Nebraska State Constitution Article V-2

Article V-2

V-2.

Supreme Court; number of judges; quorum; jurisdiction; retired judges, temporary duty; court divisions; assignments by Chief Justice.

The Supreme Court shall consist of seven judges, one of whom shall be the Chief Justice. A majority of the judges shall be necessary to constitute a quorum. A majority of the members sitting shall have authority to pronounce a decision except in cases involving the constitutionality of an act of the Legislature. No legislative act shall be held unconstitutional except by the concurrence of five judges. The Supreme Court shall have jurisdiction in all cases relating to the revenue, civil cases in which the state is a party, mandamus, quo warranto, habeas corpus, election contests involving state officers other than members of the Legislature, and such appellate jurisdiction as may be provided by law. The Legislature may provide that any judge of the Supreme Court or judge of the appellate court created pursuant to Article V, section 1, of this Constitution who has retired may be called upon for temporary duty by the Supreme Court. Whenever necessary for the prompt submission and determination of causes, the Supreme Court may appoint judges of the district court or the appellate court to act as associate judges of the Supreme Court, sufficient in number, with the judges of the Supreme Court, to constitute two divisions of the court of five judges in each division. Whenever judges of the district court or the appellate court are so acting, the court shall sit in two divisions, and four of the judges thereof shall be necessary to constitute a quorum. Judges of the district court or the appellate court so appointed shall serve during the pleasure of the court and shall have all the powers of judges of the Supreme Court. The Chief Justice shall make assignments of judges to the divisions of the court, preside over the division of which he or she is a member, and designate the presiding judge of the other division. The judges of the Supreme Court, sitting without division, shall hear and determine all cases involving the constitutionality of a statute and all appeals involving capital cases and may review any decision rendered by a division of the court. In such cases, in the event of the disability or disqualification by interest or otherwise of any of the judges of the Supreme Court, the court may appoint judges of the district court or the appellate court to sit temporarily as judges of the Supreme Court, sufficient to constitute a full court of seven judges. Judges of the district court or the appellate court shall receive no additional salary by virtue of their appointment and service as herein provided, but they shall be reimbursed their necessary traveling and hotel expenses.

Source

  • Neb. Const. art. VI, sec. 2 (1875);
  • Amended 1908, Laws 1907, c. 202, sec. 1, p. 581;
  • Amended 1920, Constitutional Convention, 1919-1920, Nos. 15 and 16;
  • Transferred by Constitutional Convention, 1919-1920, art. V, sec. 2;
  • Amended 1968, Laws 1967, c. 316, sec. 1, p. 846;
  • Amended 1970, Laws 1969, c. 420, sec. 1, p. 1434;
  • Amended 1990, Laws 1990, LR 8, sec. 1.

Annotations


1. Original jurisdiction


2. Appellate jurisdiction


3. Supermajority requirement


4. Miscellaneous


1. Original jurisdiction

When a party has invoked the Nebraska Supreme Court’s original jurisdiction under one of the causes of action specified in this provision, the court may exercise its authority to grant requested declaratory relief under the Uniform Declaratory Judgments Act or injunctive relief. State ex rel. Loontjer v. Gale, 288 Neb. 973, 853 N.W.2d 494 (2014).

The Supreme Court has original jurisdiction to consider habeas corpus proceedings, but does not ordinarily entertain original actions, unless some good reason is shown why the application was not made to a county or district court. Smeal Fire Apparatus Co. v. Kreikemeier, 271 Neb. 616, 715 N.W.2d 134 (2006).

The Nebraska Constitution places original sentencing authority in the district courts and does not provide sentencing as one of the Supreme Court's powers. State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).

Absent a concurrent basis for jurisdiction over the subject matter of a declaratory judgment action, the Supreme Court of Nebraska does not have original jurisdiction to address declaratory judgment actions. State ex rel. Wieland v. Moore, 252 Neb. 253, 561 N.W.2d 230 (1997).

Jurisdiction in this case accepted by the Supreme Court because the state is a party and has an interest relating to the revenue. State ex rel. Douglas v. Gradwohl, 194 Neb. 745, 235 N.W.2d 854 (1975).

