AGO 97022.
Court | Nebraska |
Nebraska Attorney General Opinions
1997.
AGO 97022.
DATE: March 27, 1997SUBJECT: LB 799; Constitutionality of Appropriation to the
Nebraska Arts Council to Fund the Public Portion of the Proposed Cultural
TrustREQUESTED BY:
Senator LaVon Crosby Nebraska State LegislatureWRITTEN BY: Don Stenberg, Attorney General Lynn A. Melson,
Assistant Attorney General
You have requested our opinion regarding the constitutionality of
LB 799. This proposed legislation, including AMO653, would create "a body
politic and corporate, not a state agency, but an independent instrumentality
exercising essential public functions" to be known as the Cultural Trust. A
Cultural Trust Fund would also be created which would be administered by five
trustees selected and approved by the Nebraska Arts Council and the state
affiliate of the National Endowment for the Humanities. The trust fund would
consist of revenue from public and private sources with only the earnings used
for the operations of the Nebraska Arts Council and the state affiliate of the
National Endowment for the Humanities and their constituent organizations. LB
799 also states the intent to appropriate $12,500,000 in each of the next two
fiscal years to the Nebraska Arts Council to fund the public portion of the
Cultural Trust. That appropriation is to be returned to the general fund by the
Cultural Trust in fiscal year 2023-24.
Your specific concerns are with Article XIII, section 3 of the
Nebraska Constitution which prohibits lending the credit of the State and
Article III, section 18 of the Nebraska Constitution which prohibits special
legislation or the granting of special privileges and immunities. We will also
discuss Article XII, section 1 which prohibits the creation of a single
corporation by special law.
I. Article XIII, Section 3
We will first address whether LB 799 violates the provision of
the state constitution which mandates that "[t]he credit of the State shall
never be given or loaned in aid of any individual, association, or corporation.
. . . " Neb. Const. Art. XIII, section 3.
The case of Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991),
is a recent Nebraska Supreme Court decision which interprets Article XIII,
§ 3 of the Nebraska Constitution. At issue in Haman was legislation which
appropriated state tax money to compensate depositors who had suffered losses
due to the failure of industrial loan and investment companies in Nebraska. The
Nebraska Supreme Court set out a three-prong test, and stated that to establish
a law was unconstitutional under Article XIII, § 3, a plaintiff had to
prove each of the following elements: (1) The credit of the state (2) was given
or loaned; (3) in aid of any individual, association, or corporation. Haman,
237 Neb. at 719.
The threshold...
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