Chaney v. Evnen

307 Neb. 512

949 N.W.2d 761

Brian CHANEY, appellant,

v.Robert B. EVNEN, in his official capacity as Nebraska Secretary of State, et al., appellees.

No. S-20-660.

Supreme Court of Nebraska.

Filed October 16, 2020

Scott A. Lautenbaugh, of Law Offices of Scott Lautenbaugh, Omaha, for appellant.

Douglas J. Peterson, Attorney General, and Ryan S. Post, Lincoln, for appellee.

Mark C. Laughlin, Omaha, and Daniel J. Gutman, of Fraser Stryker, P.C., L.L.O., for appellees Albert Davis III et al.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Fruedenberg, JJ.

Per Curiam.

Brian Chaney filed a lawsuit in which he sought to prevent Nebraska voters from amending provisions of the Delayed Deposit Services Licensing Act, Neb. Rev. Stat §§ 45-901 to 45-931 (Reissue 2016 & Cum. Supp. 2018), through a ballot initiative measure. Chaney alleged that some individuals who signed the initiative petition wished to withdraw their signatures. He also asserted that certain petition circulators did not comply with a Nebraska statute and committed fraud during the petition process. The district court dismissed Chaney's lawsuit, and Chaney appeals. Finding no error in the district court's decision, we affirm.

I. BACKGROUND

1. INITIATIVE

This case concerns an initiative measure which, if adopted, would establish a statutory cap on the annual percentage rate that delayed deposit services licensees may charge. We recently decided another case involving this initiative petition. See Thomas v. Peterson, 307 Neb. 89, 948 N.W.2d 698 (2020). In Thomas , we held that the ballot title prepared by the Nebraska Attorney General which referred to delayed deposit service licensees as "payday lenders" was not insufficient or unfair. See id. This case concerns the same initiative petition, but raises different legal arguments.

2. CHANEY'S COMPLAINT

On August 31, 2020, Chaney filed a lawsuit naming Secretary of State Robert B. Evnen (the Secretary); Albert Davis III; Thomas A. Wagoner, Jr.; and Fr. Damian Zuerlein as defendants. Davis, Wagoner, and Zuerlein are the sponsors of the initiative petition at issue. Chaney identified the action as one to enjoin the Secretary from including the petition on the November 3, 2020, general election ballot, pursuant to Neb. Rev. Stat. § 32-1412(2) (Cum. Supp. 2016).

In the complaint, Chaney alleged that in June 2020, the sponsors submitted signatures in support of the initiative petition to the Secretary. According to the complaint, each signature page included a sworn and notarized statement from the petition circulator asserting, among other things, that the circulator " ‘stated to each signer the object of the petition as printed on the petition before he or she affixed his or her signature to the petition.’ " After those signatures were verified by county election officials, the Secretary certified on July 31, 2020, that all statutory requirements were met to place the initiative measure on the November 3 general election ballot.

Chaney's complaint did not contest the Secretary's determination that the sponsors submitted sufficient signatures from the requisite number of counties as required by article III, § 2, of the Nebraska Constitution. Rather, he asserted that 188 of the signatories wished to withdraw their signatures or that their signatures were otherwise invalid. Chaney alleged that when those individuals signed the petition, the petition circulators did not read the object of the petition to them. He also alleged that each of those individuals would not have signed the petition if the object had been read to them.

Chaney attached to his complaint 188 affidavits. The affidavits are substantially identical, with limited handwritten details relevant to each individual affiant including the county in which the affiant resided. Each affiant swore that the "circulator did not read to me the statement regarding the object of the petition that I now know was printed on the petition page" and that "I would not have signed the petition had the object statement been stated to me before the circulator asked for my signature."

Based on these allegations, Chaney asserted that the signatures were procured in violation of Neb. Rev. Stat. § 32-628 (Reissue 2016) and that the circulators committed fraud. He also alleged that the 188 affiants wished to withdraw their signatures. The complaint claimed that without the signatures of the affiants, the petition was no longer supported by signatures from the requisite 5 percent of the registered voters in 38 counties.

