State ex rel. Collar v. Evnen

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. COLLAR v. EVNEN
Cite as 317 Neb. 608
State of Nebraska ex rel. Latasha Collar,
relator, v. Robert Evnen, Nebraska
Secretary of State, respondent, and
Jenni Benson et al., intervenors.
___ N.W.3d ___
Filed September 13, 2024. 	No. S-24-658.
1. Mandamus. In an original action before the Nebraska Supreme Court
seeking issuance of a writ of mandamus, when a verified petition’s
averments are insufficient to support issuance of either an alternative or
peremptory writ, the petition is properly denied.
2. Mandamus: Words and Phrases. Mandamus is a law action and repre-
sents an extraordinary remedy, not a writ of right.
3. Mandamus: Proof. Mandamus is available if the relator can show (1)
there exists a clear right to the relief sought, (2) the respondent has a
corresponding clear duty to perform the act requested, and (3) no other
plain and adequate remedy is available in the ordinary course of the law.
4. Mandamus. Whether to grant a writ of mandamus is within the court’s
discretion, and the writ will be issued only when the duty to act is clear.
5. Constitutional Law: Initiative and Referendum. The constitutional
provisions with respect to the right to referendum reserved to the people
should be construed to make effective the powers reserved.
6. ____: ____. It is fundamental that the exception in article III, § 3, of
the Nebraska Constitution should be given strict construction in light
of the fundamental purpose of the referendum provision to give the
people the right to vote on specific legislation.
7. Constitutional Law. Generally, the exception in article III, § 3, of the
Nebraska Constitution must be construed to mean the ordinary running
expenses of the state government and existing institutions, and not
to include money or appropriations or funds created or acts that have
as their design a new or different scheme for the revenue raising and
financing of state delegated and created local units of self-government.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:32 AM CDT

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STATE EX REL. COLLAR v. EVNEN
Cite as 317 Neb. 608
8. ____. The Nebraska Constitution requires a specific appropriation made
by law to authorize the expenditure of public funds.
9. Constitutional Law: Public Officers and Employees. An appropria-
tion, within the meaning of the Nebraska Constitution, is the setting
apart by law of a certain sum from the public revenue for a specified
purpose, so that the executive officers are authorized to expend that
sum, and no more, for that purpose, and no other.
10. Constitutional Law. It is the settled law of Nebraska that there can be
no implied appropriation.
11. ____. A promise to make an appropriation is not an appropriation.
Original 	action. 	Writ 	of 	mandamus 	denied. 	Petition
dismissed.
Kamron T.M. Hasan, Marnie A. Jensen, and Aubrey L. Wells,
of Husch Blackwell, L.L.P., Brenna M. Grasz, of Keating,
O’Gara, Nedved & Peter, P.C., L.L.O., and Thomas Venzor for
relator.
Michael T. Hilgers, Attorney General, Eric J. Hamilton,
Zachary A. Viglianco, and Zachary B. Pohlman, for respondent.
Daniel J. Gutman, Sydney L. Hayes, and Alexander S.
Arkfeld, of Law Office of Daniel Gutman, L.L.C., and Scott
J. Norby, of Norby Welding Hunzeker, L.L.P., for intervenors.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
NATURE OF CASE
In this original action docketed in the Nebraska Supreme
Court, Latasha Collar (Relator) seeks issuance of a writ of
mandamus directing Robert B. Evnen, Nebraska’s Secretary
of State, to withhold from the general election ballot the
“Private Education Scholarship Partial Referendum.” The ref-
erendum seeks to repeal 2024 Neb. Laws, L.B. 1402, § 1,
passed by the 108th Legislature in 2024, which established
a program to provide $10 million in education scholarships
to eligible students to pay the costs associated with attending

