cause Nebraska and the League
of Women Voters of Nebraska, also question this court’s
jurisdiction, asserting that there is no justiciable controversy
because the interests of the Attorney General and the Secretary
of State, who both represent the State of Nebraska, are not
inherently adverse.
The statutory scheme set forth in § 84-215, as passed by
the Legislature, by its very nature establishes adverse interests
between the Attorney General and the Secretary of State. The
statute requires the Attorney General to bring a court action if
a state officer refuses to implement the act. A justiciable issue
requires a present, substantial controversy between parties hav-
ing adverse legal interests susceptible to immediate resolution
and capable of present judicial enforcement.11
We conclude that there is a present, substantial controversy
between the Attorney General, who believes that the CFLA
11 In re Estate of Reading, 261 Neb. 897, 626 N.W.2d 595 (2001).

STATE EX REL. BRUNING v. GALE 	263
Cite as 284 Neb. 257
is unconstitutional, and the Secretary of State, who by stat-
ute is directed to defend the constitutionality of all laws. The
Commission has stated that it will not enforce the CFLA unless
its constitutionality is determined. We find that this court has
jurisdiction to decide the constitutionality of the CFLA under
state laws.
2. campaign finance limitation act
The Legislature incorporated into the CFLA its findings
that the cost of running for statewide offices and legislative
seats has risen and results in the exclusion of qualified can-
didates from the democratic process.12 Thus, its opinion that
providing public funds to assist in the financing of campaigns
would increase the number of qualified candidates carries
greater weight than if the finding were only a part of legisla-
tive history.
However, the Legislature noted that based on holdings of the
U.S. Supreme Court, “any limitation on campaign expenditures
must be entered into voluntarily.”13 Use of “public financing
of campaigns is a constitutionally permissible way in which
to encourage candidates to adopt voluntary campaign spend-
ing limitations.”14
The Legislature stated in the statute that there are
compelling state interests in preserving the integrity of
the electoral process in state elections by ensuring that
these elections are free from corruption and the appear-
ance of corruption; in providing the electorate with infor-
mation that will assist them with electoral decisions; and
in gathering the data necessary to permit administration
and to detect violations of the [CFLA].15
The Legislature found that the State’s interests could only
be achieved if
(a) reasonable limits are placed on the amount of cam-
paign contributions from certain sources, (b) the sources
12 § 32-1602(1).
13 Id.
14 Id.
15 § 32-1602(2).

264 	284 NEBRASKA REPORTS
of funding and the use of that funding in campaigns are
fully disclosed within the time periods prescribed by
the [CFLA], and (c) public funds are provided to can-
didates who voluntarily accept spending limitations and
otherwise comply with conditions for such funding under
the [CFLA].16
The CFLA lays out a procedure for candidates to qualify for
public funds to support their campaigns. It requires that every
candidate, whether or not the candidate seeks public funds,
must make timely filings under the CFLA.17
The 	CFLA 	designated 	certain 	statewide 	offices 	as
“covered.”18 A candidate for a covered office must file an
affidavit stating whether he or she agrees to abide or to
not abide by spending limitations.19 The spending limits
were established in 2006, at which time they ranged from
$2,297,000 for candidates for Governor to $70,000 for candi-
dates for the Public Service Commission or the State Board
of Education.20 Beginning in 2008 and every 4 years thereaf-
ter, the spending limits are required to be adjusted for inflation
based upon the Consumer Price Index.21 The candidate may
qualify for public funds “if he or she limits his or her cam-
paign spending for the election period,” meets other statutory
requirements, and faces an opponent who does not agree to
limit campaign spending.22
A candidate who indicates that he or she will not abide
by the spending limits must also file an affidavit providing a
reasonable estimate of his or her maximum expenditures for
the primary election.23 If the nonabiding candidate is success-
ful in the primary, he or she must submit another estimate of
16 Id.
17 § 32-1604(4) and (5).
18 § 32-1603(1).
19 § 32-1604(1) and (4)(a).
20 § 32-1604(3)(a).
21 § 32-1604(3)(b).
22 § 32-1604(2).
23 § 32-1604(5)(a).

