Thomas v. Peterson , 307 Neb. 89 ( 2020 )

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www.nebraska.gov/apps-courts-epub/
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THOMAS v. PETERSON
Cite as 307 Neb. 89
Trina L. Thomas, appellant, v. The Honorable
Douglas J. Peterson, Attorney General of the
State of Nebraska, in his official capacity, and
the Honorable Robert B. Evnen, Secretary
of State of the State of Nebraska, in
his official capacity, appellees,
and Albert Davis III et al.,
intervenors-appellees.
___ N.W.2d ___
Filed September 10, 2020. No. S-20-596.
1. Judgments: Jurisdiction. A jurisdictional question which does not
involve a factual dispute is a matter of law.
2. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, for which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the court below.
3. Initiative and Referendum. Whether a ballot title is insufficient or
unfair is a question of law.
4. Judgments: Appeal and Error. On questions of law, an appellate court
is obligated to reach a conclusion independent of the decision by the
trial court.
5. Appeal and Error. When reviewing the trial court’s factual findings, an
appellate court reviews for clear error.
6. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of words which are plain, direct, and
unambiguous.
7. Statutes: Jurisdiction. Jurisdictional statutes must be strictly construed.
8. Legislature: Intent. The intent of the Legislature is generally expressed
by omission as well as by inclusion.
9. Statutes: Appeal and Error. An appellate court is not at liberty to add
language to the plain terms of a statute to restrict its meaning.
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10. Appeal and Error. An appellate court will not consider an issue on
appeal that was not passed upon by the trial court.
11. Evidence. Unless an exception applies, only a preponderance of evi-
dence is required in civil cases.
12. Public Officers and Employees: Presumptions. Absent contrary evi-
dence, public officers are presumed to faithfully perform their offi-
cial duties.
13. Initiative and Referendum: Proof. A deferential standard is to be
applied to a ballot title prepared by the Attorney General, and a dissatis-
fied person must prove by the greater weight of the evidence that the
ballot title is insufficient or unfair.
14. Initiative and Referendum. A ballot title is sufficient if it recites the
general purposes of the proposed law and if the ballot title contains
enough information to sufficiently advise voters of the true contents of
the proposed law.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
J.L. Spray and Stephen D. Mossman, of Mattson Ricketts
Law Firm, for appellant.
Douglas J. Peterson, Attorney General, Ryan S. Post, and L.
Jay Bartel, for appellees.
Mark C. Laughlin and Daniel J. Gutman, of Fraser Stryker,
P.C., L.L.O., for intervenors-appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
Trina L. Thomas appealed to the district court from the
Attorney General’s submission of an explanatory statement
and ballot title for an initiative petition that would amend
provisions of the Delayed Deposit Services Licensing Act (the
Act), Neb. Rev. Stat §§ 45-901 to 45-931 (Reissue 2016 &
Cum. Supp. 2018). The court found that it lacked jurisdiction
to review the explanatory statement, and it certified the bal-
lot title prepared by the Attorney General. Thomas appeals,
requesting that this court hold that the inclusion of the phrase
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“payday lenders” creates an insufficient and unfair ballot title.
We affirm.
BACKGROUND
Albert Davis III; Thomas A. Wagoner, Jr.; and Fr. Damian
Zeurlein are the sponsors of an initiative petition that would
establish a 36-percent statutory cap on the annual percentage
rate that may be charged by delayed deposit services licens-
ees. 1 To achieve its objective of reducing the amount that
licensees can charge, the initiative petition seeks to amend
Nebraska statutes to prohibit licensees from evading the new
rate cap and to deem any transaction in violation void and
uncollectible.
On June 25, 2020, the sponsors submitted signatures to the
Secretary of State for validation. In accordance with Neb. Rev.
Stat. § 32-1410(1) (Reissue 2016), on July 8, the Secretary
of State transmitted a copy of the measure to the Attorney
General. On July 20, the Attorney General transmitted to the
Secretary of State the explanatory statement and ballot title to
be placed on Nebraska’s November 3 general election ballot.
