Nebraska Reports
CITY OF ELKHORN v. CITY OF OMAHA, 272 Neb. 867 (2007) CITY OF ELKHORN, NEBRASKA, A MUNICIPAL CORPORATION, ET AL., APPELLANTS AND CROSS-APPELLEES, v. CITY OF OMAHA, NEBRASKA, A MUNICIPAL CORPORATION, ET AL., APPELLEES AND CROSS-APPELLANTS. No. S-05-1006. Supreme Court of Nebraska. Filed January 12, 2007.
1. Annexation: Ordinances: Equity. An action to determine
the validity of an annexation ordinance and enjoin its
enforcement sounds in equity.
2. Actions: Equity: Public Meetings: Appeal and Error. An
appellate court reviews actions for relief under the Open
Meetings Act in equity because the relief sought is in the
nature of a declaration that action taken in violation of
the act is void or voidable.
3. Equity: Appeal and Error. On appeal from an equity
action, an appellate court decides factual questions de
novo on the record and, as to questions of both fact and
law, is obligated to reach a conclusion independent of the
trial court’s determination.
4. Statutes. Statutory interpretation presents a question of
law.
5. Constitutional Law. Constitutional interpretation is a
question of law.
6. Judgments: Appeal and Error. When reviewing questions of
law, an appellate court resolves the questions of law
independently of the trial court’s conclusions.
7. Public Meetings: Ordinances. The reading of ordinances
constitutes a formal action under Neb. Rev. Stat. §
84-1414(1) (Cum. Supp. 2004).
8. Statutes: Appeal and Error. In the absence of anything to
the contrary, an appellate court will give statutory
language its plain and ordinary meaning.
9. ___: ___. It is not within an appellate court’s province
to read a meaning into a statute that is not there.
10. Public Meetings: Legislature: Notice. Under Neb. Rev.
Stat. § 84-1411(1) (Cum. Supp. 2004), the
Legislature has imposed only two conditions on the public
body’s notification method of a public meeting: (1) It
must give reasonable advance publicized notice of the time
and place of each meeting and (2) it must be recorded in
the public body’s minutes.
11. Public Meetings: Notice. Any defect in notice intended
for the benefit of a public body’s members does not
invalidate a meeting of the public body when all of the
members attend without objection.
12. Public Meetings: Statutes: Appeal and Error. An
appellate court construes public meetings laws broadly so
as to obtain the objective of openness in favor of the
public.
13. Public Meetings. Informational sessions of less than a
quorum of a public body’s members do not constitute public
meetings under the Open Meetings Act.
14. Municipal Corporations: Annexation: Standing. A
municipality that is in the crosshairs of annexation has
standing to challenge the annexation.
15. Annexation: Jurisdiction. The prior jurisdiction rule is
not applicable when different territories are the subject
of the competing annexations.
16. Annexation: Statutes: Words and Phrases. The terms
contiguous and adjacent in annexation statutes are
synonymous.
17. Municipal Corporations: Annexation. Substantial
adjacency between a municipality and annexed territory
exists when a substantial part of the municipality’s
boundary is adjacent to a segment of the boundary of the
city or village.
18. ___: ___. A municipality may annex several tracts as
long as one tract is substantially adjacent to the
municipality and the other tracts are substantially
adjacent to each other.
19. Statutes: Appeal and Error. An appellate court will not
read anything plain, direct, or unambiguous out of a
statute.
20. ___: ___. If possible, an appellate court will try to
avoid a statutory construction which would lead to an
absurd result.
21. Annexation: Words and Phrases. The terms “contiguous”
and “adjoining” in Neb. Rev. Stat. § 14-117 (Cum.
Supp. 2006) are synonymous.
22. Municipal Corporations: Annexation. Under the
“contiguous or adjacent” standard in annexation statutes,
municipalities are not required to have common boundaries
with the territory to be annexed, and they may annex
territory nearby in proximity through the simultaneous
annexation of a substantial link of connecting territory.
23. ___: ___. The “contiguous or adjacent” standard for
annexations also applies to “adjoining city” under Neb.
Rev. Stat. § 14-117 (Cum. Supp. 2006).
24. Municipal Corporations: Annexation: Legislature: Intent.
Under Neb. Rev. Stat. § 14-117 (Cum. Supp. 2006),
the Legislature intended to permit a metropolitan city to
extend its corporate limits so that it adjoins the
corporate limits of a city to be annexed.
25. Constitutional Law: Intent. Constitutional provisions
are not open to construction as a matter of course;
construction is appropriate only when it has been
demonstrated that the meaning of the provision is not
clear and therefore construction is necessary.
26. ___: ___. The words in a constitutional provision must
be interpreted and understood in their most natural and
obvious meaning unless the subject indicates or the text
suggests that they are used in a technical sense.
Appeal from the District Court for Douglas County: Gerald
E. Moran, Judge. Affirmed.
Jeff C. Miller and Duncan A. Young, of Young & White, for
appellants.
William M. Lamson, Jr., Lawrence F. Harr, and Craig F.
Martin, of Lamson, Dugan & Murray, L.L.P., and Paul D.
Kratz, Omaha City Attorney, and Alan M. Thelen for
appellees.
WRIGHT, CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and
MILLER-LERMAN, JJ., and HANNON, Judge, Retired.
CONNOLLY, J.
The City of Omaha, Nebraska, and the City of Elkhorn,
Nebraska, raced to pass ordinances to annex territories
that would expand their respective boundaries. Omaha’s
ordinances sought to annex land that would make it
contiguous and adjacent to Elkhorn, thus allowing Omaha to
annex Elkhorn. Elkhorn’s annexation ordinance, on the other
hand, sought to annex surrounding sanitary improvement
districts (SIDs) to raise Elkhorn’s population to over
10,000, which would immunize it from unilateral annexation
by Omaha. See Neb. Rev. Stat. § 14-117 (Cum. Supp.
2006).
