AGO Opinion 81079

Constitutionality of LB 243
Opinion 81079

Senator Tom Vickers
1017 State Capitol
Lincoln, NE 68509

Re: Constitutionality of LB 243

Dear Senator Vickers:

We are responding to your request that we review the constitutionality of LB 243 under the United States and Nebraska constitutions.

LB 243 is an act to amend Neb. Rev. Stat. §2-3234 (Reissue 1977), relating to Natural Resource Districts by restricting their power of eminent domain. Neb. Rev. Stat. §2-3234 (Reissue 1977) grants eminent domain to Natural Resource Districts when necessary to carry out their purposes. LB 243 would restrict the power of eminent domain to prevent its use "to acquire property for a project of which 50 percent or more of the benefits are recreational." Section 2 of LB 243 reads as follows: "The restriction on the use of eminent domain provided in subsection (2) of section 2-3234 shall apply to all proceedings which have not reached final adjudication prior to the effective date of this act." The question to be determined is whether section 2 of LB 243 is an ex post facto law, or law impairing the obligation of contracts violating Article I, Section 16 of the Nebraska Constitution or deprives persons of property without due process of law contrary to the Fourteenth Amendment of the United States Constitution.

It has long been recognized in this state that a statute may not operate retroactively where it would impair the obligation of a contract or interfere with a vested right. State ex rel. Douglas v. Nebraska Mortgage Finance Fund, 204 Neb. 445, 464, 283 N.W. 2d 12 (1979). It was long ago recognized by the United States Supreme Court in Hodges v. Snyder, 261 U.S. 600 (1923) that private vested rights of parties cannot be taken away by subsequent legislation. A statute will not be applied retroactively, even where such legislative intent is clear, where the effect would of acquisition is not determined until after a final judgment to which no appeal is taken. Krauter v. Lower Big Blue Natural Resource District, 199 Neb. 431, 259 N.W.2d 472 (1977). In the ordinary case described first above, the final adjudication of the propriety of the taking by eminent domain has been accomplished by the filing of the Petition in county court. However, where the condemned challenges the authority for condemnation of his property, this is not complete until the litigation finally terminates without further appeal.

In conclusion, we do not know whether any contracts or other vested interests have been created for private persons in "proceedings which have not reached final adjudication prior to the effective date of this act." This act would extinguish vested rights and obligations which exist benefiting the state or its political subdivisions. Should the act affect private vested rights and contracts, it would not be declared unconstitutional, but applied prospectively only.

The act is therefore valid under the Nebraska and United States Constitutions.

Very truly yours,

Attorney General

G. Roderic Anderson
Assistant Attorney General