State ex rel. Constance v. Evnen

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. CONSTANCE v. EVNEN
Cite as 317 Neb. 600
State of Nebraska ex rel. Elizabeth Constance et al.,
relators, v. Robert B. Evnen, Secretary of State
of the State of Nebraska, respondent, and
Elizabeth Peterson et al., intervenors.
___ N.W.3d ___
Filed September 13, 2024. 	No. S-24-653.
1. Constitutional Law: Justiciable Issues: Appeal and Error. Questions
of justiciability and of constitutional interpretation that do not involve
factual dispute are questions of law.
2. Mandamus: Words and Phrases. Mandamus is a law action and repre-
sents an extraordinary remedy, not a writ of right.
3. Mandamus. Whether to grant a writ of mandamus is within a court’s
discretion.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
5. Justiciable Issues. A justiciable issue requires a present, substantial
controversy between parties having adverse legal interests susceptible to
immediate resolution and capable of present judicial enforcement.
6. Courts: Justiciable Issues. Ripeness is a justiciability doctrine that
courts consider in determining whether they may properly decide a
controversy.
7. Courts. The fundamental principle of ripeness is that courts should
avoid entangling themselves, through premature adjudication, in abstract
disagreements based on contingent future events that may not occur at
all or may not occur as anticipated.
8. Initiative and Referendum: Justiciable Issues. Unlike challenges to
the form of a ballot measure or the procedural requirements to its place-
ment on the ballot, which are challenges to whether the measure is
legally sufficient to be submitted to the voters, substantive challenges to
proposed initiatives are not justiciable before the measures are adopted
by voters.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:31 AM CDT

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. CONSTANCE v. EVNEN
Cite as 317 Neb. 600
Original action. Writ of mandamus denied.
Joshua M. Livingston, of Koenig Dunne, and David Quinn
Gacioch, Dana M. McSherry, and Theresa M. Babendreier, of
McDermott, Will & Emery, L.L.P., pro hac vice, for relators.
Michael T. Hilgers, Attorney General, Eric J. Hamilton, and
Zachary B. Pohlman, for respondent.
Robert M. Schafer and Jeffery W. Davis, of Smith Schafer
Davis, L.L.C., and James A. Campbell, of Alliance Defending
Freedom, for intervenors.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
In State ex rel. Brooks v. Evnen, 1 we rejected a preelection
challenge—based primarily on the single subject limitation 2 —
to a ballot initiative entitled “Protect the Right to Abortion.”
We now do likewise in a preelection challenge to the ballot
initiative entitled “Protect Women and Children.” Relators in
this mandamus action largely concede that if the challenge to
the first initiative fails, so does their contest of the second ini-
tiative. But regardless, we find no violation of the single sub-
ject requirement and determine that any other claims asserted
are not ripe. We therefore deny the writ.
BACKGROUND
Parties
Relators in this case are 29 retired or currently practic-
ing physicians. They are: Elizabeth Constance, Linda Collins,
Courtney McLean, Claire Baker, Rachel Brock, Amy Garwood,
Stephanie Gawel, Patricia Bohart, Mark R. Hutchins, Stacie
1 State ex rel. Brooks v. Evnen, ante p. 581, ___ N.W.3d ___ (2024).
2 See Neb. Const. art. III, § 2.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. CONSTANCE v. EVNEN
Cite as 317 Neb. 600
Bleicher, 	Matthew 	Glathar, 	Julie 	Filips, 	Sharon 	Hammer,
Deanna L. Hutchins, William Johnson, Alex Dworak, Kate
Rosenberger, Brian Gallagher, Quinn Willet, Dawn Hosein,
Andrew Bohart, Rachel Blake, Katherine Willet, Tracy Mak,
Tara Kirkpatrick, James Nora, Erica Carlsson Buchta, Ryan
Shelstad, and Kathryn Borman. Each is a registered voter and
resident of Nebraska.
Respondent is Robert B. Evnen, in his official capacity as
Nebraska’s Secretary of State. In that capacity, Evnen has the
duty to place a proposed initiative measure on the general
election ballot if “constitutional and statutory requirements
have been met” and the petition is “valid and sufficient.” 3
Intervenors 	are 	Elizabeth 	Peterson, 	Jan 	Kuehn, 	Mark
Patefield, and Maureen Bausch. They are sponsors of the ini-
tiative challenged here.
