Thomas v. Peterson

• Decision Date: 10 September 2020
• Docket Number: No. S-20-596.,S-20-596.
• Parties: 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.
• Court: Nebraska Supreme Court

307 Neb. 89

948 N.W.2d 698

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,andAlbert Davis III et al., intervenors-appellees.

No. S-20-596.

Supreme Court of Nebraska.

Filed September 10, 2020

J.L. Spray and Stephen D. Mossman, of Mattson Ricketts Law Firm, Lincoln, for appellant.

Douglas J. Peterson, Attorney General, Ryan S. Post, and L. Jay Bartel, Lincoln, for appellees.

Mark C. Laughlin, Omaha, 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 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?

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 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 "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 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

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...