City of Fremont v. Kotas

C ity of fremont, nebraska , appellant,
v. Wanda kotas et al ., appellees.
781 N.W.2d 456
Filed April 23, 2010. 	No. S-09-448.
1. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Appeal and
Error. Aside from factual findings, which are reviewed for clear error, the grant-
ing of a motion to dismiss for lack of subject matter jurisdiction under Neb. Ct.
R. Pldg. § 6-1112(b)(1) is subject to de novo review.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
which an appellate court decides independently of the determination made by the
lower court.
4. Constitutional Law: Initiative and Referendum. The right to an initiative vote
to enact laws independent of the Legislature is the first power reserved by the
people in the Nebraska Constitution.
5. ____: ____. Substantive challenges to proposed initiatives are not justiciable
before the measure is adopted by voters.
6. Courts: Judgments. In the absence of an actual case or controversy requiring
judicial resolution, it is not the function of the courts to render a judgment that is
merely advisory.
7. Declaratory Judgments. An action for declaratory judgment cannot be used
to decide the legal effect of a state of facts which are future, contingent, or
uncertain.
8. Declaratory Judgments: Justiciable Issues. The existence of a justiciable
issue is a fundamental requirement to a court’s exercise of its discretion to grant
declaratory relief.
9. Justiciable Issues. A justiciable issue requires a present substantial controversy
between parties having adverse legal interests susceptible to immediate resolution
and capable of present judicial enforcement.
10. Constitutional Law: Initiative and Referendum. A constitutional amendment
which embraces several subjects, all of which are germane to the general subject
of the amendment, will, under the single subject rule, be upheld as valid and may
be submitted to the people as a single proposition.
Appeal from the District Court for Dodge County: John e.
samson, Judge. Affirmed.
J.L. Spray and Stephen D. Mossman, of Mattson, Ricketts,
Davies, Stewart & Calkins, and Dean Skokan, Fremont City
Attorney, for appellant.
720 	279 NebRASkA RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

kris 	W. 	kobach, 	Immigration 	Reform 	Law 	Institute,
University 	of 	Missouri-kansas 	City 	School 	of 	Law, 	for
appellees.
heaviCan, 	C.J., 	Wright, 	C onnolly, 	gerrard, 	stephan,
mCC ormaCk, and miller-lerman, JJ.
Wright, J.
NATURe oF CASe
The defendants, Wanda kotas, Jerry Hart, and John Wiegert,
circulated a city initiative petition (Measure) which sought to
enact an ordinance that would prohibit the harboring and hir-
ing of illegal aliens in the City of Fremont. Fremont filed for
declaratory relief on the grounds that the Measure was uncon-
stitutional and violated the single subject rule.
The district court dismissed Fremont’s first cause of action,
granted the defendants’ motion for summary judgment on the
second cause of action, and concluded that the Measure should
be put before the electors of Fremont during a special election.
Fremont appeals.
SCoPe oF ReVIeW
[1] Aside from factual findings, which are reviewed for clear
error, the granting of a motion to dismiss for lack of subject
matter jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(1) is
subject to de novo review. Leach v. Dahm, 277 Neb. 452, 763
N.W.2d 83 (2009).
[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 granted, giving that party
the benefit of all reasonable inferences deducible from the
evidence. Johnson v. Anderson, 278 Neb. 500, 771 N.W.2d
565 (2009).
FACTS
The defendants circulated a petition proposing a Measure
that would make it unlawful for any person or business entity
in Fremont to knowingly or recklessly lease or rent property
to an illegal alien unless expressly permitted by federal law.
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Cite as 279 Neb. 720

