Kuehn v. Evnen

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
KUEHN v. EVNEN
Cite as 322 Neb. 161
John Kuehn, appellant, v. Robert B. Evnen, in his
official capacity as the Secretary of State of
Nebraska, appellee and cross-appellant, and
Anna Wishart et al., appellees
and cross-appellees.
___ N.W.3d ___
Filed September 4, 2026. 	No. S-24-901.
1. Declaratory Judgments: Appeal and Error. When a declaratory judg-
ment action presents a question of law, an appellate court has an obliga-
tion to reach its conclusion independently of the conclusion reached by
the trial court with regard to that question.
2. Declaratory Judgments. An action for declaratory judgment is sui
generis; whether such action is to be treated as one at law or one in
equity is to be determined by the nature of the dispute.
3. Equity: Appeal and Error. In an appeal of an equity action, an appel-
late court tries factual questions de novo on the record and reaches
a conclusion independent of the findings of the trial court; provided,
where the credible evidence is in conflict on a material issue of fact, the
appellate court considers and may give weight to the fact that the trial
judge heard and observed the witnesses and accepted one version of the
facts rather than another.
4. Judgments: Appeal and Error. In a bench trial of a law action, the trial
court’s factual findings have the effect of a jury verdict, which an appel-
late court will not disturb on appeal unless clearly wrong.
5. Pleadings: Appeal and Error. Permission to amend a pleading is
addressed to the discretion of the trial court, and an appellate court will
not disturb the trial court’s decision absent an abuse of discretion.
6. Trial: Evidence: Records: Appeal and Error. Generally, it is not the
function of an appellate court to review evidence that was not presented
to the trial court. A bill of exceptions is the only vehicle for bringing
evidence before an appellate court; evidence which is not made a part of
the bill of exceptions may not be considered.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:33 AM CDT

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KUEHN v. EVNEN
Cite as 322 Neb. 161
7. Courts: Pleadings. A trial court’s denial of leave to amend pleadings is
appropriate only in those limited circumstances in which undue delay,
bad faith on the part of the moving party, futility of the amendment, or
unfair prejudice to the nonmoving party can be demonstrated.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Andrew LaGrone, of La Grone Law, L.L.C., Steven E.
Guenzel, of Johnson Flodman Guenzel & Wasserburger, L.L.P.,
and Anne Marie Mackin, pro hac vice, of Lex Politica, P.L.L.C.,
for appellant.
Michael T. Hilgers, Attorney General, Zachary B. Pohlman,
Lincoln J. Korell, and Zachary A. Viglianco, for appellee
Robert B. Evnen.
Daniel J. Gutman, Alexander S. Arkfeld, Sydney L. Hayes,
and Kaitlin A. Madsen, of Gutman Law Group, for appellees
Anna Wishart et al.
Funke, C.J., Cassel, Stacy, Papik, Freudenberg, and
Bergevin, JJ., and Schreiner, District Judge.
Funke, C.J.
I. INTRODUCTION
In September 2024, John Kuehn filed this action pursuant
to Neb. Rev. Stat. § 32-1412(2) (Cum. Supp. 2024) seeking to
enjoin Robert B. Evnen, in his official capacity as the Secretary
of State of Nebraska (the Secretary), from placing two initia-
tive measures regarding medical cannabis on the ballot for
the November 2024 general election. Kuehn also named as
defendants the sponsors of the two measures—Anna Wishart,
Crista Eggers, and Adam Morfeld (collectively the Sponsors).
The Secretary filed a cross-claim against the Sponsors in
which he challenged the legal sufficiency of the two initia-
tive petitions and sought declaratory relief. After the measures
were adopted by voters in the general election, the district
court for Lancaster County rejected the challenges raised by

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KUEHN v. EVNEN
Cite as 322 Neb. 161
Kuehn and by the Secretary. Kuehn appeals, and the Secretary
cross-appeals.
On appeal, Kuehn and the Secretary generally assert that the
district court erred in failing to invalidate numerous petition
signatures based on circulator fraud and improper notariza-
tions and that with such signatures properly excluded, the peti-
tions lacked the required number of valid signatures to have
been placed on the ballot. They raise issues, including whether
the holding in Barkley v. Pool, 1 which dealt with circulator
fraud in the initiative petition process, also applies to notaries
in the same context and whether an adverse inference may be
drawn from a witness’ invocation of the Fifth Amendment in
a civil case.
We conclude that the district court did not err as a matter
of law when it declined to apply Barkley v. Pool in the man-
ner urged by Kuehn and the Secretary or when it declined
to draw adverse inferences based on invocation of the Fifth
Amendment. We further find no error in the court’s findings to
support its rejection of Kuehn’s and the Secretary’s challenges
to the legal sufficiency of the petitions. We therefore affirm the
district court’s order.
II. BACKGROUND
Kuehn and the Secretary challenged the legal sufficiency
of petitions to place two initiative measures on the ballot. The
first measure (Legalization Petition) sought to legalize can-
nabis for medical purposes in Nebraska. The second measure
(Regulatory Petition) sought to establish the Nebraska Medical
Cannabis Commission to regulate the manufacture and distri-
bution of medical cannabis.
The two measures were placed on the ballot following
campaigns to obtain the required number of signatures. Under
Neb. Const. art. III, § 2, a petition for the enactment of a law
must “be signed by seven percent of the registered voters of
the state” and “the registered voters signing such petition
1 Barkley v. Pool, 103 Neb. 629, 173 N.W. 600 (1919).

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shall be so distributed as to include five percent of the reg-
istered voters of each of two-fifths of the counties of the
state.” The Secretary determined that to meet the 7-percent
requirement for the 2024 election, each petition needed to be
signed by at least 86,499 registered voters, and that to meet
the two-fifths requirement, a petition needed signatures from
5 percent of registered voters in each of 38 of the 93 counties
of the State.
On July 3, 2024, the Sponsors submitted to the Secretary
petition pages purported to contain 114,367 signatures for the
Legalization Petition and 114,596 signatures for the Regulatory
Petition. After reviewing the signatures, the Secretary deter-
mined 	that 	the 	Legalization 	Petition 	and 	the 	Regulatory
Petition met the requirements with 89,962 verified signatures
and 89,856 verified signatures, respectively.
1. Pretrial Filings and Rulings
On September 12, 2024, Kuehn filed a complaint against
the Secretary and the Sponsors pursuant to § 32-1412(2).
Kuehn sought, among other things, expedited relief enjoining
the Secretary from certifying the Legalization Petition and
the Regulatory Petition for placement on the ballot. In a news
release dated September 13, 2024, the Secretary announced
that he had certified both petitions for the general election
ballot, but the Secretary also stated that “‘[a]n investigation
conducted by the Attorney General’s office has uncovered
serious questions about the signature gathering process for
these petitions’” and that while he was certifying the petitions
to appear on the ballot, “‘in light of the Attorney General’s
investigation . . . a court could order later that the initiatives
be thrown out.’”
In an amended complaint filed September 17, 2024, Kuehn
sought expedited injunctive relief requiring the Secretary to
“de-certify” the petitions for placement on the ballot, as well
as a declaratory judgment that the petitions were legally insuf-
ficient and that the Secretary’s certification of the petitions

