Hug v. City of Omaha

820 	275 Nebraska reports
michelle hug and henstock , inc ., appellants , v .
city of omaha , appellee .
749 N.W.2d 884
Filed May 30, 2008. 	No. s-07-324.
1. Summary Judgment. summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
fact or 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. Constitutional Law: Ordinances: Appeal and Error. the constitutionality of an
ordinance presents a question of law, in which an appellate court is obligated to
reach a conclusion independent of the decision reached by the trial court.
3. Statutes: Legislature: Words and Phrases. Legislative history is defined as the
background and events leading to the enactment of a statute, including hearings,
committee reports, and floor debates.
4. Statutes: Legislature. there is a distinction between legislative history made
contemporaneously with the passage of legislation and statements made subse-
quently to the passage of legislation.
5. Constitutional Law: Statutes: Special Legislation. the focus of the prohibition
against special legislation is the prevention of legislation which arbitrarily benefits
or grants special favors to a specific class. a legislative act constitutes special
legislation if (1) it creates an arbitrary and unreasonable method of classification
or (2) it creates a permanently closed class.
appeal from the District Court for Douglas County: J ohn d.
haRtigan , JR., Judge. reversed and remanded with directions.
k.C. engdahl and karisa D. Johnson, of engdahl Johnson,
L.L.C., for appellants.
thomas o. Mumgaard, Deputy omaha City attorney, and Jo
a. Cavel for appellee.
heavican , 	c.J., 	WRight , 	connolly , 	geRRaRd , 	stephan ,
mccoRmack , and milleR-leRman , JJ.
heavican , c.J.
INtroDUCtIoN
appellants Michelle Hug and Henstock, Inc. (collectively
Hug), brought this action in the district court against appel-
lee City of omaha (City) contending that the City’s ordinance
prohibiting smoking1 was unconstitutional. the district court
1 omaha Mun. Code, ch. 12, art. VIII, §§ 12-160 to 12-172 (2006).
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

concluded the ordinance was constitutional. We reverse, and
remand with directions.
FaCts
on June 20, 2006, the omaha City Council voted to adopt
an ordinance prohibiting smoking in most public places and
places of employment within its city limits. Under the ordi-
nance, certain facilities were exempted from the operation of
the ordinance until May 14, 2011.2 those facilities included
stand-alone bars, keno establishments which applied for their
license on or before June 8, 2006, and horseracing simulcasting
locations. also exempted under the ordinance are tobacco retail
outlets, defined under the ordinance to include establishments
that sell not only tobacco products, but also “other products
that are incidental to the tobacco sales.” tobacco-only retail
establishments are not regulated under the City’s ordinance.
the City’s ordinance indicated that its intent was
(1) to protect the public health and welfare by prohibit-
ing smoking in public gathering places and places of
employment; and (2) to guarantee the right of employees,
residents, and visitors to breathe smoke free air, and to
recognize that the need to breathe smoke free air shall
have priority over the desire to smoke.3
Hug owns the Marylebone, a bar located in the City. It is
undisputed the Marylebone, which provides some food ser-
vice, is covered by the prohibition against smoking and is not
currently eligible for any of the exemptions provided under
the ordinance.
Hug filed suit against the City challenging the constitu-
tionality of the ordinance. In particular, Hug argued that the
exemptions provided under the ordinance amounted to special
legislation under Neb. Const. art. III, § 18.
the district court concluded that the ordinance was con-
stitutional and dismissed Hug’s complaint. the district court
noted that
2 Id., § 12-165.1.
3 Id., § 12-160.
HUG v. CItY oF oMaHa 	821
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822 	275 Nebraska reports
[t]he classification drawn by the ordinance is reasonably
connected to the legitimate purpose of promoting the pub-
lic health and is based on substantial differences between
the regulated public gathering places and the temporarily
exempted businesses. . . . Notwithstanding [Hug’s] asser-
tions, the ordinance is not arbitrary simply because it does
not prohibit smoking in all places immediately. there is no
permanently closed class. the class goes out of existence
in 2011. It is a temporary classification. [the City] has also
presented evidence that it is possible that other locations
can join the class, thus increasing its size.