The text of the explanatory statement and ballot title prepared
by the Attorney General is as follows:
[EXPLANATORY STATEMENT]
A vote “FOR” will amend Nebraska statutes to: (1)
reduce the amount that delayed deposit services licensees,
also known as payday lenders, can charge to a maximum
annual percentage rate of thirty-six percent; (2) prohibit
payday lenders from evading this rate cap; and (3) deem
void and uncollectable any delayed deposit transaction
made in violation of this rate cap.
A vote “AGAINST” will not cause the Nebraska statutes
to be amended in such manner. [(Emphasis in original.)]
[BALLOT TITLE]
Shall Nebraska statutes be amended to: (1) reduce
the amount that delayed deposit services licensees, also
1
See § 45-902.
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known as payday lenders, can charge to a maximum
annual percentage rate of thirty-six percent; (2) prohibit
payday lenders from evading this rate cap; and (3) deem
void and uncollectable any delayed deposit transaction
made in violation of this rate cap?
Dissatisfied with the Attorney General’s submission, on July
27, 2020, Thomas, a resident of Lancaster County, a taxpayer,
a registered voter, and an operator of Paycheck Advance, a
delayed deposit services business, filed a “Complaint and
Ballot Title Appeal,” pursuant to § 32-1410(3), in the dis-
trict court for Lancaster County. Thomas named the Attorney
General and the Secretary of State, in their official capacities,
as defendants. Thomas alleged that the explanatory statement
and ballot title are insufficient and unfair, because they use
“the slang term ‘payday lenders.’” Thomas alleged that the
term “payday lenders” is not contained within § 45-918 or
§ 45-919, the provisions of the Act which the initiative peti-
tion seeks to amend. Thomas alleged the explanatory state-
ment and ballot title are “deceptive to the voters as [they]
unfairly cast[] the measure in a light that would prejudice the
vote in favor of the initiative.” Thomas prayed that the court
remove the phrase “also known as payday lenders” and cer-
tify a modified explanatory statement and ballot title to the
Secretary of State.
The Attorney General and Secretary of State filed a joint
answer. They alleged that under § 32-1410(3), the court is
authorized to review only the ballot title and lacks jurisdic-
tion to alter the explanatory statement. They alleged that the
ballot title provided by the Attorney General is sufficient, fair,
and not misleading and that thus, a different ballot title is not
warranted.
The court granted a complaint in intervention filed by the
sponsors. The sponsors alleged that the term “payday lenders”
is sufficient and fair and that it provides an accurate description
of what the initiative petition would accomplish. They alleged
that the payday loan industry identifies licensees as “payday
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lenders” and that the term is used by Nebraska’s Department
of Banking and Finance (DBF) and the general public. They
stated that Thomas did not allege that the general public knows
the meaning of the term “delayed deposit services licensee.”
Therefore, the sponsors contended, Thomas’ alternative lan-
guage would increase the likelihood of voter confusion.
The court held a hearing on the matter on August 10,
2020. The court received affidavits with attached exhibits from
Thomas, the Attorney General and the Secretary of State, and
the sponsors. Thomas argued that the term “payday lenders”
is not present in the measure and, except for one provision, 2
is not present in the Act. Thomas argued that according to
the DBF’s interpretive opinion No. 8 filed in 2014, which she
offered into evidence, licensees do not offer loans. She argued
that licensees are not lenders, because they charge a fee, and
therefore including the phrase “also known as payday lenders”
would be unfair because it makes the initiative petition “some-
thing else than what it is.”
On August 19, 2020, the court issued a written order enter-
ing judgment in favor of the Attorney General, the Secretary
of State, and the sponsors. That court found that it lacked
jurisdiction to review the explanatory statement prepared by
the Attorney General, because § 32-1410(3) states that “[a]ny
person who is dissatisfied with the ballot title provided by the
Attorney General for any measure may appeal from his or her
decision to the district court . . . .” (Emphasis supplied.)