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was invalid and without legal effect. Kuehn alleged multiple
grounds of insufficiency, but, as relevant here, he alleged that
after the exclusion of numerous signatures that were invalid
for various reasons, the petitions would not include sufficient
valid signatures.
The Secretary’s answer to Kuehn’s amended complaint
included a cross-claim against the Sponsors, in which the
Secretary alleged that “[i]n order to carry out [his statutory]
duties . . . to assess the legal sufficiency of initiative peti-
tions, it is imperative that the uncertainty regarding the valid-
ity of the signatures at issue in this case . . . be resolved.”
The Secretary sought declaratory relief under the Uniform
Declaratory 	Judgments Act 	(UDJA), 2 including 	“an 	order
declaring the number of valid signatures submitted by the
Sponsors” for the Legalization Petition and for the Regulatory
Petition, and the Secretary requested that, if the court deter-
mined that insufficient signatures were submitted, the court
declare the petitions legally insufficient and order “the legal
(not physical) removal of the measures from the ballot before
the election.” The Secretary further requested that, if the court
declared the petitions legally insufficient after the election,
the court enter an order declaring the measures “void because
they were not properly placed on the ballot” and declaring the
results of the election to be “void and of no effect.”
The Sponsors moved to dismiss both Kuehn’s action and
the Secretary’s cross-claim for lack of subject matter jurisdic-
tion and for failure to state claims upon which relief could be
granted. The district court overruled the Sponsors’ motion to
dismiss Kuehn’s amended complaint as to the claims that the
petitions contained an insufficient number of valid signatures,
but the court sustained the motion as to other claims and dis-
missed those claims with prejudice.
The district court also overruled the Sponsors’ motion to
dismiss the Secretary’s cross-claim. However, the court stated
2 Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016).

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KUEHN v. EVNEN
Cite as 322 Neb. 161
that the Sponsors had not challenged the Secretary’s standing
to bring the declaratory judgment action. Noting that the issue
of standing may be raised by a party or by the court on its
own motion at any time, the court discussed the standing issue
and ordered the parties to brief the issue. The court stated
that the Secretary had “an interest” in the outcome of the
litigation, but the court questioned whether the Secretary had
a personal stake or the legal or equitable right, title, or inter-
est necessary for standing. The court noted the Secretary had
already certified the petitions as legally sufficient to be placed
on the ballot, and the court cited the concurrence in State ex
rel. Collar v. Evnen, 3 which indicated that once a petition is
certified, there did not appear to be any “process by which
the Secretary can change his mind and ‘rescind his legal suf-
ficiency determination.’”
At a later hearing, after considering the briefs and arguments
of the parties, the district court stated that it was “still skep-
tical” of the Secretary’s standing and whether the Secretary
could “have brought this litigation against [the Sponsors] on
his own.” But the court stated that it did not need to decide the
issue of the Secretary’s standing because, “as a practical mat-
ter, the issues raised by [the Secretary’s] cross-claim will be
determined on [Kuehn’s] claims, whether or not the Secretary
. . . is allowed to bring the cross-claim.” The court stated that it
would overrule the Sponsors’ motion to dismiss the Secretary’s
cross-claim and “leave the issue whether the Secretary . . . has
standing up to the appellate courts to decide at a later date.”
2. Trial
A trial was held on October 29 and 31 and November 1
and 4, 2024. At trial, Kuehn and the Secretary presented
evidence in support of their claims of misconduct by several
circulators and notaries who worked on the petition campaign.
Kuehn began by presenting testimony of witnesses who work
3 State ex rel. Collar v. Evnen, 317 Neb. 608, 621, 10 N.W.3d 900, 909
(2024) (Heavican, C.J., concurring).

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for the Secretary’s office and who testified regarding law
and procedures related to oversight of the ballot certifica-
tion process and oversight of notaries. Kuehn then presented
testimony by an individual Kuehn had hired to perform peti-
tion signature reviews of the Legalization Petition and the
Regulatory Petition, and the Secretary presented testimony by
an investigator from the Nebraska Attorney General’s office
who had also reviewed the petitions. Both witnesses testified
regarding the procedures they used to conduct their reviews,
and both testified regarding the number of petition pages and
signatures they determined should be invalidated based on
wrongdoing by circulators or notaries.
Other witnesses called by the Secretary included Michael
Egbert and Jennifer Henning, both of whom had acted as
circulators and admitted to committing some wrongdoing.
The Secretary also called as witnesses three other persons—
Garrett Connely, Shari Lawlor, and Eggers—who had worked
on the petition campaigns in different capacities, including
as circulators or notaries. Each of these witnesses invoked
the Fifth Amendment during their testimony. Connely’s pre-
trial deposition was admitted during his testimony. Three
others who had worked on the petition campaign as circu-
lators, notaries, or both—Jacy Todd, Shannon Coryell, and
Kimberly Bowling-Martin—were ruled unavailable as wit-
nesses. The court received pretrial depositions of Coryell
and Bowling-Martin that were offered by the Secretary to
show that they had invoked the Fifth Amendment during their
depositions. The court received a pretrial deposition of Todd
that was offered by the Sponsors. Evidence regarding each of
these circulators and notaries is discussed below in connection
with the district court’s findings regarding Kuehn’s and the
Secretary’s allegations relating to them.
3. District Court Order
On November 26, 2024, the district court entered its order
ruling on Kuehn’s amended complaint and the Secretary’s

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cross-claim. The court stated in its order that “the election
[had] passed and the voters [had] approved both initiatives.”
After summarizing the procedural background and the evi-
dence at trial, the court first addressed certain preliminary
matters, including whether the relief sought in this action was
moot and whether the court could and should, as Kuehn and
the Secretary urged, draw adverse inferences from the invoca-
tion of the Fifth Amendment by witnesses who had worked on
the petition campaign.
(a) Mootness
The district court stated that because the election had
passed and the voters had approved both initiatives, it needed
to decide whether the relief sought in this action was moot.
Citing precedent of this court, 4 the district court concluded
that Kuehn’s request for injunctive relief to prevent certify-
ing the initiatives and placing them on the ballot was moot,
but that Kuehn’s request for a declaratory judgment that the
petitions were legally insufficient, that the measures were
invalid, and that the Secretary’s certification of the petitions
was invalid and without legal effect was not moot. The court
concluded that the Secretary’s request in his cross-claim for
injunctive relief to legally remove the initiatives from the bal-
lot was moot, but that the Secretary’s request to declare the
number of valid signatures and to declare the initiatives and
the election results void if there were not sufficient signatures
was not moot.
(b) Fifth Amendment and Adverse Inferences
The district court addressed Kuehn’s and the Secretary’s
urging that the court draw adverse inferences from the invo-
cation of the Fifth Amendment by deposition and trial wit-
nesses who had worked on the petition campaign. The court
declined to do so for two reasons. First, the court determined
4 See, Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 761 (2020); Duggan v.
Beermann, 245 Neb. 907, 515 N.W.2d 788 (1994).