In so finding, the district court relied upon exhibits 3 and 4,
affidavits by omaha City Council members James suttle and
Franklin thompson detailing the reasoning behind the exemp-
tions to the ordinance. Hug appeals.
assIGNMeNts oF error
Hug assigns, renumbered, that the district court erred in (1)
applying an equal protection standard of review rather than
the special legislation standard when analyzing the ordinance
under Neb. Const. art. III, § 18; (2) admitting exhibits 3 and
4 into evidence; (3) failing to find that the ordinance did not
violate Neb. Const. art. III, § 18; (4) overruling Hug’s motion
for summary judgment; and (5) granting the City’s motion for
summary judgment.
staNDarD oF reVIeW
[1] summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.4
[2] the constitutionality of an ordinance presents a question
of law, in which an appellate court is obligated to reach a con-
clusion independent of the decision reached by the trial court.5
4 Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).
5 Maxon v. City of Grand Island, 273 Neb. 647, 731 N.W.2d 882 (2007).

aNaLYsIs
Hug’s primary contention on appeal is that the exemptions
provided for by the ordinance are special legislation in viola-
tion of the special privileges and immunities clause of Neb.
Const. art. III, § 18, and that the district court erred in finding
otherwise. In connection with this, Hug also argues that the
district court erred in utilizing an equal protection, rather than
special legislation, standard when conducting its analysis and
in admitting the affidavits of suttle and thompson. We note
that Hug is not asking this court to find the smoking ban itself
unconstitutional, but, rather, is arguing only that the exemptions
to the ban are unconstitutional.
before reaching the principal issue on appeal, however, we
must address Hug’s arguments that the district court utilized an
incorrect standard in analyzing her contention that the exemp-
tions were special legislation and that the district court erred in
admitting into evidence exhibits 3 and 4.
Proper Standard Under Neb. Const. Art. III, § 18.
Hug first assigns that the district court incorrectly utilized
an equal protection standard when conducting its analysis. Hug
acknowledges that the district court, in its order, stated that it
was using the special legislation standard. Hug argues, how-
ever, it was evident that the court was actually employing an
equal protection standard.
even assuming that Hug is correct that the standard actually
applied by the district court was an equal protection standard
and therefore incorrect, the primary issue presented by this
appeal is a question of law. as a question of law, this court
will conduct a de novo review of the claim that the ordinance
is unconstitutional special legislation. In conducting such a
review, this court will make its own independent determina-
tion as to the ordinance’s constitutionality.6 as such, the stan-
dard utilized by the district court is of no consequence to our
analysis. We need not further address Hug’s first assignment
of error.
6 see id.
HUG v. CItY oF oMaHa 	823
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824 	275 Nebraska reports
Admissibility of Exhibits 3 and 4.
Hug next argues that exhibits 3 and 4, suttle’s and thompson’s
affidavits, are inadmissible because the ordinance itself sets
forth its purposes and no other evidence is necessary, or indeed
relevant, to determine that purpose. In addition, Hug notes
that “[t]he affidavits . . . contained statements regarding their
personal concerns and state of mind when voting to enact
[the] ordinance” and that “[e]ven though both thompson and
suttle are members of the omaha City Council, their state-
ments are merely reflective of their own concerns, and are not
competent statements of the City Council’s purpose in enacting
the ordinance.”7
Generally, outside of the plain language used in legislation,
a legislative body’s purpose or intent in enacting legislation
is determined through an examination of the legislative his-
tory of a particular enactment. and this court has previously
considered legislative history when determining whether par-
ticular enactments are unconstitutional as special legislation.8
However, we conclude that the affidavits in question do not
qualify as legislative history.
