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Supreme Court clears the way for payday lending initiative to appear on ballot

Supreme Court clears the way for payday lending initiative to appear on ballot

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The Nebraska Supreme Court cleared the way Thursday for a ballot initiative capping the interest and fees payday lenders can charge customers to go before voters this November.

The court affirmed an earlier decision by the Lancaster County District Court that said the language used in the ballot title — which includes the term “payday lenders” — was both “sufficient” and “fair.”

Trina Thomas, a Lincoln woman who operates a Paycheck Advance, sued Nebraska Attorney General Doug Peterson and Secretary of State Bob Evnen to stop the measure from going on the Nov. 3 ballot.

Thomas said by referring to “payday lenders” instead of “delayed deposit services licensees,” which appears in state statute, voters would be prejudiced to support the initiative capping annual percentage rates at 36% instead of the 400% currently allowed.

In an unanimous ruling, the court said while statute allows anyone dissatisfied with a ballot title to petition a district court to change the language, Thomas did not prove that the language written by the attorney general was “insufficient” and “unfair.”

“Thomas argues that the term ‘payday lenders’ creates an unfairness, because it is a slang term,” the court wrote. “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 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,’” the court concluded.

The justices also noted that while statute allows for a review of ballot titles written by the attorney general, it does not allow for judicial review of explanatory statements that go before voters.

"Accordingly, we believe it best to leave any corrective action regarding (state statutes related to ballot title) to the Legislature," the court wrote.

Earlier on Thursday, a Lancaster County District Court judge dismissed a separate lawsuit against Evnen and the initiative’s sponsors after more than 180 people said they signed the petition without being fully aware of what they were signing.

Brian Chaney, an Omaha man who worked in the payday loan industry, alleged petition circulators did not read the full object statement to signers.

But Judge Robert R. Otte said the challenge did not meet the deadline outlined in state statute, which says any affidavits to remove names from a petition must be filed with election officials “prior to or on the day the petition is filed for verification.”

Evnen certified the petition eligible for the general election ballot on July 31, Otte wrote in his order. The first of 188 affidavits submitted to the court last week were signed on Aug. 20, three weeks after the deadline.

Otte also dismissed allegations that at least some of the signatures submitted with the petition were obtained through fraud because circulators did not read the entire object statement to signers.

In his order, Otte cited a 2009 ruling from Lancaster County District Court that determined "it is sufficient that circulators summarize, generally, the object or purpose of the petition in a way that is not misleading" under statutes governing petition drives.

Failing to read the object statement verbatim did not constitute fraud, Otte wrote, and Chaney's attorney, Scott Lautenbaugh, did not provide particular evidence that signatures had been obtained fraudulently.

Instead, Otte said the law presumes that persons who sign documents do so with full knowledge of what it is they are signing.

"In this case, all 188 affidavits attached to the plaintiff's complaint are identical and were signed by the petition signers in late August 2020, approximately five to eight months after they signed the petition," Otte wrote.

"The court finds the credibility of these affidavits questionable, especially given the passage of time," he added.

Thursday’s rulings mark the second and third challenges to the payday lending ballot initiative to be rejected.

Previously, a Lancaster County District Court judge said the ballot initiative complied with the single subject rule and that the language of the title and explanatory statement were drafted properly.

Nebraskans for Responsible Lending celebrated the victories in a statement and called the challenges thinly veiled attempts at preventing the measure from going before voters.

"The payday loan industry doesn't believe they can win in the court of public opinion, so they've filed these Hail Mary lawsuits to try to stop voters from having their say," spokeswoman Aubrey Mancuso said.

"Harming vulnerable consumers by charging them an average rate of 400% to borrow money is just way too much and the payday lenders know that voters will agree," she added.

Reach the writer at 402-473-7120 or cdunker@journalstar.com.

On Twitter @ChrisDunkerLJS

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