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KUEHN v. EVNEN
Cite as 322 Neb. 161
that drawing inferences from a claim of the Fifth Amendment
privilege against self-incrimination was expressly prohibited
by Neb. Rev. Stat. § 27-513(1) (Reissue 2016), which pro-
vides that “[t]he claim of a privilege, whether in the present
proceeding or upon a prior occasion, is not a proper subject of
comment by judge or counsel” and that “[n]o inference may be
drawn therefrom.” The court cited criminal cases in which this
court has treated invocation of the Fifth Amendment as a claim
of privilege under § 27-513. 5 The court acknowledged that
this court has held that a fact finder in a civil case may draw
an adverse inference from a defendant’s invocation of the
Fifth Amendment, 6 but the court noted that the issue whether
§ 27-513 permits an adverse inference in a civil case had not
been presented or decided in any of the cases.
Second, the district court stated that even if it had discre-
tion to draw an adverse inference, it would not do so in the
matter. The court stated that the “witnesses who claimed
the privilege against self-incrimination in this case are notaries
whom [Kuehn and the Secretary] accuse of notarizing affida-
vits outside the circulators’ presence.” The court further stated
that the “Attorney General, while representing the Secretary
in this case, is simultaneously leading a criminal investiga-
tion into this very conduct,” and “[a]t least two witnesses . . .
have already been charged with official misconduct for nota-
rizing petitions outside of a circulator’s presence.” The court
reasoned that it was “not surprising under these facts that the
witnesses would broadly assert their Fifth Amendment privi-
lege” and that “[t]his circumstance undermines the reliability
5 See, State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021); State v. Clausen,
307 Neb. 968, 951 N.W.2d 764 (2020); State v. Draper, 289 Neb. 777,
857 N.W.2d 334 (2015); State v. Robinson, 271 Neb. 698, 715 N.W.2d 531
(2006), disapproved on other grounds, State v. Hagens, 320 Neb. 65, 26
N.W.3d 174 (2025).
6 See, In re Estate of Jeffrey B., 268 Neb. 761, 688 N.W.2d 135 (2004);
Wilson v. Misko, 244 Neb. 526, 508 N.W.2d 238 (1993); State ex rel.
Schuler v. Dunbar, 208 Neb. 69, 302 N.W.2d 674 (1981).

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of any inference that the Court might draw from the claim of
privilege.” The court further reasoned that “trying the case
while the criminal investigation is ongoing is relevant to
the appropriateness of an adverse inference,” and the court
noted “the Attorney General’s unique role [representing the
Secretary] in this case” while “simultaneously leading . . . a
criminal investigation into the conduct of these witnesses.”
The court reasoned that the Attorney General “could influence
whether a particular witness invoked the privilege against self-
incrimination,” which was “also relevant to the appropriate-
ness of an adverse inference.”
(c) Allegations Regarding Circulators
After reviewing Nebraska election law, the district court
turned to Kuehn’s and the Secretary’s claims that some signa-
tures should lose the presumption of validity because of cir-
culator fraud. Before addressing allegations related to specific
circulators, the court reviewed the decision in Barkley v. Pool,
which it described as “[t]he leading case on circulator fraud
in Nebraska.” The court described two rules from Barkley v.
Pool that were important to this case. The court stated that
the first rule was that “when a circulator impeaches himself or
herself by swearing a false affidavit, the factfinder may reject
all the affidavits sworn by the circulator,” and the “result is
that all the signatures collected by that individual lose their
presumption of validity.” The court stated that the parties in
this case described the effect as the circulator’s falsity in one
affidavit being “‘imputed’” to their other affidavits. The court
stated that the second rule was that “when the presumption
of validity is rebutted, the proponents of the initiative may
rehabilitate those signatures by showing that they are nonethe-
less genuine.” The court noted that much had changed since
Barkley v. Pool was decided in 1919, including that “technol-
ogy has made it easier for county election officials to compare
a signature on a petition to an individual’s voter registration
record.” But the court stated that Barkley v. Pool had not been

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KUEHN v. EVNEN
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overruled and that therefore, it would follow the decision “to
the best of its ability.”
Regarding specific claims of circulator fraud, the district
court found that Kuehn had not adequately pled that any circu-
lator committed fraud. But the court reviewed the Secretary’s
allegations regarding circulator fraud by Egbert and by four
other circulators. Regarding the four circulators other than
Egbert, the court found that the Secretary had not shown that
any of the four had committed any fraud, and it concluded
that none of the signatures collected by those individuals
should lose their presumption of validity. No party assigns
error to the district court’s determination regarding the four
other circulators, and therefore, the allegations related to them
are not discussed further herein.
(i) Michael Egbert
Egbert testified at the trial that he had worked as a paid
circulator for the petition campaigns. Egbert testified that no
one had watched him sign his petition pages and that he had
not appeared before a notary to have his affidavits notarized.
Egbert was shown pages of his petitions that were notarized by
Todd and other pages that were notarized by Eggers, and he
testified that he did not appear before either person when the
pages were notarized and that they did not witness him affixing
his signature. Egbert further testified that he was facing crimi-
nal charges and that he understood the charges as being “for
falsifying the petition” because he had “wrote people’s names
in that didn’t sign the petition” and had “got out a phone book
and just started writing down names.” On cross-examination,
Egbert testified that his conduct in writing down names from a
phone book was not something that he had been instructed to
do and that it was a choice he alone had made.
The district court stated in its order that a county election
official had flagged Egbert’s fraudulent conduct and that before
certifying the petitions, the Secretary had subtracted the facially
fraudulent signatures collected by Egbert. The court stated that