The court also found that a deferential standard applied to
its review of the ballot title prepared by the Attorney General.
In doing so, the court relied upon previous orders from the
district court for Lancaster County which found that in cases
brought under § 32-1410(3), the court will not alter a ballot
title absent clear evidence that the proposed language is insuf-
ficient or unfair.
2
§ 45-920(2).
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THOMAS v. PETERSON
Cite as 307 Neb. 89
The court found no legal support for Thomas’ argument
that the term “payday lenders” “is not part of the statute being
amended by the initiative petition.” The court further found
that the Attorney General satisfied the requirement under
§ 32-1410(1) that the ballot title “shall express the purpose of
the measure in not exceeding one hundred words.” The court
determined that the term “payday lenders” is not improper,
as it is familiar to the general public. The court relied upon
the DBF’s interpretive opinion No. 8, which states in rel-
evant part:
The definition of “delayed deposit services business”
does not include offering loans. The [DBF] interprets this
to mean that delayed deposit transactions are not recog-
nized as loans, and therefore, should not be represented as
loans by the licensee.
In order to operate in accordance with the Act, a
licensee may use the phrase “payday loan” in its advertis-
ing, signage, coupons, contracts, or other customer con-
tacts, but may not use the term “loan” by itself for any
purpose. . . . Licensees may not be listed, or advertise,
in a telephone book under the Loans section. Permissible
telephone book sections include: Cash Advance Services,
Payday Loan, and Payroll Advancement.
The court found that Thomas “failed to meet her burden to
demonstrate that the Attorney General’s ballot title is clearly
insufficient or unfair.” The court’s order stated:
The ballot title clearly expresses that the purpose of the
measure is to prevent the licensees from imposing an
annual percentage rate greater than thirty-six percent by
rendering any transaction in violation of this requirement
void and uncollectable, and to prohibit the licensees from
evading this requirement. The Court cannot perceive how
the inclusion of the term “payday lenders,” which is used
by the licensees, the [DBF], and the general public alike,
would deceive or mislead voters into supporting the ini-
tiative. Thus, the Court finds that the Attorney General’s
ballot title is sufficient and fair.
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Thomas timely appealed. We moved the case to our docket
and granted expedited review.
ASSIGNMENTS OF ERROR
Thomas assigns, restated, that the district court erred in (1)
concluding that it lacked jurisdiction to review the explanatory
statement, (2) relying upon evidence other than the initiative
measure, (3) applying a deferential standard in reviewing the
Attorney General’s proposed ballot title, and (4) failing to find
that the explanatory statement and ballot title are insufficient
or unfair.
STANDARD OF REVIEW
[1-5] A jurisdictional question which does not involve a
factual dispute is a matter of law. 3 Statutory interpretation
presents a question of law, for which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below. 4 Whether a ballot title
is insufficient or unfair is a question of law. 5 On questions of
law, an appellate court is obligated to reach a conclusion inde-
pendent of the decision by the trial court. 6 When reviewing the
trial court’s factual findings, we review for clear error. 7
ANALYSIS
No Jurisdiction Over
Explanatory Statement
This court has not previously had occasion to address
the legal standards governing ballot title challenges under
§ 32-1410. Before reaching the legal issues presented for
3
Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 145 (2018).
4
Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).
5
See Humane Society of Missouri v. Beetem, 317 S.W.3d 669 (Mo. App.
2010).
6
See Stewart v. Advanced Gaming Tech., 272 Neb. 471, 723 N.W.2d 65
(2006).
7
See Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d
1 (2008).
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review, it is the duty of an appellate court to determine whether
it has jurisdiction over the matter before it. 8
Here, the district court determined that it lacked jurisdiction
to review the explanatory statement prepared by the Attorney
General, reasoning that under § 32-1410(3), the Legislature
did not provide the courts the authority to review anything
other than the ballot title. On appeal, the Attorney General,
the Secretary of State, and the sponsors agree with the district
court’s interpretation. Thomas disagrees and argues that a
ballot title and explanatory statement are inextricably linked
under § 32-1410 and that thus, the district court had jurisdic-
tion to review both. Upon de novo review, we conclude that
under the plain text of § 32-1410, the district court’s jurisdic-
tion extends only to the ballot title and not to the explana-
tory statement.
