Thomas v. Peterson ( 2020 )

OPINION OF THE SUPREME COURT OF NEBRASKA
NOTICE: THIS OPINION IS BEING POSTED TEMPORARILY IN “SLIP”
OPINION FORM. IT WILL BE REPLACED AT A LATER DATE WITH
AN “ADVANCE” OPINION, WHICH WILL INCLUDE A CITATION.
Case Title
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.
Case Caption
THOMAS V. PETERSON
Filed September 10, 2020. No. S-20-596.
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.
THOMAS V. PETERSON
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 independent 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 interpretation 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.
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 evidence is required in civil
cases.
12. Public Officers and Employees: Presumptions. Absent contrary evidence, public officers
are presumed to faithfully perform their official duties.
13. Initiative and Referendum: Proof. A deferential standard is to be applied to a ballot title
prepared by the Attorney General, and a dissatisfied 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.
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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 ballot title prepared by the Attorney General. Thomas
appeals, requesting that this court hold that the inclusion of the phrase “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 licensees. 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 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?
1
See § 45-902.
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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 district 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 petition seeks to amend.
Thomas alleged the explanatory statement 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 certify 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 jurisdiction 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 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 language 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 Ooinion 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 “something else than what it is.”
On August 19, 2020, the court issued a written order entering 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
2
§ 45-920(2).
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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 insufficient
or unfair.
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 relevant 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
recognized 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 advertising, signage, coupons, contracts, or other customer contacts,
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 initiative. Thus,
the Court finds that the Attorney General’s ballot title is sufficient and fair.
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
3
law. 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
3
Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 145 (2018).
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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 independent 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 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 jurisdiction to review
both. Upon de novo review, we conclude that under the plain text of § 32-1410, the district
court’s jurisdiction extends only to the ballot title and not to the explanatory statement.
[6-9] Statutory language is to be given its plain and ordinary meaning, and an appellate
court will not resort to interpretation 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 dissatisfied with the ballot title
provided by the Attorney General for any measure may appeal from his or her decision to the
district court. Nothing within the text of the statute authorizes an appeal when a person is
dissatisfied with an explanatory statement. As such, § 32-1410 did not authorize the district court
to consider Thomas’ challenge to the explanatory statement. We 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.
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).
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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 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 statement, 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 hypothetical 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 receiving 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 evidentiary 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
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 rulings in the Lancaster County District Ccourt 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
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).
16
In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).
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[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 presumed 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 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 determine 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 deferential 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 insufficient 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 “payday 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 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 insufficient 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.”
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).
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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Section 32-1410(3) provides 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 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. 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
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, installment,
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 interest’”
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
misleading 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 consequences of the initiative without bias, prejudice, deception, or favoritism. 29
Here, Thomas argues that the phrase “payday lenders” creates 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
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.
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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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 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, references the agreement as a “Truth-In Lending Act
Disclosure.” Lastly, the DBF’s interpretive opinion No. 8 offered into evidence 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 initiative 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 lenders” 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.
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