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it was not clear how many of the remaining signatures were
forged by Egbert, but it found Egbert had “falsely swor[n] in
his circulator’s affidavit that each person whose name appears
on his petition personally signed in his presence.” Applying
Barkley v. Pool, the court concluded that it was appropriate to
reject all petitions collected by Egbert because his testimony
had been impeached.
(ii) Jennifer Henning
The district court next addressed evidence regarding another
circulator, Henning. Henning testified at the trial that she
acted as a circulator for the petition campaign. Henning was
shown some of the petition pages that she had collected as a
circulator and that were notarized by Eggers. Henning testified
that she was not in the presence of Eggers when the petitions
were notarized and that she had not signed the petitions as
a circulator in Eggers’ presence. Henning testified similarly
regarding petition pages she had collected that were notarized
by Connely.
The district court determined that neither Kuehn nor the
Secretary alleged fraud by Henning and that possible circula-
tor fraud by Henning was not before the court. But the court
considered evidence regarding Henning to the extent it was rel-
evant to claims of improper notarization and a general practice
of “rule-breaking” in the campaign. The court found no evi-
dence that Eggers directed Henning to sign petitions circulated
by others, and to the extent Henning testified that Eggers had
done so, the court did not find the testimony credible. But the
court found that on a certain date, Eggers had notarized some
of Henning’s petitions outside of Henning’s presence, and that
therefore, the signatures on those pages were “presumptively
invalid.” Although the court did not invalidate any signatures
as the result of Henning’s acts as a circulator, as discussed
below, the court again considered Henning’s testimony in con-
nection with allegations of improper notarization by Eggers
and by Connely.

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(iii) Summary of Findings Regarding
Circulator Fraud
Summarizing its findings regarding alleged circulator fraud,
the court concluded that 487 signatures collected by Egbert
for the Legalization Petition and 541 signatures collected
by Egbert for the Regulatory Petition had lost the presump-
tion of validity and that the Sponsors would have the burden
of rehabilitating those signatures in a potential second phase
of the trial.
(d) Allegations Regarding Notaries
The district court also considered Kuehn’s and the Secretary’s
claims of what they described as “malfeasance” by notaries.
The court cited Neb. Rev. Stat. § 32-628(3) (Reissue 2016),
which provides that every page of a petition must include an
affidavit signed by the circulator and subscribed and sworn to
before a notary public. The court described claims that “some
petitions were notarized outside of the circulator’s presence;
some petitions are missing the notary’s stamp; some petitions
were notarized by the same person who circulated the petition;
and some petitions are missing the circulator’s signature or the
notary’s signature.” The court found that there were instances
of what it termed “improper notarizations.”
We note in this regard that the district court described such
instances as “improper notarizations,” rather than adopting
the terminology “notary malfeasance” used by Kuehn and
the Secretary. Kuehn and the Secretary assert that notaries
in the petition campaign violated rules governing notaries,
including Neb. Rev. Stat. § 64-105 (Cum. Supp. 2024), which
provides, in part, that a notary public shall not perform any
notarial act if the principal is not in the presence of the notary
at the time of the notarial act. 7 For purposes of this decision,
7 See, also, Neb. Rev. Stat. § 64-113(2) (Cum. Supp. 2024) (providing that
“malfeasance in office means, while serving as a notary public, . . . failure
to follow the requirements of and procedures for notarial acts provided for
in Chapter 64”).

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we do not find it necessary to determine whether the impropri-
eties found by the district court are properly characterized as
malfeasance, and we will generally refer to the instances using
the district court’s terminology.
The district court reviewed Nebraska election law regarding
requirements for circulator affidavits and the need for such affi-
davits to be notarized. The court considered such requirements
in the context of the alleged improprieties involving notaries
in the petition campaign and the effect of any improprieties
on whether a petition contains sufficient valid signatures to be
determined legally sufficient. The court concluded that
under Nebraska’s election statutes, the signatures on a
petition lose their presumption of validity if (1) the cir-
culator’s affidavit was notarized outside of the notary’s
presence; (2) the circulator notarized their own affidavit;
(3) the notary did not apply their stamp; (4) the notary did
not sign the certificate; or (5) the circulator did not sign
the affidavit.”
The court stated that both Kuehn and the Secretary agreed
that “the signatures on improperly notarized pages can be
rehabilitated.”
(i) Application of Barkley v. Pool to Notaries
The district court next addressed Kuehn’s and the Secretary’s
argument that the reasoning in Barkley v. Pool regarding circu-
lator fraud should be extended to notaries. 8 The court described
the issue as “whether the improper notarization of some peti-
tion pages by a particular notary should be imputed to all other
pages notarized by that particular notary.” The court stated that
Kuehn and the Secretary argued that “if a notary signed and
stamped a certificate stating that a circulator appeared before
them on a particular day and that circulator did not, in fact,
appear before them on that particular day,” a court “should
presume that every page notarized by that individual is simi-
larly defective.” The court stated that Kuehn and the Secretary
8 See Barkley v. Pool, supra note 1.

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would apply the rule “to other defects, like a notary forgetting
to apply their stamp or sign the certificate.”
The district court rejected this argument and determined
that it would not impute improper notarization of one petition
page to other pages notarized by the same notary. The court
gave three reasons for its determination. First, the court dis-
tinguished the circulator fraud at issue in Barkley v. Pool from
improper notarization. The court stated that the circulators in
Barkley v. Pool forged signatures and then lied about it under
oath, which the court described as giving false testimony. The
court described Barkley v. Pool as applying the general rule
that when testimony on a material point is impeached, all tes-
timony of that witness may be rejected unless corroborated.
The court stated that a notary is not placed under oath and
that therefore, a notary who notarizes an affidavit outside the
presence of the circulator or who forgets to sign the certificate
or apply the notary’s stamp does not give false testimony. The
court reasoned that because a notary is not giving false testi-
mony, the rule cited in Barkley v. Pool to the effect that other
“testimony” may be rejected does not apply in the context of
an improper notarization.
As its second reason, the district court stated that it was
“reluctant to create an apparently novel rule of imputation.”
The court cited Neb. Const. art. III, § 4, which provides
that constitutional “provisions with respect to the initiative
and referendum shall be self-executing, but legislation may
be enacted to facilitate their operation.” The court reasoned
that because art. III, § 4, grants the Legislature the power to
enact rules to facilitate the initiative process, “[b]y implica-
tion, courts do not have the power to create new rules for the
initiative process.” The court stated that the “proposed rule of
imputation” related to improper notarization would need to be
found in the statutes and that the rule “is simply not there.”
The court questioned whether a statute enacting the rule would
facilitate the initiative process, and it noted that this court has