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. COLLAR v. EVNEN
Cite as 317 Neb. 608
qualified private elementary and secondary schools. Relator’s
verified petition for writ of mandamus avers that the Secretary
of State has a clear duty to withhold the measure from the
2024 general election ballot because the referendum petition
violates article III, § 3, of the Nebraska Constitution and is
thus legally insufficient.
Because we conclude that Relator’s verified petition fails
to show a clear right to performance of the duty sought to be
enforced and further fails to show that the Secretary of State
has a corresponding clear duty to perform the act requested,
we deny issuance of the writ and dismiss the verified petition.
BACKGROUND
L.B. 1402
The 108th Legislature passed L.B. 1402 in April 2024.
Because the referendum petition at issue here seeks to repeal
only § 1 of that act, we summarize only that section.
Section 1 of L.B. 1402 directs the Nebraska State Treasurer
to “establish a program to provide education scholarships to
eligible students to pay the costs associated with attending a
qualified school.” 1 It defines “[e]ducation scholarship” to mean
“a financial grant-in-aid to be used to pay all or part of the cost
to educate an eligible student attending a qualified school.” 2
And it defines “[q]ualified school” to mean “any nongovern-
mental, privately operated elementary or secondary school
located in this state” 3 that meets certain statutory criteria.
Section 1 of L.B. 1402 states, among other things, “It is
the intent of the Legislature to appropriate ten million dol-
lars from the General Fund for fiscal year 2024-25 and each
fiscal year thereafter to the State Treasurer for the purpose of
providing education scholarships as provided in this section.” 4
1 2024 Neb. Laws, L.B. 1402, § 1(3).
2 Id., § 1(2)(a).
3 Id., § 1(2)(c).
4 Id., § 1(7).

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STATE EX REL. COLLAR v. EVNEN
Cite as 317 Neb. 608
And it is undisputed that in a separate appropriations bill,
the Legislature made an appropriation of $10 million “from
the General Fund . . . to the State Treasurer” for fiscal year
2024-25 and for fiscal year 2025-26 “to aid in carrying out
the provisions of Legislative Bill 1402.” 5 L.B. 1402 and L.B.
1402A were passed by the Legislature on April 18, 2024, and
both were approved by the Governor on April 24.
Referendum Petition
On April 30, 2024, sponsors of the “Private Education
Scholarship Partial Referendum” filed documentation with the
Secretary of State for a referendum petition to be placed on
the 2024 general election ballot. The stated object of the ref-
erendum petition is to “[r]epeal Section 1 of LB 1402, passed
by the 108th Nebraska Legislature in 2024, which directs
$10 million dollars [sic] annually for financial grants-in-aid
for eligible students to attend a qualifying privately operated
elementary or secondary school in Nebraska.”
On or about July 17, 2024, the sponsors submitted signa-
tures to the Secretary of State for verification and certifica-
tion. It is undisputed that after verifying and counting the
signatures, the Secretary of State determined the signature
requirements were met for the referendum petition to be
placed on the 2024 general election ballot. And although the
record contains no express determination by the Secretary of
State that the referendum has met constitutional and statu-
tory requirements, and no express finding that the referendum
petition is valid and sufficient, 6 the parties agree that such
5 2024 Neb. Laws, L.B. 1402A, § 1.
6 See, Neb. Rev. Stat. § 32-1409(3) (Cum. Supp. 2022) (upon receipt of
referendum petition, “the Secretary of State shall . . . total the valid
signatures and determine if constitutional and statutory requirements have
been met. . . . If the petition is found to be valid and sufficient, the
Secretary of State shall proceed to place the measure on the general
election ballot”).

