LB701: Special Taxing Power in the Republican Basin is not a Constitutional Special Law Thursday, April 7, 2011
By Jonathan Gardner
In the first half of the Twentieth Century Nebraska agreed to share the waters of the Republican River with Kansas and Colorado, but in the early Twenty-First Century Nebraska was failing to honor that commitment. The Nebraska Legislature granted several Natural Resource Districts (NRDs) the power to collect a property tax and an irrigation occupation tax to comply with the agreement. The special law provision of the Nebraska State Constitution provided a basis for challenging both taxes. While the Nebraska Supreme Court has not decided whether that effort is constitutional,  it is not a constitutional special law.
The Republican River has tributaries in Colorado, Kansas, and Nebraska, and its basin is home to many water projects, including nine reservoirs.  Under the Republican River Compact, Colorado received 11% of the Republican River’s water, Kansas 40%, and Nebraska 49%. Decades after the Compact came in force, groundwater pumping and surface water appropriations reduced the water that was flowing to Kansas.Nebraska was officially out of compliance with the Compact in 1990 and 1991. Kansas sued Nebraska in 1998, and ultimately settled. However, Kansas has filed a petition seeking to have Nebraska held in contempt of the Supreme Court for violating the settlement and requesting various relief, including having a river master oversee compliance with the Compact on a yearly basis.
Nebraska attempted to comply with the requirements of the Compact through LB701. The text of LB701 does not expressly state that it is targeted at achieving compliance with the Republican River Compact, but that intent appears from an examination of the legislative history. Much of the cost of compliance would be borne by basin residents. The bill allowed qualifying NRDs to issue bonds that would be spent on river management. Three means were available to pay off the bonds: state or federal funds granted for the bonded project, an occupation tax, and a property tax. The occupation tax was a yearly tax on irrigation, capped at ten dollars per irrigated acre. The property tax was an annual tax of up to four and a half cents on each hundred dollars of taxable valuation for all property in the qualifying district. A district only qualified, however, if it included an irrigation district and a river subject to an interstate compact between two or more states. Only the Upper, Middle, and Lower Republican NRDs qualified.Over 300 farmers entered into water contracts with NRDs, and $1.3 million in occupation and property taxes were collected through February, 2008.
Bans on special legislation are a means of preventing states from passing laws that grant a unique benefit to certain individuals. Special legislation bans prevent legislators from trading votes with each other to benefit each other’s districts, a tactic known as logrolling. Nebraska’s special legislation provision is found in Article III, section 18 of the Nebraska State Constitution and includes a long list of specific prohibitions. The Nebraska Supreme Court does not usually quote the entire provision, but focuses on the portion that prohibits “Granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever” and requiring that “in all other cases where a general law can be made applicable, no special law shall be enacted.”
Legislation can be unconstitutionally special by creating an arbitrary classification or by creating a closed class. The Legislature can create classifications, but must do so in a way that makes sense. Treating two people from the same locality or class according to different rules is impermissible.Thus a law that paid Nebraska Supreme Court justices differently based on whether they were elected from even or odd numbered districts was invalid. However, the application of a law can vary depending on different conditions in different localities. A law can be constitutional even if it relates to a single locality. A law designating a specific area of the state as a game refuge addressed “a matter of general concern,” and kept every person in the state from hunting in the area, which made the law general enough. 
In Haman v. Marsh, the Court stated the special legislation ban is needed to keep the law uniform so the Legislature does not grant benefits or exemptions to specific people; the Legislature is not a sufficient check on itself. To treat two groups of people differently, there needs to be a difference between them. The applicable test was
[If a] legislative classification [is] . . . based upon some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation with respect to objects to be classified.
The law in Haman attempted to pay back depositors guaranteed by the Nebraska Department of Banking and Finance after the Department collapsed. Was the connection between paying the disappointed depositors and confidence in state banking, state laws, and the state legislature “reasonable and substantial”? The Nebraska Supreme Court determined it was not. The payments would not increase confidence since depositors are guaranteed by federal insurance, and if the State granted bailouts, it would go bankrupt or tax itself to death.