Despite Elkhorn’s attempt to annex the SIDs without Omaha’s
knowledge, Omaha learned of Elkhorn’s efforts, and the race
was on. The pivotal issue is whether Omaha, in adopting its
annexation ordinance, “jumped the gun” by violating the
Open Meetings Act (the Act), Neb. Rev. Stat.
§§ 84-1407 to 84-1414 (Reissue 1999 & Cum.
Supp. 2004), thus voiding its ordinance. We conclude that
(1) the district court correctly decided that Omaha did not
violate the Act and (2) because Omaha, a metropolitan class
city, had less statutory hurdles to overcome than Elkhorn,
Omaha adopted its annexation ordinance first. We affirm.
I. BACKGROUND
In April 2000, the U.S. Census Bureau estimated Elkhorn’s
population at 7,623. Beginning in the late 1990’s, the
Omaha Planning Department began studying the possible
annexation of Elkhorn. Within a year or two after his June
2001 election, the Omaha mayor directed the planning
department to plan for the annexation of Elkhorn. Omaha and
Elkhorn then began having formal discussions about
annexation. The cities did not resolve their differences.
1. ELKHORN IS OUT OF GAT E FIRST
In October or November 2004, the Elkhorn mayor and Don
Eikmeier, Elkhorn’s city administrator, began looking at
much broader annexations than the parcels recommended in
Elkhorn’s 2003 comprehensive plan. In addition to 8 parcels
that were in the 2003 plan, their new plan called for
annexing 13 additional SIDs that were not in that plan.
Some time before January 17, 2005, Eikmeier stated to the
Omaha World-Herald newspaper that Elkhorn had no current
annexation plans. Despite his work on an annexation plan
for 2005, Eikmeier also stated that he was not aware of an
annexation plan that Elkhorn would adopt before 2007. The
Eikmeier interview was apparently triggered by the Omaha
mayor’s earlier statement in an interview that Omaha’s
annexation of Elkhorn was inevitable. Eikmeier admitted
that Elkhorn proceeded with its aggressive annexation plan
to prevent Omaha from annexing Elkhorn. See § 14-117
(providing that metropolitan class cities can extend
boundaries over land that includes or annexes city of first
class with population less than 10,000).
Moving forward, on Monday, February 14, 2005, Elkhorn
posted a special meeting notice at three locations: the
city hall, the post office, and a bank. The notice provided
that the council and mayor would meet in the public library
on February 21 and that an agenda was available for
inspection at the city clerk’s office. The only item listed
on the agenda was the street plan. On February 15, the
Douglas County Post-Gazette newspaper published a notice of
the special meeting that also provided that the street plan
was on the agenda.
On Friday, February 18, 2005, at 1:50 p.m., Elkhorn added
the annexation resolution to its special meeting agenda.
The city clerk made a note of the addition in a notebook
that was available to the public upon request, but an
agenda was not printed until 4:55 p.m., after the city
offices had closed. Eikmeier continued to work on the plan
through Saturday, and on Sunday morning, he made copies for
council members and faxed copies of the amended agenda to
the Omaha World-Herald and Douglas County Post-Gazette
newspapers. Elkhorn posted the amended agenda to its Web
site on Saturday.
Elkhorn held its special meeting on February 21, 2005,
President’s Day, as planned. Less than 10 residents and a
reporter from the Douglas County Post-Gazette attended.
Eikmeier admitted that the holiday meeting was partially
motivated by a desire to “beat Omaha to the punch” because
of state laws favoring Omaha’s annexation powers. Elkhorn
was at a disadvantage because a city of the first class
must adopt a specified annexation resolution and plan for
extending services before annexing land. See Neb. Rev.
Stat. § 16-117(3) (Reissue 1997). On the other hand,
Omaha can extend its limits “at any time” by ordinance.
§ 14-117. At the February 21 meeting, Elkhorn
adopted resolution No. 2005-08, its annexation resolution,
and a plan to extend services to the designated areas.
Elkhorn admitted that it did not hold a public meeting that
day on its annexation actions.
2. OMAHA LAGS BEHIND
On the same day, Omaha’s planning director learned about
Elkhorn’s annexation plans. The director stated that
Elkhorn’s plan surprised him because Eikmeier had publicly
stated that Elkhorn did not have immediate annexation
plans.
On Tuesday, February 22, 2005, Omaha prepared legal
documents and ordinances to annex Elkhorn and began an
extensive annexation report, detailing the necessity of the
annexation and the cost of providing services to the
annexed area. At 9:51 a.m., the Omaha mayor called a
special meeting to be held at 10 o’clock that night. The
meeting concerned Omaha’s annexation plan for Elkhorn and
specific SIDs and other properties to be annexed. The city
clerk issued a call for the meeting and contacted all
council members to verify where he could serve notice; none
of the members objected to the meeting, and all of them
signed the call within 1 hour. An agenda of the special
meeting was faxed to 19 area media outlets between 10:16
and 10:54 a.m. Notice was also posted on bulletin boards in
the city’s offices and on its Web site. The Omaha
World-Herald published an article about the meeting in its
afternoon edition of the February 22 paper. All council
members attended and made no objections to the meeting.
Before the special meeting on February 22, 2005, the Omaha
Planning Department drafted two alternative ordinances for
annexing Elkhorn and other areas: one included the Elk
Valley subdivision, and the other did not. At the February
22 meeting, Omaha read the two ordinances for the first
time.
3. HOMESTRETCH:BOTH CITIES RACE TO FINISH LINE
Meanwhile, on February 22, 2005, Elkhorn published notice
of a special meeting for March 1. On February 25, Omaha
published notice of a public hearing and administrative
meeting of the Omaha Planning Board for Wednesday, March 2.
It also published notice of its precouncil briefing and
regular city council meeting for March 1.
On Tuesday, March 1, 2005, Omaha held a public meeting at
which it read the annexation ordinance for the second time.
Omaha city department heads briefed every member of the
Omaha City Council on the annexation issues in three
nonpub-lic meetings conducted at 8:30, 9:30, and 11:30 a.m.