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STATE EX REL. COLLAR v. EVNEN
Cite as 317 Neb. 608
determinations and findings are implicit in the Secretary of
State’s decision to place the measure on the 2024 general elec-
tion ballot.
Verified Petition for Writ of Mandamus
On September 5, 2024, Relator filed an application for leave
to commence an original action in this court, accompanied by
a verified petition for writ of mandamus. Relator’s verified
petition avers that her daughter currently attends a private high
school in Omaha, Nebraska, and that if the referendum petition
is placed on the general election ballot, it “could jeopardize the
future of Nebraska students, including her daughter or those
like her, by eliminating crucial support and funding necessary
for their education.”
Relator’s verified petition alleges the Secretary of State has
a “clear duty to withhold legally insufficient and unconstitu-
tional measures from the ballot” and further avers the referen-
dum petition is legally insufficient because it violates article
III, § 3, of the Nebraska Constitution.
As we discuss in more detail later in the opinion, article III,
§ 3, of the Nebraska Constitution provides that the power of
referendum “may be invoked, by petition, against any act or
part of an act of the Legislature, except those making appropri-
ations for the expense of the state government or a state institu-
tion existing at the time of the passage of such act.” Relator’s
verified petition avers that the referendum petition violates
article III, § 3, because “Section 1 of LB 1402 appropriates
funds for the education of Nebraska students in kindergarten
through twelfth grade.” Relator’s verified petition seeks issu-
ance of a writ of mandamus requiring the Secretary of State to
withhold the referendum petition from the 2024 general elec-
tion ballot or, in the alternative, to “abstain from certifying the
election results of the proposed referendum.”
Attached to Relator’s verified petition are true and cor-
rect copies of (1) the sponsors’ sworn statement regarding the
referendum petition at issue; (2) § 1 of L.B. 1402, as well

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STATE EX REL. COLLAR v. EVNEN
Cite as 317 Neb. 608
as L.B. 1402A; and (3) a press release from the Secretary of
State dated August 30, 2024, which states the referendum “will
qualify for the general election ballot once verification and
certification has been completed.”
On September 6, 2024, we granted Relator’s motion for
leave to commence an original mandamus action in this court,
and we ordered expedited service, expedited briefing, and expe-
dited oral argument. In a separate order, also dated September
6, 2024, we directed Relator to show cause why the verified
petition for writ of mandamus should not be denied on the
ground it is legally insufficient to support such relief.
On September 9, 2024, the referendum sponsors moved
for leave to intervene as necessary parties in this action. We
granted intervention and ordered expedited briefing.
ISSUE PRESENTED
[1] In an original action before this court seeking issuance
of a writ of mandamus, when a verified petition’s averments
are insufficient to support issuance of either an alternative or
peremptory writ, the petition is properly denied. 7 A verified
petition for writ of mandamus having been filed in this court
as an original action, and an order to show cause having been
entered, the threshold issue is whether the relator has shown
that the verified petition is legally sufficient, on its face, to
support issuance of either an alternative or peremptory writ. 8
7 See State v. Weston, 67 Neb. 175, 93 N.W. 182 (1903). See, also, State,
ex rel. Funke, v. Lancaster County, 110 Neb. 635, 194 N.W. 807 (1923)
(when allegations of verified petition for writ of mandamus are insufficient
to justify issuance of writ in original action before Supreme Court, petition
is properly denied). Accord State ex rel. Tyler v. Douglas Cty. Dist. Ct.,
254 Neb. 852, 580 N.W.2d 95 (1998) (holding, in original action before
Supreme Court seeking writ of mandamus, court may deny issuance of
writ and dismiss petition when court’s own records show relator has plain
and adequate remedy in ordinary course of law).
8 See id.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. COLLAR v. EVNEN
Cite as 317 Neb. 608
LEGAL STANDARDS AND
PARTIES’ ARGUMENTS
[2-4] Mandamus is a law action and represents an extraor-
dinary remedy, not a writ of right. 9 Mandamus is available if
the relator can show (1) there exists a clear right to the relief
sought, (2) the respondent has a corresponding clear duty to
perform the act requested, and (3) no other plain and ade-
quate remedy is available in the ordinary course of the law. 10
Whether to grant a writ of mandamus is within the court’s
discretion, 11 and the writ will be issued only when the duty to
act is clear. 12
As stated, Relator contends she has a clear right to a writ
of mandamus directing the Secretary of State to withhold the
referendum petition from the 2024 general election ballot.
She argues this is so because Nebraska law imposes on the
Secretary of State a nondiscretionary duty to determine the
legal sufficiency of ballot measures and to withhold any legally
insufficient measure from the ballot, 13 and she contends the
referendum petition is legally insufficient because it violates
article III, § 3, of the Nebraska Constitution.
The 	Secretary 	of 	State’s 	brief 	essentially 	agrees 	with
Relator and argues, “The referendum is invalid because the
bill it challenges ‘mak[es] appropriations for the expense
of the state government’” 14 within the meaning of article
III, § 3. The Secretary of State’s brief states that although
he initially “determined that the referendum met legal suf-
ficiency requirements,” he has now changed his mind and “is
9 State ex rel. Wagner v. Evnen, 307 Neb. 142, 948 N.W.2d 244 (2020).
10 Id.
11 Id.
12 See State ex rel. Tyler, supra note 7.
13 See, § 32-1409(3); Neb. Rev. Stat. § 32-1411(2) (Reissue 2016). See, also,
State ex rel. Wagner, supra note 9, 307 Neb. at 163, 948 N.W.2d at 260.
14 Brief for respondent at 11.