The law also failed the closed class analysis. The Court considered if there was a probability that the act would actually apply to anyone other than prior depositors. The likelihood that another financial failure and bailout would occur was too remote.
The property tax created by LB701 was challenged as a special law creating a closed class. For the class of NRDs with taxing authority to expand, a new NRD would need to have an irrigation district and jurisdiction of a basin subject to an interstate compact with two or more states. Based on legislative history statements, no sane state would ever enter such a compact. On appeal, the Nebraska Supreme Court determined the property tax was an unconstitutional property tax for a state purpose.
The occupation tax created by LB701 was challenged in Kiplinger v. Department of Natural Resources.The facts and constitutional claims were similar to the facts and constitutional issues in Garey.The occupation tax allegedly created two closed classes: those who had to pay the tax and those who did not. It was not as obvious as in Haman v. Marsh that no one would enter the class. The South Platte, North Platte, and Missouri River could all be subject to an interstate compact with two or more states.Given recent legal scholarship and a recent interstate water compact amongst Great Lakes states, there was not enough evidence to overcome the presumption the state statute was constitutional. Kiplinger appealed the District Court’s decision to the Nebraska Supreme Court.
If the Kiplinger court is wrong about the likelihood of entering a new interstate compact, the analysis is not complete. Special laws can still be constitutional. The Nebraska Supreme Court has held that a special law can be used when necessary to accomplish the Legislature’s goal. If there is a reasonable justification for the classification and there is no other way to accomplish the goal, a special law is permissible. This view is supported by the text of the special legislation provision itself. In fact, unless specifically prohibited by Article III, § 18, the Legislature can pass local or special laws. For example, a law that distinguished between counties that had taken action to rid themselves of cattle tuberculosis and those that had not was not unconstitutional special legislation; a general law could have been created, but that would have lost a benefit certain counties had created. The state law moving the Nebraska State Fair from Lincoln to Grand Island did not create an unconstitutional closed class “because the Legislature had a reasonable basis for enacting a special law in furtherance of a legitimate public policy.” None of the specific bans in the special legislation provision kept the Legislature from specifically designating a site for the state fair. The location of the state fair was something that was not susceptible to being addressed by a general law.
Thus, in Yant, the Court looked at the text of the special legislation ban, which is not common in special legislation jurisprudence. Based on Yant, the Legislature decides when a general law is appropriate when it legislates outside the text of Article III, section 18.
But who ultimately decides when the Legislature is legislating outside the text of Article III, section 18? The Legislature could decide for itself when a general law is appropriate and when it is not, judges could determine whether a general law can apply, or the Legislature might make the initial determination subject to review by the courts. If the Legislature decides when the special legislation ban applies, then LB701 is constitutional. Either LB701 is a general law, or the Legislature determined a special law was necessary to accomplish its objective. If the courts ultimately decide when the Legislature acts within the text of the special legislation ban, LB701 is unconstitutional.
LB701 is not outside the text of Article III, section 18. That section clearly states that “in all other cases where a general law can be made applicable, no special law shall be enacted.” While an argument can be made that LB701 falls outside this provision as a situation where a general law can not be enacted since compact compliance in the Republican River Basin presents a unique situation, the Legislature itself has already shown that a general law can apply. The Legislature expanded the ability to issue bonds and collect an occupation tax to districts that contain a river basin subject to an integrated management plan.Statements from the legislative history of LB862 show that LB862 was meant to address concerns that LB701 is an unconstitutional special law. Since each NRD has the option whether or not they will use the taxing authority given them by the Legislature under both LB701 and LB862, the risk that the general law will result in a lost benefit elsewhere in the state is reduced. LB701 is not a constitutional special law.
The question of when legislation falls within Nebraska’s special legislation ban is ultimately one for the Nebraska Supreme Court, not the Nebraska State Legislature. It is a question of constitutional interpretation, which is the responsibility of the Nebraska Supreme Court. The goal of a special legislation ban is keeping the Legislature from granting special benefits and engaging in logrolling. To accomplish this purpose, the Nebraska Supreme Court, and not the Legislature, has to decide when legislation falls within Article III, section 18.