STATE EX REL. BRUNING v. GALE 	265
Cite as 284 Neb. 257
expenditures for the general election on or before the 40th day
following the primary.24
In order to qualify for public funding, an abiding can-
didate must raise at least 25 percent of the spending limit
for the covered office sought.25 This amount must be raised
from persons who are residents of Nebraska or from a busi-
ness, corporation, partnership, limited liability company, or
association that transacts business in and has an office in
Nebraska, all of whom are considered residents.26 However,
at least 65 percent of the qualifying amount must be received
from individuals.27
The CFLA provides that no candidate shall accept contri-
butions from “independent committees, businesses, including
corporations, unions, industry, trade, or professional associa-
tions, and political parties” which, when aggregated, exceed
75 percent of the spending limitations for the office under
§ 32-1604.28
A candidate seeking public funds may request such funds
upon making expenditures which equal or exceed 25 percent
of the spending limitation for the election period.29 The dis-
tribution of public funds to participating, abiding candidates
under the CFLA is therefore triggered by either the expendi-
tures or the estimate of expenditures of privately financed or
nonabiding candidates.
A nonabiding candidate must also file an affidavit with the
Commission when his or her expenditures equal or exceed
40 percent of the spending limitation for the primary election
period and a second affidavit for the general election period.30
If a 40-percent disclosure affidavit is not filed, no public funds
will be distributed to the qualified abiding candidate unless
24 Id.
25 § 32-1604(4).
26 Id.
27 Id.
28 § 32-1608.
29 § 32-1606(1).
30 § 32-1604(5)(b).

266 	284 NEBRASKA REPORTS
preelection campaign statements show that a candidate has
made expenditures requiring the filing of a 40-percent disclo-
sure affidavit.31
Public funds are disbursed to the qualified abiding candidate
“no earlier than the last date to amend an affidavit stating a
reasonable estimate of expenditures,” which is up to 30 days
before a primary and up to 60 days before the general election,
but no later than 14 days after the election.32
After an abiding candidate meets the fundraising and fil-
ing requirements of § 32-1604(4), he or she is entitled to
receive public funding of the greater of either (a) the differ-
ence between the office-specific spending limitation and the
nonabiding candidate’s estimate of expenditures for either the
primary or the general election or (b) the difference between
the spending limit and the “highest amount of expenditures
reported in preelection campaign statements” filed by any of
the candidate’s opponents.33 Hence, the distribution of public
funds to participating, abiding candidates under the CFLA
is clearly triggered by the actual or anticipated expenditures
of privately financed or nonabiding candidates, either by the
estimate in § 32-1606(1)(a) or the actual reported expendi-
tures as provided in § 32-1606(1)(b). The Commission has
authority to assess a civil penalty for violations of the spend-
ing limitations.34
According to the stipulation of facts entered into by the
parties, since the enactment of the CFLA, there have been
486 candidates for elective offices covered by it. Of those
486 candidates, 11 have been advised by the Commission that
public funding was available and 10 have received all or part
of the public funding available under the CFLA. At least three
candidates have challenged the constitutionality of the CFLA
through litigation. Two percent of all candidates have received
public funding.
31 § 32-1604(6).
32 § 32-1606(2).
33 § 32-1606(1).
34 § 32-1612.