Declaratory judgment action to determine question of constitutionality of state statute was properly brought in Supreme Court. State Securities Co. v. Ley, 177 Neb. 251, 128 N.W.2d 766 (1964).

Supreme Court has original jurisdiction of declaratory judgment action relating to the revenue of the state. Anderson v. Herrington, 169 Neb. 391, 99 N.W.2d 621 (1959).

Original jurisdiction existed over action relating to validity of Judges Retirement Act. Wilson v. Marsh, 162 Neb. 237, 75 N.W.2d 723 (1956).

Supreme Court has original jurisdiction in quo warranto to try title to office of member of Board of Control. State ex rel. Johnson v. Hagemeister, 161 Neb. 475, 73 N.W.2d 625 (1955).

Unless unusual circumstances are present or the matter is of statewide importance, Supreme Court will not issue writ of habeas corpus in the exercise of its original jurisdiction. Williams v. Olson, 143 Neb. 115, 8 N.W.2d 830 (1943).

Original jurisdiction in quo warranto is vested in Supreme Court. State ex rel. Johnson v. Consumers Public Power Dist., 142 Neb. 114, 5 N.W.2d 202 (1942).

Original jurisdiction of Supreme Court is limited to cases specified in this section. State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676 (1937).

State of Nebraska and executive departments thereof may seek relief in original action under Uniform Declaratory Judgments Act. State ex rel. Smrha v. General American Life Ins. Co., 132 Neb. 520, 272 N.W. 555 (1937).

Supreme Court may decline to take original jurisdiction to oust executive state officer where information fails to state cause of action in quo warranto. State ex rel. Good v. Conklin, 127 Neb. 417, 255 N.W. 925 (1934).

On appeal from confirmation of judicial sale to foreclose mortgage on real estate, an application for moratorium is not within original jurisdiction of Supreme Court. Wallace v. Clements, 125 Neb. 358, 250 N.W. 235 (1933).

Repeated violations of criminal statute, harmfully affecting rights of people generally, is "public wrong" enjoinable by Supreme Court in original suit by state as plaintiff. State ex rel. Sorensen v. Ak-Sar-Ben Exposition Co., 118 Neb. 851, 226 N.W. 705 (1929).

Original jurisdiction includes injunction to enforce intoxicating liquor law. State v. Chicago, B. & Q. R. R. Co., 88 Neb. 669, 130 N.W. 295 (1911).

Original jurisdiction in cases in which the state is a party is not confined to those of mere pecuniary interest, but includes cases in which the state seeks to enforce public rights or restrain a public wrong. State v. Pacific Express Co., 80 Neb. 823, 115 N.W. 619 (1908).

Supreme Court has no original jurisdiction to compel accounting by corporation manager. State v. Tabitha Home, 78 Neb. 651, 111 N.W. 586 (1907).

Designation of original jurisdiction in Supreme Court is prohibition in all other cases. Parties cannot by consent confer jurisdiction on Supreme Court. Edney v. Baum, 70 Neb. 159, 97 N.W. 252 (1903).

Supreme Court has no original jurisdiction in cases criminal in nature. Applied to action for collection of penalty. State v. Missouri Pac. Ry. Co., 64 Neb. 679, 90 N.W. 877 (1902).

Where method of procedure in original jurisdiction of Supreme Court is not pointed out either by Constitution or statutes, court will adopt its own rules of procedure. State ex rel. Broatch v. Moores, 56 Neb. 1, 76 N.W. 530 (1898).

Mandamus cannot be invoked to take place of injunction as preventive remedy only. State ex rel. Dahlman v. Piper, 50 Neb. 25, 69 N.W. 378 (1896).

Legislature cannot confer original jurisdiction of subjects not enumerated in Constitution. Applied to writ of prohibition. State ex rel. King v. Hall, 47 Neb. 579, 66 N.W. 642 (1896).

Original jurisdiction does not include actions for relief for fraud unless state is party. Coombs v. MacDonald, 43 Neb. 632, 62 N.W. 41 (1895).

Unless expressly restricted, original jurisdiction of Supreme Court is concurrent with district courts. In re Petition of Attorney General, 40 Neb. 402, 58 N.W. 945 (1894).