Ballot Initiatives
The challenge to the first initiative was disposed in State ex
rel. Brooks. 4
The second initiative—now before us in this action—pro-
posed adding a new section in article I of the Nebraska
Constitution. The new section would state: “Except when a
woman seeks an abortion necessitated by a medical emer-
gency or when the pregnancy results from sexual assault or
incest, unborn children shall be protected from abortion in the
second and third trimesters.”
Enough signatures were delivered to Evnen to place the
initiative on the ballot. Evnen’s office issued a news release
indicating that the petition effort would appear on the ballot.
Proceedings in Nebraska Supreme Court
We granted relators’ application for leave to commence an
original action to challenge the second initiative.
3 See Neb. Rev. Stat. § 32-1409(3) (Cum. Supp. 2022).
4 State ex rel. Brooks v. Evnen, supra note 1.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. CONSTANCE v. EVNEN
Cite as 317 Neb. 600
Relators asserted in their verified petition for writ of man-
damus and declaratory judgment that both initiatives met the
constitutional requirements for inclusion on the ballot and that
voters were entitled to consider both. But because the initia-
tives were structured similarly and because proponents of the
second initiative had asked that we keep the first initiative off
the ballot, relators argued that we should do the same with
respect to the second initiative. According to relators, “The
two amendments are structured similarly and either both or
neither should appear on the ballot based on consistent appli-
cation of the relevant constitutional principles.”
The petition set forth two “counts”: one for violation of the
“single subject rule” set forth in Neb. Const. art. III, § 2, and
another alleging creation of voter confusion and doubt.
Based on the verified petition, we issued an alternative writ
of mandamus instructing Evnen to withhold and remove the
second initiative from the November 2024 general election
ballot or show cause why a preemptory writ commanding him
to do so should not issue.
Subsequently, we granted intervenors’ petition to intervene.
Intervenors asserted as affirmative defenses that relators’ peti-
tion for writ of mandamus and declaratory judgment failed to
state a claim upon which relief can be granted and that this
court lacked jurisdiction over the claim.
Evnen responded to our alterative writ. He asserted that
the intervenors could defend their initiative’s inclusion on
the ballot.
ISSUES PRESENTED
The principal issue raised is whether a peremptory writ
should issue to Evnen. Although relators also requested relief
in the form of a declaratory judgment, for the same reasons
explained in State ex rel. Brooks, 5 that request is subsumed in
the issue of mandamus.
5 Id.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. CONSTANCE v. EVNEN
Cite as 317 Neb. 600
APPLICABLE STANDARDS
[1] Questions of justiciability and of constitutional interpre-
tation that do not involve factual dispute are questions of law. 6
[2,3] Mandamus is a law action and represents an extraor-
dinary remedy, not a writ of right. 7 Whether to grant a writ of
mandamus is within a court’s discretion. 8
ANALYSIS
Jurisdiction
[4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it. 9 Relators seek a
writ of mandamus and declaratory judgment concerning an
initiative set to appear on the November 2024 ballot. The
Nebraska Constitution 10 and a statute 11 provide this court with
original jurisdiction in cases requesting a writ of mandamus.
Intervenors concede that under these provisions, we generally
have “original jurisdiction over these kinds of legal-sufficiency
pre-election actions for a writ of mandamus.” 12
Intervenors’ jurisdictional challenge focuses on the condi-
tional nature of relators’ suit. As we discuss in more detail
next, relators opine that both initiatives should appear on the
ballot, but they brought this suit to address the second initia-
tive’s submission if we determined the first initiative should
be withheld. Intervenors thus contend that “[r]elators do not
raise an actual case or controversy but rather assert unripe
claims dependent on uncertain contingencies.” 13 We disagree.
