Judges: WRITTEN BY: Jon Bruning, Attorney General Dale A. Comer, Assistant Attorney General
Filed Date: 1/5/2010
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: John A. Gale
Nebraska Secretary of State
2009 Neb. Laws LB 501 pertained to elections in Nebraska, and among other things, it amended Neb. Rev. Stat. §
In presenting your questions to us, you indicated that the current candidate filing forms used by your office contain excerpts from a "letter from the Attorney General regarding permissible names" which have been a part of those filing forms for some time, perhaps as long as the early 1970's. You asked us to revisit some of the *Page 2 conclusions set out in those excerpts. You also asked us to address new questions which have developed over time, particularly in the area of hyphenated and maiden names.
The legal principles for candidate names set out in those two earlier opinions can be summarized as follows:
1. Under the statutes in place in 1954, the task of filing a candidate's filing form for election to office was a ministerial duty, and the filing officer presented with a candidate filing form (the Secretary of State, the county clerk or the city clerk) had no discretion to refuse to file that form if it was in apparent conformity with the provisions of the applicable statutes. The election statutes in 1954 provided that nomination statements which were in "apparent conformity" with the applicable statutes were "deemed to be valid" unless objections thereto were made within 10 days after the statements were filed. Those statutes also required election officials to prepare a certified list of the names and post office addresses of each person for whom nomination papers were filed and who was entitled to be voted for at the primary election.
2. A candidate for office was entitled to have the name printed on the ballot by which he or she was generally known in the community, even though such name might not be his or her given or Christian name. What was most important with respect to a candidate for public office was the name by which that person was commonly known and called, rather than that person's true legal name, since voters needed to be informed when they voted. The correct name by which a particular person was known in the community presented a question of fact.
3. Designations such as "Dr." or "Professor" were too clearly "titles" to be names, and there were no questions of fact associated with those designations. Therefore, such designations were not part of an individual's name as a matter of law, and should not be included in a candidate filing form or on the ballot. *Page 3
4. Name issues with respect to candidate filing papers should be resolved by the filing officer in one of two ways. Filing papers presented to the filing officer which raised questions of fact regarding a candidate's correct name were deemed to be valid unless an objection was raised to those papers under the appropriate statute, and the filing officer had no authority to reject the papers without such an objection. On the other hand, filing papers which contained titles or other designations which were clearly not "names" as a matter of law could be refused by the filing officer without any filed objection, because those papers were not in apparent conformity with the statutes.
5. A female candidate for office could have her name printed on the ballot as "Mrs. John ___." Our conclusion in 1954 was based in great part upon the case of Huff v. State Election Board,
6. Identifiers such as "John G. `Jack'___" or "August `Gus'___" were not a part of a name as a matter of law, and could be refused by the filing officer even if no objection were raised. On the other hand "Jack ___" presented a question of fact as to how the individual was known in the community, and that name could not be rejected by the filing officer absent a proper objection.
At the outset, the statutes in place today are similar, in many respects, to the statutes discussed in our 1954 opinion. For example, Neb. Rev. Stat. §
We continue to believe that a filing officer's duties with respect to filing a candidate filing form are ministerial in nature. That conclusion is supported by the authorities cited in our 1954 opinion, and more recently, by State ex rel. Wieland v.Beermann,
More recent authorities also support other conclusions from our 1954 opinion. A person's "name" is the designation ordinarily used for the person, by which he or she is known in the community, and by which he or she is distinguished from others. Sooy v Gill,
Finally, our 1954 opinion indicated that a married woman could list her name on the ballot as "Mrs. John ___," and we indicated that it was "extremely common," at that time, for a married woman to use that designation as her name. Obviously, such a practice is much less common today. In addition, in 1957, the Nebraska Supreme Court indicated that a married woman's name, at law, consists of her own Christian name and her husband's surname. Kelle v. Crab OrchardRural Fire Protection District,
Our answers to your two new questions are again based upon the principle that a person's "name" is the designation ordinarily used for the person, by which he or she is known in the community, and by which he or she is distinguished from others. As a result, the name which a person should place on a candidate filing form for inclusion on the ballot is the name which the person ordinarily uses, by which he or she is known in the community. With respect to your first new question, if a person with a hyphenated last name is known in the community by only a portion of his or her last name, then it is permissible to place that name on the ballot. With respect to your second new question, since you indicate in your letter that the married woman at issue "usually uses her husband's last name," we question whether it is appropriate for that woman to use her maiden name on the filing form and on the ballot. In either case, the correct name by which the person is known in the community would present a question of fact, and you would have no cause to look behind the representations made by the candidate in the absence of a challenge to the candidate filing statement under §
1. The name which should be placed on the candidate filing form and on the ballot for a particular candidate is the name ordinarily used for the person, by which he or she is known in the community, and by which he or she is distinguished from others. *Page 6 A determination regarding what constitutes the correct name for a particular candidate presents a question of fact.
2. A filing officer who is presented with a candidate filing form which appears to conform with the applicable statutes and which is accompanied by the correct filing fees or evidence of payment thereof has a ministerial duty to file that form. Questions concerning the accuracy of a particular candidate's name present questions of fact, and the filing officer has no discretion to consider those questions absent an appropriate challenge under §
3. Titles such as "Doctor" or "Professor," and characterizations or designations such as "Grandpa Al Lewis," "John `Jack' Smith," or "William `Tax Cutter' Jones" are not part of a person's name as a matter of law. They are not generally permissible on a ballot with respect to a candidate's name, and a filing officer can refuse to place them on the ballot.
4. The correct name for a married woman on a filing form and on the ballot is the name which that woman ordinarily uses and by which she is known in the community. As a result, depending upon those factors, a married woman may use her maiden name, her own Christian name and her husband's surname, a hyphenated name or portions thereof, or "Mrs. John ___." In each case, the woman's correct name presents a question of fact which is subject to challenge under the appropriate statutes.
5. A hyphenated name or portions thereof may be used on the candidate filing form and on the ballot, provided that the name submitted is the name which the person ordinarily uses and by which he or she is known in the community. Similarly, a nickname such as "Gus ___" is permissible under the same standard. On the other hand "August `Gus' ___" contains a designation or identifier which may not be used on the ballot.
Sincerely,
*Page 7JOHN BRUNING Attorney General
Dale A. Comer Assistant Attorney General
Approved:
___________________________ Attorney General