Hargesheimer v. Gale
Neb.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/08/2016 09:06 AM CDT
- 123 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123
Christy J. H argesheimer and R ichard S.
H argesheimer, appellants, v. John Gale,
Secretary of State of the State of
Nebraska, et al., appellees.
___ N.W.2d ___
Filed July 8, 2016. No. S-16-107.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court
reviews a district court’s order granting a motion to dismiss de novo,
accepting all allegations in the complaint as true and drawing all reason-
able inferences in favor of the nonmoving party.
2. Motions to Dismiss: Appeal and Error. When reviewing a dismissal
order, the appellate court accepts as true all the facts which are well pled
and the proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the pleader’s conclusions.
3. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss
for failure to state a claim, a plaintiff must allege sufficient facts to state
a claim to relief that is plausible on its face.
4. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
5. Initiative and Referendum: Statutes: Words and Phrases. “Sponsoring
the petition” in the context of Neb. Rev. Stat. § 32-1405(1) (Reissue
2008) means assuming responsibility for the initiative or referendum
petition process.
6. Constitutional Law: Initiative and Referendum. The rights of initia-
tive and referendum constitutionally provided should not be circum-
scribed by restrictive legislation or narrow and strict interpretation of the
statutes pertaining to their exercise.
7. Appeal and Error. An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial court.
- 124 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123
Appeal from the District Court for Lancaster County: Lori
A. M aret, Judge. Affirmed.
Alan E. Peterson, Christopher Eickholt, Jerry Soucie, and
Amy Miller for appellants.
Douglas J. Peterson, Attorney General, Ryan S. Post, L. Jay
Bartel, and David A. Lopez for appellee John Gale.
L. Steven Grasz and Mark D. Hill, of Husch Blackwell,
L.L.P., and J.L. Spray, Stephen D. Mossman, and Ryan K.
McIntosh, of Mattson Ricketts Law Firm, for appellees
Nebraskans For the Death Penalty, Inc., et al.
Heavican, C.J., Wright, Miller-Lerman, Cassel, and K elch,
JJ., and McCormack, Retired Justice, and Inbody, Judge.
Miller-Lerman, J.
NATURE OF CASE
Christy J. Hargesheimer and Richard S. Hargesheimer
appeal the order of the district court for Lancaster County
dismissing a complaint in which they challenged a referendum
petition. The purpose of the referendum was to overturn the
Nebraska Legislature’s 2015 repeal of Nebraska’s death pen-
alty. The Hargesheimers alleged that the referendum petition
filed with the Nebraska Secretary of State was not legally suf-
ficient, because a list of sponsors filed with the petition did not
include the name of Nebraska Governor Pete Ricketts, who,
the Hargesheimers alleged, engaged in various activities that
established that he was a sponsor of the referendum. This case
presents the limited question of statutory construction: Who
is a “sponsor” under Neb. Rev. Stat. § 32-1405(1) (Reissue
2008)? Because Ricketts’ alleged financial and other support
of the referendum did not make him a “sponsor” under the
relevant statute, the Hargesheimers’ complaint failed to state a
claim upon which relief could be granted. We affirm the dis-
trict court’s dismissal of the Hargesheimers’ complaint.
- 125 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123
STATEMENT OF FACTS
The Nebraska Legislature passed 2015 Neb. Laws, L.B. 268,
which had the purpose of repealing Nebraska’s death penalty.
As Nebraska’s Governor, Ricketts vetoed L.B. 268, but the
Legislature overrode his veto on May 27, 2015.
On June 1, 2015, a referendum petition regarding L.B.
268 was filed with Nebraska Secretary of State John Gale.
The purpose of the petition was to refer to the voters in the
November 8, 2016, general election the question of whether
the death penalty should be reinstated by repealing L.B. 268.
A document titled “Sworn List of Sponsors” containing four
names was filed with the referendum petition. The docu-
ment listed as sponsors of the referendum petition the name
“Nebraskans For the Death Penalty, Inc.,” described as “a
Nebraska non-profit public benefit corporation and a ballot
committee,” and three individuals—Judy Glasburner, Aimee
Melton, and Bob Evnen—each of whom was described as a
“Board member.” Nebraskans For the Death Penalty and the
three individuals are hereinafter referred to collectively as the
“Named Sponsors.” No other names were included in the list
of sponsors.
