Thomas v. Peterson
948 N.W.2d 698
Neb.2020Background:
- Sponsors submitted an initiative to amend the Delayed Deposit Services Licensing Act to cap APR at 36% for delayed deposit transactions and render transactions violating the cap void and uncollectible.
- Attorney General prepared an explanatory statement and a ballot title that used the phrase “delayed deposit services licensees, also known as payday lenders.”
- Trina Thomas (operator of a delayed-deposit business) challenged the explanatory statement and ballot title, arguing the slang term “payday lenders” is not in the statute and is misleading/unfair.
- The district court held it lacked jurisdiction to review the explanatory statement, applied a deferential standard to the Attorney General’s ballot title, and certified the title.
- Thomas appealed to the Nebraska Supreme Court, which granted expedited review and affirmed the district court’s judgment.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over explanatory statement | Thomas: §32-1410 allows review of both ballot title and explanatory statement | AG/SoS: §32-1410 authorizes review only of the ballot title | Court: No jurisdiction over explanatory statement; statute authorizes appeal only of the ballot title |
| Use of evidence beyond the petition | Thomas: Court erred by considering evidence outside the initiative text | Defs: Evidence is permissible; Thomas herself introduced some exhibits | Court: Issue not preserved on appeal (Thomas requested/relied on evidence below); not considered |
| Appropriate standard/burden for ballot-title challenges | Thomas: Court should apply ordinary preponderance and not a deferential standard | Defs: Deferential review applies; challenger bears burden to show title insufficient/unfair | Court: Adopted a deferential standard; challenger must prove by the greater weight of evidence that title is insufficient or unfair |
| Whether phrase “payday lenders” makes title insufficient/unfair | Thomas: Term is slang, misleading, not in statute, and implies lending when licensees charge fees | Defs/Sponsors: Term is commonly used by public, industry, and DBF; clarifies the statutory term | Court: Phrase acceptable; title sufficiently and fairly states measure’s purpose; Thomas failed to carry burden |
Key Cases Cited
- Christensen v. Gale, 301 Neb. 19 (2018) (standard for statutory interpretation and appellate review)
- Hargesheimer v. Gale, 294 Neb. 123 (2016) (principles on initiative/referendum review)
- Lombardo v. Sedlacek, 299 Neb. 400 (2018) (legislative intent can be shown by omission as well as inclusion)
- County of Webster v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 751 (2017) (presumption that public officers faithfully perform duties)
- In re Application No. OP-0003, 303 Neb. 872 (2019) (preponderance is the usual civil standard)
- Brown v. Carnahan, 370 S.W.3d 637 (Mo. 2012) (ballot-summary sufficiency requires accurate, not perfect, description)
- Municipal Servs. Corp. v. Kusler, 490 N.W.2d 700 (N.D. 1992) (courts should not rewrite a fair ballot title)