Compact compliance is an important state obligation and a special situation, but that alone does not make a special law constitutional. The text of the special legislation ban says that if possible a general law applies, and the Nebraska Supreme Court determines when the Legislature’s laws fall within that text. The Legislature has already shown by enacting LB862 that a general law can apply. If LB701 is a special law, it is an unconstitutional one.
Preferred Citation Format: Jonathan Gardner, LB701: Special Taxing Power in the Republican Basin is not a Constitutional Special Law 3 Neb. L. Rev. Bull. 16 (2011), http://lawreviewbulletin.unl.edu/?p=799
0. J.D. Candidate, University of Nebraska College of Law, May 2011. This is a revised and abbreviated form of a seminar paper prepared at the University of Nebraska College of Law in the Fall 2010 semester.↑
1. Neb. Rev. Stat. appx. § 1-106 (2008).↑
2. Motion for Leave to File Petition, Petition, and Brief in Support at 6, Kansas v. Nebraska, No. 126, Original (S. Ct. filed May, 2010), available at Kansas Department of Agriculture, http://www.ksda.gov/includes/document_center/interstate_water_issues/RRC_Docs/20100504USSCFiling.pdf [hereinafter Kansas 2010 Motion].↑
3. L.B. 701, 100th Leg., 1st Reg. Sess. § 6(1) (Neb. 2007).↑
4. Neb. Const. art. III, sec. XVIII.↑
5. See Kiplinger v. Dep’t of Natural Res., CI08-4203 (District Court of Lancaster County, Neb., March 12, 2010); Garey v. Dep’t of Natural Res., CI07-4610 (District Court of Lancaster County, Neb., May 19, 2008), aff’d on other grounds, 759 N.W.2d 919 (Neb. 2009).↑
6. See Garey v. Dep’t of Natural Res., 759 N.W.2d 919, 924, 928 (Neb. 2009). The Nebraska Supreme Court did determine that the property tax was unconstitutional under a provision of the state constitution prohibiting a property tax for a state purpose. Id. at 928. This commentary only addresses the constitutionality of LB701 under the special legislation provision.↑
7. Katherine Kalisek-Vogel, Legislative Bill 701: Is It a Constitutional Answer to Nebraska’s Republican River Problems?, Water Center, (last accessed December 9, 2010) at 2–3, available at http://watercenter.unl.edu/downloads/Papers/KatherineVogelPaper.pdf [hereinafter Kalisek-Vogel].↑
8. Garey, CI07-4610 at 5 (District Court of Lancaster County, Neb., May 19, 2008).↑
9. Kalisek-Vogel, supra note 8, at 6.↑
11. Garey, CI07-4610 at 5–6 (District Court of Lancaster County, Neb., May 19, 2008).↑
12. Kansas 2010 Complaint, supra note 2, at 7, 9–10, 12.↑
13. Kalisek-Vogel, supra note 8, at 12.↑
14. Legislative history plays a role in Article III, Section 18 cases, Hug v. City of Omaha, 749 N.W.2d 884, 888–89 (Neb. 2008), which can be problematic “since it is often difficult, if not impossible, to determine what the actual legislative motive might be.” Mark R. Killenbeck, Through the Judicial Looking Glass: The Nebraska Supreme Court in Moral Obligation Land And What It Thought It Saw There, 71 Neb. L. Rev. 1, 140 (1992) [hereinafter Killenbeck]. There are several statements of the intent for LB701. See Nebraska Legislature Natural Resources Committee, Introducer’s Statement of Intent, 100th Leg., 1st Reg. Sess. (Neb. 2007), on file with author; Natural Resources Committee Hearing February 20, 2008, 100th Leg., 2d Sess. 2 (Neb. 2008) (statement of Senator Carlson, Member of the Natural Resources Committee), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/Natural/2008-02-20.pdf; Nebraska State Legislature Floor Debate April 19, 2007, 100th Leg., 1st Sess. 18 (Neb. 2007) (statement of Senator