STATE EX REL. BRUNING v. GALE 	267
Cite as 284 Neb. 257
3. A rizonA Free enterprise
Club v. bennett
The Commission requested the Attorney General’s opinion
after the U.S. Supreme Court issued its opinion in Bennett.35
In Bennett, the Court held that the Arizona statutes providing
matching funds for campaign financing “substantially burden[]
protected political speech without serving a compelling state
interest and therefore violate[] the First Amendment.”36
Bennett arose under Arizona’s Citizens Clean Elections Act,
which created a voluntary public financing system to fund
campaigns of candidates for state office.37 The Court explained
that the act provides money which is collected from Arizona
voters who contribute $5 to the fund. Publicly funded candi-
dates must agree to limit their expenditure of personal funds
to $500, participate in at least one public debate, adhere to an
overall expenditure cap, and return all unspent public moneys
to the state.38
Candidates who accept these conditions are given public
funds and may be granted additional equalizing or matching
funds in both primary and general elections.39 The funds in a
primary are “triggered when a privately financed candidate’s
expenditures, combined with the expenditures of independent
groups made in support of the privately financed candidate or
in opposition to a publicly financed candidate, exceed the pri-
mary election allotment of state funds to the publicly financed
candidate. §§ 16-952(A), (C).”40 In the general election, the
trigger occurs when the contributions received by a privately
financed candidate, “combined with the expenditures of inde-
pendent groups made in support of the privately financed
candidate or in opposition to a publicly financed candidate,
35 Bennett, supra note 5.
36 Id., 564 U.S. at 728.
37 See Ariz. Rev. Stat. Ann. §§ 16-940 to 16-961 (2006 & Cum. Supp. 2009).
38 See, Bennett, supra note 5; Ariz. Rev. Stat. Ann. §§ 16-941(A)(2),
16-956(A)(2), and 16-953.
39 See, Bennett, supra note 5; Ariz. Rev. Stat. Ann. § 16-952(A), (B), and
(C)(4) and (5).
40 Bennett, supra note 5, 564 U.S. at 729.

268 	284 NEBRASKA REPORTS
exceed the general election allotment of state funds to the pub-
licly financed candidate. § 16-952(B).”41
Once matching funds are triggered, publicly financed can-
didates receive $1 in state funding for each additional dollar
that a privately financed candidate spends in the primary (less
a 6-percent reduction to cover fundraising expenses).42 The
Court determined that during a general election, “every dollar
that a candidate receives in contributions—which includes any
money of his own that a candidate spends on his campaign—
results in roughly one dollar in additional state funding to his
publicly financed opponent.”43 If “a privately funded candi-
date faces multiple publicly financed candidates, one dollar
raised or spent by the privately financed candidate results in
an almost one dollar increase in public funding to each of the
publicly financed candidates.”44
In addition, spending by independent groups on behalf
of a privately funded candidate or in opposition to a pub-
licly funded candidate results in dollar-for-dollar matching
funds once the public financing cap is exceeded.45 A privately
financed candidate may raise and spend unlimited funds,
subject to state-imposed contribution limits and disclosure
requirements.46
The Court provided several examples to demonstrate how
the public financing scheme operates. If the privately funded
candidate spent $1,000 of his or her own money to distribute
a direct mailing or held a fundraiser that generated $1,000 in
contributions, each of his or her publicly funded opponents
would receive $940 ($1,000 less the 6-percent offset). And if
an independent group spent $1,000 on a brochure opposing
one of the publicly financed candidates, but did not mention
41 Id.
42 Id.; Ariz. Rev. Stat. Ann. § 16-952(A).
43 Bennett, supra note 5, 564 U.S. at 730.
44 Id.
45 See, id.; Ariz. Rev. Stat. Ann. § 16-952(C).
46 Id.

STATE EX REL. BRUNING v. GALE 	269
Cite as 284 Neb. 257
the privately financed candidate, the publicly financed candi-
date would receive $940 directly.47
The petitioners in Bennett were five past and future can-
didates for Arizona state office and two independent groups
that spent money in campaigns. They argued that the match-
ing 	funds 	provision 	unconstitutionally 	penalized 	their
speech and burdened their ability to fully exercise their First
Amendment rights.48
The 	Court 	stated 	that 	“‘[d]iscussion 	of 	public 	issues
and debate on the qualifications of candidates are integral
to the operation’ of our system of government.”49 The First
Amendment “‘has its fullest and most urgent application’ to
speech uttered during a campaign for political office.”50
[3] The Court has stated that “[l]aws that burden political
speech are” accordingly “‘subject to strict scrutiny,’ which
requires the Government to prove that the restriction ‘furthers
a compelling interest and is narrowly tailored to achieve that
interest.’”51
In Bennett, the Court stated that the “matching funds pro-
vision ‘imposes an unprecedented penalty on any candidate
who robustly exercises [his] First Amendment right[s].’”52 The
Arizona provision awards almost one additional dollar to a pub-
licly financed candidate after a privately financed candidate has
raised or spent more than the State’s initial grant to a publicly
financed candidate. “That plainly forces the privately financed
candidate to ‘shoulder a special and potentially significant
47 Bennett, supra note 5.
48 Id.
49 Id., 564 U.S. at 734, quoting Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612,
46 L. Ed. 2d 659 (1976).
50 Id., 564 U.S. at 734, quoting Eu v. San Francisco Democratic Comm., 489
U.S. 214, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989).
51 Citizens United v. Federal Election Com’n, 558 U.S.310, 340, 130 S. Ct.
876, 175 L. Ed. 2d 753 (2010).
52 Bennett, supra note 5, 564 U.S. at 736, quoting Davis v. Federal
Election Comm’n, 554 U.S. 724, 128 S. Ct. 2759, 171 L. Ed. 2d 737
(2008).

