State v. Pappas, 87-632
| Decision Date | 17 June 1988 |
| Docket Number | No. 87-632,87-632 |
| Citation | 228 Neb. 861,424 N.W.2d 604 |
| Parties | STATE of Nebraska, Appellee, v. James E. PAPPAS, Appellant. |
| Court | Nebraska Supreme Court |
Kirk E. Naylor, Jr., Lincoln, for appellant.
Robert M. Spire, Atty. Gen., and William L. Howland, and Michael G. Heavican, Lancaster County Atty., and John A. Colborn, Lincoln, for appellee.
The defendant, James E. Pappas, was charged in a third amended information with aiding and abetting Kimberly Peters to willfully and falsely swear to a signature upon an initiative petition for a state-run lottery in violation of Neb.Rev.Stat. §§ 32-705 (Cum.Supp.1986) and 32-713 (Reissue 1984). The defendant's motion to quash the information, on the grounds that the statutes were unconstitutional as vague and overbroad, that they infringed upon the defendant's right to freedom of speech and to petition the government, and that they violated Neb.Const. art. III, §§ 2, 3, and 4, was overruled.
A jury was waived and the case submitted to the trial court upon a stipulation of facts. The defendant was found guilty, fined $2,000, and placed on probation for 2 years.
The defendant has appealed and has assigned as error the ruling on the motion to quash and the sufficiency of the evidence to sustain the finding of guilty.
The stipulation of facts shows that the Nebraska Taxpayers Lottery Committee was formed by Senators Bernice Labedz, John DeCamp, and the defendant, pursuant to Neb.Rev.Stat. §§ 32-702 et seq. (Reissue 1984 & Cum.Supp.1986). In the spring of 1986, the committee filed a copy of the form of an initiative petition to allow a state-run lottery with the Secretary of State. During this time, the defendant was a resident and registered voter in Lincoln County, Nebraska, and was not a bonded circulator in the initiative petition drive. Kimberly Peters, who was employed in the office of the defendant, Senator Pappas, was a resident and registered voter in Lancaster County, Nebraska, and became a bonded circulator in the petition drive.
Walter Radcliffe, a lobbyist hired by Lottery Consultants of Nebraska, Inc., of Omaha, assisted in the petition effort.
In June of 1986, the defendant signed the affidavit as a circulator on a number of initiative petitions which had been circulated in Lincoln County, Nebraska. Also in June of 1986, the defendant was informed by Bruce Cutshall, a lobbyist sharing offices with Walter Radcliffe, that it was Cutshall's understanding that the Secretary of State had interpreted the petition laws to prohibit the defendant from circulating petitions to Lincoln County residents while the defendant was in Lancaster County, Nebraska.
On July 1, 1986, Peters told the defendant that Radcliffe had offered her $1,000 if she could secure 1,000 signatures on petitions. Peters said that she would like to have July 2, 1986, off from work to collect signatures. The defendant said that it sounded like a good way to make some money, and she could have the day off from work. Peters asked the defendant if he could get her some signatures to help her get 1,000 signatures, and he said he would see what he could do.
On July 2, 1986, while in North Platte, Nebraska, the defendant presented Lincoln County petition No. 111 to a number of persons who signed the same as petitioners. Later on that date, the defendant returned to Lincoln, Nebraska, and delivered the petition to Kimberly Peters. At the time the petition was delivered to Peters, the affidavit of the circulator had not been signed.
The defendant knew that Peters had not been present in North Platte, Nebraska, when he had obtained the signatures of the petitioners, nor had Peters communicated with any of the petitioners regarding their signing of the petition. Further, the defendant knew that Peters intended to execute the petition as circulator after he had delivered it to her.
On July 3, 1986, Peters took the initiative petition to the defendant's office in Lancaster County, Nebraska, where she completed the affidavit as circulator, signing her name as circulator. At that time Christie Dibbern, a notary public for the State of Nebraska, notarized the signature of Kimberly Peters and signed her own name as notary on the petition.
On July 3, 1986, the defendant, while in Lincoln, Lancaster County, Nebraska, presented Lancaster County petition No. 93 to a number of persons who signed the petition as petitioners. As a part of that process, the defendant, at approximately 4:15 p.m. on July 3, 1986, presented the petition to Ronald Goldenstein in the NSEA building in Lincoln, Lancaster County, Nebraska. Further, at that time the defendant told Goldenstein that " 'it was close and near the deadline and every vote would count.' " Peters was not present within the NSEA building at the time the petition was signed by Goldenstein, nor did she explain the legal effect and nature of the petition to Goldenstein. The defendant then took the petition to the office of Walter Radcliffe in Lancaster County, Nebraska. Present in Radcliffe's office, among other persons, was Peters, who then completed the affidavit as circulator of Lancaster County petition No. 93 and signed her name as circulator of the petition. Further, Peters completed the affidavit as circulator on the petition knowing that she had not in fact presented the petition to Goldenstein for his signature and that she had not explained to him the legal effect and nature of the petition in question.
The petition was signed by Peters as circulator prior to 4:55 p.m. on July 3, 1986, while at the office of Walter Radcliffe in Lancaster County, Nebraska, and her signature was notarized by Bernice Labedz, who signed her name as notary public on the petition.
At approximately 4:55 p.m. on July 3, 1986, Lancaster County petition No. 93 was filed with the Secretary of State of the State of Nebraska. Lincoln County petition No. 111 was filed with the Secretary of State of the State of Nebraska on a date and time prior to 5 p.m. on July 3, 1986. True and correct copies of Lincoln County petition No. 111 and Lancaster County petition No. 93 were attached to the stipulation.
Section 32-705 provides as follows:
Every sheet of every petition mentioned in sections 32-702 to 32-704 containing signatures shall have upon it and below the signatures an affidavit in substantially the following form:
STATE OF NEBRASKA )
) ss.
Name of Circulator
deposes and says that he or she is the circulator of the foregoing petition
containing __________ signatures; that he or she is a registered and
qualified voter of the State of Nebraska and county wherein the signatures
were obtained; that each person whose name appears on the petition sheet
personally signed the petition in the presence of affiant; that the date to
the left of each signature is the correct date on which the signature was
affixed to the petition and that the date was personally affixed by the
person signing such petition; that affiant believes that each signer has
stated his or her name, street, and street number or voting precinct, and his
or her city, village, or post office address correctly; that each petitioner
when he or she signed this petition was a legal and qualified voter of the
state and county and qualified to sign the same, and that affiant stated to
each petitioner before he or she affixed his or her signature the legal
effect and nature of such petition.
_________________________________________________
Circulator
_________________________________________________
Address
Subscribed and sworn to before me, a notary public, this ______ day of
________, 19____, at ________, Nebraska....
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State v. Fellman
...state Constitution so as to permit a state-run lottery. See, State v. Radcliffe, 228 Neb. 868, 424 N.W.2d 608 (1988); State v. Pappas, 228 Neb. 861, 424 N.W.2d 604 (1988); State v. Katzman, 228 Neb. 851, 424 N.W.2d 852 (1988); State v. Monastero, 228 Neb. 818, 424 N.W.2d 837 Following a ben......