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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.

___ N.W.2d ___

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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/25/2020 08:07 AM CDT
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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.

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.

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 
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“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 

1 See § 45-902.
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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 
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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.

2 § 45-920(2).
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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.
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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 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 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 

3 Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 145 (2018).

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).
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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 

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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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.

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

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).
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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 Court 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

[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 

16 In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).

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).
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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 

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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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.” 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

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.
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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 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 

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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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.