Preister, Member of the Legislature), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/FloorDebate/r1day67.pdf; Natural Resources Committee Hearing February 28, 2007, 100th Leg., 1st Sess. 41 (Neb. 2007) (statement of Senator Christensen, Member of the Natural Resources Committee), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/Natural/2007-02-28.pdf; Id. at 45–47 (statement of Steve Smith, Director of WaterClaim); Natural Resources Committee Hearing April 4, 2007, 100th Leg., 1st Sess. 52 (Neb. 2007) (statement of Claude Cappel) available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/Natural/2007-04-04.pdf [hereinafter NRC Hearing, April 4, 2007]; Nebraska State Legislature Floor Debate May 31, 2007, 100th Leg., 1st Sess. 29 (Neb. 2007) (statement of Governor Heineman), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/FloorDebate/r1day90.pdf; NRC Hearing, April 4, 2007, at 49 (statement of David Cookson, Special Counsel to the Attorney General). Additionally, Governor Heineman noted in a press release that LB701 formed a cash fund that would help meet interstate obligations, and specifically mentioned $3 million for buying water to comply with the Compact. Garey v. Dep’t of Natural Res., CI07-4610 at 7 (District Court of Lancaster County, Neb., May 19, 2008), aff’d on other grounds, 759 N.W.2d 919 (Neb. 2009).↑
15. “[Two] percent of the taxpayers in Nebraska that are located in the Republican Basin would pay 72 percent of the cost to bring us into compliance with Kansas over a 15-year period. . . $180 million, from 2 percent of the taxpayers,” Nebraska State Legislature Floor Debate April 16, 2007, 100th Leg., 1st Sess. 66–67 (Neb. 2007) (statement of Senator Carlson, Member of the Legislature), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/FloorDebate/r1day64.pdf, with agriculture “pay[ing] the majority,” Id. at 70 (statement of Senator Stuthman, Member of the Legislature).↑
16. L.B. 701, 100th Leg., 1st Reg. Sess. § 6(1) (Neb. 2007). Acceptable uses of bond funds were purchase of ground and surface water rights, obtaining or managing irrigation works such as canals and reservoirs, managing vegetation, and increasing the flow of a river. Id. at § 9.↑
17. Id. at § 6(1).↑
18. Id. at § 10(1).↑
19. Id. at § 11(1)(a). The bill as originally proposed did not contain property taxes. Nebraska Legislature Natural Resources Committee, Introducer’s Statement of Intent, 100th Leg., 1st Reg. Sess. (Neb. 2007), on file with author.↑
20. L.B. 701, 100th Leg., 1st Reg. Sess. § 6(1) (Neb. 2007).↑
21. See Garey v. Dep’t of Natural Res., CI07-4610 at 19 (District Court of Lancaster County, Neb., May 19, 2008), aff’d on other grounds, 759 N.W.2d 919 (Neb. 2009).↑
22. Nebraska State Legislature Floor Debate March 12, 2008, 100th Leg., 2d Sess. 40 (Neb. 2008) (statement of Senator Carlson, member of the Legislature), available at http://www.legislature.ne.gov/FloorDocs/100/PDF/Transcripts/FloorDebate/r2day40.pdf.↑
23. Id. at 51.↑
24. Nebraska’s special legislation provision also applies to city ordinances. Maggie L. Cox, Note, Up in Smoke: Hug & Henstock, Inc. v. City of Omaha, 275 Neb. 820, 749 N.W.2d 884 (2008), Home Rule City Authority Diminished by the Nebraska Special Legislation Provision, 88 Neb. L. Rev. 612, 613 (2010) [hereinafter Cox].↑
25. Id. at 618.↑
27. Neb. Const. art. III, sec. XVIII.↑
28. Id. See, e.g., City of Ralston v. Balka, 530 N.W.2d 594, 600 (Neb. 1995).↑
29. MAPCO Ammonia Pipeline, Inc. v. State Bd. of Equalization and Assessment, 471 N.W.2d 734, 741 (Neb. 1991) (citing Haman v. Marsh, 467 N.W.2d 836 (Neb. 1991)).↑