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STATE EX REL. COLLAR v. EVNEN
Cite as 317 Neb. 608
convinced that the referendum is not legally sufficient.” 15 The
Secretary of State thus concludes this court should “grant a
peremptory writ compelling [him] to remove the Referendum
from the ballot.” 16
The intervenors disagree and argue that the writ should
not issue for any of several reasons. First, they contend this
court lacks subject matter jurisdiction over Relator’s verified
petition due to a defect in the notarization. We find no such
defect and reject this jurisdictional argument. 17 Second, inter-
venors contend the verified petition fails to state a claim on
which the relief of mandamus can be granted, because § 1 of
L.B. 1402 makes no appropriation and thus article III, § 3, is
not applicable at all. And, finally, intervenors argue that any
appropriation arguably made by L.B. 1402 is nevertheless the
proper subject of a referendum because it was not an appro-
priation for the expense of state government.
Before we address the parties’ arguments, we pause briefly
to address the justiciability of this preelection challenge.
Because the outcome of an election is a contingent future
event, a challenge that a proposed ballot measure will violate
the substantive provisions of the U.S. or Nebraska Constitution
does not present a justiciable controversy. 18 It is not ripe for
judicial determination because the voters might vote to reject
the measure. 19 In contrast, a claim that a proposed ballot mea-
sure violates a constitutional or statutory rule that governs the
form of the measure or the procedural requirements for its
placement on the ballot is a challenge to the legal sufficiency
15 Id. at 13.
16 Id. at 22.
17 See, Neb. Rev. Stat. §§ 64-401 to 64-420 (Cum. Supp. 2022) (authorizing
online notarization procedures); Tex. Govt. Code Ann. § 406.101 et seq.
(West Cum. Supp. 2023) (same).
18 State ex rel. Loontjer v. Gale, 288 Neb. 973, 853 N.W.2d 494 (2014).
19 Id.

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STATE EX REL. COLLAR v. EVNEN
Cite as 317 Neb. 608
of a ballot measure, and such challenges are ripe for resolution
before an election. 20
This court has previously considered preelection challenges
to referendums based on alleged violations of article III, § 3, 21
but our opinions did not discuss whether the exception therein
is properly considered a substantive provision or considered
a constitutional rule that governs the form of the referendum
measure or the procedural requirements for its placement on
the ballot. But this original action does not require that we
conclusively determine that issue, because, as we explain next,
Relator’s verified petition conclusively shows that this referen-
dum challenge does not implicate the exception in article III,
§ 3, at all.
ANALYSIS
Article III, § 1, of the Nebraska Constitution states that
the people “reserve power at their own option to approve or
reject at the polls any act, item, section, or part of any act
passed by the Legislature, which power shall be called the
power of referendum.” And article III, § 3, of the Nebraska
Constitution governs the power of referendum and provides in
relevant part:
The second power reserved is the referendum which
may be invoked, by petition, against any act or part of
an act of the Legislature, except those making appropria-
tions for the expense of the state government or a state
institution existing at the time of the passage of such act.
[5-7] The constitutional provisions with respect to the right
to referendum reserved to the people should be construed to
make effective the powers reserved. 22 It is fundamental that the
exception in article III, § 3, should be given strict construc-
tion in light of the fundamental purpose of the referendum
20 Id.
21 See, Lawrence v Beermann, 192 Neb. 507, 222 N.W.2d 809 (1974);
Bartling v. Wait, 96 Neb. 532, 148 N.W. 507 (1914).
22 Lawrence, supra note 21.