[6-9] Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of words which are plain,
direct, and unambiguous. 9 Jurisdictional statutes must be
strictly construed. 10 The intent of the Legislature is generally
expressed by omission as well as by inclusion. 11 We are not at
liberty to add language to the plain terms of a statute to restrict
its meaning. 12
Section 32-1410 indicates that any person who is dissatis-
fied with the ballot title provided by the Attorney General for
any measure may appeal from his or her decision to the dis-
trict court. Nothing within the text of the statute authorizes an
appeal when a person is dissatisfied with an explanatory state-
ment. As such, § 32-1410 did not authorize the district court to
consider Thomas’ challenge to the explanatory statement. We
8
Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920
N.W.2d 268 (2018).
9
Chambers v. Lautenbaugh, 263 Neb. 920, 644 N.W.2d 540 (2002).
10
Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
11
Id.
12
Id.
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express no opinion as to whether Thomas had any other path
to assert an appeal based on the explanatory statement, nor
have we been asked to consider another path.
If there truly is no mechanism to challenge the Attorney
General’s explanatory statement, that could lead to a curious
result. If, for instance, the district court found that the ballot
title contained language which was insufficient or unfair and
that same language was contained within the explanatory state-
ment, the district court would lack authority under § 32-1410
to address the offending language in the explanatory statement.
When possible, an appellate court will try to avoid a statutory
construction that would lead to an absurd result. 13 However,
based on our disposition of this matter more fully discussed
below, we cannot say in this case that the potential for a hypo-
thetical insufficient or unfair explanatory statement that is
unalterable is so absurd that the Legislature could not possibly
have intended it. Accordingly, we believe it best to leave any
corrective action regarding § 32-1410 to the Legislature. 14
Evidence Argument Not Presented
[10] Thomas’ next argument is that the court erred in receiv-
ing and considering evidence beyond the initiative petition
measure. However, it is clear that Thomas did not assert this
argument during the proceedings in district court. Thomas
herself requested that the court consider evidence beyond the
measure, and the court granted that request and relied upon
evidence adduced by Thomas. While Thomas lodged eviden-
tiary objections to other exhibits, she did not argue that a court
is prohibited from considering evidence outside the measure in
a ballot title appeal. We will not consider Thomas’ argument.
An appellate court will not consider an issue on appeal that
was not passed upon by the trial court. 15
13
First Nat. Bank of Omaha v. Davey, 285 Neb. 835, 830 N.W.2d 63 (2013).
14
See Lombardo, supra note 10. See, also, Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 234-39 (2012).
15
Siedlik v. Nissen, 303 Neb. 784, 931 N.W.2d 439 (2019).
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Burden of Proof
The next issue before this court is the appropriate burden
of proof for a court to apply in a ballot title challenge under
§ 32-1410. This raises a matter of first impression under
Nebraska law.
[11] Section 32-1410(3) states that the person who has
appealed the Attorney General’s decision to the district court
“shall file a petition asking for a different title and setting forth
the reasons why the title prepared by the Attorney General is
insufficient or unfair.” Section 32-1410(3) establishes that in
a ballot challenge proceeding, the burden of proof is on the
challenger to prove that the ballot title is insufficient or unfair.
The trial court here relied upon decades of unchallenged rul-
ings in the Lancaster County District Court and found that a
challenger to a ballot title fails to sustain its burden of proof
unless it can establish that a ballot title is clearly insufficient or
unfair. Thomas argues on appeal that the court erred by adding
“clearly” to § 32-1410(3). We agree. Although § 32-1410(3)
does not specify a burden of proof to be applied by a court,
unless an exception applies, only a preponderance of evidence
is required in civil cases. 16
[12] Section 32-1410(3) begins with the presumption that
the ballot title prepared by the Attorney General is valid, and
it places the burden upon the dissatisfied party to dispel this
presumption. This is consistent with the long-held principle in
Nebraska that, absent contrary evidence, public officers are pre-
sumed to faithfully perform their official duties. 17 “The process
of producing a 100 word purpose statement that constitutes a
‘true and impartial explanation’ of the measure ‘involves a
16
In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).