No more than three council members attended a briefing. The
department heads’ briefings occurred before and after the
public pre-council meeting at 10:30 a.m. None of the
council members asked questions about the annexation at the
public precouncil meeting. Also, on March 1, Elkhorn
published its annexation resolution and notice of a public
meeting to be held on March 11 for consideration of its
plans.
4. OMAHA PULLS AHEAD
On March 2, 2005, the Omaha Planning Board conducted a
public hearing and approved the ordinances. At the Omaha
City Council’s regularly scheduled meeting on March 8, the
ordinances were read for the third time. The council voted
to adopt annexation ordinance No. 36947, which did not
include the Elk Valley subdivision.
Falling behind, Elkhorn, on March 8, 2005, published
notices of special meetings for March 14 and 15. On March
11, Elkhorn conducted a public hearing, at which the
planning commission recommended approval of the annexation
plans and the ordinances were read for the first time. At
the March 14 meeting, Elkhorn’s ordinances were read for the
second time. On March 15, 7 days after Omaha had adopted
its ordinance, Elkhorn’s annexation ordinances were read
for the final time and the city council voted to adopt
them.
5. ELKHORN CRIES FOUL
On March 9, 2005, Elkhorn filed a complaint, seeking a
temporary injunction and a declaration that Omaha’s
ordinance was invalid. On March 17, Omaha filed an answer,
with affirmative defenses and a counterclaim for a
temporary restraining order and temporary and permanent
injunctions against Elkhorn’s ordinances. In addition,
Omaha sought a declaration that its ordinance was valid and
that Elkhorn’s ordinances were invalid.
On March 21, 2005, the district court, with the agreement
of the parties, issued a temporary injunction enjoining the
enforcement of both cities’ ordinances.
In August 2005, Elkhorn filed its operative complaint. In
sum, Elkhorn alleged that (1) Omaha had violated the Act;
(2) Elkhorn had taken the first valid step toward
annexation, thereby preempting Omaha’s annexation
proceedings; (3) Omaha could not annex Elkhorn because the
corporate limits of the cities did not adjoin; (4) the
Nebraska Constitution prohibited the annexation without a
vote; and (5) Omaha’s annexation was an unsound and
arbitrary response to Elkhorn’s annexation plan.
6. COURT’S DECISION
Following a bench trial, the court rejected all of
Elkhorn’s claims that Omaha’s ordinance was invalid.
Regarding Omaha’s claims, the court concluded that Elkhorn
had violated the Act at its February 21, 2005, meeting. The
court stated that “Elkhorn endeavored to exercise stealth
in providing notice of the real purpose of the February 21
Special Meeting.” It rejected Omaha’s claims that Elkhorn
had attempted to annex land that was not adjacent or
contiguous. But the court concluded that Elkhorn’s
annexations were unreasonable and improperly motivated. The
court also determined that the annexations were invalid
because Elkhorn would be annexed before its ordinances
could take effect. Finally, the court accepted Elkhorn’s
expert’s testimony that its population would be over 10,000
if the annexed area were included in the count. It
concluded, however, that the evidence did not preclude the
annexation because Elkhorn admitted in its complaint that
its population on February 21, 2005, was 7,906. In addition
to these findings, the court concluded that the Legislature
had given Omaha statutory priority over Elkhorn by
requiring first class cities to fulfill more statutory
requirements than metropolitan class cities and limiting
first class cities’ annexing authority to only urban and
suburban land.
Accordingly, the court permanently enjoined Elkhorn from
enforcing its ordinances and declared that Elkhorn would
cease to be a city of the first class as of the date the
order was filed if Elkhorn did not file an appeal. Elkhorn
filed a notice of appeal on August 19, 2005, and on the
same day, the court entered a supersedeas order, enjoining
both parties from enforcing their ordinances pending an
appeal.
II. ASSIGNMENTS OF ERROR
Elkhorn assigns that the district court erred in (1) ruling
that Omaha’s annexation proceedings did not violate the
Act; (2) ruling that Elkhorn’s annexation proceedings
violated the Act when the court did not have jurisdiction
to decide that issue; (3) ruling that Omaha could annex
Elkhorn because Elkhorn was within the territory Omaha
annexed, despite the lack of adjoining boundaries between
the cities; (4) failing to conclude that Elkhorn had
obtained exclusive jurisdiction to complete its annexations
under the prior jurisdiction rule; (5) ruling that
Elkhorn’s annexation was improperly motivated and
unreasonable and that Elkhorn could not provide adequate
services when the court lacked jurisdiction over those
issues; (6) alternatively, failing to rule Omaha’s
annexation was improperly motivated, unreasonable,
arbitrary, capricious, and void if the court did have
jurisdiction to consider those issues; (7) failing to rule
that Omaha’s annexation was a consolidation or merger
without a vote, in violation of Neb. Const. art. X V,
§ 18(2); and (8) failing to rule that Omaha’s
ordinance was void and ruling that Elkhorn’s ordinances
were void.
In its cross-appeal, Omaha assigns that the district court
erred in (1) finding that all of the area proposed to be
annexed by Elkhorn was adjacent and contiguous to Elkhorn;
(2) finding that Riverside Lakes subdivision, across the
Elkhorn River from Elkhorn, was adjacent and contiguous;
(3) receiving into evidence expert testimony regarding
estimates of Elkhorn’s population under its proposed
annexation plan; and (4) finding that Elkhorn’s population
would be over 10,000 when the areas proposed for annexation
were included.
III. STANDARD OF REVIEW
[1-3] An action to determine the validity of an annexation
ordinance and enjoin its enforcement sounds in equity.
Cornhusker Pub. Power Dist. v. City of Schuyler, 269 Neb.
972, 699 N.W.2d 352 (2005); Swedlund v. City of Hastings,
243 Neb. 607, 501 N.W.2d 302 (1993). We review actions for
relief under the Act in equity because the relief sought is
a declaration that action taken in violation of the act is
void or voidable. See, Stoetzel & Sons v. City of Hastings,
265 Neb. 637, 658 N.W.2d 636 (2003); Hauser v. Nebraska
Police Stds. Adv. Council, 264 Neb. 944, 653 N.W.2d 240
(2002). On appeal from an equity action, we decide factual
questions de novo on the record and, as to questions of
both fact and law, we are obligated to reach a conclusion
independent of the trial court’s determination. See,
Channer v. Cumming, 270 Neb. 231, 699 N.W.2d 831 (2005);
Cornhusker Pub. Power Dist. v. City of Schuyler, supra.