[3,4] Legislative history is defined as “[t]he background and
events leading to the enactment of a statute, including hear-
ings, committee reports, and floor debates.”9 We see a distinc-
tion between legislative history made contemporaneously with
the passage of legislation and statements made subsequently
to the passage of legislation. In discussing the latter, the U.s.
7 brief for appellants at 22 (emphasis in original).
8 Le v. Lautrup, 271 Neb. 931, 716 N.W.2d 713 (2006); Gourley ex rel.
Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43
(2003); Bergan Mercy Health Sys. v. Haven, 260 Neb. 846, 620 N.W.2d
339 (2000); Big John’s Billiards v. Balka, 260 Neb. 702, 619 N.W.2d 444
(2000); Pfizer v. Lancaster Cty. Bd. of Equal., 260 Neb. 265, 616 N.W.2d
326 (2000).
9 black’s Law Dictionary 919 (8th ed. 2004).

supreme Court has noted that “postenactment views ‘form a
hazardous basis for inferring the intent’ behind a statute.”10
the record in this case clearly establishes that the ordinance
was passed on June 20, 2006, but the affidavits in question
were not made until early september. the affidavits were not
made contemporaneously with the enactment of the ordinance,
and instead are “postenactment views” referred to by the U.s.
supreme Court.
In addition to the concerns we have regarding the timing of
the statements in question, we also note that, as argued by Hug,
the affidavits in question reflect the viewpoints of suttle and
thompson, and not of the entire omaha City Council. “‘[o]ne
member of a legislature which passes a law is not competent
to testify regarding the intent of the legislature in passing
that law.’”11
because the affidavits were made subsequently to the passage
of the ordinance, and because they reflect the viewpoints of just
two of the seven members of the omaha City Council, we con-
clude that the district court erred in receiving exhibits 3 and 4.
Is Ordinance Unconstitutional Special Legislation in
Violation of Neb. Const. Art. III, § 18?
In her third assignment of error, Hug argues that the district
court erred in concluding the exemptions to the City’s ordi-
nance were not unconstitutional special legislation. the enact-
ment of special legislation is prohibited by Neb. Const. art. III,
§ 18, which provides in relevant part that
[t]he Legislature shall not pass local or special laws in
any of the following cases, that is to say:
. . . .
10 United States v. Monsanto, 491 U.s. 600, 610, 109 s. Ct. 2657, 105 L. ed.
2d 512 (1989) (quoting United States v. Price, 361 U.s. 304, 80 s. Ct. 326,
4 L. ed. 2d 334 (1960)). see, also, Seven Islands Land Co. v. Maine Land
Use Reg., 450 a.2d 475 (Me. 1982).
11 Picture Rocks Fire Dist. v. Pima County, 152 ariz. 442, 444, 733 p.2d
639, 641 (ariz. app. 1986), disapproved on other grounds, Republic Inv.
Fund I v. Town of Surprise, 166 ariz. 143, 800 p.2d 1251 (1990). see,
also, O’Loughlin v. W.C.A.B., 222 Cal. app. 3d 1518, 272 Cal. rptr. 499
(1990).
HUG v. CItY oF oMaHa 	825
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826 	275 Nebraska reports
Granting to any corporation, association, or individual
any special or exclusive privileges, immunity, or franchise
whatever . . . . In all other cases where a general law can
be made applicable, no special law shall be enacted.