On September 17, 2015, the Hargesheimers filed a com-
plaint against the Secretary of State and the Named Sponsors.
The Hargesheimers sought, inter alia, to enjoin the Secretary
of State from placing the referendum regarding L.B. 268 on
the ballot. Under Neb. Rev. Stat. § 32-1412(2) (Reissue 2008),
“the court, on the application of any resident, may enjoin the
Secretary of State and all other officers from certifying or
printing on the official ballot for the next general election the
ballot title and number of such measure.” The Hargesheimers
alleged that the referendum petition was not legally sufficient,
because it failed to comply with § 32-1405(1), which provides
as follows:
Prior to obtaining any signatures on an initiative or ref-
erendum petition, a statement of the object of the peti-
tion and the text of the measure shall be filed with the
- 126 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123
Secretary of State together with a sworn statement con-
taining the names and street addresses of every person,
corporation, or association sponsoring the petition.
In particular, the Hargesheimers alleged that Ricketts was a
sponsor and that the list of sponsors filed with the Secretary of
State was incomplete because it failed to contain the name and
address of Ricketts. They alleged that Ricketts was “in actual-
ity the primary initiating force behind and one of the spon-
sors” of the referendum petition and that the omission of his
name was critical and fatal to the referendum petition because
§ 32-1405(1) required that the “‘sworn statement [contain] the
names and street addresses of every person . . . sponsoring the
petition.’” (Emphasis in original).
The Hargesheimers alleged that Ricketts had engaged in var-
ious specific activities and that such activities established that
Ricketts was an undisclosed sponsor of the referendum peti-
tion. The alleged activities included the following: (1) Prior to
the override of his veto, Ricketts had warned persons involved
with L.B. 268 that a referendum would ensue if his veto was
overridden; (2) various “close allies” of Ricketts had, “on his
request, order or encouragement [taken] on various campaign
management, public relations, organizing and publicity roles”
on or before the date the referendum petition was filed with the
Secretary of State; (3) Ricketts campaigned to raise money for
the referendum by sending letters to Nebraskans; (4) Ricketts
and his father “became by far the largest financiers and donors”
to the referendum after it was filed and even earlier had
“almost certainly promised” to provide such financial sup-
port; (5) Ricketts, along with his “representatives and agents,”
“solicited other political, social or business allies” to make
financial contributions to the referendum; and (6) Ricketts per-
sonally and through advisors and agents “managed, organized
and controlled the referendum campaign.” They also alleged
that one of the Named Sponsors, Melton, had “indicated pub-
licly that she was recruited by someone ‘close to the Governor’
to put her name in as a leader or sponsor” of the referendum.
- 127 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123
The Hargesheimers requested as relief (1) a permanent
injunction enjoining the Secretary of State from placing the
referendum on the ballot and (2) a declaratory judgment find-
ing that (a) prior to collecting signatures, the leaders and spon-
sors of the referendum petition failed to file a sworn statement
listing every sponsor as required by § 32-1405(1), and (b) the
omission of the names and addresses of one or more principal
sponsors, specifically Ricketts, was a material and fatal omis-
sion and made the referendum petition insufficient and invalid
as a matter of law. They also sought costs and other relief the
court deemed just.
The Named Sponsors responded by filing a motion to dis-
miss the complaint pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6)
for failure to state a claim upon which relief may be granted.
They asserted that the sole issue in the complaint was whether
Ricketts should have been named as a sponsor in the list filed
with the Secretary of State. The Secretary of State filed a sepa-
rate motion to dismiss pursuant to § 6-1112(b)(6).
The Named Sponsors attached to their motion to dismiss
a copy of a document titled “Sworn List of Sponsors” with a
certification by the Secretary of State that the document was
“a Sworn List of the Sponsors for the Referendum Petition
Regarding LB 268 (2015).” The Named Sponsors asserted
that the district court could take judicial notice of the docu-
ment without converting the motion to dismiss into a motion
for summary judgment because the document was a matter of
public record.
