concluding that because there are only three branches of government, and the state university system and the Board of Regents are not in the legislative or judicial branch, they are an administrative or executive agency and a member of the executive branch
How later courts described this case
- concluding that because there are only three branches of government, and the state university system and the Board of Regents are not in the legislative or judicial branch, they are an administrative or executive agency and a member of the executive branch
- concluding that Nebraska’s separation-of-powers proviso did not shield a state senator’s employment as a college professor from review, but would preclude review of the senator’s right to retain his seat
- extending a separation of powers provision virtually identical to Arkansas' to any member of another branch of government, whether officer or employee, so as to prohibit simultaneous service of university professor after election to legislature
- affirming the Tusa analysis and defining a public office as "a governmental position, the duties of which invest the incumbent with some aspect of the sovereign power"
Written by the judges who cited it.
The opinion
Shanahan, J.,
dissenting.
Chief Justice Hastings is correct in his analysis, which is based on sound legal principles, but common sense and logic prompt further comment. For that reason, I join in the Chief Justice’s dissent and conclusion that this court’s majority has misconstrued the limitation expressed in Neb. Const, art. II, § 1: “[N]o person . . . being one of these departments [legislative, executive, or judicial] shall exercise any power properly belonging to either of the others.” To paraphrase the foregoing, Gerald A. Conway, as a member of the Nebraska Legislature, cannot exercise power which constitutionally belongs only to the executive branch. That premise serves as the foundation for answering the question in Conway’s case. As Chief Justice Hastings has emphasized, the constitutional provision under examination is not designed against a “conflict of interests” situation, which is covered in other areas of Nebraska law. Consequently, the constitutional provision’s clear language controls the disposition of Conway’s case.
However, the majority sinks in a sea of sophistry with its “separation of powers” argument. For instance, all agree that Conway is subject to departmental supervision at Wayne State, including departmental specification of the hours taught, and further agree that Conway does not determine which courses *800 will be included in Wayne State’s curriculum and cannot personally, either directly or formally, discipline any of his students. The majority, however, derives great strength, if not total support, from the characterization of a “teacher” expressed in Eason v. Majors, 111 Neb. 288, 292 , 196 N.W. 133, 134 (1923), namely, a teacher has “wide use of discretion . . . must prescribe courses [and] establish discipline.” Applying those criteria to Conway’s case, he is not a teacher within the characterization or definition found in Eason . Nevertheless, everyone knows that Conway is a teacher. As Chief Justice Hastings has carefully pointed out, Eason is an aberrancy, neither based on Nebraska precedent nor recognized as precedent, except by the majority of this court today, concerning a definition of “teacher,” and is unworthy of adherence.
In Conway’s case, key questions are: What power is exercised by Gerald Conway as a teacher? Is that power constitutionally reserved to the executive branch only? More simply, is Conway doing something that only the executive branch can constitutionally perform? Therefore, pivotal in Conway’s case is whether sovereign power is exercised in common by Conway and the executive branch of government. Executive power, in a constitutional form of government such as Nebraska’s, is the capability to carry laws into effect as a matter of state policy. Conway teaches a business course in college. He is not officially promulgating state policy, that is, furthering a course of action selected by the executive branch of government in political matters. In contact with students, Conway, as a teacher, has the basic duty, and corresponding fundamental power, to convey truth to his students. Is providing truth an exercise of sovereign power constitutionally reserved to the executive branch? Why, even a legislature or a court traffics in truth on occasion.
Nevertheless, the majority proposes: Conway exercises power; but a member of the executive branch of government exercises power; therefore, Conway is a member of the executive branch of government. Anyone who stops to examine the preceding pseudosyllogism will immediately realize that the term of comparison is “power,” a term which must have the same meaning for both Conway and the executive branch; *801 otherwise, under the laws of logic, there is no means of comparison through a middle term for a valid syllogism. Still, one cannot rationally reject the self-evident truth in the proposition that if logic is inapplicable in Conway’s case, the laws of logic are equally inapplicable; hence, according to the majority’s methodology, the following becomes irrefutable syllogistic truth: Horses pull wagons; but cows give milk; therefore, it will rain tomorrow.
There need be no concern that this court’s Chief Justice will serve as Attorney General of Nebraska. Rather, the grave concern is that this court will presently serve as conventioneers to a past constitutional convention and insert into Neb. Const, art. II, § 1, an interpretation for language which needs no interpretation, constitutional language which, thanks to teachers of yesteryear, is a clearly expressed prohibition against one branch of government’s usurpation of a constitutionally separated sovereign power belonging only to another governmental branch, and is not a prohibition against one’s offer of teaching talents.