17
County of Webster v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 751,
896 N.W.2d 887 (2017). See, also, In re App. No. C-4973 of Skrdlant, 305
Neb. 635, 942 N.W.2d 196 (2020); Johnson v. Neth, 276 Neb. 886, 758
N.W.2d 395 (2008); State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005);
Nye v. Fire Group Partnership, 263 Neb. 735, 642 N.W.2d 149 (2002);
State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001).
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degree of discretion entrusted to the Attorney General by the
Legislature that we will not overturn absent noncompliance
with the statute.’” 18
Other states have adopted similar standards. The Supreme
Court of South Dakota has explained, because the Attorney
General is charged with the statutory duty of preparing a ballot
title, a court’s review of a challenge to the Attorney General’s
submission serves a limited function. 19 “‘We merely deter-
mine if the Attorney General has complied with his statutory
obligations and we do not sit as some type of literary editorial
board.’” 20 Similarly, the Supreme Court of North Dakota has
aptly stated that “[i]f the ballot title is neither misleading nor
unfair, it is not our responsibility to draft a better one.” 21
[13] As a matter of first impression, we hold that a defer-
ential standard is to be applied to a ballot title prepared by the
Attorney General and that a dissatisfied person must prove by
the greater weight of the evidence that the ballot title is insuf-
ficient or unfair.
Ballot Title Not
Insufficient or Unfair
Turning to the merits, Thomas contends that the ballot title
prepared by the Attorney General and certified by the district
court is insufficient and unfair under § 32-1410(3) and that
the ballot title should be modified to remove the phrase “also
known as payday lenders.” Thomas argues that the term “pay-
day lenders” is not found in the measure nor the Act, that the
term “lenders” is misleading because licensees do not offer
loans, and that the term “payday lenders” is a slang term
18
Montana Consumer Finance Ass’n v. State, 357 Mont. 237, 243, 238 P.3d
765, 768 (2010).
19
Ageton v. Jackley, 878 N.W.2d 90 (S.D. 2016).
20
Id. at 96, quoting Schulte v. Long, 687 N.W.2d 495 (S.D. 2004) (superseded
by statute as stated in SD AFL-CIO v. Jackley, 786 N.W.2d 372 (S.D.
2010)).
21
Municipal Services Corp. v. Kusler, 490 N.W.2d 700, 703 (N.D. 1992).
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which prejudices voters. Based on the record before us, and
applying our newly adopted burden of proof, we agree with
the district court that none of Thomas’ arguments have any
merit. Therefore, Thomas failed to carry her burden to prove
that the ballot title prepared by the Attorney General is insuf-
ficient or unfair.
Section 32-1410(1) provides that the ballot title “shall express
the purpose of the measure in not exceeding one hundred
words” and “shall be so worded that those in favor of adopting
the measure shall vote For and those opposing the adoption
of the measure shall vote Against.” Section 32-1410(3) pro-
vides that “[a]ny person who is dissatisfied with the ballot title
provided by the Attorney General” may appeal to the district
court and file a petition setting forth the reasons why the ballot
title is “insufficient or unfair.” The word “insufficient” means
“‘“inadequate; especially lacking adequate power, capacity, or
competence.”’” 22 The word “unfair” means to be “‘“marked by
injustice, partiality, or deception.”’” 23
[14] A ballot title is sufficient if it recites the general pur-
poses of the proposed law and if the ballot title contains enough
information to sufficiently advise voters of the true contents of
the proposed law. 24 A court’s task is not to require or draft the
perfect proposed ballot title in an initiative election, but merely
to determine if the title presented is legally sufficient. 25 In
reviewing a ballot title, the court must not concern itself with
the merit or lack of merit of the proposed measure, because
that determination rests with the electorate. 26
22
Beetem, supra note 5, 317 S.W.3d at 673.