After a hearing, the district court entered an order sustain-
ing the motions to dismiss. The court stated that the sole issue
was whether the Hargesheimers had “alleged sufficient facts,
accepted as true, to state a plausible claim that the failure to
include Governor Ricketts as a listed ‘sponsor’ on the sworn
statement filed with the Nebraska Secretary of State renders
the referendum petition on LB 268 legally insufficient.” The
court determined that a sponsor under § 32-1405(1) is “‘one
who identifies himself or herself as willing to assume statutory
- 128 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123
responsibilities once the initiative process has commenced’”
and that the definition of persons “‘sponsoring the petition’”
does not include every person who strongly advocates for,
supports, or financially contributes to a referendum effort. The
court determined that by listing their names on the document
filed with the Secretary of State, the Named Sponsors had
taken responsibility for the referendum petition and were there-
fore the sponsors under § 32-1405(1). The court concluded that
the allegations in the complaint did not show that Ricketts was
a person “‘sponsoring the petition,’” as that phrase is used in
§ 32-1405(1), and that the failure to include Ricketts in the
list of sponsors did not render the petition legally insufficient.
The court determined that the legal basis of the Hargesheimers’
complaint was legally defective. The court concluded that
“[t]his fatal defect is evident on the face of the Complaint as
it is the basis for the only claim asserted therein.” The court
dismissed the complaint with prejudice.
Although it had concluded that it was clear from the face
of the complaint that the Hargesheimers did not state a claim
upon which relief could be granted, the court nevertheless con-
tinued its analysis by stating that it could take judicial notice
of the document that the Named Sponsors had attached to their
motion to dismiss. Referring to the document, the court stated
that “[b]ecause a sworn statement containing the statutorily
required information was filed in this case, the Secretary of
State was obligated to proceed with performing his statutory
duties” and added that “all the requirements of § 32-1405(1)
[had] been met.”
The Hargesheimers appeal.
ASSIGNMENTS OF ERROR
The Hargesheimers claim that the district court erred when
it sustained the motions to dismiss for failure to state a claim
and when it dismissed the complaint with prejudice and with-
out allowing them an opportunity to amend the complaint.
The Hargesheimers also claim that the court erred when it
- 129 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123
took judicial notice of the document attached to the Named
Sponsors’ motion to dismiss and relied on the document to
determine as a matter of law that the document satisfied the
requirements of § 32-1405(1).
STANDARDS OF REVIEW
[1-3] An appellate court reviews a district court’s order
granting a motion to dismiss de novo, accepting all allegations
in the complaint as true and drawing all reasonable inferences
in favor of the nonmoving party. Rafert v. Meyer, 290 Neb.
219,859 N.W.2d 332
(2015). When reviewing a dismissal order, the appellate court accepts as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the pleader’s conclusions. White v. Kohout,286 Neb. 700
,839 N.W.2d 252
(2013). To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts to state a claim to relief that is plausible on its face.Rafert, supra.
[4] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an indepen- dent conclusion irrespective of the decision made by the court below. Shurigar v. Nebraska State Patrol,293 Neb. 606
,879 N.W.2d 25
(2016).
ANALYSIS
The Hargesheimers’ Complaint Did Not State a
Claim Upon Which Relief Could Be Granted,
and the District Court Did Not Err When
It Sustained the Motions to Dismiss.
The Hargesheimers claim that the district court erred in two
respects when it sustained the motions to dismiss for failure to
state a claim. First, they claim that the court erred by adopt-
ing an incorrect definition of “‘sponsor’” under § 32-1405(1).
Second, they allege the court indicated that “‘substantial com-
pliance’” with the requirement to list every sponsor was
sufficient. We reject the latter assignment of error, because
- 130 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123the court did not determine that “substantial compliance” was adequate. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts to state a claim for relief that is plausible on its face.Rafert, supra.