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STATE EX REL. COLLAR v. EVNEN
Cite as 317 Neb. 608
provision to give the people the right to vote on specific legis-
lation. 23 Generally, the exception in article III, § 3,
must be construed to mean the ordinary running expenses
of the state government and existing institutions, and not
to include money or appropriations or funds created or
acts which have as their design a new or different scheme
for the revenue raising and financing of state delegated
and created local units of self-government. 24
The parties appear to disagree about whether an appropria-
tion to fund education scholarships to attend private elementary
and secondary schools is an appropriation “for the expense
of the state government” within the meaning of article III,
§ 3. But this mandamus proceeding does not require us to
answer that question, and we express no opinion in that regard.
Instead, we conclude as a matter of law that the portion of the
act being referred, § 1 of L.B. 1402, does not make an appro-
priation at all.
[8-11] Article III, § 25, of the Nebraska Constitution pro-
vides, “No money shall be drawn from the treasury except
in pursuance of a specific appropriation made by law . .
. .” As such, the Nebraska Constitution requires a specific
appropriation made by law to authorize the expenditure of
public funds. 25 An appropriation, within the meaning of the
Nebraska Constitution, is the setting apart by law of a certain
sum from the public revenue for a specified purpose, so that
the executive officers are authorized to expend that sum, and
no more, for that purpose, and no other. 26 It is the settled law
23 See id.
24 Id., 192 Neb. at 509, 222 N.W.2d at 810 (citing Bartling, supra note 21).
25 See State v. Moore, 50 Neb. 88, 69 N.W. 373 (1896).
26 See id. Accord State ex rel. Creighton Univ. v. Smith, 217 Neb. 682, 688,
353 N.W.2d 267, 271 (1984) (“[r]egarding appropriation of public funds,
to appropriate means to set apart, or assign to a particular person or use
in exclusion of others, to use or employ for a particular purpose, or in a
particular case”).

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STATE EX REL. COLLAR v. EVNEN
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of Nebraska that there can be no implied appropriation, 27 and
this court long ago endorsed the rule that a “‘promise to make
an appropriation is not an appropriation.’” 28
Relator invites us to give the exception in article III, § 3,
a broad construction and thereby conclude that the exception
applies not just to an act or part of an act against which the
referendum power is being invoked, but also applies any time
the act being referred to has a separate appropriation bill to
aid in carrying out its provisions. We must decline this invita-
tion. To do otherwise would be contrary to settled principles
that require we strictly construe the exception in article III,
§ 3, and would frustrate the fundamental purpose of the ref-
erendum provision to give the people the right to vote on
specific legislation. 29
Instead, consistent with the plain text of article III, § 3, and
principles of strict construction, we hold that the constitutional
exception to the referendum power is a narrow one; it prevents
a referendum petition from being invoked only “against any
act or part of an act by the Legislature . . . making appropria-
tions for the expense of the state government or a state insti-
tution existing at the time of the passage of such act.” 30 We
see no language in § 1 of L.B. 1402 making an appropriation
at all. 31
We specifically reject Relator’s suggestion that the provi-
sion in § 1(7) should be construed as making an appropria-
tion. Section 1(7) states, “It is the intent of the Legislature
27 Moore, supra note 25.
28 Id., 50 Neb. at 93, 69 N.W. at 374 (quoting Ristine v. State, 20 Ind. 328
(1863)).
29 See, Lawrence, supra note 21; Bartling, supra note 21.
30 Neb. Const. art. III, § 3.
31 See, also, Neb. Rev. Stat. § 49-804 (Reissue 2021) (setting out statutory
language and criteria for appropriation to exist); Neb. Rev. Stat. § 49-805
(Reissue 2021) (providing that any legislation not meeting criteria in
§ 49-804 “shall not be considered a valid appropriation as defined in
Article III, section 22, of the Nebraska Constitution”).