270 	284 NEBRASKA REPORTS
burden’ when choosing to exercise his First Amendment right
to spend funds on behalf of his candidacy.”53
“The direct result of the speech of privately financed candi-
dates and independent expenditure groups is a state-provided
monetary subsidy to a political rival.”54 The Court stated that
the constitutional problem is not the amount of funding pro-
vided by the State to publicly financed candidates, but, rather,
“[i]t is the manner in which that funding is provided—in direct
response to the political speech of privately financed candi-
dates and independent expenditure groups.”55
Having found that the matching funds provision imposes
a substantial burden on the speech of privately financed can-
didates and independent expenditure groups, the Court then
considered whether the provision was justified by a compel-
ling state interest. The Court determined that providing a level
playing field to opposing candidates is not a compelling state
interest that can justify undue burdens on political speech.56 In
addition, any state interest in combating corruption does not
justify burdens imposed on protected political speech. Indeed,
the Court stated that “‘the use of personal funds reduces the
candidate’s dependence on outside contributions and thereby
counteracts the coercive pressures and attendant risks of abuse’
of money in politics.”57 A candidate’s expenditures of his or
her own money on his or her own campaign are counted as
contributions under the matching funds provision. To that
extent, the provision cannot be supported by “any anticorrup-
tion interest.”58
The Court concluded that Arizona’s campaign financing
scheme gives money to a candidate in direct response to the
campaign speech of an opposing candidate or an independent
group when the opposing candidate has chosen not to accept
53 Id.
54 Bennett, supra note 5, 564 U.S. at 742.
55 Id., 564 U.S. at 747.
56 Id.
57 Id., 564 U.S. at 751, quoting Buckley, supra note 49.
58 Bennett, supra note 5.

STATE EX REL. BRUNING v. GALE 	271
Cite as 284 Neb. 257
public financing and has engaged in political speech above a
level set by the state.59 The matching funds provision “substan-
tially burdens the speech of privately financed candidates and
independent expenditure groups without serving a compelling
state interest. . . . Laws like Arizona’s matching funds provi-
sion that inhibit robust and wide-open political debate without
sufficient justification cannot stand.”60
4. is cfla unconstitutional?
We now consider whether the CFLA violates the First
Amendment in the wake of the Bennett decision. The Attorney
General argues that the public financing provisions of the
CFLA unconstitutionally infringe on the free speech rights
of Nebraska citizens by imposing a substantial burden on the
free speech rights of candidates. He also argues that the public
financing provisions are not narrowly tailored to serve a com-
pelling state interest.
[4-6] Whether a statute is constitutional is a question of
law.61 A statute is presumed to be constitutional, and all rea-
sonable doubts are resolved in favor of its constitutionality.62
The burden of establishing the unconstitutionality of a statute
is on the one attacking its validity.63 The unconstitutional-
ity of a statute must be clearly established before it will be
declared void.64
[7] The 1st Amendment to the U.S. Constitution, as applied
to the states through the 14th Amendment, provides that
“Congress shall make no law . . . abridging the freedom of
speech . . . .”65 The Nebraska Constitution states that “[e]very
person may freely speak . . . on all subjects . . . .”66 We
59 Id.
60 Id., 564 U.S. at 754-55.
61 See, Sarpy Cty. Farm Bureau, supra note 9; Kiplinger, supra note 9.
62 Id.
63 Id.
64 Id.
65 U.S. Const. amend. I.
66 Neb. Const. art. I, § 5.