[5] the focus of the prohibition against special legislation is
the prevention of legislation which arbitrarily benefits or grants
“special favors” to a specific class. a legislative act constitutes
special legislation if (1) it creates an arbitrary and unreason-
able method of classification or (2) it creates a permanently
closed class.12
When the Legislature confers privileges on a class arbitrarily
selected from a large number of persons standing in the same
relation to the privileges, without reasonable distinction or sub-
stantial difference, then the statute in question has resulted in
the kind of improper discrimination prohibited by the Nebraska
Constitution.13 Classifications for the purpose of legislation
must be real and not illusive; they cannot be based on distinc-
tions without a substantial difference.14
special legislation analysis is similar to an equal protection
analysis, and often the two are discussed together because, at
times, both issues can be decided on the same facts.15 as a
result, language normally applied to an equal protection analy-
sis is sometimes used to help explain the reasoning employed
under a special legislation analysis.16 but the focus of each test
is different. the analysis under a special legislation inquiry
focuses on the Legislature’s purpose in creating the class and
asks if there is a substantial difference of circumstances to sug-
gest the expediency of diverse legislation. this is different from
an equal protection analysis under which the state interest in
legislation is compared to the statutory means selected by the
Legislature to accomplish that purpose.17
12 Le v. Lautrup, supra note 8.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id.

as noted, in this case, we are asked to determine whether
the exemptions to the City’s smoking ban, and not the smok-
ing ban itself, are special legislation. In making such deter-
mination, we focus our inquiry on the City’s purpose behind
exempting certain entities and decide whether there is a sub-
stantial difference of circumstances between exempted and
nonexempted facilities which would suggest the expediency of
diverse legislation.
In determining the City’s purpose in enacting the ordinance,
we do not consider the reasoning set forth in exhibits 3 and
4. Instead, we focus our attention upon the purpose in the
ordinance itself: the prohibition of smoking in public gather-
ing places and in places of employment in order to protect the
public health and welfare and to guarantee the right to breathe
smoke-free air.
the challenged exemptions to the ordinance include stand-
alone bars, keno establishments, horseracing simulcasting loca-
tions, and tobacco retail outlets. the stated purpose of the
ordinance is to recognize the right of everyone to breathe
smoke-free air in order to protect the public health and welfare.
Nothing in the ordinance’s stated purpose would explain why
employees of the exempted facilities or members of the public
who wish to patronize those establishments are not entitled to
breathe smoke-free air or to have their health and welfare pro-
tected. Nor does the City offer any other admissible evidence
which might support this distinction. We determine that on the
record before us, there is no “substantial difference of circum-
stances to suggest the expediency of diverse legislation.”18 as
such, we conclude that the district court erred in finding the
exemptions to the ordinance were not special legislation. We
do not hold that similar exemptions could not be constitution-
ally justified—just that, given the record in this instance, the
exemptions in this particular case are not.
because we conclude that the exemptions to the City’s
ordinance “create[] an arbitrary and unreasonable method of
classification,”19 we need not address whether the exemptions
18 Le v. Lautrup, supra note 8, 271 Neb. at 941, 716 N.W.2d at 722.
19 Id.
HUG v. CItY oF oMaHa 	827
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828 	275 Nebraska reports
also create one or more permanently closed classes. We also
consider, but reject on this record, the City’s contention that it
is per 	mitted to enact its smoking ban in phases.
as an additional matter, we note that omaha Mun. Code, ch.
12, art. VIII, § 12-172, provides:
If any provision, clause, sentence, or paragraph of this
article or the application thereof to any person or cir-
cumstances shall be held invalid, that invalidity shall not
affect the other provisions of this article which can be
given effect without the invalid provision or application,
and to this end the provisions of this article are declared
to be severable.
We conclude that pursuant to this section the exemptions to
the ordinance set forth in omaha Mun. Code, ch. 12, art. VIII,
§ 12-165.1, are severable from the remainder of the ordi-
nance, and the remaining provisions continue to have full force
and effect.
because the district court erred in finding that the exemp-
tions to the ordinance were not special legislation, we also con-
clude that the district court erred in granting the City’s motion
for summary judgment while denying Hug’s motion.
CoNCLUsIoN
the district court erred in admitting exhibits 3 and 4.
Moreover, because there is no “substantial difference of cir-
cumstances to suggest the expediency of diverse legislation,”
we conclude that the exemptions set forth in the ordinance are
special legislation. We therefore conclude that the district court
also erred in finding the exemptions to be constitutional, and in
granting the City’s motion for summary judgment and denying
Hug’s motion. We reverse the judgment of the district court and
remand the cause with directions to enter judgment consistent
with this opinion.
