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2015 Neb. L. Rev. Bulletin [i] (2015)

handle is hein.journals/nelrvbu2015 and id is 1 raw text is: THE FIFTH JUDGE: THOMPSON V. HEINEMAN AND NEBRASKA'S JUDICIAL SUPERMAJORITY CLAUSE Kathleen Miller, University of Nebraska College of Law J.D. Candidate, 2016 Introduction: History of the Case When TransCanada proposed its Keystone XL route in 2008, it likely did not believe that the proposal would face much opposition. After all, TransCanada already had another pipeline running through Nebraska. The thought that the project would be at a standstill seven years later seemed unfathomable. Things changed quickly. By 2011, the debate over the pipeline had surged to the forefront of the national stage, with Nebraska squarely in the middle of the controversy. Following a 2011 special session in which Nebraska legislators passed a series of bills dealing with the state's pipeline permitting process, Nebraska passed an additional piece of legislation in the 2012 regular session, LB 1161. Whereas legislation passed during the 2011 special session required pipeline applicants to obtain approval from the Public Service Commission (PSC), LB 1161 allowed major oil pipeline carriers to bypass the PSC and receive approval from the governor to exercise eminent domain in the state.1 Landowners challenged the law on the grounds that it was unconstitutional for a variety of reasons, including that it was an unlawful delegation of power to the governor. By the time Thompson v. Heineman2 reached the Nebraska Supreme Court, it appeared that the case would definitively decide LB 1161 's fate.3 However, the manner in which the Court eventually decided Thompson did not resolve the constitutional issues surrounding LB 1161. Invoking a rarely used rule, four out of seven judges found LB 1161 unconstitutional, but vacated the entirety of the lower court's decision due to Nebraska's judicial supermajority or five judges clause. The requirement that five judges hold a law unconstitutional in order to strike it down is found in NEB. CONST. art. V § 2: The supreme court shall consist of seven judges, one of whom shall be the Chief Justice. A majority of the judges shall be necessary to constitute a quorum. A majority of the members sitting shall have authority to pronounce a decision except in cases involving the constitutionality of an act of the Legislature. No legislative act shall be held unconstitutional except by the concurrence of five judges.4 In Thompson, only four judges decided that LB 1161 was unconstitutional - one judge short of the five needed to strike down the law. Part I of this article discusses the history of the judicial supermajority clause in both Nebraska and other states. Part II of this article examines the effects of the supermajority clause on cases before the Nebraska Supreme Court and how the clause came into play in Thompson v. Heineman.

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