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held that legislation that “hampers or renders ineffective the
power reserved to the people” is unconstitutional. 9
As its third reason, the district court stated that even if the
rule from Barkley v. Pool applied to improper notarization,
the rule was discretionary, and that in its discretion, it would
not apply the rule in this case. The court relied on language
from Barkley v. Pool that testimony “may” be rejected unless
corroborated. The court stated that while it found that some
improper notarization occurred, Kuehn and the Secretary had
“not shown that improper notarization was so widespread that
the Court should impute these errors to all petitions touched by
that notary.”
The district court stated in summary that it would “not
assume that all the pages notarized by an individual are
invalid 	just 	because 	that 	individual 	improperly 	notarized
another page.” The court stated that whether injunctive relief
or declaratory relief is sought, the general rule was that the
party seeking relief has the burden to prove the party’s case
by a preponderance of the evidence. Applying this burden
of proof, the court stated that improper notarization could be
shown by direct or circumstantial evidence and that “[a] gen-
eral practice of notarizing petitions outside of the circulator’s
presence could be relevant circumstantial evidence.” But the
court emphasized that Kuehn and the Secretary were required
“to show by a preponderance of the evidence that every page
that they allege was improperly notarized was, in fact, improp-
erly notarized.”
(ii) General Practice of Rule-Breaking
or Improper Notarization
Before considering allegations regarding specific petition
pages and specific notaries, the district court considered argu-
ments by Kuehn and the Secretary that there was a general
practice of rule-breaking by the campaign or a general pattern
9 See State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465
(1999).

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of improper notarization within the campaign that was not tied
to any specific notary. The court stated that it would consider
all the evidence when deciding whether each challenged peti-
tion page was improperly notarized, but that it was helpful to
first summarize the evidence regarding general practices.
The 	court 	first 	considered 	evidence 	of 	text 	messages
between Eggers and other individuals working on the cam-
paign that Kuehn and the Secretary pointed to as evidence
of “a general culture of lawlessness within the campaign.”
The court focused on exchanges in which Eggers said things
such as, “There is no more nice campaign. We don’t follow
the rules anymore,” and “There are no rules,” and in which
she advised others to “push the limits.” The court found that
while these messages contained some discussion of rule-
breaking, when read in context, the messages had “little
bearing on notarization,” and were, instead, a discussion of
“venue rules.” The court found that use of the word “rules”
was not a reference to Nebraska election laws. Further, the
court found that there was “direct evidence that Eggers and
Connely told campaign members to follow Nebraska’s elec-
tion laws.” (Emphasis omitted.) The court concluded that it
did not find that “Eggers generally told campaign members
to break Nebraska’s election laws” and that, instead, it found
that “Eggers (through Connely) told campaign members to
follow the law.” The court noted, however, that it would find
below that “Eggers and other members of the campaign did
not always do so.”
Regarding 	a 	general 	practice 	of 	improper 	notarization,
the district court found that there were communications that
“strongly suggest that some petition pages were notarized out-
side of the circulator’s presence.” The court stated that in its
findings regarding specific pages and notaries, it would find
that “this happened on several occasions.” But the court found
that other evidence showed that “the campaign generally nota-
rized petitions in the circulator’s presence” and that “petitions
were regularly signed by circulators in a notary’s presence.”

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(iii) Findings Regarding Specific Notaries
The district court proceeded to consider evidence regard-
ing specific instances of impropriety by specific notaries. The
court set forth its findings regarding alleged improper notari-
zation by eight individuals: Eggers, Connely, Todd, Coryell,
Lawlor, Marcie Reed, Patricia Petersen, and Bowling-Martin.
The court’s findings regarding each person were as follows.
a. Crista Eggers
The district court found that Eggers notarized four of
Egbert’s petitions outside his presence, but the court stated that
those petitions had already been excluded based on Egbert’s
fraud and would not be included in the court’s count for
Eggers. The court also found that Eggers had notarized a
petition that was not signed by the circulator, but because the
Secretary had excluded the sole signature on that page from
his certified count, the signature was not included in its count.
The court then found that Eggers had notarized several peti-
tions circulated by Henning outside of Henning’s presence,
and the court determined that the signatures on those pages
should lose their presumption of validity. The court reviewed
evidence of the circumstances surrounding Eggers’ improper
notarization of Henning’s petitions and stated that although
it did not excuse or justify Eggers’ improper notarization of
the petitions, when understood in context, the evidence did
not reflect Eggers’ normal practice. The court stated that other
evidence urged by the Secretary did not support a finding that
“Eggers notarized great (but unknown) quantities of petitions”
outside the presence of the circulators. The court found that
27 signatures on the Legalization Petition and 26 signatures
on the Regulatory Petition had lost their presumption of valid-
ity based on Eggers’ improper notarization of several petition
pages. But the court stated that, after reviewing the evidence,
both direct and circumstantial, it found that Kuehn and the
Secretary had “not shown by a preponderance of the evidence

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that any other petitions have lost their presumption of validity
because Eggers improperly notarized them.”
b. Garrett Connely
The district court stated that in his deposition, Connely
admitted that he had notarized several of Henning’s petitions
outside of her presence. The court found that the evidence
suggested that when he had improperly notarized Henning’s
petitions, “Connely, like Eggers, made an exception to accom-
modate Henning’s inability to meet [a] deadline” but that there
was “no credible evidence that Connely did the same for any
other circulator.”
The district court also addressed the Secretary’s challenge
to “about a dozen petitions that Connely circulated because
he initially applied his own notarial stamp to those petitions.”
The court noted that Connely’s stamp was crossed out and
that the petitions were notarized by another notary. The court
further noted that the Secretary challenged several petitions
that Lawlor circulated and initially applied her own notarial
stamp; Lawlor’s stamp was crossed out and Connely nota-
rized the petitions. The court determined it was possible that
“a dual circulator and notary like Connely could accidentally
stamp, or even stamp and sign, one of their own petitions
and then quickly correct their error with another notary who
was present.” Citing the burden of proof on Kuehn and the
Secretary, the court found that “a crossed-out notary stamp
does not show that a petition was, more likely than not, nota-
rized outside of the circulator’s presence.”
In addition to the Henning petitions that Connely notarized
outside her presence, the district court found a few additional
petition pages connected to Connely that either were not signed
by the circulator or were not signed by the notary. The court
found that 145 signatures on the Legalization Petition and 147
signatures on the Regulatory Petition had lost their presumption
of validity based on Connely’s improper notarization of several
petition pages. But the court stated that, after reviewing the