The Measure would require tenants and occupants to obtain
an occupancy license from the Fremont Police Department
prior to occupying any leased or rented dwelling unit. The
Fremont Police Department would be required to contact the
federal government to determine whether each potential occu-
pant is lawfully present in the country. Additionally, all busi-
nesses in Fremont would be required to register with the
“e-Verify Program.”
The defendants filed completed petitions in support of the
Measure with the Fremont city clerk on February 23, 2009.
on March 11, Fremont filed for declaratory judgment with
the Dodge County District Court pursuant to Neb. Rev. Stat.
§ 18-2538 (Reissue 2007). Fremont’s amended complaint, filed
March 23, alleged Fremont lacked the requisite authority to
enact the proposed Measure because it violated the Supremacy
Clause of the U.S. Constitution and was preempted by fed-
eral law. Fremont also alleged that the Measure was improper
because it contained more than one subject.
The defendants moved to dismiss the first cause of action
pursuant to § 6-1112(b)(1) and (6), and moved for summary
judgment with respect to the second cause of action.
Relying on our decision in Stewart v. Advanced Gaming
Tech., 272 Neb. 471, 723 N.W.2d 65 (2006), the district court
held that substantive constitutional challenges are not justi-
ciable before an initiative is approved by the voters. It dis-
missed Fremont’s first cause of action. The court granted the
defendants’ motion for summary judgment on the second cause
of action, concluding that even though the Measure addressed
both housing and employment, it had only one general sub-
ject—the regulation of illegal aliens in Fremont—and therefore
did not violate the single subject rule. Fremont appeals, and
we affirm.
ASSIGNMeNTS oF eRRoR
Fremont alleges, combined and restated, that the district
court erred in finding that it lacked subject matter jurisdiction
and in failing to find that the Measure contained multiple sub-
jects, in violation of the single subject rule.
722 	279 NebRASkA RePoRTS

ANALySIS
preeleCtion deClaratory Judgment
[3] Fremont first challenges the district court’s finding that
it lacked subject matter jurisdiction because the Measure is not
justiciable until after voters approve it. essentially, the issue
is whether § 18-2538 authorizes preelection judicial review of
substantive challenges to municipal initiatives. Statutory inter-
pretation presents a question of law, which an appellate court
decides independently of the determination made by the lower
court. In re Interest of Elias L., 277 Neb. 1023, 767 N.W.2d
98 (2009).
[4] The right to an initiative vote to enact laws independent
of the Legislature is the first power reserved by the people in
the Nebraska Constitution. See Neb. Const. art. III, § 2. The
Legislature provides for initiatives and referendums for munici-
pal subdivisions in chapter 18, article 25, of the Nebraska
Revised Statutes. See Neb. Rev. Stat. §§ 18-2501 through
18-2538 (Reissue 2007). An initiative or referendum may be
used to enact a “[m]easure,” defined as “an ordinance, charter
provision, or resolution which is within the legislative authority
of the governing body of a municipal subdivision to pass, and
which is not excluded from the operation of referendum by the
exceptions in section 18-2528.” § 18-2506.
Circulators may seek to enact a measure via initiative by
soliciting signatures for an initiative petition. See § 18-2503.
If the circulators collect enough signatures, the municipal sub-
division’s governing body must consider passage of the meas-
ure. See §§ 18-2524 and 18-2525. If the governing body does
not pass the measure, it is put before the voters. It must be put
on the ballot at the next scheduled primary or general election
if the petition receives signatures from at least 15 percent of
the qualified electors. See § 18-2524. If the petition requests
a special election and received signatures from at least 20 per-
cent of the qualified electors, the measure must be put before
the voters in a special election. See § 18-2525.
After an initiative petition is filed, “[t]he municipality or any
chief petitioner may seek a declaratory judgment regarding any
questions arising under Chapter 18, article 25, . . . including,
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Cite as 279 Neb. 720

but not limited to, determining whether a measure is subject
to referendum or limited referendum or whether the measure
may be enacted by initiative.” § 18-2538. If an action for
declaratory judgment is brought under § 18-2538, such action
is governed generally by the Uniform Declaratory Judgments
Act, Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2008).
See § 18-2538.
In the case at bar, the defendants collected 3,343 valid sig-
natures, which was in excess of 20 percent of the qualified
electors in Fremont. The circulated petition also called for
the initiative to be referred to the voters at a special election.
Accordingly, if the Measure is valid, a special election must be
held. Fremont petitioned for declaratory judgment before it was
notified of the verified number of signatures on the petition,
and therefore, its action for declaratory judgment was timely
filed. See § 18-2538.
Fremont claims that pursuant to chapter 18, the district
court has statutory authority to enter a declaratory judgment
on the constitutionality of the Measure before the voters of
Fremont adopt it. Relying on State ex rel. Andersen v. Leahy,
189 Neb. 92, 199 N.W.2d 713 (1972), Fremont argues that the
Measure is beyond Fremont’s legislative authority to enact.
See § 18-2506. In Leahy, circulators sought by initiative peti-
tion to repeal annexation of the city of Millard to the city of
omaha. We held that the ordinance proposed by such initiative
must be legislation that the city council or the legislative body
had the power to enact under powers granted and defined by
the Legislature. because the detachment of territory from a
municipal corporation was a matter of statewide concern, the
legislative body of omaha did not have the power to enact the
ordinance. once Millard became legally annexed, the initiative
process could not be invoked to detach it.
Fremont points out that courts have uniformly determined
that harboring and housing provisions such as those contained
in the Measure are preempted by federal law and therefore
are unconstitutional. It therefore asserts that measures which
are unconstitutional or void are beyond the power or author-
ity of a municipality to enact and are therefore not subject to
initiative or referendum. We point out that a measure is not
724 	279 NebRASkA RePoRTS