6 State ex rel. Wagner v. Evnen, 307 Neb. 142, 948 N.W.2d 244 (2020).
7 Id.
8 Id.
9 Dylan H. v. Brooke C., ante p. 264, 9 N.W.3d 439 (2024).
10 Neb. Const. art. V, § 2.
11 Neb. Rev. Stat. § 24-204 (Reissue 2016).
12 Brief for intervenors at 7.
13 Id.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. CONSTANCE v. EVNEN
Cite as 317 Neb. 600
[5] A justiciable issue requires a present, substantial contro-
versy between parties having adverse legal interests suscep-
tible to immediate resolution and capable of present judicial
enforcement. 14 Although relators may have presented their
position in a conditional fashion, their challenge was not con-
ditional. They asserted that the second initiative violates the
single subject rule, which presents a real controversy.
Relators’ Concession
Relators 	have 	essentially 	conceded 	that 	the 	initiatives
should rise or fall together. They asserted in their petition
for writ of mandamus and declaratory judgment that “either
both [initiatives] or neither should appear on the ballot based
on consistent application of the relevant constitutional prin-
ciples.” They also asserted that “both [initiatives] meet the
constitutional requirement for inclusion on the ballot.”
They made similar statements in their brief. There, rela-
tors stated that “Nebraska voters are entitled to consider both
amendments in November” and that the first initiative “cannot
possibly violate the single subject requirement unless the [sec-
ond] initiative also violates it.” 15
Because we determined in State ex rel. Brooks 16 that the first
initiative did not violate the single subject rule, relators have
effectively admitted that the second initiative also would not
violate the rule. But even without this concession, we deter-
mine, as explained below, that the second initiative does not
violate the single subject rule.
Single Subject Rule
Regardless of relators’ concession, we reach the same result
as in State ex rel. Brooks. There, we articulated the stan-
dard employed in prior single subject challenges to ballot
14 Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017).
15 Brief for relators at 11.
16 State ex rel. Brooks v. Evnen, supra note 1.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. CONSTANCE v. EVNEN
Cite as 317 Neb. 600
initiatives. 17 We concluded that the first initiative did not violate
the single subject rule.
Applying the natural and necessary test to the second initia-
tive, we discern only one subject. The parts of the initiative all
relate to the same subject. To hold otherwise would “exercise
a pedantic tyranny over efforts to change the law.” 18
In relators’ petition, they asserted as “Count Two” that the
second initiative would create voter confusion and doubt. In
their brief, they make no separate argument and recognize that
avoiding voter confusion is a “core purpose[]” of the single
subject rule. 19 Indeed, we have identified a purpose of the
single subject requirement is to “avoid voter confusion and
logrolling.” 20 But “we have not said that confusion or doubt
are separate requirements for a legally insufficient measure or
that they are required elements of the test to determine whether
a measure violates the single subject requirement.” 21 And
because we have determined that the second initiative does not
violate the single subject limitation, we need not say more.
Other Arguments
[6,7] Other arguments asserted are not ripe for review.
Ripeness is a justiciability doctrine that courts consider in
determining whether they may properly decide a controversy. 22
The fundamental principle of ripeness is that courts should
avoid entangling themselves, through premature adjudication,
in abstract disagreements based on contingent future events
that may not occur at all or may not occur as anticipated. 23
17 See id.
18 State ex rel. McNally v. Evnen, 307 Neb. 103, 125, 948 N.W.2d 463, 480
(2020) (plurality opinion) (internal quotation marks omitted).
19 Brief for relators at 16.
20 Christensen v. Gale, 301 Neb. 19, 31, 917 N.W.2d 145, 156 (2018).
21 State ex rel. McNally v. Evnen, supra note 18, 307 Neb. at 121, 948
N.W.2d at 478 (plurality opinion).
22 State ex rel. Wagner v. Evnen, supra note 6.
23 Id.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE EX REL. CONSTANCE v. EVNEN
Cite as 317 Neb. 600
[8] Unlike challenges to the form of a ballot measure or the
procedural requirements to its placement on the ballot, which
are challenges to whether the measure is legally sufficient to
be submitted to the voters, substantive challenges to proposed
initiatives are not justiciable before the measures are adopted
by voters. 24 Relators’ arguments premised upon the initiative’s
enactment are not ripe for review.
CONCLUSION
We conclude that the second initiative does not violate the
single subject rule. Accordingly, Evnen does not have a duty to
withhold it from the general election ballot. Relators’ applica-
tion for a writ of mandamus is denied. The alternative writ is
thereby dissolved.
Writ of mandamus denied.
24 Christensen v. Gale, supra note 20.