272 	284 NEBRASKA REPORTS
have held that the “parameters of the constitutional right to
freedom of speech are the same under both the federal and the
state Constitutions.”67
In Bennett, the Court stated that because discussion of public
issues and debate on the qualifications of candidates are inte-
gral to the system of government, the First Amendment “‘“has
its fullest and most urgent application” to speech uttered dur-
ing a campaign for political office.’”68 Therefore, “‘[l]aws that
burden political speech are’ accordingly ‘subject to strict scru-
tiny, which requires the Government to prove that the restric-
tion furthers a compelling interest and is narrowly tailored to
achieve that interest.’”69 We therefore apply a strict scrutiny
test in this case.
(a) Compelling State Interest
The CFLA states:
The Legislature finds that there are compelling state
interests in preserving the integrity of the electoral proc-
ess in state elections by ensuring that these elections are
free from corruption and the appearance of corruption; in
providing the electorate with information that will assist
them with electoral decisions; and in gathering the data
necessary to permit administration and to detect viola-
tions of the [CFLA].70
However, in Bennett, the Court held that neither a state’s
interest in equalizing electoral opportunities nor a state’s
interest in combating corruption justified the burden imposed
on privately financed candidates by the Arizona matching
funds provision.71
Under the CFLA, a candidate who has agreed to abide
by the voluntary spending limits becomes eligible for pub-
lic funds after meeting the following two requirements: The
67 State ex rel. Lemon v. Gale, 272 Neb. 295, 310, 721 N.W.2d 347, 360
(2006).
68 Bennett, supra note 5, 564 U.S. at 734, quoting Eu, supra note 50.
69 Id., quoting Citizens United, supra note 51.
70 § 32-1602(2).
71 Bennett, supra note 5.

STATE EX REL. BRUNING v. GALE 	273
Cite as 284 Neb. 257
candidate must raise from residents of Nebraska an amount
equal to at least 25 percent of the spending limit for the office,
and the candidate must file an affidavit indicating his or her
intent to abide by the spending limitations.72 Candidates who
choose not to agree to abide by the spending limits must also
file an affidavit with the Commission.73 The public funds are
disbursed when the abiding candidate has spent 25 percent
of the spending limit and filed an affidavit requesting public
funds.74 The candidate is entitled to receive the greater of “(a)
the difference between the spending limitation and the highest
estimated maximum expenditures filed by any of the candi-
date’s opponents or (b) the difference between the spending
limitation and the highest amount of expenditures reported
in preelection campaign statements.”75 Under either circum-
stance, the distribution of public funds to abiding candidates is
triggered by the expenditures of privately financed or nonabid-
ing candidates.
The Nebraska statutory scheme is similar to that of Arizona,
which was found unconstitutional in Bennett. In both states,
publicly funded candidates may become eligible for match-
ing funds as a direct result of the spending of privately
financed candidates who have not agreed to the voluntary
spending limits.
As the Bennett Court noted, the amount of funding provided
by the State is not the problem. “It is the manner in which that
funding is provided—in direct response to the political speech
of privately financed candidates and independent expenditure
groups.”76 The privately financed candidate “‘shoulder[s] a
special and potentially significant burden’ when choosing to
exercise his First Amendment right to spend funds on behalf of
his candidacy.”77
72 § 32-1604(4).
73 § 32-1604(5)(a).
74 § 32-1606(1).
75 Id.
76 Bennett, supra note 5, 564 U.S. at 747.
77 Id., 564 U.S. at 737, quoting Davis, supra note 52.