23
Id.
24
See, In re Initiative Petition No. 347 State Question No. 639, 813 P.2d
1019 (Okla. 1991); 82 C.J.S. Statutes § 173 (2009).
25
Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008); 42 Am. Jur. 2d
Initiative and Referendum § 45 (2020); 82 C.J.S., supra note 24, § 172.
26
Kusler, supra note 21.
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In Brown v. Carnahan, 27 the Supreme Court of Missouri
considered a ballot challenge to a payday loan initiative that
would limit the annual percentage rate for payday, title, install-
ment, and other high-cost consumer credit and small loans to
36 percent annually. Because the summary statement stated
only that the initiative would “‘limit the annual rate of inter-
est’” without specifying the rate, the trial court found that
the statement was not fair or sufficient. 28 The trial court
found that it was necessary to rewrite the statement to qualify
that the limitation would be 36 percent. The appellate court
reversed, finding that the summary statement was not mis-
leading because it accurately communicated the purpose of
the initiative, which was to limit the permissible interest rate
for payday loans. The court found that even if the language
provided by the trial court is more specific, and even if that
level of specificity might be preferable, whether the summary
statement prepared by the public official is the best language
is not the test. Rather, all that is required is that the public
official prepare a statement which adequately states the con-
sequences of the initiative without bias, prejudice, deception,
or favoritism. 29
Here, Thomas argues that the phrase “payday lenders” cre-
ates an insufficiency, because the phrase is not part of the
measure, or the Act, and because licensees do not offer loans.
However, the phrase “also known as payday lenders” appears
in the objective statement of the draft initiative petition in
our record. Moreover, as Thomas acknowledges, § 45-920(2)
refers to “delayed deposit services businesses, payday lenders,
or similar entities.” (Emphasis supplied.) In addition, § 45-917
requires that every licensee, at the time any delayed deposit
transaction is made, give to the maker of the check a written
notice which states, in part, “THE LAW DOES NOT ALLOW
THIS TYPE OF TRANSACTION TO BE MORE THAN FIVE
27
Brown v. Carnahan, 370 S.W.3d 637 (Mo. 2012).
28
Id. at 663.
29
See Brown, supra note 27.
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HUNDRED DOLLARS ($500) IN TOTAL, INCLUDING
FEES AND CHARGES, FROM ONE LENDER.” (Emphasis
supplied.) Additionally, Paycheck Advance’s own deferred
deposit agreement, offered into evidence by Thomas, refer-
ences the agreement as a “Truth-In Lending Act Disclosure.”
Lastly, the DBF’s interpretive opinion No. 8 offered into evi-
dence by Thomas provides that licensees are permitted to use
the term “payday loan” in advertising. Thomas has not asserted
any other reasons why the ballot title does not provide an
accurate description of the initiative petition’s purpose, which
is to prevent licensees from imposing an annual percentage
rate greater than 36 percent and to enforce this requirement by
rendering any transaction in violation of this requirement void
and uncollectible.
Thomas argues that the term “payday lenders” creates an
unfairness, because it is a slang term. However, Thomas has
not offered any evidence to support this position. This is not a
case where a colloquial term is substituted for a statutory term;
rather, it supplements the statutory term with a commonly used
term. We agree with the district court that the term “payday
lenders” would not deceive or mislead voters regarding the ini-
tiative petition, because the record shows “payday lenders” is a
term commonly known by the general public and used within
the payday loan industry. We further agree with the district
court that the Attorney General’s decision to use “payday lend-
ers” clarifies the measure, because no evidence was presented
that the general public knows the meaning of the term “delayed
deposit services licensees.” As a result, Thomas has failed to
carry her burden.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court, which certified the ballot title prepared by the
Attorney General.
Affirmed.