[4-6] Statutory interpretation presents a question of law.
State v. County of Lancaster, ante p. 376, 721 N.W.2d 644
(2006). Constitutional interpretation is a question of law.
Stewart v. Advanced Gaming Tech., ante p. 471, 723 N.W.2d
65 (2006). When reviewing questions of law, we resolve the
questions independently of the trial court’s conclusions.
See, State v. County of Lancaster, supra; Reed v. State,
ante p. 8, 717 N.W.2d 899 (2006).
IV. ANALYSIS
1. OMAHA’S ALLEGED VIOLATIONS OF ACT
Elkhorn argues that the district court erred in failing to
find that Omaha’s annexation proceedings violated the Act.
Regarding Elkhorn’s standing, its complaint joined two
private citizens as plaintiffs. And any citizen of the
state may commence an action to declare a public body’s
action void. See § 84-1414(3). Thus, there is no
standing issue presented by Elkhorn’s challenge of Omaha’s
alleged violations of the Act. Omaha argues that even if
Elkhorn can challenge its meeting procedures, Omaha did not
take any formal action at the first and second readings of
its annexation ordinances, which took place on February 22
and March 1, 2005.
[7] Section 84-1414(1) provides: “Any motion, resolution,
rule, regulation, ordinance, or formal action of a public
body made or taken in violation of the Open Meetings Act
shall be declared void by the district court if the suit is
commenced within one hundred twenty days of the meeting. .
. .” (Emphasis supplied.) The Omaha City Charter, art. II,
§ 2.12 (1984), requires an ordinance to be read three
times at separate meetings. Accordingly, the readings were
necessary steps for passing the ordinance that the Omaha
City Council ultimately voted to adopt. Compare Johnson v.
Nebraska Environmental Control Council, 2 Neb. App. 263,
509 N.W.2d 21 (1993). If any of these readings were
declared void because of violations of the Act, the
ordinance would necessarily be void as well. We conclude
that the readings constituted formal actions.
(a) Omaha’s February 22, 2005, Meeting Gave
Reasonable Advance Public Notice
Elkhorn contends that Omaha’s February 22, 2005, meeting
violated § 84-1411(1) of the Act because Omaha
failed to give reasonable advance public notice of the
meeting. Section 84-1411(1) provides:
Each public body shall give reasonable advance publicized
notice of the time and place of each meeting by a method
designated by each public body and recorded in its
minutes. Such notice shall be transmitted to all members
of the public body and to the public. Such notice shall
contain an agenda of subjects known at the time of the
publicized notice or a statement that the agenda, which
shall be kept continually current, shall be readily
available for public inspection at the principal office of
the public body during normal business hours. Except for
items of an emergency nature, the agenda shall not be
altered later than (a) twenty-four hours before the
scheduled commencement of the meeting. . . .
Elkhorn argues that because Omaha cannot alter its agenda
later than 24 hours before a scheduled meeting, it also
cannot create an agenda later than 24 hours before a
meeting. Omaha counters that the Act does not prohibit
holding a special meeting with less than 24 hours’ notice.
[8,9] In the absence of anything to the contrary, we will
give statutory language its plain and ordinary meaning.
State v. County of Lancaster, ante p. 376, 721 N.W.2d 644
(2006). It is not within our province to read a meaning
into a statute that is not there. See Turco v. Schuning,
271 Neb. 770, 716 N.W.2d 415 (2006).
As noted, § 84-1411(1) provides that “[e]xcept for
items of an emergency nature, the agenda shall not be
altered later than . . . twenty-four hours before the
scheduled commencement of the meeting. . . .” If we adopt
Elkhorn’s interpretation, we would be imposing an unstated
requirement: “the agenda shall not be altered [or created]
later than . . . twenty-four hours before the scheduled
commencement of the meeting.” Because the statute’s 24-hour
requirement is directed only at alterations, we decline to
read an additional requirement into the statute.
[10] Unlike many states, the Legislature has not imposed a
minimum time period for public notification of a special
meeting. See, e.g., Cal. Gov’t Code § 54956 (West
1997 & Cum. Supp. 2007). Instead, the Legislature permits
each public body to designate its own method of
notification for all meetings. Under § 84-1411(1),
the Legislature has imposed only two conditions on the
public body’s notification method of a public meeting: (1)
It must “give reasonable advance publicized notice of the
time and place of each meeting” and (2) it must be recorded
in the public body’s minutes. Id.
Here, the record shows that in 1975, in response to the
Legislature’s passage of what is now the Act, the Omaha
City Council passed resolution No. 1962. This resolution
deals with the notification of regular and special
meetings. The Omaha City Council minutes contain a record of
the action and vote. The resolution designated The Daily
Record as the official newspaper for notices of regular
meetings. It provided that “notice of special or called
meetings of the City Council may be publicized by posting
on the bulletin board in the Omaha-Douglas [County] Civic
Center in accordance with [the Act] and Section 2.10 of the
Home Rule Charter of the City of Omaha.” At the time at
issue, the Omaha City Charter, art. II, § 2.10
(1976), provided: “Council Members shall be given at least
twelve hours written notice of the time and place of such
special meetings, except that only two hours notice shall
be required when an emergency has been declared.”
Omaha conceded that “[a]t no time prior to or during the
special meeting of February 22, 2005, did the Mayor or the
City Council of Omaha declare the special meeting to be an
emergency meeting.” So the emergency provision of §
2.10 is not at issue.
Regarding resolution No. 1962, the Omaha city clerk
testified that notice was posted to the public on the
bulletin boards of the city’s offices and on its Web site
and that the agenda was available to the public by 10:15
a.m. The agenda provided that two ordinances to extend
Omaha’s city limits would be read for the first time. Thus,
Omaha’s notice to the public of its special meeting
complied with resolution No. 1962.