274 	284 NEBRASKA REPORTS
The Secretary of State argues that the CFLA does not
impose a substantial burden on political speech unrelated to a
compelling state interest merely by establishing voluntary cam-
paign spending limits and allocating public funds to encourage
participation in the spending limitation scheme. The Secretary
of State claims that the CFLA furthers compelling and substan-
tial state interests in preventing corruption and the appearance
of corruption and in encouraging greater participation in the
electoral process.
The CFLA is not identical to the Arizona statute which was
found to be unconstitutional. In both states, candidates could
voluntarily participate in a public financing campaign system
if they accepted certain restrictions and obligations. However,
in Arizona, candidates who chose to participate were given an
initial outlay of public funds for their campaigns. Once a set
spending limit was exceeded, the publicly financed candidate
received virtually $1 for every dollar spent by a privately
financed opponent or certain independent expenditure groups.
In addition, under the Arizona law, spending by independent
groups was included in the amount that triggered the distribu-
tion of public funds.78
The Nebraska financing scheme does not provide an initial
outlay of public funds to all candidates who opt to participate.
However, each candidate must raise private money up to the
spending limit provided by statute. As an example, a candidate
who chooses to not abide by the CFLA runs for an office which
has a spending limit of $100,000. The candidate’s affidavit
states that he or she reasonably estimates his or her expendi-
tures to be $120,000. The opponent who abides by the limit
could therefore receive a public subsidy of $20,000, which is
the difference between the spending limit for the office and
the nonabiding candidate’s estimated expenditures. The abid-
ing candidate could receive the public subsidy of $20,000 even
though he or she has raised only the initial $25,000 qualifying
amount. In such a case, the nonabiding candidate could spend
$120,000, while the abiding candidate would have available the
public subsidy of $20,000 and the $25,000 qualifying amount,
78 Ariz. Rev. Stat. Ann. § 16-952(A) and (C).

STATE EX REL. BRUNING v. GALE 	275
Cite as 284 Neb. 257
or $45,000. The maximum amount the abiding candidate could
raise would be $80,000, which when added to the $20,000 pub-
lic subsidy, equals the $100,000 spending limit for the office.
Therefore, the CFLA does not equalize the campaign funds, but
lessens the gap.
Under the Nebraska law, both abiding and nonabiding can-
didates must file with the Commission affidavits indicating
their intention to abide or to not abide within 10 days after
a candidate committee is formed.79 A candidate committee
must be formed when a candidate raises, receives, or spends
more than $5,000 in a calendar year.80 Thus, the nonabiding
candidate indicates his or her intention to exceed the spend-
ing limits before he or she knows whether an opponent will
decide to abide or to not abide by the spending limitations.
A candidate must make decisions about his or her campaign
expenses without knowledge of the opponent’s plan to accept
public funding.
Although the U.S. Supreme Court has held that a voluntary
system of “public financing as a means of eliminating the
improper influence of large private contributions furthers a
significant governmental interest,”81 the Bennett Court stated
that the constitutionality of the matching funds provision of the
Arizona statute was not established by the fact that “burden-
ing constitutionally protected speech might indirectly serve the
State’s anticorruption interest, by encouraging candidates to
take public financing.”82
[8] Under the CFLA’s public financing provisions, public
funds are disbursed to abiding candidates in response to the
political speech of privately financed candidates. Such restric-
tions on campaign spending create substantial burdens on the
rights of free speech under the First Amendment, as determined
by the Bennett Court. The public financing provisions impose
a substantial burden on the free speech rights of Nebraska citi-
zens without serving a compelling state interest.
79 § 32-1604.01(1).
80 Neb. Rev. Stat. § 49-1445 (Reissue 2010).
81 Buckley, supra note 49, 424 U.S. at 96.
82 Bennett, supra note 5, 564 U.S. at 752-53.