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STATE EX REL. COLLAR v. EVNEN
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to appropriate 10 million dollars from the General Fund for
fiscal year 2024-25 and each fiscal year thereafter to the State
Treasurer for the purpose of providing education scholar-
ships as provided in this section.” Although this provision
expresses the intent to make an appropriation in the future, it
does not make a specific appropriation within the meaning of
article III, § 3. Instead, as is plainly apparent from the face of
the verified petition and the attachments thereto, it was L.B.
1402A—an act against which the power of referendum has
not been invoked—that contained the necessary language 32
and made the specific appropriation to carry out the provisions
of L.B. 1402. Moreover, even if § 1(7) of L.B. 1402 could be
construed as an appropriation, it would be an unconstitutional
one, because it expresses the intent to appropriate money not
only for the fiscal year 2024-45, but for “each fiscal year there-
after.” It has long been the law in this state that continuing
appropriations of public revenue are prohibited by article III,
§ 22, of the Nebraska Constitution. 33
CONCLUSION
The only basis for mandamus relief asserted in Relator’s
verified petition is that § 1 of L.B. 1402 makes an appropria-
tion that falls within the referendum exception of article III,
§ 3. Because it is plain from the face of the verified petition
and the attachments thereto that § 1 of L.B. 1402 makes no
appropriation at all, the Secretary of State has no duty to
withhold the referendum based on an alleged violation of
article III, § 3. The averments of the verified petition are
thus insufficient to support issuance of either an alternative
or peremptory writ, because there exists no clear right to the
relief sought and the Secretary of State has no corresponding
32 See § 49-804.
33 See State ex rel. Meyer v. Steen, 183 Neb. 297, 160 N.W.2d 164 (1968).

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clear duty to perform the act requested. The petition for writ
of mandamus should be and hereby is denied. 34
Writ of mandamus denied.
petition dismissed.
34 See, State, ex rel. Funke, supra note 7; Weston, supra note 7.
Heavican, C.J., concurring.
I join the court’s opinion in full. I write separately to
address the recent change in position of the Secretary of State
(Secretary) regarding the legal sufficiency of the referendum
petition.
Initiative and referendum petitions are initially filed with
the Secretary and must include “[a] full and correct copy” of
the proposed law or amendment or the measure sought to be
referred. 1 Before a petition can be circulated for signatures, the
petition’s object and text must be filed with the Secretary, who
then oversees a process of review by the Revisor of Statutes
before preparing the form of the petition for circulation. 2
Signed initiative petitions must be filed with the Secretary 4
months before the general election, and signed referendum
petitions must be filed within 90 days after the legislative ses-
sion. 3 The Secretary must then proceed to determine the valid-
ity and sufficiency of the petition’s signatures 4 and work with
the Attorney General in preparing a ballot title. 5 If the petition
is found to be valid and sufficient, the Secretary must then
place the petition’s contents on the general election ballot. 6
1 Neb. Rev. Stat. § 32-1403 (Reissue 2016).
2 See Neb. Rev. Stat. § 32-1405 (Cum. Supp. 2022). See, also, 2024 Neb.
Laws, L.B. 287.
3 See Neb. Rev. Stat. § 32-1407 (Cum. Supp. 2022). See, also, 2024 Neb.
Laws, L.B. 287.
4 See Neb. Rev. Stat. § 32-1409(1) (Cum. Supp. 2022).
5 See Neb. Rev. Stat. § 32-1410 (Reissue 2016).
6 See § 32-1409(3) and Neb. Rev. Stat. § 32-1411(2) (Reissue 2016).

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The Secretary concedes that he made a determination that
the referendum was valid and sufficient and “met legal suf-
ficiency requirements.” 7 Once done, I am aware of no process
by which the Secretary can change his mind and “rescind his
legal sufficiency determination and not place the referendum
on the ballot.” 8
Miller-Lerman, J., joins in this concurrence.
7 Brief for respondent at 12.
8 Id. at 13.