Elkhorn, however, argues that Omaha’s notice was
nonetheless deficient. It argues that Omaha’s notice did
not comply with § 2.10 of the Omaha City Charter
because the council members did not receive a full 12
hours’ notice and did not file written waivers of the
noncompliance.
Rule 1 of the Omaha City Council’s rules of order provides
that “[a]ny member by his or her attendance [at a special
meeting] shall be deemed to have waived all objections as
to notice.” Omaha’s waiver rule regarding notice to council
members parallels our holding regarding notice to the
public: a person who has notice of a meeting and attends
the meeting must object specifically to the lack of public
notice at the meeting, or that person has waived the right
to object on that ground at a later date. See Stoetzel &
Sons v. City of Hastings, 265 Neb. 637, 658 N.W.2d 636
(2003). We conclude that a written waiver-objection is not
required.
[11] Moreover, any defect in notice intended for the
benefit of council members would not invalidate a council
meeting when all of the members attended without objection.
See Pokorny v. City of Schuyler, 202 Neb. 334, 275 N.W.2d
281 (1979). Five of the Omaha City Council members were
present at the city’s offices when the city clerk received
the mayor’s notification of a special meeting. And the city
clerk immediately called the two remaining members. The city
clerk provided each member with a copy of the call and the
mayor’s letter requesting the special meeting. Both
documents stated that the purpose for the special meeting
was the annexation of Elkhorn and surrounding SIDs or other
properties.
Additionally, all the members signed the call by 11:01
a.m., and no member objected to the meeting when served
with notice. Every council member attended the 10 p.m.
meeting and did not object to the meeting or the
notification. As in Pokorny v. City of Schuyler, supra, the
12-hour notification in § 2.10 of the Omaha City
Charter is for the benefit of council members, not the
general public. Thus, any defect in the notice did not
affect the validity of Omaha’s special meeting on February
22, 2005, because they all attended without objection.
Finally, Elkhorn argues that under Pokorny, a notification
of approximately 12 hours does not comport with the
“reasonable advance publicized notice” requirement in
§ 84-1411(1). In addition to the defective call
issue in Pokorny, this court also considered whether the
actual notice to the public of a special meeting was
sufficient. At a regularly scheduled meeting, the city
council scheduled a special meeting to take place the next
morning at 10:30 a.m. At 10 o’clock on the night of the
regular meeting, the city posted notice of the special
meeting in three public places. This court noted that the
city did not claim that the Act’s emergency meeting
provisions were applicable. We concluded that “notice of
the meeting of March 16 . . . given by a notice posted in
three public places at 10 p.m., on March 15 . . . could
hardly be considered to be reasonable advance publicized
notice as required by [§ 84-1411].” Pokorny v. City
of Schuyler, 202 Neb. at 338, 275 N.W.2d at 284.
Elkhorn argues that because 121/2 hours notice was
insufficient in Pokorny, a notice of slightly less than 12
hours cannot be sufficient here. Omaha, however, argues
that its notice is factually distinguishable from the
notice in Pokorny because that notice was posted late at
night when it was unlikely to reach the public. We agree
that Pokorny is not controlling.
In Pokorny, we did not state that a 12-hour notice is
always insufficient under § 84-1411(1). Instead, we
determined that the short time between the notice and the
meeting was insufficient because the notice was unlikely to
reach the public before the scheduled meeting. In contrast,
Omaha provided public notice early on a business day and
the city moved quickly to notify many local media outlets.
The record shows that Omaha faxed an agenda of the special
meeting to the main Omaha newspaper by 10:16 a.m. on
February 22, 2005, and to 18 other local media outlets by
10:54 a.m. The Omaha World-Herald published an article
about the meeting in its afternoon edition of the February
22 paper. Four television broadcasters were at the meeting,
and one station broadcast the meeting live. Therefore,
unlike the notice in Pokorny, the record shows that Omaha’s
notice reached a substantial part of the public before the
scheduled meeting.
Also, Elkhorn’s maneuvers unsurprisingly placed Omaha in a
dilemma. Section 2.12 of the Omaha City Charter provides
that no ordinance “shall be passed earlier than two weeks
after its introduction,” except for emergency circumstances
which were not applicable here. So once Omaha learned of
Elkhorn’s intent to annex surrounding land, its choices
were limited. It could act swiftly in giving public notice
or face the possibility of being unable to annex if Elkhorn
enacted its annexation ordinances first. Although we do not
condone the practice of providing only 12 hours’ notice
before a public meeting, we conclude that under these
circumstances, Omaha’s notification efforts were reasonable
and sufficient.
(b) Omaha’s Prepublic Meeting and Informational Sessions
Did Not Constitute Additional Public Meetings
Elkhorn also contends that Omaha violated the Act on March
1, 2005, by conducting secret meetings with less than a
quorum of council members before and after the public
meeting. Elkhorn argues that these informal meetings gave
council members an opportunity to formulate public policy
in private, which violated § 84-1410(4). This statute
provides that informal meetings shall not “be used for the
purpose of circumventing the requirements of the act.” Id.
Omaha counters that informational sessions attended by less
than a quorum of council members do not violate the Act
when no public business is conducted. It argues that
“requirements of the Act” are triggered by a meeting of a
“public body” and that the Act defines a public body to
exclude subgroups of less than a quorum. Brief for appellee
at 32.
[12] We have construed public meetings laws broadly so as
to obtain the objective of openness in favor of the public.
Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648
N.W.2d 756 (2002).
Section 84-1408 provides that “[e]very meeting of a public
body shall be open to the public. . . .” Section
84-1409(1)(a) defines “[p]ublic body” to include “governing
bodies of all political subdivisions of the State of
Nebraska.” However, § 84-1409(1)(b) provides: “Public
body does not include . . . subcommittees of such bodies
unless a quorum of the public body attends a subcommittee
meeting or unless such subcommittees are holding hearings,
making policy, or taking formal action on behalf of their
parent body.” (Emphasis supplied.)