In his prayer for relief, Chaney requested the "issuance of a temporary and permanent injunction enjoining the Secretary from placing the legally insufficient Petition on the November 3, 2020 general election ballot." He also prayed "[f]or such other further relief as the Court may deem just and equitable."

3. MOTIONS HEARING

After the filing of the complaint, Chaney filed a motion for a temporary injunction. The sponsors filed a motion to dismiss for failure to state a claim upon which relief could be granted or, in the alternative, a motion for summary judgment. The sponsors also filed a motion to continue Chaney's motion for temporary injunction.

The district court held a hearing concerning the foregoing motions on September 8, 2020. At that hearing, counsel for Chaney, the Secretary, and the sponsors offered evidence and argument concerning the motions.

4. DISMISSAL ORDER

On September 9, 2020, the district court issued an order sustaining the sponsors’ motion to dismiss and overruling Chaney's motion for temporary injunction. The district court held that Chaney's signature withdrawals were untimely and that he failed to allege fraud with particularity. In the course of concluding that Chaney had not adequately alleged fraud, the court reasoned that § 32-628(3) "does not require petition circulators to read the object statement ‘verbatim to each person beforehand.’ ... Rather, ‘it is sufficient that circulators summarize, generally, the object or purpose of the petition in a way that is not misleading.’ "

In ordering dismissal, the district court further stated that Chaney "is not given leave to amend because the amendment to his Complaint would not change the allegations in the affidavits attached therein."

II. ASSIGNMENTS OF ERROR

Chaney assigns, condensed and restated, that the district court erred (1) by granting the motion to dismiss and (2) by not giving him the opportunity to amend his complaint.

III. STANDARD OF REVIEW

An appellate court reviews a district court's order granting a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Chafin v. Wisconsin Province of Society of Jesus , 301 Neb. 94, 917 N.W.2d 821 (2018).

An appellate court reviews the district court's denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, we review de novo any underlying legal conclusion that the proposed amendments would be futile. Kelly v. Saint Francis Med. Ctr. , 295 Neb. 650, 889 N.W.2d 613 (2017).

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. J.S. v. Grand Island Public Schools , 297 Neb. 347, 899 N.W.2d 893 (2017).

IV. ANALYSIS

1. MOOTNESS

The Secretary and sponsors contend that we should not reach the merits of this appeal because it is now moot. They argue that the specific relief Chaney sought in this case pursuant to § 32-1412(2) —an order enjoining the Secretary from certifying or printing the initiative petition on the ballot—is no longer available because the official ballot has been certified and copies of the ballot have been printed. Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction. Nesbitt v. Frakes , 300 Neb. 1, 911 N.W.2d 598 (2018). Accordingly, our analysis in this case begins not with Chaney's assignments of error, but with the question of whether this case is moot.

Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the dispute's resolution that existed at the beginning of the litigation. State ex rel. Peterson v. Ebke , 303 Neb. 637, 930 N.W.2d 551 (2019). An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action. Id. A moot case is one which seeks to determine a question that no longer rests upon existing facts or rights—i.e., a case in which the issues presented are no longer alive. Id. The central question in a mootness analysis is whether changes in circumstances have forestalled any occasion for meaningful relief. See id.

As noted, the Secretary and the sponsors contend this case is moot because the specific relief Chaney requested pursuant to § 32-1412(2) can no longer be ordered. But even if that relief cannot be granted, it is not the only relief Chaney requested. Chaney also requested "such other further relief as the Court may deem just and equitable." We understand this language to be a prayer for general equitable relief. Such a prayer is to be construed liberally and will often justify granting relief in addition to that contained in the specific prayer, provided it fairly conforms to the case made by the petition and the evidence. Daugherty v. Ashton Feed and Grain Co., Inc. , 208 Neb. 159, 303 N.W.2d 64 (1981). The prayer for general relief in an equity action is as broad as the pleadings and the equitable powers of the court sufficient to authorize any judgment to which the party is entitled under the pleadings and the evidence. Sullivan v. General United Life Ins. Co. , 209 Neb. 872, 312 N.W.2d 277 (1981). The relevant question in the mootness analysis in this case is thus whether...