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evidence, both direct and circumstantial, it found that Kuehn
and the Secretary had “not shown by a preponderance of the
evidence that any other petitions have lost their presumption of
validity because Connely improperly notarized them.”
c. Jacy Todd
The district court reviewed Todd’s testimony, including his
testimony that Egbert had always signed in his presence when
Todd notarized Egbert’s petitions. The court stated that Egbert
testified that he never signed his petitions in Todd’s presence.
The court found Todd to be the more credible witness, but the
court also noted that Egbert’s petitions had already lost their
presumption of validity based on Egbert’s circulator fraud.
Apart from the Egbert petitions, the court found that two
other petitions were improperly notarized by Todd because one
was not signed by the circulator and one was not signed by the
notary. The court found that 14 signatures on the Legalization
Petition and 1 signature on the Regulatory Petition had lost
their presumption of validity based on Todd’s improper nota-
rization of the two petitions. But the court stated that, after
reviewing the evidence, both direct and circumstantial, it
found that Kuehn and the Secretary had “not shown by a
preponderance of the evidence that any other petitions have
lost their presumption of validity because Todd improperly
notarized them.”
d. Shannon Coryell
The district court stated that the Secretary challenged sev-
eral petitions notarized by Coryell that had initially been
stamped or stamped and signed by the circulator. These were
like the petitions described above in connection with Connely,
where the initial stamp or stamp and signature were crossed
out and a different person notarized the circulator’s petition,
and at least one of the petitions was circulated and initially
self-notarized by Lawlor. The Secretary also challenged “sev-
eral petitions that Coryell self-notarized but were then re-
notarized by others.” Like its analysis regarding Connely,

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the court determined that these actions did not show that the
petitions were notarized outside of the circulator’s presence.
The court stated that, after reviewing the evidence, both direct
and circumstantial, it found that Kuehn and the Secretary had
“not shown by a preponderance of the evidence that any peti-
tions have lost their presumption of validity because Coryell
improperly notarized them.”
e. Shari Lawlor
The district court noted that it had already considered
most of the petitions related to Lawlor in connection with its
analysis of initial self-notarization and renotarization related
to Connely and Coryell. But the court found that one peti-
tion was both circulated and notarized by Lawlor. The court
found that 11 signatures on the Legalization Petition had lost
their presumption of validity based on Lawlor’s improper
notarization of the petition. But the court stated that, after
reviewing the evidence, both direct and circumstantial, it
found that Kuehn and the Secretary had “not shown by a
preponderance of the evidence that any other petitions have
lost their presumption of validity because Lawlor improperly
notarized them.”
f. Marcie Reed
The district court considered evidence related to Reed and
rejected allegations that Reed notarized several pages out-
side the circulator’s presence, but it found that three peti-
tion pages were improperly notarized because they were not
stamped by the notary. The court found that 10 signatures on
the Regulatory Petition had lost their presumption of validity
based on Reed’s improper notarization of the petitions. But
the court stated that, after reviewing the evidence, both direct
and circumstantial, it found that Kuehn and the Secretary had
“not shown by a preponderance of the evidence that any other
petitions have lost their presumption of validity because Reed
improperly notarized them.”

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g. Patricia Petersen
The district court found that like some of the notaries dis-
cussed above, Petersen had renotarized some petitions that
were originally notarized by the circulator. But the court
found that changes made to the affidavits on these petitions
indicated that the circulator was not present when Petersen
renotarized the petitions. The court found that 23 signatures on
the Legalization Petition and 67 signatures on the Regulatory
Petition 	had 	lost 	their 	presumption 	of 	validity 	based 	on
Petersen’s improper notarization of several petition pages. But
the court stated that after reviewing the evidence, both direct
and circumstantial, it found that Kuehn and the Secretary
had “not shown by a preponderance of the evidence that any
other petitions have lost their presumption of validity because
Petersen improperly notarized them.”
h. Kimberly Bowling-Martin
The district court found that Bowling-Martin notarized two
petitions that had not been signed by a circulator and that other
petitions were missing a notary stamp. The court found that
1 signature on the Legalization Petition and 34 signatures on
the Regulatory Petition had lost their presumption of validity
based on Bowling-Martin’s improper notarization of petition
pages. But the court stated that, after reviewing the evidence,
both direct and circumstantial, it found that Kuehn and the
Secretary had “not shown by a preponderance of the evidence
that any other petitions have lost their presumption of validity
because Bowling-Martin improperly notarized them.”
i. Robin Vodehnal
The district court also discussed its findings regarding
Vodehnal, a circulator who was alleged to have circulated peti-
tions after they were notarized. The court found that on two
petitions circulated by Vodehnal, the signatures of voters were
dated after the date of the notary’s certificate. The court found
that three signatures on petitions circulated by Vodehnal for

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the Legalization Petition were irregular on their face and lost
the presumption of validity.
(e) Widespread, Coordinated Fraud
The district court discussed and rejected the Secretary’s
argument that “both initiatives should be thrown out” because
even if they had sufficient valid signatures, the initiatives
were “tainted by ‘[w]idespread, coordinated fraud.’” The court
refused to reach such a conclusion, reasoning that (1) the
Secretary had not pled this claim, (2) the Nebraska Constitution
does not allow a court to declare that initiatives are invalid
whether or not they have sufficient valid signatures and does
not “contemplate courts throwing out petitions because of
wrongdoing in the signature-gathering process for reasons
other than a numerical insufficiency of valid signatures,” and
(3) there was not sufficient evidence to conclude that there was
pervasive circulator fraud or a pervasive practice of notarizing
petitions outside of the circulators’ presence.
(f) Conclusion
Based on its findings regarding both circulator fraud and
improper notarizations, the court held that 711 signatures on
the Legalization Petition had lost their presumption of valid-
ity 10 and that 826 signatures on the Regulatory Petition had
lost their presumption of validity. 11 The court stated that the
challengers needed to disqualify at least 3,464 signatures on
the Legalization Petition and at least 3,358 signatures on the
Regulatory Petition for the court to conclude that the petitions
10 The 711 signatures on the Legalization Petition included those that
lost their presumption of validity because of circulator fraud by Egbert
(487), Vodehnal’s circulating petitions after they were notarized (3), and
improper notarizations by Eggers (27), Connely (145), Todd (14), Lawlor
(11), Petersen (23), and Bowling-Martin (1).
11 The 826 signatures on the Regulatory Petition included those that lost
their presumption of validity because of circulator fraud by Egbert (541)
and improper notarizations by Eggers (26), Connely (147), Todd (1), Reed
(10), Petersen (67), and Bowling-Martin (34).