R eveRsed and Remanded With diRections .
connolly, J., concurring.
I concur in the majority’s opinion. I write separately to
emphasize that the fundamental purpose of the prohibition
against special legislation is to prevent the enactment of laws
bestowing economic favors on preferred groups or classes.
Here, the City created exemptions bestowing economic favors

on specific types of businesses: tobacco-only retail outlets,
keno establishments, stand-alone bars providing limited food
service, and horseracing operations.
the Constitution requires uniformity of laws:
“Uniformity [of laws] is required in order to prevent
granting to any person, or class of persons, the privileges
or immunities which do not belong to all persons. . . . It is
because the legislative process lacks the safeguards of due
process and the tradition of impartiality which restrain the
courts from using their powers to dispense special favors
that such constitutional prohibitions against special legis-
lation were enacted.”1
so, it has fallen on the courts to ensure that the citizens of
this state can compete on a level playing field. In setting the
boundaries of the field, we have specifically held that the “test
of validity under the special legislation prohibition is more
stringent than the traditional rational basis test” under the equal
protection Clause.2 an equal protection challenge requires a
plaintiff to show that an economic classification is irrational
or wholly irrelevant to the legislative objective.3 In contrast, a
special legislation challenge is satisfied if an economic classi-
fication does not bear a reasonable and substantial relation to
the legislative objective.4
For example, this court has twice upheld legislation impos-
ing a cap on damages a claimant can recover from health care
professionals in medical malpractice actions.5 this cap on dam-
ages was not available to other tort-feasors, but it was intended
to benefit the public generally—not practitioners—by making
medical services more affordable. the rising cost of malpractice
1 Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 938, 663 N.W.2d
43, 65 (2003), quoting Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836
(1991). see, also, Cox v. State, 134 Neb. 751, 279 N.W. 482 (1938).
2 Haman, supra note 1, 237 Neb. at 713, 467 N.W.2d at 847.
3 see, e.g., Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278,
739 N.W.2d 742 (2007).
4 see Haman, supra note 1.
5 see, Gourley, supra note 1; Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d
657 (1977).
HUG v. CItY oF oMaHa 	829
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830 	275 Nebraska reports
insurance and the resulting burden on the public created by med-
ical practitioners passing on this cost or dropping malpractice
coverage made this class of tort-feasors substantially different.
and the Legislature could justifiably conclude that there were
substantial reasons for protecting medical practitioners.6
In contrast, we have struck down an economic benefit
bestowed upon a class when the benefit was not substantially
tied to a legitimate public purpose. In Haman v. Marsh,7 the
Legislature authorized the Nebraska Department of banking
and Finance to guarantee deposits in industrial loan companies
that had filed for bankruptcy or were in receivership. only three
companies satisfied the criteria for deposit insurance, so only
depositors in those companies received the economic benefit.
the legislation was enacted in response to the collapse of an
industrial loan company and the resulting loss of assets by
the private guaranty corporation established to insure deposits.
the bill’s purported purpose was to instill public confidence
in the Legislature’s financial institutions. We concluded, how-
ever, that the Legislature enacted the economic benefit clearly
for depositors in three companies. We further decided that the
economic benefit was not reasonably and substantially related
to the act’s stated purpose—instilling confidence in the state’s
financial institutions. We reasoned that payments to this class
of depositors was more likely to instill fear that the state
would make payments for every private injury, thereby caus-
ing the state’s economic bankruptcy or economic suffocation
through taxation.8
these cases show that for an economic benefit to a class to
be upheld, three tests must be satisfied: (1) there must be a
valid public purpose supporting the distinctive treatment; (2)
the situation or characteristics of the class must be real and sub-
stantially different from other subjects of like general character;
and (3) the distinctive treatment must bear a reasonable and
substantial relation to the legitimate objectives and purposes of
6 see Gourley, supra note 1.
