Don't change law

Why should councilpersons from a manager form of government be held to a higher standard than those from a mayor form of government, county commissioners, school boards, state senators, other state office holders and our national represenatives, including the President?

Did some looking into this and talked to some people with a good deal of legal and legislative expertise and they all say the law is in direct and blatant violation of the Nebraska Constitution under Article III-18 and any council demanding forfeiture of office (such as the letters reportedly sent to 2 McCook council members) under that statute would be doing so in violation of the Nebraska Constitution and any decisions made pursuant to that law would be void and cause bigger problems than they had in the first place. Such as the removals from office, appointments to fill the offices and any decisions made by that council with any newly elected council members. This is the type of case most lawyers would do for free because it guarantees them a quick audience with the State Supreme Court and it's such an easy case to make because there is already a lot of case law that matches perfectly with this case. McCook dug itself quite the hole because they are still on the hook regardless of whether the new law passes or not.

When I was a law enforcement officer, I had the occasion to arrest State Senator Beyers for DWI in Lincoln. He was found guilty and did what he had to do to include getting a driver for the time when his was suspended. He didn't lose his position as a Senator. It just blows my mind that McCook let two councilmen go for their terrible crimes.

Good luck.

I agree with Pierre, it absolutely insane what they did. And as for Cotton, he should go pick some and then he would appreciate the Corps. A big Corp. gave me a job fo 31 years and decent medical and retirement. In fact most of the people I know are the same.

Geewhiz & Pierre, some clarification if you would please, are you implying that the City of McCook should have NOT followed through with the law as it is written in the chance that this issue might have been sidestepped due to an unconstitutional situation or would you say that McCook needed to follow the law that was firm and in place at the time of the offense until the situation could be proven unconstitutional?

To me it appears that you might be saying that its ok to run a red light (law in place) because the light wasn't truly needed (unconstitutional).

Can you see where I'm going with this? If you run the red light, be it needed or not, you still broke the law. Even if you find out later that the light really wasn't needed, you broke that law that was in place at that time. If the City of McCook didn't follow the law that was in place, they were in essence running the light, as it were.

Hometown1,

Where they referring to Regulating County and Township offices?

Or were they referring to this about LB786 :

Where legislation is of state wide concern, a legislative act applying to part of cities within designated class

and not applying to other cities within the same class having a home rule charter violates this section.

Axberg v. City of Lincoln, 141 Neb. 55, 2 N.W.2d 613 (1942).

If either, just curious.

Here's the link:

http://www.nebraskalegislature.gov/laws/articles.php?article=III-18

LB 786 only says what is already on the books for all elective offices under Statute 32-560 so LB 786 as it's worded, is redundant. The only reason this part of LB 786 won't be unconstitutional is because it already applies to all elective offices including first class cities under a city manager form of government.

The way the statute is worded now is unconstitutional is because it only applies to first class cities with a city manager form of government and no other cities. When setting laws for certain classifications of cities and not others the reason for having separate rules must be clear and specific to that classification. There is plenty of case law that says "Classifications for the purpose of legislation must be real and not illusive; they cannot be based on distinctions without a substantial difference". These are a few of those cases: Wittler v. Baumgartner, 180 Neb. 446, 144 N.W.2d 62 (1966); Terry Carpenter, Inc. v. Wood, supra; State Securities Co. v. Ley, 177 Neb. 251, 128 N.W.2d 766 (1964).

As the statute is written today, there is no substantial difference or clear distinction between a city of the first class under a city manager form of government and say, a city of the first class without a city manager form of government or a second class city, city of metropolitan class or a city of the primary class.

To prove this law was not unconstitutional, one would have to show that there are inherent differences between a city manager first class city and all other cities that requires council members be removed for even the slightest of offenses. For example, if a council member in Lincoln, Culbertson or Grand Island, has a dog at large, they don't lose their seat but here in McCook, a council member does. There is nothing that can be shown that only a council member from McCook should be removed from office and not a council member from the other cities for the same offense because of the size of their city and their form of government.

This would be a cupcake case and nice easy win for any lawyer trying to put a "W" in the win column for cases tried before the State Supreme Court. Which a lot of lawyers jump on the chance for something like that and who knows, maybe they're already looking at that as a possibility.

Also, this would fall under "Providing for the election of Officers in Townships, incorporated Towns or Cities." Qualifications for office are covered under the Election Act.

Hometown1,

Thanks. That is how I understood it, since the wording of LB786 only distinguishes cities with a city manager government where as not all cities of the same class have this type.