Supreme Court has no original jurisdiction to try contested elections. Miller v. Wheeler, 33 Neb. 765, 51 N.W. 137 (1892).

Supreme Court has original jurisdiction to appoint receiver of defunct bank under banking law. State v. Exchange Bank of Milligan, 34 Neb. 198, 51 N.W. 765 (1892); State v. Commercial State Bank, 28 Neb. 677, 44 N.W. 998 (1890).

Supreme Court has original jurisdiction of quo warranto to determine rights to public office. State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N.W. 739 (1891), 51 N.W. 602 (1892).

Supreme Court has original jurisdiction in quo warranto for determining conflicting claims to public office, but cannot act in contested election claims. State ex rel. Fair v. Frazier, 28 Neb. 438, 44 N.W. 471 (1890).

Original jurisdiction of Supreme Court is limited to those cases designated by this section. Bell v. Templin, 26 Neb. 249, 41 N.W. 1093 (1889).


2. Appellate jurisdiction

The Nebraska Supreme Court, except in those cases wherein original jurisdiction is specially conferred, exercises appellate jurisdiction, and such appellate jurisdiction can be conferred only in the manner provided by statute. State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).

Unless the context is shown to intend otherwise, action includes any proceeding in a court and only final orders therein are bases for appeals. Grantham v. General Telephone Co., 187 Neb. 647, 193 N.W.2d 449 (1972).

Appellate jurisdiction of the Supreme Court is limited to review of judgments and final orders. Rhodes v. Houston, 172 Neb. 177, 108 N.W.2d 807 (1961).

Supreme Court has jurisdiction on appeal to grant temporary injunction and appoint receiver. State ex rel. Beck v. Associates Discount Corp., 162 Neb. 683, 77 N.W.2d 215 (1956).

Except in those cases in which original jurisdiction is conferred hereby, Supreme Court exercises appellate jurisdiction only, which can be conferred only in the manner provided by statute. Larson v. Wegner, 120 Neb. 449, 233 N.W. 253 (1930).

Where cause is determined on appeal by concurrence of five judges as provided by this section, motion for rehearing will be denied, where appellant failed to file written request for hearing to full bench. Day v. Metropolitan Utilities Dist., 115 Neb. 711, 216 N.W. 556 (1927).

Act conferring jurisdiction upon Supreme Court to review decisions of the State Railway Commission confers appellate jurisdiction. Hooper Telephone Co. v. Nebraska Telephone Co., 96 Neb. 245, 147 N.W. 674 (1914).

Jurisdiction of Supreme Court limited in both original and appellate, former by Constitution, latter by statutes. Johnson v. Parrotte, 46 Neb. 51, 64 N.W. 363 (1895).

Supreme Court is intended as court of review of judgments of district court. Bell v. Templin, 26 Neb. 249, 41 N.W. 1093 (1889).

State Supreme Court on appeal from decision of State Board of Equalization in proceedings involving valuation and assessment of railroad property for taxation acts in judicial, and not in administrative capacity. Chicago & N. W. Ry. Co. v. Bauman, 69 F.2d 171 (8th Cir. 1934).


3. Supermajority requirement

Absent a supermajority concurrence, the Nebraska Supreme Court could not invalidate a statute giving the Governor authority to approve an interstate oil pipeline carrier’s proposed route through the State and bestow upon the carrier the power to exercise eminent domain, despite the majority’s conclusion that the legislation is facially unconstitutional because it transfers the Public Service Commission’s constitutional powers over common carriers to the Governor. Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015).

This provision requires that a supermajority of the Nebraska Supreme Court’s members concur before it can strike down legislation as unconstitutional. But it is not a requirement that must be satisfied in order for the court to determine if it may proceed to take action in a case and has no application to jurisdictional decisions. The supermajority requirement comes into play only after the court determines that quorum requirements and jurisdictional requirements are satisfied. Only a majority of the court’s members must concur that the case meets the jurisdictional requirements for the court to consider the constitutionality of a legislative enactment. Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015).