Although the Act does not define “subcommittee,” a
subcommittee is generally defined as a group within a
committee to which the committee may refer business. See
Black’s Law Dictionary 290 (8th ed. 2004). Here, no
business was referred to the groups of three council
members. But even construing § 84-1409(1)(b)
broadly, we conclude that if the Act does not apply to a
subcommittee, it would also not apply to an even lesser
subgroup.
The evidence shows that no more than three council members
attended any of the informational sessions conducted on
March 1, 2005. Section 2.10 of the Omaha City Charter
specifies that a quorum of the Omaha City Council is four
members for all purposes. Accordingly, the subgroups did
not constitute a public body on that ground. Further, the
Omaha City Charter, art. II, § 2.11 (1956), provides
that apart from disasters, “[n]o less than a majority [a
quorum] of the whole Council shall be sufficient to make
any determination or effect any action. . . .” Therefore,
at the informational sessions, none of the subgroups could
have taken formal action. The subgroups were unquestionably
not conducting hearings, nor were the subgroups making
policy by receiving background information about a policy
issue to be decided.
The Act’s purpose is to prevent “the formation of public
policy . . . in secret.” § 84-1408. But it does not
require policymakers to remain ignorant of the issues they
must decide until the moment the public is invited to
comment on a proposed policy. The public would be ill
served by restricting policymakers from reflecting and
preparing to consider proposals, or from privately
suggesting alternatives. See Hispanic Educ. Com. v. Houston
Ind. Sch. Dist., 886 F. Supp. 606 (S.D. Tex. 1994). By
excluding nonquorum subgroups from the definition of a
public body, the Legislature has balanced the public’s need
to be heard on matters of public policy with a practical
accommodation for a public body’s need for information to
conduct business.
Also, other courts have declined to apply public meeting
laws to nonquorum gatherings intended to obtain information
or voice opinions. See, e.g., id.; Freedom Newspapers v.
Orange Cty., 6 Cal. 4th 821, 863 P.2d 218, 25 Cal. Rptr. 2d
148 (1993); Delaware Solid Waste Authority v. News-Journal,
480 A.2d 628 (Del. 1984); Lyon v. Lake County, 765 So. 2d
785 (Fla.App. 2000); Mason v. Vision Iowa Bd., 700 N.W.2d
349 (Iowa 2005). It is true that we have been concerned
with a public body’s perfunctorily approving a decision in
a public meeting that was apparently reached in a private
meeting. “The prohibition against decisions or formal
action in a closed session also proscribes . . .
rubberstamping or reenacting by a pro forma vote any
decision reached during a closed session.” Grein v. Board
of Education, 216 Neb. 158, 168, 343 N.W.2d 718, 724
(1984). But Grein is distinguishable on two counts.
First, Grein involved a closed session of a full school
board. Obviously, a private meeting of a full public body,
or a quorum thereof, raises the concern that the members
will reach consensus on a matter of public concern out of
the public’s view. See, also, Johnson v. Nebraska
Environmental Control Council, 2 Neb. App. 263, 509 N.W.2d
21 (1993).
Second, the school board in Grein immediately voted on an
agenda item after a closed session, without further
discussion or deliberations. “The necessary inference is
that the vote during the reconvened open session was the
extension, culmination, and product of the closed session.”
216 Neb. at 167-68, 343 N.W.2d at 724. Here, Omaha informed
the public of all relevant facts supporting the annexation,
and the public had full opportunity to voice its concerns.
Omaha’s deputy chief of staff testified that the department
heads met with subgroups of council members to familiarize
them with the annexation plan that would be presented at
the public meeting — specifically, the financial
details and geographic areas to be annexed. The minutes of
Omaha’s March 1, 2005, meeting show that it presented the
annexation plan to the public. Therefore, the public
received the same information that the individual council
members received. See Centinela Hosp. Ass’n v. Inglewood
City, 225 Cal. App. 3d 1586, 275 Cal. Rptr. 901 (1990).
Twenty people spoke against the ordinances, and seven city
officials spoke in favor of them. In addition, the public
responded with numerous letters, e-mails, and telephone
calls. On March 2, the Omaha Planning Board conducted
another public meeting regarding the proposed annexation
and recommended approval. The city council did not vote on
or pass an annexation ordinance until March 8. Thus, the
evidence shows that the Omaha City Council did not reach a
final decision on the annexation until it had received the
public’s input on the plan.
[13] Elkhorn counters that under § 84-1410(4), “no
public body shall designate itself a subcommittee of the
whole body for the purpose of circumventing the Open
Meetings Act.” We need not decide whether, under this
section, a subcommittee need be composed of the entire body
or a quorum before it could circumvent the Act, because
here, the evidence shows Omaha did not attempt to
circumvent the Act. As noted, Omaha gave the public access
to the same information as the council received and an
opportunity to be heard. We conclude that the informational
sessions of less than a quorum of the Omaha City Council
members did not constitute a public meeting under the Act.
2. VALIDITY OF OMAHA’S ANNEXATION
[14] A municipality that is in the crosshairs of annexation
has standing to challenge the annexation. See, County of
Sarpy v. City of Gretna, 267 Neb. 943, 678 N.W.2d 740
(2004); Wagner v. City of Omaha, 156 Neb. 163, 55 N.W.2d
490 (1952). Elkhorn has standing. Elkhorn alleges that
Omaha’s annexation was invalid for three reasons: (1)
Omaha’s annexation was second in time to Elkhorn’s
annexations and therefore void under the prior jurisdiction
rule, (2) Elkhorn and Omaha are not adjoining as required
under § 14-117, and (3) Omaha’s annexation violates
Neb. Const. art. X V, § 18(2).
(a) Prior Jurisdiction Rule Does Not Apply
Elkhorn argues that it took the first valid step toward
annexation and that under the prior jurisdiction rule,
Omaha’s attempted annexation was therefore void. Omaha
counters that the prior jurisdiction rule does not apply to
these proceedings because the cities were not attempting to
annex the same land. We agree.