30. State v. Hall, 262 N.W. 835, 842 (Neb. 1935).↑
33. McFadden v. Denter, 223 N.W. 462, 463–64 (Neb. 1929).↑
34. Bauer v. Game, Forestation and Parks Commission, 293 N. W. 282, 283–84, 285 (Neb. 1940).↑
35. Haman v. Marsh, 467 N.W.2d 836, 845 (Neb. 1991) (per curiam) (citations omitted).↑
36. Id. (citation omitted).↑
37. Id. at 846 (quoting State ex rel Douglas v. Marsh, 300 N.W.2d 181, 187 (Neb. 1980)).↑
38. Id. at 841–42.↑
39. Id. at 847 (citation omitted).↑
40. Id. at 848 (citation omitted).↑
41. Id. at 849 (citations omitted).↑
42. Id. (citations omitted).↑
43. Id. (citations omitted).↑
44. Garey v. Dep’t of Natural Res., CI07-4610 at 19 (District Court of Lancaster County, Neb., May 19, 2008), aff’d on other grounds, 759 N.W.2d 919 (Neb. 2009). The plaintiffs also challenged the law as a property tax for a state purpose, Id., which the District Court rejected since it found the benefits of the law were primarily local. Id. at 17. The plaintiffs also alleged an unconstitutional commutation of taxes, Id. at 8, which the District Court rejected since the taxpayers benefitted from the taxes they paid. Id. at 18.↑
45. Id. at 20.↑
46. Id. at 20–21.↑
47. Garey v. Dep’t of Natural Res., 759 N.W.2d 919, 928 (Neb. 2009). This result was predicted by early commentary. Kalisek-Vogel, supra note 8, at 23. The Nebraska Supreme Court did not address the special legislation issue, affirming on other grounds. See Garey, 759 N.W.2d at 928.↑
48. Kiplinger v. Dep’t of Natural Res., CI08-4203 at 5 (District Court of Lancaster County, Neb., March 12, 2010).↑
49. See Id. at 1–5. Again, the plaintiffs also alleged a property tax for a state purpose and a commutation of taxes. Id.↑
50. Id. at 11. The District Court also rejected the argument that the special legislation provision does not apply to political subdivisions. Id. at 11–12.↑
52. Id. at 18.↑
53. Id. at 18–20.↑
54. See Appellants’ Brief, Kiplinger v. Nebraska Dep’t of Natural Res., No. S10-296 (Neb. June 4, 2010), at 15.↑
55. Kiplinger v. Dep’t of Natural Res., CI08-4203 at 17–20 (District Court of Lancaster County, Neb., March 12, 2010). The question of whether or not the irrigation district was also a likely criteria to meet was not addressed. See Id.↑
56. See Killenbeck, supra note 15, at 49.↑
57. Yant v. City of Grand Island, 784 N.W.2d 101, 107 (Neb. 2010) (footnotes omitted) (referencing State ex rel Spillman v. Wallace, 221 N.W. 712, 714 (Neb. 1928)); Killenbeck, supra note 15, at 76–77.↑
58. See Neb. Const. art. III, sec. XVIII.↑
59. Yant v. City of Grand Island, 784 N.W.2d 101, 106 (Neb. 2010) (footnotes omitted).↑
60. Id. at 107 (footnotes omitted) (referencing State ex rel. Spillman v. Wallace, 221 N.W. 712, 714 (1928)).↑
61. Id. at 106.↑
62. Id. (footnotes omitted).↑
63. Id. (footnotes omitted).↑
64. Robert D. Miewald, Peter J. Longo, & Anthony B. Schutz, The Nebraska Constitution: A Reference Guide (2d ed. 2010), The Nebraska Constitution: A Reference Guide (2d ed.) On-Line Update, Google Docs, Section 18, available at https://docs.google.com/document/edit?id=1qxx2wCbrR5NygOvCD5bS8uXNXB2IST5vD5V-P1TrTFE&hl=en&authkey=CKmRwVY&pli=1# (last visited on December 9, 2010).↑
66. This is the approach taken in Illinois. Bridgewater v. Hotz, 281 N.E.2d 317, 321 (Ill. 1972) (citation omitted).↑
67. This might be a review for whether the Legislature has acted reasonably, a determination similar to the determination whether the Legislature had sufficient evidence for its actions to pass the rational basis test for equal protection review. See Adams v. Children’s Mercy Hosp., 832 S.W.2d 898, 904 (Mo. 1992).↑