The Hargesheimers alleged that Ricketts was involved in various respects with initiating and promoting the referendum petition process and that such involvement established that he was a sponsor of the referendum petition. They claim that the peti- tion was legally insufficient because Ricketts was not listed as a sponsor. Therefore, whether the Hargesheimers stated a claim under § 32-1412(2) upon which relief could be granted depends on whether, assuming the truth of Ricketts’ alleged activities, Ricketts should have been listed as a “person . . . sponsoring the petition” under § 32-1405(1). The answer to this question depends on the meaning of “sponsoring the peti- tion” as the phrase is used in § 32-1405(1). We note that § 32-1405(1) and related statutes regarding initiative and referendum petitions do not provide a definition for the word “sponsor” or for the phrase “sponsoring the peti- tion” as used in § 32-1405(1). Thus, interpreting the meanings of “sponsor” and “sponsoring the petition” under § 32-1405(1) is a question of law initially for the district court and ulti- mately for this court to decide. The district court found Chief Justice Hendry’s concur- rence in Loontjer v. Robinson,266 Neb. 902
,670 N.W.2d 301
(2003) (Hendry, C.J., concurring in result), “highly persua- sive” and adopted that definition. In his concurrence, Chief Justice Hendry addressed the meaning of “sponsor” under § 32-1405(1). Because the term “sponsor” was not defined in § 32-1405(1) or related statutes, he looked to a dictionary definition of “sponsor” as “‘one who assumes responsibility for some other person or thing.’” Loontjer,266 Neb. at 916
,670 N.W.2d at 311
. Considering this dictionary definition in
the context of the initiative statutes, and acknowledging that
the exercise of the right of initiative should not be restricted
- 131 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123by strict interpretation of the statutes pertaining to the exer- cise of such right, the Chief Justice stated that it “seems reasonable to define sponsor as simply one who identifies himself or herself as willing to assume statutory responsi- bilities once the initiative process has commenced.” Id. at 916,670 N.W.2d at 311-12
. He then cited various provisions of the initiative and referendum statutes that assigned cer- tain responsibilities to sponsors. For example, § 32-1405(2) requires the Secretary of State to provide the sponsor with changes to the text of the measure proposed by the Revisor of Statutes and states that the sponsor may accept or reject such changes. Also,Neb. Rev. Stat. § 32-1409
(3) (Reissue 2008) requires the Secretary of State to notify “the person filing the initiative or referendum petition” of the Secretary of State’s determination as to whether sufficient valid sig- natures have been collected. And § 32-1412(2) requires that the sponsor of record is a “necessary party defendant” in an action commenced to enjoin the Secretary of State from plac- ing a measure on the ballot. The Chief Justice finally stated in his concurrence in Loontjer that a person’s support of an initiative, financial or otherwise, did not equate to sponsor- ship, and noted that the statutes recognized a “distinction between one who sponsors a petition initiative and one who financially contributes to that effort.” Loontjer,266 Neb. at 917
,670 N.W.2d at 312
.
[5] We agree with the definition of the district court in this
case and that of Chief Justice Hendry in his concurrence in
Loontjer, and we interpret “sponsoring the petition” in the
context of § 32-1405(1) as meaning “assuming responsibility
for the initiative or referendum petition process.” In Loontjer,
the majority of this court stated that the requirement of a sworn
list of sponsors under § 32-1405(1) “serves several important
purposes,” which include the following: (1) to prevent fraud
in the petition process, because “sponsors take responsibility
for the petition and expose themselves to potential criminal
charges [under Neb. Rev. Stat. § 32-1502 (Reissue 2008)]
- 132 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123if information is falsified”; (2) to allow “the public and the media to scrutinize the validity and the completeness of any list of sponsors,” because “[k]nowing the petition’s sponsor could affect the public’s view about an initiative petition”; and (3) to facilitate an action “seeking to enjoin the placement of an initiative on the ballot” by providing a list of the names and addresses of the sponsors who are necessary parties to such an action under § 32-1412(2). Loontjer v. Robinson,266 Neb. 902, 911
,670 N.W.2d 301, 308
(2003). The definition of “sponsoring the petition,” which we set forth above, is consist ent with these purposes in the referendum process. A list of sponsors, or those who assume responsibility for the initiative or referendum petition process, informs the Secretary of State and the public of who may be held responsible for the petition. As issues arise throughout the referendum process, the spon- sors must stand ready to accept responsibility to facilitate the referendum’s inclusion on the ballot and stand ready to defend the referendum process if challenged. In the Hargesheimers’ complaint, they allege various types of involvement by Ricketts, including that Ricketts contrib- uted considerable money to the referendum undertaking. They contend that it is important for the public to know of these contributions and that notice to the public can be achieved by listing Ricketts as a sponsor. With respect to financial contributions in particular, we think the disclosure of finan- cial backing is met by other statutes regarding identification of financial contributors to the process. As Chief Justice Hendry noted in his concurrence in Loontjer, the predeces- sor statute to the current § 32-1405(1) required filing a statement with the Secretary of State, containing a list of individuals or entities “‘sponsoring said petition or contrib- uting or pledging contribution of money or other things of value.’”266 Neb. at 917
,670 N.W.2d at 312
(Hendry, C.J.,
concurring in result). The statute therefore made a distinction
between those “sponsoring” a petition and those supporting
it financially and otherwise making valuable contributions.