276 	284 NEBRASKA REPORTS
(b) Narrowly Tailored
We must also consider whether the CFLA’s public financ-
ing provisions are narrowly tailored to serve a compelling
state interest. In the CFLA, the Legislature found several
compelling state interests in providing public funds for cam-
paigns. It stated that the integrity of the electoral process
would be preserved “by ensuring that these elections are
free from corruption and the appearance of corruption,” by
“providing the electorate with information that will assist
them with electoral decisions,” and by “gathering the data
necessary to permit administration and to detect violations of
the [CFLA].”83
The Bennett Court held that the burden imposed on privately
financed candidates by the Arizona matching funds provision
was not justified by a state’s interest in equalizing electoral
opportunities or a state’s interest in combating corruption.
“Burdening a candidate’s expenditure of his own funds on
his own campaign does not further the State’s anticorruption
interest. Indeed, we have said that ‘reliance on personal funds
reduces the threat of corruption[.]’”84 The Court held that
“[l]aws like Arizona’s matching funds provision that inhibit
robust and wide-open political debate without sufficient justi-
fication cannot stand.”85
In FEC v. National Conservative PAC,86 the Court stated
that “preventing corruption or the appearance of corruption are
the only legitimate and compelling government interests thus
far identified for restricting campaign finances.”
Thus, the CFLA, like the Arizona statutes, is not narrowly
tailored to serve a compelling state interest, because the inter-
ests identified by the Legislature—maintaining the integrity of
the electoral process and ensuring elections that are free from
corruption—have been held not to be sufficient in Bennett. The
83 § 32-1602(2).
84 Bennett, supra note 5, 564 U.S. at 751, quoting Davis, supra note 52
(emphasis in original).
85 Bennett, supra note 5, 564 U.S. at 755.
86 FEC v. National Conservative PAC, 470 U.S. 480, 496-97, 105 S. Ct.
1459, 84 L. Ed. 2d 455 (1985).

STATE EX REL. BRUNING v. GALE 	277
Cite as 284 Neb. 257
Court stated that “‘[t]he interest in alleviating the corrupting
influence of large contributions is served by . . . contribu-
tion limitations.’”87
The 	Court 	also 	addressed Arizona’s 	argument 	that 	the
matching funds provision indirectly served the anticorrup-
tion interest by ensuring that enough candidates participate
in the State’s public funding system.88 The Court determined
that such an indirect way of serving the anticorruption inter-
est does not establish the constitutionality of the matching
funds provision.89
The CFLA provides for public funds for campaigns which
are triggered by the expenditures of privately financed can-
didates, just as the Arizona statutes provided. The Court has
held that a state’s interests in equalizing opportunities for can-
didates and in combating corruption do not serve a compelling
state interest to justify the burdens placed on a candidate’s
First Amendment rights. The CFLA is not narrowly tailored to
serve a compelling state interest, and it does not pass constitu-
tional muster.
5. is unconstitutional poRtion
of cfla seveRable?
Having determined that the public financing provisions of
the CFLA are unconstitutional, we must decide whether those
provisions are severable. Our general rule provides that when
part of an act is held unconstitutional, the remainder must like-
wise fail, unless the unconstitutional portion is severable from
the remaining portions.90
[9] To determine whether an unconstitutional portion of
a statute may be severed, an appellate court considers (1)
whether a workable statutory scheme remains without the
unconstitutional portion, (2) whether valid portions of the stat-
ute can be enforced independently, (3) whether the invalid por-
tion was the inducement to passage of the statute, (4) whether
87 Bennett, supra note 5, 564 U.S. at 751, quoting Buckley, supra note 49.
88 Id.
89 Id.
90 Jaksha, supra note 10.

278 	284 NEBRASKA REPORTS
severing the invalid portion will do violence to the intent of
the Legislature, and (5) whether the statute contains a declara-
tion of severability indicating that the Legislature would have
enacted the bill without the invalid portion.91
Only one section of the CFLA, § 32-1606, specifically
concerns disbursement of public funds. Other sections include
legislative findings,92 definitions,93 requirements for voluntary
participation in the spending limitation scheme,94 and penalties
and rules.95
In State ex rel. Stenberg v. Moore,96 this court determined
that one section of the CFLA which concerned expenditures
by independent committees or political parties was unconstitu-
tional as a burden on speech and that its restrictions were not
narrowly tailored to serve the State’s interest. However, we
concluded that the particular section was severable from the
remainder of the CFLA.
The portions of the CFLA which do not concern the public
financing scheme address aggregate contribution limits,97 civil
penalties for violation of the CFLA,98 the statute of limita-
tions for CFLA violations,99 and the acceptance of contribu-
tions from independent groups.100 Section 32-1608 prohibits
candidates from accepting contributions “from independent
committees, businesses, including corporations, unions, indus-
try, trade, or professional associations, and political parties
which, when aggregated, are in excess of seventy-five percent
of the spending limitation for the office set pursuant to sec-
tion 32-1604.”
91 State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
92 § 32-1602.
93 § 32-1603.
94 §§ 32-1604, 32-1605, 32-1606.01, 32-1608.02, and 32-1608.03.
95 §§ 32-1606.01, 32-1607, 32-1608.01, 32-1612, and 32-1613.
96 State ex rel. Stenberg v. Moore, 258 Neb. 738, 605 N.W.2d 440 (2000).
97 § 32-1608.
98 § 32-1612.
99 § 32-1613.
100 § 32-1608.