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lacked sufficient valid signatures to have been placed on the
ballot. Based on the number of signatures that it found had lost
their presumption of validity, the court stated that Kuehn and
the Secretary had “fallen short in this lawsuit.”
The 	district 	court 	stated 	that 	because 	Kuehn 	and 	the
Secretary were “well short” of “rebut[ing] the presumption of
validity for a material number of signatures, a second phase
of trial is not necessary.” The court therefore declared that
the Legalization Petition contained 89,251 valid and legal
signatures, that the Regulatory Petition contained 89,030 valid
and legal signatures, and that the petitions fulfilled all consti-
tutional and statutory requirements and were legally sufficient
under Nebraska law. The court dismissed Kuehn’s complaint
and the Secretary’s cross-claim.
After the district court entered its order, both Kuehn and the
Secretary filed motions to amend their pleadings to conform to
the evidence under Neb. Ct. R. Pldg. § 6-1115(b) (codified in
2008). The court overruled both motions.
Kuehn appeals and the Secretary cross-appeals the district
court’s order.
III. ASSIGNMENTS OF ERROR
Kuehn assigns, consolidated and restated, that the district
court erred in determining as a general matter that (1) proven
malfeasance by a notary may not be imputed to that notary’s
other acts and (2) an adverse inference cannot be drawn from
an individual’s invocation of the Fifth Amendment in a civil
matter. Kuehn then assigns that the district court erred in the
following with respect to specific individuals: (1) failing to
impute proven malfeasance to other material acts of (a) Eggers
(as notary), (b) Connely (as notary), (c) Lawlor (as notary and
as circulator), and (d) Vodehnal (as circulator); and (2) fail-
ing to find malfeasance and therefore retaining a presumption
of validity of other material acts by (a) Todd (as notary) and
(b) Coryell (as notary and as circulator). Regarding Eggers,
Connely, and Lawlor, Kuehn also argues that the court erred in

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failing to draw adverse inferences from their invocation of the
Fifth Amendment. Kuehn further assigns that the district court
erred in (1) determining that the petitions had sufficient valid
signatures to satisfy the 7-percent constitutional requirement to
be placed on the ballot and (2) overruling his motion to amend
his complaint to conform to the evidence.
In his cross-appeal, the Secretary assigns, consolidated and
restated, that the district court erred in (1) failing to find that
Barkley v. Pool applies generally to notaries and specifically to
four notaries in this case—Eggers, Connely, Bowling-Martin,
and Petersen, and (2) failing to find a general practice of rule-
breaking by notaries in the petition campaigns.
IV. STANDARD OF REVIEW
[1] When a declaratory judgment action presents a question
of law, an appellate court has an obligation to reach its conclu-
sion independently of the conclusion reached by the trial court
with regard to that question. 12
[2-4] An action for declaratory judgment is sui generis;
whether such action is to be treated as one at law or one
in equity is to be determined by the nature of the dispute. 13
In an appeal of an equity action, an appellate court tries fac-
tual questions de novo on the record and reaches a conclu-
sion independent of the findings of the trial court; provided,
where the credible evidence is in conflict on a material issue
of fact, the appellate court considers and may give weight to
the fact that the trial judge heard and observed the witnesses
and accepted one version of the facts rather than another. 14 In
a bench trial of a law action, the trial court’s factual findings
have the effect of a jury verdict, which an appellate court will
not disturb on appeal unless clearly wrong. 15
12 N’Da v. Golden, 318 Neb. 680, 18 N.W.3d 570 (2025).
13 PSK v. Legacy Outdoor Advertising, 318 Neb. 1, 13 N.W.3d 81 (2024).
14 Id.
15 Id.

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The parties disagree on the standard of review that we
should apply when reviewing the district court’s factual find-
ings in this case. Their disagreement turns on whether this
declaratory judgment action is an action at law or in equity.
In the district court, the Sponsors argued that as a ballot chal-
lenge, this was an action in equity that required proof by clear
and convincing evidence. The Secretary argued that because
he sought a declaratory judgment, the appropriate standard of
proof was a preponderance of the evidence. In its order, the
district court agreed that the Secretary’s cross-claim was an
action at law, but the court did not explicitly determine the
nature of Kuehn’s claims. When finding that the Secretary had
not shown fraud by circulators other than Egbert, the court
stated that it made the finding “whether the burden of proof is
by a preponderance of the evidence or by clear and convinc-
ing evidence.” But when considering claims of improper nota-
rization, the court determined that Kuehn and the Secretary
were required to show improper notarization by a preponder-
ance of the evidence.
The 	Sponsors 	argue 	on 	appeal 	that 	because 	no 	party
assigned error to the district court’s determination that this
is an action at law, we should treat the district court’s fac-
tual findings as having been made in a bench trial of a law
action and should not disturb those findings unless clearly
wrong. Kuehn contends that this is an action in equity and
that questions of fact should be reviewed de novo. He asserts
that because the district court decided only the nature of the
Secretary’s claim, and not his claim, he had no determination
to appeal and is not estopped from arguing on appeal that this
is an action in equity.
We conclude that it is not necessary for us to determine
whether claims for declaratory relief in this case are equi-
table and subject to a de novo standard of review or legal and
properly reviewed for clear error. 16 The determinative issues
16 See, similarly, Malousek v. Meyer, 309 Neb. 803, 962 N.W.2d 676 (2021).

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in this appeal involve questions of law that we review inde-
pendently whether the claims are equitable or legal. To the
extent the district court’s findings of facts are at issue, for
the reasons set forth in our analysis, we see no error in the
district court’s ultimate findings and determinations regarding
the claims in this case whether our review of fact findings is
de novo or for clear error.
[5] Permission to amend a pleading is addressed to the dis-
cretion of the trial court, and an appellate court will not disturb
the trial court’s decision absent an abuse of discretion. 17
V. ANALYSIS
Before we consider other issues in this appeal, we note that
on February 25, 2026, after this appeal was argued to this
court, Kuehn filed a “Request for Judicial Notice” in which
he requested that we take judicial notice of court proceedings
that occurred in February 2026 in a case involving one of the
campaign workers. Although there was testimony in the district
court that the case had been filed, evidence of proceedings that
occurred in 2026 was obviously not presented to or considered
by the district court, which entered its order in November
2024. Therefore, Kuehn’s request for judicial notice is an
improper attempt to expand the appellate record.
[6] Generally, it is not the function of an appellate court
to review evidence that was not presented to the trial court. 18
A bill of exceptions is the only vehicle for bringing evidence
before an appellate court; evidence which is not made a part of
the bill of exceptions may not be considered. 19
We conclude that the court records attached to Kuehn’s
motion may not properly be judicially noticed, and we reject
his attempt to expand the appellate record with evidence not
17 United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196
(2015).
18 Timothy L. Ashford, PC LLO v. Roses, 313 Neb. 302, 984 N.W.2d 596
(2023).
19 Id.