7 Haman, supra note 1.
8 Id.

the legislation.9 the essential inquiry is whether the things or
persons classified by the act form by themselves a proper and
legitimate class relative to the act’s purpose.10
Here, omaha’s smoking ban ordinance does not state the
City’s purpose for exempting stand-alone bars, keno establish-
ments, horseracing operations, and tobacco retail outlets. but
common sense dictates that exempted businesses will receive a
significant economic benefit because smokers are more likely
to patronize exempt businesses over those subject to the ban.
the City may have intended to protect businesses more heavily
dependent upon smokers until they could create other accom-
modations for their customers. but such purposes cannot save
the exemptions from a special legislation challenge because the
City would still fail to satisfy any of the criteria for creating a
valid class economic benefit.
the ordinance does not state, nor does the City argue, that
protecting the revenues of the exempt businesses and horse-
racing operations was intended to serve a public purpose. the
ordinance’s only stated purposes are to protect public health
and the rights of citizens to breathe smoke-free air. Nor can the
City show that the exempt businesses and horseracing opera-
tions have a real and substantial difference from businesses
with like general characteristics that are subject to the ban. For
example, other recreation or leisure businesses such as bowl-
ing alleys are also economically burdened by smoking bans,11
but they are not exempt from the ban. similarly, a stand-alone
bar that provides full food service is subject to the ban, while
a stand-alone bar that provides only limited food service is
exempt. but most important, the City cannot satisfy the essen-
tial inquiry: whether the exemption’s economic benefit bears
a reasonable and substantial relationship to its stated purpose
of protecting public health and the rights of citizens to breathe
smoke-free air.
9 see, Gourley, supra note 1; Haman, supra note 1.
10 Gourley, supra note 1; Haman, supra note 1; State ex rel. Douglas v. Marsh,
207 Neb. 598, 300 N.W.2d 181 (1980).
11 see, e.g., EIC v. Tacoma-Pierce County Health Dept., 153 Wash. 2d 657,
105 p.3d 985 (2005).
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832 	275 Nebraska reports
the City’s purpose was not to separate smokers and non-
smokers, nor to limit smoking in public places to designated
smoking establishments. Instead, the City’s ultimate goal or
purpose is to ban smoking in public gathering places and
places of employment, and to guarantee the right of employees,
residents, and visitors to breathe smoke-free air. Under the ordi-
nance, these businesses and horseracing operators have only a
time-limited exemption. the exemption can only be explained
as an economic benefit to offset the ban’s financial impact for
a limited class of businesses and horseracing operations. this
benefit does not promote or have a substantial relation to the
City’s legislative purpose of protecting public health and citi-
zens’ right to breathe smoke-free air.
to sum up, the City’s exemptions have sucked the air out of
an otherwise constitutional ordinance.
W illiam J acoB sitz , appellant and cRoss - appellee , v .
ellen katheRine sitz , appellee and cRoss - appellant .
749 N.W.2d 470
Filed May 30, 2008. 	No. s-07-395.
1. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In an action for the dissolution of marriage,
an appellate court reviews de novo on the record the trial court’s determinations
of custody, child support, property division, alimony, and attorney fees; these
determinations, however, are initially entrusted to the trial court’s discretion and
will normally be affirmed absent an abuse of that discretion.
2. Judgments: Words and Phrases. an abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
3. Property Division. Under Neb. rev. stat. § 42-365 (reissue 2004), the equitable
division of property is a three-step process. the first step is to classify the par-
ties’ property as marital or nonmarital. the second step is to value the marital
assets and liabilities of the parties. the third step is to calculate and divide the
net marital estate between the parties in accordance with the principles contained
in § 42-365.
4. Divorce: Property Division. as a general rule, all property accumulated and
acquired by either spouse during the marriage is part of the marital estate, unless it
falls within an exception to the general rule.