Prendergast v. Nelson

Clinton, J.,

concurring in part, and dissenting in part.

Today this court, to the best of my knowledge, for the first time in its history renders what is, for the most part, an advisory opinion. In this respect it lamentably disregards its constitutional functions as a court. This course, if followed in the future, has ominous implications for the future political welfare of this state.

We have said on numerous occasions that the courts may not pass upon the constitutionality of a *123 statute except at the suit of a person whose rights are adversely affected by the provisions of the statutes which are challenged as unconstitutional. State ex rel. Douglas v. Gradwohl, 194 Neb. 745 , 235 N. W. 2d 854 ; Blackledge v. Richards, 194 Neb. 188 , 231 N. W. 2d 319 ; State v. Brown, 191 Neb. 61 , 213 N. W. 2d 712 ; Ritums v. Howell, 190 Neb. 503 , 209 N. W. 2d 160 ; Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783 , 140 N. W. 2d 626 ; Bali Hai’, Inc. v. Nebraska Liquor Control Commission, 195 Neb. 1 , 236 N. W. 2d 614 ; Stanton v. Mattson, 175 Neb. 767 , 123 N. W. 2d 844 . Other courts, of course, enunciate the same principle. Broadrick v. Oklahoma, 413 U. S. 601 , 93 S. Ct. 2908 , 37 L. Ed. 2d 830 ; League of Nebraska Municipalities v. Marsh, 209 F. Supp. 189 .

The above precept is but a special application of a fundamental constitutional principle founded upon the doctrine of the separation of powers. It is not a judicial function to render advisory opinions. See State ex rel. Douglas v. Gradwohl, supra, Clinton, J., responding to the dissents in that case. Courts can constitutionally render opinions only where a case presents an actual controversy between the litigants. Nebraska State AFL-CIO v. State of Nebraska, 445 F. 2d 1333 . See, also, opinion of Richard E. Robinson, Chief Judge, 319 F. Supp. 239 .

The doctrine of separation of powers is embodied in the Nebraska State Constitution explicitly. “The powers of the government of this state are divided into three distinct departments, the Legislative, Executive and Judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.” Art. II, § 1, Constitution of Nebraska. The principle is embodied in the Constitution of the United States implicitly. See, Forkosch on Constitutional Law (2d Ed.), § 9, p. 11; 2 Antieau, Modern Constitutional Law, § 11.13, p. 200. Under this doc *124 trine, except as otherwise provided by specific constitutional provision, none of the three branches of government shall exercise any power properly belonging to the other.

The precise nature of the judicial power is not defined by the Constitutions. It did not need to be as its nature was known as a matter of history at the time the Constitutions were adopted.

One legal scholar has stated that the judicial power has three characteristics. The first characteristic he describes as that of arbitration. Rights must be contested in an action before a judge or court can act. Unless there is a conflict between parties, a court does not act and its powers are quiescent. In short, the court must have a particular case to decide before it can function. The Legislature, on the other hand, when it enacts a statute, establishes a principle of general application. It does not decide individual contests.

The second characteristic of judicial power follows from the first. The court applies a principle to a special set of facts. The court does not simply announce a general principle which immediately binds others than the parties to the particular litigation. The principle which the court announces may, however, have precedential effect in the decision of future contested cases.

The third characteristic is that a court or judge cannot initiate or begin an action. Even though the court may be aware of a dispute, it cannot intervene on its own initiative. One of the parties to a controversy must first invoke the jurisdiction of the court in the manner prescribed by some law.

The purpose of the doctrine of the separation of powers is to preserve the independence of each of the three branches of government in their own respective and proper spheres, thus tending to prevent the despotism of an oligarchy of the Legislature or judges, or the dictatorship of the executive, or any *125 cooperative combination of the foregoing. In the words of Justice Brandéis, “[The purpose was] not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” Myers v. United States, 272 U. S. 52 , 47 S. Ct. 21 , 71 L. Ed. 160 . See discussion in Forkosch, The Separation of Powers, 41 Colo. L. Rev. 529.

It is a matter of general observation that for the most part legislators, executives, and administrators have very limited knowledge of what the doctrine of separation of powers imports. The courts, on the other hand, ought to be expected to have this knowledge. The courts must observe the dividing lines, to be sure not always clearly drawn, and to do so by the appropriate exercise of self-restraint. We must not lose our independence, nor intrude upon the functions of the other two branches of government by becoming embroiled in the political processes. Yet inevitably we will if we launch upon the unconstitutional and unwise process of rendering advisory opinions in nonjusticiable causes, that is, opinions rendered on abstract questions of constitutional law, where the opinion is rendered in a case where no person whose rights are affected by the challenged law is a party to the proceeding before the court.

The Attorney General, in this case, openly acknowledges that he represents no persons whose constitutional rights are affected by the provisions of the statute which he challenges and whose validity the court purports to determine. The only justiciable issue before the court in this case is the claim that the act grants the credit of the state in aid of an individual, association, or corporation. I agree that the Director of the Department of Insurance and the Attorney General may raise this issue and that it is justiciable, and I join in that portion of the opinion. *126 On all the numerous other issues decided as to the constitutionality of various portions of the statute, there is no party before this court in this litigation whose rights are affected. This includes the provisions providing for the opinion of a panel of experts. No panel of experts has acted in this case, or rendered any opinion, and no person has been affected by any such opinion. The same is true of the equal protection and due process claims as they relate to the ceiling on judgments and the claim that such statute intrudes upon the function of the courts.

On the general issue of the necessity of the justiciability of decisions, see Forkorsh, The Separation of Powers, 41 Colo. L. Rev. 529. The Supreme Court of Oregon, in the case of Oregon Medical Assn. v. Rawls, 276 Ore. 1101 , 557 P. 2d 664 , was asked to determine the constitutionality of a statute similar in many respects to the one before us, including a provision limiting liability. It declined to decide the question in the “abstract” for, among other reasons, the lack of a justiciable issue. That opinion points out reasons, in addition to those here advanced, for declining to decide abstract issues of constitutionality.

The only saving grace of the portions of the opinion to which I take exception is that the opinion openly acknowledges that the issues are not justiciable and that in this case the court is making “an exception” to the justiciability requirements of the constitutional doctrine on the separation of powers. It is to be hoped that this is the sole and only exception that will ever be made.

The giving of advice is the function of the Attorney General for the state and its various departments, or other counsel which the state or its various departments may employ. These persons are members of the executive branch of government. Private litigants must seek advice from their own counsel. Arbitration of justiciable controversies is the function of the courts under the Constitution. It is my view, *127 for the reasons given, that the opinion in this case is itself, in the particulars indicated, an unconstitutional act by this court. For that reason I cannot fully join therein.