68. This includes both those situations where a court decides if a general law can apply and those cases where the courts review the Legislature’s determination for reasonableness.↑
69. Unless, of course, it can be construed as a general law, a question outside the scope of this commentary.↑
70. Neb. Const. art. III, sec. XVIII.↑
71. After all, the Republican River flows in only one part of the state, Kalisek-Vogel, supra note 8, at 2, it alone is subject to the requirements of the Republican River Compact, See Neb. Rev. Stat. appx. § 1-106 (2008), and only it is involved in a lawsuit with Kansas, See Kansas 2010 Motion, supra note 3.↑
72. L.B. 862, 101st Leg., 2d Reg. Sess. § 1–2 (Neb. 2010).↑
73. “SENATOR CARLSON: Well, one of the questions in the original LB701 had to do with closed class and we’re interested in just doing away with that as a concern . . . . SENATOR SULLIVAN: [T]hen LB862 actually allows all NRDs in the state to issue bonds and levy an occupation tax. . . . ? SENATOR CARLSON: That would be correct.” Nebraska State Legislature Floor Debate March 23, 2010, 101st Leg., 2d Sess. 88 (Neb. 2010) (statements between Senator Carlson, Member of the Legislature, and Senator Sullivan, Member of the Legislature), available at http://www.legislature.ne.gov/FloorDocs/Current/PDF/Transcripts/FloorDebate/r2day46.pdf. “Judge Merritt ruled on the closed class language. It never was ruled on by the Supreme Court. So that could have to go there yet. But my bill, LB862, offers to open up that closed class language so that that won’t be a question.” Revenue Committee Hearing February 19, 2010, 101st Leg., 2d Sess. 56 (Neb. 2010) (statement of Senator Christensen, Member of the Legislature), available at http://www.legislature.ne.gov/FloorDocs/Current/PDF/Transcripts/Revenue/2010-02-19.pdf. “LB862 would amend . . . language . . . that the district court asserted was closed class language during the litigation of the LB 701 property tax.” Nebraska Legislature Natural Resources Committee, Introducer’s Statement of Intent, 101st Leg., 2d Reg. Sess. (Neb. 2010), available at http://nebraskalegislature.gov/FloorDocs/Current/PDF/SI/LB862.pdf.↑
74. L.B. 701, 100th Leg., 1st Reg. Sess. § 11(1)(a), § 10(1) (Neb. 2007);  L.B. 862, 101st Leg., 2d Reg. Sess. § 1–2 (Neb. 2010).↑
75. See Yant v. City of Grand Island, 784 N.W.2d 101, 107 (Neb. 2010) (footnotes omitted) (referencing State ex rel. Spillman v. Wallace, 221 N.W. 712, 714 (1928)).↑
76. In light of LB862 the constitutionality of the occupation tax in LB701 is arguably moot point. This commentary does not address that issue.↑
77. “[W]e are bound by the cardinal rule that courts must apply and enforce the Constitution as it is written.” State ex rel Spire v. Conway, 472 N.W.2d 403, 408 (1991) (emphasis added).↑
78. Gourley v. Nebraska Methodist Health System, Inc., 663 N.W.2d 43, 65 (Neb. 2003); See Le v. Lautrup, 716 N.W.2d 713, 723 (Neb. 2006). According to the Nebraska Supreme Court, the special legislation ban protects against specific benefits and specific burdens. Haman v. Marsh, 467 N.W.2d 836, 845 (Neb. 1991) (per curiam). Justice McCormack has stated that the special legislation ban protects against imposing a special burden as well. Gourley, 663 N.W.2d at 89 (2003) (McCormack, J., concurring in part and dissenting in part).↑
79. Cox, supra note 25, at 618.↑
80. See Garey v. Dep’t of Natural Res., 759 N.W.2d 919, 928 (Neb. 2009).↑
81. See supra note 72 and accompanying text.↑
82. Neb. Const. art. III, sec. XVIII.↑