Since five judges of the court do not hold that sections 85-1,118 to 85-1,123 are unconstitutional, the sections are constitutional. State ex rel. Spire v. Beermann, 235 Neb. 384, 455 N.W.2d 749 (1990).

Legislative act cannot be held unconstitutional except by concurrence of five Judges of Supreme Court. Sommerville v. Johnson, 149 Neb. 167, 30 N.W.2d 577 (1948); Mehrens v. Greenleaf, 119 Neb. 82, 227 N.W. 325 (1929).


4. Miscellaneous

District judge was empowered to sit with all the powers of the Supreme Court under this provision. ConAgra, Inc. v. Cargill, Inc., 223 Neb. 92, 388 N.W.2d 458 (1986).

Purpose of this provision was to create an elastic system which would enable the court to clear its docket, keep it so, and ultimately allow matters to be determined by a full court of seven judges. ConAgra, Inc. v. Cargill, Inc., 223 Neb. 92, 388 N.W.2d 458 (1986).

The Nebraska Constitution clearly permits district court judges, retired or not, to act as associate Supreme Court judges when necessary for prompt submission and determination of causes. ConAgra, Inc. v. Cargill, Inc., 223 Neb. 92, 388 N.W.2d 458 (1986).

Case on appeal first heard by a division of the Supreme Court and opinion adopted was set for reargument before the full court, and by it affirmed. State v. Schrader, 196 Neb. 632, 244 N.W.2d 498 (1976).

Cited in determining constitutionality of law relating to sale of school lands. State ex rel. Belker v. Board of Educational Lands & Funds, 184 Neb. 621, 171 N.W.2d 156 (1969).

Cited in determining constitutionality of section of Juvenile Court Act. DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508 (1968).

Except in the exercise of its appellate jurisdiction, the Supreme Court is a court of limited and enumerated powers. Sorensen v. Swanson, 181 Neb. 205, 147 N.W.2d 620 (1967).

District judge may be designated to act as Judge of Supreme Court whenever necessary for prompt submission and determination of causes. Ruehle v. Ruehle, 161 Neb. 691, 74 N.W.2d 689 (1956).

Constitutional questions will not be decided unless necessary to a determination of the case and the protection of some substantial right. State ex rel. Nelson v. Butler, 145 Neb. 638, 17 N.W.2d 683 (1945).

Suit involving constitutional question may be decided on stipulation that absent Justice should participate on briefs. Bauer v. State Game, Forestation & Parks Commission, 138 Neb. 436, 293 N.W. 282 (1940).

Power to correct errors in their own proceedings is inherent in all courts of general jurisdiction. Gate City Co. v. Douglas County, 135 Neb. 531, 282 N.W. 532 (1938).

Private rights of parties which have been vested by the judgment of a court cannot be taken away by subsequent legislation. Mooney v. Drainage Dist. No. 1 of Richardson County, 134 Neb. 192, 278 N.W. 368 (1938).

It is the duty of the Supreme Court not to legislate but to expound the law as written. Ray v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139 (1938).

The Supreme Court has inherent constitutional powers to determine whether facts on which emergency legislation is based have ceased to exist or ever did, in fact, exist. First Trust Co. of Lincoln v. Smith, 134 Neb. 84, 277 N.W. 762 (1938).

Supreme Court is constituted a separate class with respect to payment of salary. State ex rel. Day v. Hall, 129 Neb. 699, 262 N.W. 850 (1935); State ex rel. Taylor v. Hall, 129 Neb. 669, 262 N.W. 835 (1935).

The word "revenue" refers only to those revenues for general state administration and not to those of municipal corporation. Aachen & Munich Fire Insurance Co. v. City of Omaha, 72 Neb. 112, 100 N.W. 137 (1904).

Proceeding by quo warranto is as civil remedy, and is the means employed by state to cancel and recall privilege which corporation has abused. State v. Standard Oil Co., 61 Neb. 28, 84 N.W. 413 (1900); State v. Nebraska Distilling Co., 29 Neb. 700, 46 N.W. 155 (1890).

Jury trial in original quo warranto action in Supreme Court is not demandable as of right. State ex rel. Broatch v. Moores, 56 Neb. 1, 76 N.W. 530 (1898).