Under the prior jurisdiction rule, when two public bodies
claim jurisdiction over the same territory in annexation
proceedings, the public body which takes the first valid
step toward annexation has the superior claim. And it may
complete its proceedings if it acts promptly and in
accordance with statutory requirements. See, Emerson
Electric Mfg. Co. v. City of Ferguson, 376 S.W.2d 643
(Mo.App. 1964); City of West Fargo v. City of Farg o, 251
N.W.2d 918 (N.D. 1977); 2 Eugene McQuillin, The Law of
Municipal Corporations § 7:39 (3d ed. 2006 & Cum.
Supp. 2006). Omaha correctly points out that in more recent
decisions, some courts have declined to apply the prior
jurisdiction rule as antiquated or superseded by statutory
procedures. See, Des Moines v. City Development Bd., 473
N.W.2d 197 (Iowa 1991); Village of Farmington v. Minnesota
Municipal Comm., 284 Minn. 125, 170 N.W.2d 197 (1969); In
re Enlargement and Ext. of D’Iberville, 867 So. 2d 241
(Miss. 2004). Further, Elkhorn has not directed our
attention to any case in which a court applied the rule to
annexations of different territories.
[15] The same subject matter is assumed in the “prior in
time is prior in jurisdiction” rule because it promotes the
orderly administration of conflicting interests. 2
McQuillin, supra at 674. We need not determine whether to
adopt the prior jurisdiction rule because we conclude that
the rule is not applicable when different territories are
the subject of the competing annexations. A map introduced
into evidence by Elkhorn for demonstrative purposes shows
that Omaha and Elkhorn were not attempting to annex the
same land. Therefore, the prior jurisdiction rule does not
apply to invalidate Omaha’s annexation.
(b) Omaha and Elkhorn Are Adjoining as Required by §
14-117
Section 14-117, in relevant part, provides:
The city council of any city of the metropolitan class
may at any time extend the corporate limits of such city
over any contiguous or adjacent lands, lots, tracts,
streets, or highways, such distance as may be deemed
proper in any direction, and may include, annex, merge,
or consolidate with such city of the metropolitan class,
by such extension of its limits, any adjoining city of the
first class having less than ten thousand population or
any adjoining city of the second class or village.
(Emphasis supplied.)
Elkhorn does not dispute Omaha’s general power to
simultaneously annex several contiguous tracts to reach
Elkhorn’s boundary. And the district court correctly
concluded that Elkhorn’s proposed annexations were also
dependent upon this principle. Nonetheless, Elkhorn contends
that § 14-117 limits Omaha’s annexation of cities to
those with which Omaha has a common corporate border
without any intervening land. Elkhorn argues that the term
“`adjoining’ city” has a meaning distinct from contiguous
or adjacent land. Brief for appellant at 36. Omaha, however,
contends that the terms “`contiguous'” and “`adjoining'”
are synonymous and that the Legislature was not attempting
to create a legal distinction between the annexation of
cities and other land. Brief for appellees at 54.
The Legislature recently added the “contiguous or
adjacent” requirement to a metropolitan city’s annexation
of surrounding lands and removed a restriction against the
annexation of agricultural and rural lands. See 1998 Neb.
Laws, L.B. 611. This court, however, has previously
analyzed annexations under § 14-117 to determine
whether the annexed area was sufficiently joined. See
Wagner v. City of Omaha, 156 Neb. 163, 55 N.W.2d 490
(1952). In Bierschenk v. City of Omaha, 178 Neb. 715, 722,
135 N.W.2d 12, 16 (1965), we held that “a city of the
metropolitan class may annex an area by extending its
boundaries to form a common one with the portion annexed if
the area so attached is urban in nature and is connected to
the city by a substantial link of narrower land of the same
character.” Similarly, in Wagner v. City of Omaha, supra, we
stated that “[i]t was clearly not the intention of the
Legislature, if [a residential] area develops outside the
boundaries of a metropolitan city, to prevent such city
from annexing it.” 156 Neb. at 168, 55 N.W.2d at 494.
[16-18] We have interpreted the “contiguous or adjacent”
requirement in statutes governing the annexation powers of
other classes of cities to determine how substantial the
link between a city and annexed area must be under this
standard. We have held that the terms contiguous and
adjacent in annexation statutes are synonymous. And
substantial adjacency between a municipality and annexed
territory exists when a substantial part of the
municipality’s boundary is adjacent to a segment of the
boundary of the city or village. Swedlund v. City of
Hastings, 243 Neb. 607, 501 N.W.2d 302 (1993). A city may
not annex a tract of land by simultaneously annexing a
120-foot-wide strip of land to reach the tract. Johnson v.
City of Hastings, 241 Neb. 291, 488 N.W.2d 20 (1992). But
we have upheld an annexation of a residential area reached
through the simultaneous annexation of connecting land six
blocks wide. See Swedlund v. City of Hastings, 243 Neb. at
611, 501 N.W.2d at 306 (“entire eastern boundary of the
annexed [connecting] property is contiguous with the entire
western boundary of a residential area [reached through
connecting property]”). Thus, we have implicitly recognized
in Wagner, Bierschenk, and Swedlund that a municipality may
annex several tracts as long as one tract is substantially
adjacent to the municipality and the other tracts are
substantially adjacent to each other. See 2 Eugene
McQuillin, The Law of Municipal Corporations § 7:32
(2006). The question remains, however, whether the
“adjoining city” language in § 14-117 required Omaha
to have a common border with Elkhorn before annexing it.
[19,20] Absent anything to the contrary, we give statutory
language its plain and ordinary meaning. White v. White,
271 Neb. 43, 709 N.W.2d 325 (2006). We will not read
anything plain, direct, or unambiguous out of a statute.
McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300
(2006). And if possible, we will try to avoid a statutory
construction which would lead to an absurd result. See
Curran v. Buser, 271 Neb. 332, 711 N.W.2d 562 (2006).
[21-23] Omaha correctly argues that the terms “contiguous”
and “adjoining” in § 14-117 are synonymous. See
Webster’s Third New International Dictionary of the English
Language, Unabridged 27, 492 (1993). Any of the three terms
— contiguous, adjacent, and adjoining — could
be literally applied to require that a city’s boundaries
abut or touch the boundaries of territory to be annexed.
