Working within the authorization of Legislative Bill 244 of the 1969 Legislature, the Nebraska Constitutional Revision Commission drafted a proposed Nebraska Constitution which it submitted to the people, the governor, and the legislature on September 24, 1970. One of the major recommendations concerning the judicial article was to eliminate the requirement that five judges (one more than a majority) must concur to declare an act of the legislature unconstitutional. Under the proposed constitution, a majority of the members sitting would pronounce a decision in all cases. The commission could find "no good reason" to keep the extraordinary majority provision. After almost forty-seven years of dormancy, Nebraska's "five judge rule" has determined the outcome in three significant series of appeals: State v. Cavitt; DeBacker v. Brainard and DeBacker v. Sigler; State ex rel. Belker v. Board of Educational Lands and Funds and State ex rel. Bessey v. Board of Educational Lands and Funds. Following an analysis of the history of the present judicial article and a consideration of the constitutionality of the five judge rule, these recent Nebraska cases are examined along with cases from other states that have felt the thrust of a similar constitutional restriction. Finally, a balance sheet of the advantages and disadvantages of such a restraint on judicial authority is drawn and appraised.
William J. Riley,
To Require That a Majority of the Supreme Court Determine the Outcome of Any Case Before It,
50 Neb. L. Rev. 622
Available at: https://digitalcommons.unl.edu/nlr/vol50/iss4/5