Please excuse some reminiscing. It’s an effect caused by winding down on almost four decades working for the same employer; in my instance the nine Diocesan Bishops who have served in Nebraska during that time and their association for public-policy purposes, the Nebraska Catholic Conference.
One task I’ve undertaken, and will continue to tackle in earnest for the next six months, is to review countless files and documents that have accumulated over so many years. It’s sort of a stress-expunged saunter down a pre-digital memory lane. Some of the pauses along the way reflect historical significance in a broader context. An example follows.
In February 1983, George E. Wright, a Nebraska taxpayer and resident of Norfolk, filed a lawsuit in a state district court alleging that failure by the Revisor of Statutes to publish and give effect to two sections of a 1973 state law caused the Board of Education of the Norfolk public school district to deny Wright’s request that the school district loan secular-subject textbooks to his son, Matthew, then a sixth grader at Sacred Heart Elementary, a state-approved private school. The law in question stemmed from LB 358 (1973), which was passed by the Legislature and signed by Governor Jim Exon, authorizing textbook loans just like that sought by Wright.
This was a “friendly lawsuit,” Wright v. Pepperl, arranged and underwritten by the Catholic Conference in order to determine the status of that 1973 law. Dean Lusienski, Ed. D., a masterful consultant to Catholic schools, first realized the law might still be valid and brought this to the attention of the Diocesan Superintendents. Attorney Robert B. Crosby, who was a former Nebraska Governor, and his partner, Steven Seglin, steered the litigation.
The lawsuit took the form of a petition for a writ of mandamus: to require the Revisor of Statutes to republish volume five of the statutes in a way that would give effect to the textbook-loan-authorization provisions of LB 358 (1973). All the facts came to be stipulated.
The circumstances behind all of this were unique, to say the least. The chronology of events is significant.
In 1971 the Legislature passed and Governor Exon signed LB 659, comprised of several amendments to public-school financing laws. Included was the first established authority for loaning textbooks to private-school students. It applied to grades kindergarten through seven.
That 1971 law was soon challenged, on grounds that it violated Article VII, section 2 of the Nebraska Constitution, prohibiting expenditure of public funds “in aid of” non-government entities. A final outcome in Gaffney v. Department of Education did not occur until 1974. The Nebraska Supreme Court ruled that LB 659 was unconstitutional.
But there had been intervening events between enactment and demise. One was the passage of LB 358 in 1973. It amended the law that otherwise reflected LB 659, by extending the textbook-loan authority to include grades eight to 12.
Just as significant, if not more so, was what happened in 1972. At the Primary Election in May of that year, a constitutional amendment was approved that, in part, deleted the wording “in aid of” and substituted the wording “to”.
So, arguably at least, the reason that LB 659 (1971) came to be ruled unconstitutional was eliminated. Arguably at least, the subsequently enacted LB 358 (1973) became presumed constitutional. What’s more, there were Nebraska Supreme Court rulings in 1981 (Lenstrom v. Thone) and 1982 (Bouc v. School District of Lincoln) that upheld publically funded education-benefit programs because the Art. VII, sec. 2 wording had changed.
Nevertheless, the Revisor of Statutes published the two sections in the form in which they existed immediately prior to being amended by LB 659 (1971); that is, with no textbook-loan authorization whatsoever. She took the position that the Supreme Court’s ruling in Gaffney also invalidated LB 358 (1973); she refused to give that legislation effect in publishing the statutes.
Reversing the Revisor’s refusal became a necessary step toward establishing a case in controversy, which eventually could test the constitutionality of textbook loans to private-school students under the “new,” 1972 wording in the constitution. If the Revisor of Statutes had acted correctly, then the Norfolk school board had sufficient reason to deny Matthew Wright’s loan request and there was no controversy; no textbook-loan law would exist to be litigated on its merits. But if the Revisor had acted incorrectly, then the school board’s denial of the textbook-loan request was unsubstantiated and there was indeed a justiciable controversy.
On August 16, 1984, District Judge Dale E. Fahrnbruch ruled for the Wrights, ordering that the Revisor of Statutes publish LB 358 (1973) in the Nebraska statutes. And, the Judge went further, also decreeing the law to be constitutional.
The Attorney General appealed the district court’s ruling to the Nebraska Supreme Court. The oral argument in front of the Court took place on December 4, 1985. On February 26 next following, the Supreme Court, in an opinion written by Chief Justice Norman Krivosha, unanimously affirmed the District Court’s judgment for a writ of mandamus. However, the Supreme Court dismissed the issue of constitutionality as not ripe for adjudication.
Nevertheless, with a textbook-loan law “on the books,” subsequent litigation—Cunningham v. Lutjeharms, NE Supreme Court, 1989—established the law’s constitutionality in all respects. Since then, more than 230,000 textbooks have been purchased with state funds and loaned to private-school students.