See id. at 26-27, 492. But under the “contiguous or
adjacent” standard, we have not required common boundaries.
As noted, we have interpreted the standard to require the
city and annexed territory to be nearby in proximity and
allowed cities to reach annexed territory through the
simultaneous annexation of a substantial link of connecting
territory. We conclude that § 14-117 requires the
same application for the term “adjoining city.”
[24] Under Elkhorn’s interpretation of § 14-117,
part of the statute’s language is meaningless. If
“adjoining city” meant that Omaha could annex only cities
with which it shared a common border, then the Legislature
would not have specified that a metropolitan city could
annex an adjoining city by “extension of its limits.” Id.
Similarly, § 14-117 allows Omaha to “include” an
“adjoining city” in an annexation of contiguous or adjacent
lands. But even if Omaha had annexed all of the land
surrounding Elkhorn so that Elkhorn was merely “included”
within a larger territory, under Elkhorn’s interpretation,
the annexation would still be invalid because its corporate
limits did not touch Omaha’s corporate limits. This would
lead to the absurd conclusion that the Legislature intended
to give Omaha power to annex large tracts of land in any
direction, but not the cities eligible for annexation
within that land unless they shared a common border. We
conclude that under § 14-117, the Legislature
intended to permit a metropolitan city to extend its
corporate limits so that it adjoins the corporate limits of
a city to be annexed.
(c) Omaha’s Annexation Ordinance Is Constitutional
Elkhorn contends that under Neb. Rev. Stat.
§§ 14-120 to 14-124 (Reissue 1997), Omaha’s
annexation of Elkhorn is effectively a merger and
consolidation. Those sections explain the rights and
responsibilities of a metropolitan city and any city that it
annexes or merges with. Elkhorn argues that because the
effects of an annexation or merger are the same, Omaha was
required to comply with Neb. Const. art. XV, §
18(2), which provides:
The Legislature may provide for the merger or
consolidation of counties or other local governments. No
merger or consolidation of municipalities or counties
shall occur without the approval of a majority of the
people voting in each municipality or county to be merged
or consolidated as provided by law. . . . Annexation
shall not be considered a merger or consolidation for
purposes of this section.
Despite this section’s explicit provision that it does not
apply to annexations, Elkhorn argues that the provision was
intended to apply only to unincorporated territories or
SIDs. It argues that article XV, § 18(2) would be
meaningless if it applied to the annexation of a city or
village. Elkhorn’s argument runs wide and shallow. It does
not explain why it concludes the provision would be
meaningless if it applies only to mergers or consolidations
of municipalities and counties, nor do we find it necessary
to reach that issue.
[25,26] Constitutional provisions are not open to
construction as a matter of course; construction is
appropriate only when it has been demonstrated that the
meaning of the provision is not clear and therefore
construction is necessary. Pony Lake Sch. Dist. v. State
Committee for Reorg., 271 Neb. 173, 710 N.W.2d 609 (2006).
The words in a constitutional provision must be interpreted
and understood in their most natural and obvious meaning
unless the subject indicates or the text suggests that they
are used in a technical sense. State ex rel. Lemon v. Gale,
ante p. 295, 721 N.W.2d 347 (2006).
Here, the provision needs no interpretation and could not
be more plainly stated. If the people had intended to
prevent unilateral annexations, the provision excluding
annexations from the requirement of a vote would not have
been included. Further, the Legislature undertook no
simultaneous amendments of Nebraska’s annexation statutes.
We conclude that this argument is without merit.
3. EFFECT OF OMAHA’S ANNEXATION ON ELKHORN
The district court concluded that Elkhorn’s annexations
were invalid for several reasons. We need not reach those
issues because we agree with the district court’s
conclusion that Elkhorn would be annexed before its
ordinances could take effect.
Upon the effective date of a metropolitan city’s annexation
ordinance
the laws, ordinances, powers, and government of such
metropolitan city shall extend over the territory embraced
within such city or village so annexed. . . . [A]nd after
said date the metropolitan city shall succeed to all the
property and property rights of every kind . . . held by
or belonging to the city or village annexed. . . .
Neb. Rev. Stat. § 14-118 (Reissue 1997).
In addition, upon a metropolitan city’s annexation of a
city taking effect, “the terms and tenure of all offices
and officers [of the annexed city] shall terminate and
entirely cease.” § 14-124. The only exception is
their duty to deliver to the officers of the metropolitan
city any “books, papers, bonds, funds, effects or property
of any kind in their hands or under their control belonging
to [the annexed city].” Id. Therefore, upon the effective
date of Omaha’s annexation of Elkhorn, it ceased to exist
as a separate municipality, and its former territory was
governed solely by Omaha’s laws. See, State ex rel. Andersen
v. Leahy, 189 Neb. 92, 199 N.W.2d 713 (1972); 62 C.J.S.
Municipal Corporations § 64 (1999). Compare School
Dist. of Bellevue v. Strawn, 185 Neb. 392, 176 N.W.2d 42
(1970).
The district court correctly noted that Omaha’s annexation
ordinance became effective on March 24, 2005, and that
Elkhorn’s annexation ordinances would have become effective
on March 30. However, Elkhorn’s annexation proceedings were
nullified on March 24, when it ceased to exist as a
separate municipality.
V. CONCLUSION
We conclude that the Omaha City Council did not violate the
Act during its meetings on February 22 or March 1, 2005. We
further conclude that the prior jurisdiction rule did not
apply to abate Omaha’s annexation proceedings; that
§ 14-117 authorized Omaha to annex Elkhorn, despite
the lack of a common municipal border; and that Neb. Const.
art. XV, § 18(2), did not apply to require a vote on
the annexation. Finally, we conclude that Elkhorn ceased to
exist as a separate municipality on March 24, 2005, the
date that Omaha’s annexation ordinance became effective.
Elkhorn’s annexation ordinances were accordingly nullified
before they took effect.
AFFIRMED.
HEAVICAN, C.J., not participating. Page 889