unconstitutional until a court makes such a determination. A
challenge to the constitutionality of a measure is a substan-
tive challenge. A measure is not enacted by initiative until
it is adopted by the voters. In many instances, the initiative
may not be passed or adopted, or matters affecting the con-
stitutionality of the initiative may change before the initiative
is adopted.
Although § 18-2538 allows for preelection judicial review
regarding questions arising under chapter 18, article 25, the
language “whether a measure may be enacted by initiative”
does not permit a court to issue an advisory opinion regarding
the substance of an initiative measure prior to its adoption. This
language encompasses only procedural challenges.
[5,6] Substantive challenges to proposed initiatives are not
justiciable before the measure is adopted by voters. In Duggan
v. Beermann, 249 Neb. 411, 544 N.W.2d 68 (1996), we recog-
nized that to the extent the appellants sought a declaration that
an initiative measure, if adopted, would enact amendments that
would violate the federal or state Constitution, the appellants
were seeking an advisory opinion. In the absence of an actual
case or controversy requiring judicial resolution, it is not the
function of the courts to render a judgment that is merely advi-
sory. Stewart v. Advanced Gaming Tech., 272 Neb. 471, 723
N.W.2d 65 (2006); State ex rel. Lemon v. Gale, 272 Neb. 295,
721 N.W.2d 347 (2006).
In Stewart, a registered voter sought an injunction prevent-
ing Nebraska’s Secretary of State from placing on the ballot
an initiative authorizing the use of video keno. because it was
a statewide initiative petition, the preelection challenge was
governed by Neb. Rev. Stat. § 32-1412 (Reissue 2008). The
district court dismissed the challenge to the initiative because
it was not ripe for determination. We affirmed, concluding that
preelection judicial review of substantive challenges to the
initiative was violative of the Nebraska Constitution. We recog-
nized that procedural challenges to the legal sufficiency of an
initiative petition may be determined prior to an election.
Fremont attempts to distinguish Stewart on the basis that it
involves a statewide initiative and the case at bar involves a
municipal initiative. It cites Sydow v. City of Grand Island, 263
CITy oF FReMoNT v. koTAS 	725
Cite as 279 Neb. 720

Neb. 389, 639 N.W.2d 913 (2002), in support of this claim.
In Sydow, a resident circulated a municipal initiative petition
proposing to enact a sales tax to create an endowment fund
for the city of Grand Island. After Grand Island refused to
place the measure on the ballot at the next election, the district
court issued an alternative writ of mandamus. Grand Island
appealed, arguing that mandamus was not an appropriate rem-
edy because the city lacked the statutory authority to create
the endowment. Fremont claims that Sydow establishes that
the municipal initiative process is significantly different from
the statewide initiative process and therefore permits preelec-
tion declaratory judgments. In Sydow, we considered only the
issue of mandamus and did not consider whether declaratory
judgment was proper before an election. Accordingly, Sydow
is not instructive.
Fremont also argues that the Legislature authorized declara-
tory relief with regard to initiatives and referendums under
chapter 18. our interpretation of § 18-2538 requires a deter-
mination of the scope of such declaratory relief. We decide the
issue as a matter of law independent from the determination
of the trial court. See R & D Properties v. Altech Constr. Co.,
ante p. 74, 776 N.W.2d 493 (2009). Statutory interpretation is
a question of law, which we resolve independently of the trial
court. Underhill v. Hobelman, ante p. 30, 776 N.W.2d 786
(2009). Hence, whether the court has jurisdiction is based upon
our interpretation of § 18-2538.
[7-9] Actions for declaratory judgment pursuant to § 18-2538
are subject to § 25-21,149, which specifies in part that “[c]ourts
of record within their respective jurisdictions shall have power
to declare rights, status, and other legal relations whether or
not further relief is or could be claimed.” However, an action
for declaratory judgment cannot be used to decide the legal
effect of a state of facts which are future, contingent, or uncer-
tain. Allstate Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636
(1981). We have long held that the existence of a justiciable
issue is a fundamental requirement to a court’s exercise of
its discretion to grant declaratory relief. Ellis v. County of
Scotts Bluff, 210 Neb. 495, 315 N.W.2d 451 (1982). See, also,
Allstate Ins. Co., supra. A justiciable issue requires a present
726 	279 NebRASkA RePoRTS