STATE EX REL. BRUNING v. GALE 	279
Cite as 284 Neb. 257
The first two factors we are to consider in determining
severability are whether a workable statutory scheme remains
without the unconstitutional portion and whether valid portions
of the statute can be enforced independently.101 We find that
§ 32-1608, which covers aggregate contribution limits, cannot
be enforced independently of the voluntary campaign limits.
Section 32-1608 specifically sets a limit on contributions to
a percentage tied to the limitations established in § 32-1604.
Section 32-1608 also refers to candidates for a “covered elec-
tive office,” which is defined by § 32-1603(1).
The statute concerning civil penalties also specifically pro-
vides for penalties based on violations of spending limitations
set out in § 32-1604.01, and it cannot stand if the campaign
financing limitations are unconstitutional.102
We next consider whether the invalid portion of the CFLA
was an inducement to its passage. The legislative history
shows that the CFLA was introduced to “help control the
rapidly escalating costs of running political campaigns.”103
The goal was to open up the elective process and to decrease
reliance on large contributors.104 The introducer stated that
the bill had financing provisions and contribution provisions
and that “one doesn’t have to take place for the other one to
go into effect because we have a contribution limitation side
and also the spending limitation side.”105 Thus, it does not
appear that the public matching funds were the sole reason
the Legislature passed the CFLA, but the Legislature sought
to establish spending limits to control the cost of running
for public office, and it set up the matching public funds to
assist candidates with the cost of campaigns. The provision of
public funds appears to have been a factor in the passage of
the CFLA.
101 See Gales, supra note 91.
102 § 32-1612.
103 Introducer’s Statement of Intent, L.B. 556, Committee on Government,
Military, and Veterans’ Affairs, 92d Leg., 1st Sess. (Feb. 14, 1991).
104 Id.
105 Floor Debate, 92d Leg., 1st Sess. 7-8 (Feb. 14, 1991).

280 	284 NEBRASKA REPORTS
Finally, we note that the CFLA did not include a severabil-
ity clause when it was passed in 1992.106 “Such a clause is an
aid to interpretation, and is a declaration of the intent of the
Legislature that it would have passed the act with the invalid
parts omitted.”107
[10] The Legislature specifically found that campaign finance
limits, disclosure of the sources of funding, and the provision
of public funds were all necessary to achieve its goals in pass-
ing campaign election reform.108 The unconstitutional portions
of the CFLA are not severable from the remaining portions,
and therefore, the entire act is unconstitutional.
VI. CONCLUSION
Based upon the decision of the U.S. Supreme Court in
Bennett, the CFLA, §§ 32-1602 through 32-1613, violates the
First Amendment and is unconstitutional in its entirety.
Judgment foR RelatoR.
WRight and milleR-leRman, JJ., not participating.
106 See L.B. 556 (operative Jan. 1, 1993).
107 See State ex rel. Meyer v. Duxbury, 183 Neb. 302, 310, 160 N.W.2d 88, 94
(1968).
108 See § 32-1602(2).
faRmington Woods homeoWneRs association, inc.,
appellee, v. glen Wolf and R honda Wolf,
husband and Wife, appellants.
817 N.W.2d 758
Filed August 3, 2012. 	No. S-11-970.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the moving party is
entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was