- 133 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123The present form of § 32-1405(1) does not require con- tributors to be included in the filing with the Secretary of State under § 32-1405(1), and, as Chief Justice Hendry noted in Loontjer, information regarding persons contribut- ing financially to a petition effort is now disclosed by fil- ing reports with the Nebraska Accountability and Disclosure Commission. See, generally,Neb. Rev. Stat. §§ 49-1401
through 49-14,141 (Reissue 2010 & Cum. Supp. 2014). See, also, § 49-1405 (defining “Ballot question” and related provisions) and §§ 49-1445 through 49-1479.02 (reporting requirements, including § 49-1461 regarding specific filing requirements for ballot question). As the statutes now exist, we understand that the statutory scheme requires that filings with the Secretary of State focus on identifying persons assuming responsibility for the initia- tive or referendum petition process, whereas filings with the Accountability and Disclosure Commission focus on identify- ing those persons who are financially supporting the effort. Together, these separate reporting requirements to the Secretary of State and to the Accountability and Disclosure Commission would facilitate the purpose of allowing the media and the public to know who is behind the effort—whether that person’s backing of the petition takes the form of financial contribu- tions or the form of taking legal responsibility for the peti- tion process. We further note that the definition we adopt is consistent with standards of statutory construction specifically related to laws implementing the rights of initiative and referendum. Although much of our case law considers the initiative proc ess, and we recognize the origin of the rights of initiative and referendum are different, we find the salutory objectives described in the initiative cases persuasive, and we logically apply many of those principles to the referendum process. See City of North Platte v. Tilgner,282 Neb. 328
,803 N.W.2d 469
(2011) (applying initiative principles to initiative and referen-
dum process in municipality).
- 134 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123[6] We have stated that the power of initiative must be lib- erally construed to promote the democratic process, that the right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter, and that the provisions authorizing the initiative should be construed in such a manner that the legislative power reserved in the people is effectual. Stewart v. Advanced Gaming Tech.,272 Neb. 471
,723 N.W.2d 65
(2006). See, also, State ex rel. Lemon v. Gale,272 Neb. 295
,721 N.W.2d 347
(2006), and Loontjer v. Robinson,266 Neb. 902
,670 N.W.2d 301
(2003). We also stated that the right of initiative constitutionally provided should not be circumscribed by restrictive legislation or narrow and strict interpretation of the statutes pertaining to its exercise. See State ex rel. Morris v. Marsh,183 Neb. 521
,162 N.W.2d 262
(1968). These stan-
dards apply to the power of referendum as well as to the power
of initiative. See City of North Platte, supra (courts liberally
construe grants of municipal initiative and referendum powers
to permit, rather than restrict, power and to attain, rather than
prevent, its object).
With these standards in mind, we believe that the interpreta-
tion of § 32-1405(1) urged by the Hargesheimers would tend
to restrict the powers of initiative and referendum by making
compliance with the statute more precarious. If “sponsoring
the petition” were construed to include persons who could be
said to have heavily participated in the initiation or supported
the petition process, such construction would inject ambiguity
and make adherence difficult. Identifying the level of support
needed to be such a sponsor would not be clear and would
expose the petition process to procedural challenges and the
risk of defects unrelated to the substance of the petition. The
definition urged by the Hargesheimers does not facilitate the
exercise or preservation of the initiative and referendum proc
ess. By contrast, the definition of “sponsoring the petition”
that we adopt herein facilitates the initiative and referendum
process by limiting the category of sponsors to those persons
- 135 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123
or entities who have specifically agreed to be responsible for
the petition process and serve in the capacities the statutes
require of sponsors.