substantial controversy between parties having adverse legal
interests susceptible to immediate resolution and capable of
present judicial enforcement. Ellis, supra. If the residents of
Fremont have not yet voted on the Measure, it may not be
adopted. Thus, Fremont presents us with a state of facts that
are contingent and uncertain.
Fremont’s request for declaratory judgment as to the con-
stitutionality of the Measure before the citizens of Fremont
have adopted the Measure is a request for an advisory opinion.
Accordingly, it is outside the jurisdiction of the courts.
single subJeCt rule
Fremont’s second cause of action alleges the Measure is
unconstitutional because it contains more than one subject.
because this cause of action requests a procedural review of
the city initiative, the district court correctly determined the
issue is justiciable and can be decided prior to an election.
[10] In Drummond v. City of Columbus, 136 Neb. 87, 285
N.W. 109 (1939), and Munch v. Tusa, 140 Neb. 457, 300 N.W.
385 (1941), we explained that the single subject rule provides
that where the limits of a proposed law having a natural and
necessary connection with each other and together are part of
one general subject, then the proposal is a single and not a dual
proposition. A constitutional amendment which embraces sev-
eral subjects, all of which are germane to the general subject
of the amendment, will, under such requirement, be upheld as
valid and may be submitted to the people as a single proposi-
tion. Munch, supra.
The single subject rule was incorporated into article III, § 2,
of the Nebraska Constitution in 1998 to prevent “log-rolling.”
Loontjer v. Robinson, 266 Neb. 902, 670 N.W.2d 301 (2003)
(Wright, J., concurring). Log rolling is the practice of combin-
ing dissimilar propositions into one proposed amendment so
that voters must vote for or against the whole package even
though they would have voted differently had the propositions
been submitted separately. Id. (citing Tilson v. Mofford, 153
Ariz. 468, 737 P.2d 1367 (1987)).
In the case at bar, the district court found that the Measure
had but one general subject—the regulation of illegal aliens in
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Cite as 279 Neb. 720

Fremont. It found that this fact was borne out by the title of
the initiative, which stated that the purpose of the Measure was
“[a]n ordinance of the City of Fremont, Nebraska, . . . to pro-
hibit the harboring of illegal aliens or hiring of unauthorized
aliens, providing definitions, making provision for occupancy
licenses, [and] providing judicial process . . . .”
Additionally, the district court found that every provision
within the Measure was part of its general subject. Although
the ordinance had several components dealing with occupancy,
licensing, electronic verification, government uses, resources,
and penalty provisions, the Measure was not confusing or
deceiving to the voters. The court concluded that since the
issues raised in the Measure had a natural and necessary con-
nection with each other and were part of the general subject of
regulating illegal aliens in Fremont, the single subject rule was
not violated. We agree.
CoNCLUSIoN
The district court correctly determined that it did not have
subject matter jurisdiction to determine the substantive consti-
tutional challenge to the Measure unless and until it is approved
by the voters. The court also correctly determined that the cause
of action requesting a procedural review of the single subject
rule of the Measure was justiciable and could be decided prior
to the election and that the Measure had one general subject
and did not violate the single subject rule. We therefore affirm
the judgment of the district court in its entirety.
affirmed.
state of nebraska , appellee , v.
tyrus t. shelly, appellant.
782 N.W.2d 12
Filed April 23, 2010. 	No. S-09-618.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does
not involve a factual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion independent of the
lower court’s decision.
728 	279 NebRASkA RePoRTS