Nearly four decades ago, I sued the Governor of Nebraska. It was J. James, “Big Jim,” Exon at the time.
Actually, there were two lawsuits; the first set the stage for the second. Governor Exon’s co-defendants were then-Secretary of State Allen Beerman and Bruce Cutshall, then-Revisor of Statutes. These were “friendly” lawsuits; both sides wanted clarification on sticky legal points. Both - what I like to keep straight as Cunningham v. Exon I and Cunningham v. Exon II - went through to a decision by the Nebraska Supreme Court.
I won both times. Well, not me actually. As a young-pup executive director of the Nebraska Catholic Conference, and somewhat familiar with the issues and their significance, I (was) volunteered to be the Plaintiff. The victories were a result of darned good lawyering by the late Robert B. Crosby (himself a Nebraska Governor) and his partner, Steven Seglin.
The facts are complex. Here’s my effort at explaining them.
Prior to 1976, Article VII, Section 11 of the Nebraska Constitution provided that no public funds could go to private schools, except that the state could receive money from the federal government and distribute it in accordance with the terms of the federal grant so long as no state funds were added. In 1976, the Unicameral proposed a two-part amendment to Art. VII, Sec. 11 and caused a summary of each part to be placed on the General Election ballot. Part 1 provided that state funds could be granted to non-government institutions to be used for the educational benefit of handicapped children. Part 2 provided that state funds could be granted to students attending private post-secondary educational institutions if such aid was expressly limited to nonsectarian purposes. Part 2 also was blended to contain the provision, in a slightly modified form, that the state could receive money from the federal government and distribute it, “but any state funds…added thereto shall not be used for sectarian purposes.”
At the 1976 General Election, Part 1 was approved by the voters, but Part 2 was rejected.
After the election, Governor Exon carried out his duty to enter a proclamation declaring the wording of Art. VII, Section 11 as amended. The proclamation stated that no public funds can go to private schools, except to be used for handicapped students. But as for the outcome on Part 2, the Governor, adhering to legal advice from the Attorney General, also omitted the pre-1976 constitutional wording that allowed the state to pass through federal funds to private schools. The parties agreed to refer to this as “the omitted language.”
The lawsuit that bears my name was first filed on April 13, 1977 in Lancaster County District Court. It challenged the Governor’s interpretation of the action of the voters. It sought a declaration of the proper content for publication of the amendment. We argued that the voters had no understanding, and certainly no intent that “the omitted language” would be deleted.
We lost the first round. District Judge Samuel Van Pelt ruled that I did not have standing to initiate such a lawsuit. He ruled that I failed a traditional, two-pronged standard for taxpayer standing, because I hadn’t shown (I couldn’t show) any financial injury different from that of the public generally and the action did not involve expenditure of state funds.
We appealed to the Nebraska Supreme Court. On March 13, 1979, the seven justices unanimously overruled the District Court, ruled that I did have standing, and remanded the case for proceedings on the merits. Writing for the Supreme Court, Justice Hale McCown said, in part: “An amendment which changes the provisions of a state constitution…is of such great public interest and concern that a citizen taxpayer should have standing sufficient to maintain an action for a declaratory judgment as to such an amendment without the necessity of showing that he has sustained some special injury peculiar to himself….”
On several occasions since Cunningham v. Exon-I was decided, I have been told that at the end of that Court’s term in 1979, Chief Justice Norman Krivosha chided media representatives some for giving little attention to what he said was the most significant decision of the term: Cunningham v. Exon.
Even earlier this year, in its January 9 ruling on Thompson v. Heineman/State of Nebraska, a case challenging the constitutionality of a response to the Trans-Canada Keystone Pipeline by the Legislature, a four-member majority ruled that the plaintiff landowners had standing because of the “great public concern” exception. The ruling quoted extensively from Cunningham v. Exon-I.
On remand of our case seeking reinstatement of “the omitted language,” District Judge Van Pelt ruled in our favor. This time, the Attorney General appealed, on behalf of the Governor and the other officials. I became the Appellee; having been the Appellant on standing.
Uniquely, the oral argument on Cunningham v. Exon-II was held at the Creighton University School of Law, on October 14, 1980. Four other appeals were argued that day in that setting, including a high-visibility case involving Rev. Everett Sileven and state authority to regulate church schools. What’s more, the five cases that day became the first ever to be taped by the Nebraska Educational Television Network.
On December 19, 1980, the Nebraska Supreme Court again ruled unanimously in our favor; that “the omitted language” should not have been omitted from the Constitution. The Attorney General subsequently directed that the Constitution be re-published in corrected form.