Applying our definition of “sponsoring the petition,” to
wit, “assuming responsibility for the initiative or referendum
petition process,” we determine that the district court did
not err when it concluded that the Hargesheimers’ complaint
did not state a claim upon which relief could be granted
under § 32-1412(2). Accepting the Hargesheimers’ allegations
regarding activities that Ricketts had undertaken in support
of the referendum petition as true, we determine that such
activities would not have established that Ricketts was “spon-
soring the petition” as that phrase is used in § 32-1405(1)
and that therefore, the referendum petition was not insuf-
ficient on this basis. Although Ricketts’ alleged activities
would indicate that he supported the process in a significant
way and that he may have played a part in initiating the
process, such activities do not form a basis to conclude that
he was “sponsoring the petition” in the sense of assuming
responsibility for the referendum petition process. Instead,
it was the Named Sponsors who assumed such responsibil-
ity. Thus, the absence of Ricketts’ name and address in the
list of sponsors would not invalidate the petition and such
alleged failure would not support the relief requested by
the Hargesheimers.
Finally, the Hargesheimers contend that the district court
should not have dismissed the complaint with prejudice and
instead should have allowed them an opportunity to amend
the complaint, complete discovery, or have an evidentiary
hearing. However, they did not make a request to amend the
complaint and they have not shown how an amendment could
have cured the only claim made in the complaint—that given
Ricketts’ activities, the failure to include Ricketts’ name in the
list of sponsors made the petition legally insufficient. Because
the complaint did not state a claim that is plausible on its
face, neither discovery nor a hearing would yield a different
- 136 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123
outcome on this issue. We find no error in the district court’s
dismissal of the complaint with prejudice.
Consideration of Document Attached to Motion
to Dismiss Was Not Necessary to Disposition
of Motions, and We Need Not Consider
Whether It Was Error to Take Judicial
Notice of Such Document.
The Hargesheimers claim that the district court erred when
it took judicial notice of the document attached to the Named
Sponsors’ motion to dismiss and relied on such document
when it stated that the document met “all the requirements” of
§ 32-1405(1). We refer to our foregoing analysis. Disposition
of this case is based solely on the definition of sponsor under
§ 32-1405(1), and the complaint’s allegations relative thereto.
As a result, the court’s consideration of the document was
unnecessary to the district court’s disposition of the motion
to dismiss and therefore, we need not consider whether it was
error for the court to take judicial notice of the document. The
court’s comment regarding the validity of the entirety of the
document was mere dictum.
[7] For completeness, we note that in the Hargesheimers’
reply brief, they raised for the first time an issue regarding
whether the list of sponsors filed with the referendum peti-
tion was a properly “sworn statement” under § 32-1405(1).
However, this issue was not presented to or ruled on by the
district court and we will not consider the issue in this appeal.
An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court. Purdie
v. Nebraska Dept. of Corr. Servs., 292 Neb. 524,872 N.W.2d 895
(2016).
CONCLUSION
This case presents the limited question of statutory con-
struction: Who is a “sponsor” under § 32-1405(1), which
requires that the names and addresses of those individuals and
- 137 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
HARGESHEIMER v. GALE
Cite as 294 Neb. 123
entities “sponsoring the petition” be filed with the Secretary
of State prior to obtaining signatures on an initiative or ref-
erendum petition? Given our conclusion explained above that
sponsors under § 32-1405(1) are individuals or entities assum-
ing responsibility for the initiative or referendum process, we
determine that even if the allegations in the Hargesheimers’
complaint regarding Ricketts’ involvement with the refer-
endum petition were taken as true, Ricketts would not be
required to be listed as a “person . . . sponsoring the petition”
under § 32-1405(1) and that the alleged failure to include
his name in the list of sponsors did not make the referendum
petition legally insufficient; thus, the Hargesheimers failed to
state a claim upon which relief could be granted. Because this
was the only challenge to the referendum petition raised in the
Hargesheimers’ complaint, the district court did not err when it
sustained the motions and dismissed the complaint with preju-
dice. We further conclude that consideration of the document
attached to the Named Sponsors’ motion to dismiss was not
necessary to the disposition of the motion, and we therefore
need not determine whether it was error to take judicial notice
of the document. We do not consider whether the list of spon-
sors filed with the referendum petition was a properly “sworn
statement,” because the issue was not presented to or ruled on
by the district court.
A ffirmed.
Connolly and Stacy, JJ., not participating.
Chat with this case using AI
Ask CiteLaw's AI Navigator anything about this case, check whether it is still good law, and see every case that cites it. Sign up for CiteLaw free today to get started.