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considered by the trial court. We therefore deny Kuehn’s
request for judicial notice and strike the attachments thereto.
1. Mootness and Standing
The Sponsors assert that we lack jurisdiction over the
Secretary’s cross-appeal because the Secretary lacked standing
to bring his cross-claim. They assert that the Secretary cannot
seek declaratory relief under the UDJA because he does not
have a legally protectible interest or right in the controversy
regarding the legal sufficiency of the petition. They assert
that Nebraska’s election statutes governing the initiative and
referendum process provide the remedy for challenging the
legal sufficiency of petitions, and they cite § 32-1412(2),
which provides that a “resident” can challenge whether an
initiative or referendum petition is legally sufficient by filing a
suit against the Secretary seeking to enjoin the Secretary from
certifying the petition or placing the measure on the ballot.
The Sponsors argue that the Secretary cannot use the UDJA
to create a separate remedy when he lacks a cause of action
under the statute that provides the exclusive statutory remedy.
The Sponsors also contend that the Secretary’s cross-claim was
not justiciable because he failed to join indispensable parties,
namely the “tens of thousands of Nebraska voters whose valid
signatures” would be invalidated based on his challenge. 20
The Sponsors cite § 25-21,159 of the UDJA, which provides:
“When declaratory relief is sought, all persons shall be made
parties who have or claim any interest which would be affected
by the declaration . . . .”
In reply, the Secretary argues that because Kuehn has stand-
ing to bring this action under the “one-plaintiff rule,” 21 we
need not determine whether he has standing because he and
Kuehn both seek the same relief. The Secretary also argues
he has standing in his own right under the UDJA, specifically
20 Brief for appellees the Sponsors at 37-38.
21 Brief for appellee the Secretary on cross-appeal at 10.

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§ 25-21,150, which provides: “Any person . . . affected by a
statute . . . may have determined any question of construction
or validity arising under the . . . statute . . . and obtain a dec-
laration of rights, status or other legal relations thereunder.”
The Secretary asserts that he is uniquely affected by Nebraska
election laws, specifically Neb. Rev. Stat. § 32-1409(1) (Cum.
Supp. 2024), which require him to “determine the validity and
sufficiency of signatures on the pages of [a] filed petition,”
and he argues that under § 25-21,150, he can ask the courts
to determine questions, including “whether signatures certi-
fied by impeached notaries are ‘valid[] and sufficien[t].’” 22
The Secretary also argues that he was not required to join
as indispensable parties every voter who signed the petitions
because the Sponsors are able to represent the interest of the
voters in this action, and we have said that “it is possible to
represent the interests of an indispensable party in a repre-
sentative fashion.” 23
The Sponsors further argue that any justiciable right or
interest the Secretary may have had under the UDJA is now
moot because the purpose of the declaratory relief sought in
this action “was to undo what has already been done,” namely,
the Secretary’s own certification of the petitions and placing
the measures on the ballot. 24 The Sponsors argue that without
some limiting principle, “the Secretary could challenge bal-
lot measures in perpetuity based on purported uncertainties
regarding signature validity.” 25 The Secretary argues that his
claim under the UDJA, like Kuehn’s claim for declaratory
relief, did not become moot after the election.
In its order, the district court addressed whether the requests
for relief in this action became moot after the election.
22 Reply brief for appellee the Secretary on cross-appeal at 12.
23 SID No. 2 of Knox Cty. v. Fischer, 308 Neb. 791, 799-800, 957 N.W.2d
154, 160 (2021).
24 Brief for appellees the Sponsors at 37.
25 Id.

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Relying on Duggan v. Beermann, 26 the court determined that
although any requests for injunctive relief were moot after the
election, declaratory relief could still be granted.
The Sponsors’ arguments in this regard raise concerns
regarding both the Secretary’s standing and the mootness of
the relief sought by both parties. But under the circumstances
of this case, we do not find it necessary to determine these mat-
ters to resolve this appeal. Because Kuehn and the Secretary
seek the same relief, we review the district court’s resolution of
Kuehn’s request for declaratory relief irrespective of whether
the Secretary has standing. Furthermore, because the district
court determined that Kuehn and the Secretary could not suc-
ceed on the merits of their claims, and because we find no error
in that determination, we would affirm the court’s dismissal of
Kuehn’s and the Secretary’s claims regardless of whether the
Secretary had standing and whether the requests for declaratory
relief were moot.
2. Legal Sufficiency of Petitions
Both Kuehn and the Secretary challenged the legal suf-
ficiency of the petitions on the basis that if all signatures
that should lose the presumption of validity because of the
actions or failures of circulators and notaries were excluded,
neither the Legalization Petition nor the Regulatory Petition
had sufficient valid signatures to be certified and placed on
the ballot.
The assignments of error present two general legal argu-
ments regarding the district court’s analysis of the legal suf-
ficiency of the petitions: (1) whether the reasoning in Barkley
v. Pool applies to improper notarizations and (2) whether an
adverse inference may or should be drawn against a witness
who invokes the Fifth Amendment privilege against self-
incrimination in a civil case. In addition, Kuehn and the
Secretary each assign error to the court’s findings regarding
specific campaign workers. The Secretary also assigns that the
26 Duggan v. Beermann, supra note 4.

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court erred in failing to find a general practice of rule-breaking
by notaries in the petition campaign, and Kuehn also assigns
that the court erred in determining that the petitions met con-
stitutional requirements for sufficient valid signatures.
We first address the legal issues regarding the application of
Barkley v. Pool and the Fifth Amendment. We then address the
district court’s findings regarding specific campaign workers, a
general practice of rule-breaking, and whether the petitions had
sufficient valid signatures to meet constitutional requirements.
(a) Application of Barkley v. Pool
Kuehn and the Secretary urged the district court to extend
the reasoning in Barkley v. Pool to the acts of notaries so
that when one or more petition pages are shown to have been
improperly notarized by a particular notary, the signatures on
all other petition pages notarized by that notary should lose
the presumption of validity. The district court rejected these
arguments and determined that it would not “impute” improper
notarizations. We agree that Barkley v. Pool did not require
the district court to reach the determinations Kuehn and the
Secretary urged, and we conclude that the district court did not
err when it determined that it was not appropriate to invalidate
signatures on all pages notarized by an individual based on that
individual’s improper notarization of one or more pages.
The parties suggest various interpretations regarding what
Barkley v. Pool requires and how it applies to challenges to the
legal sufficiency of petitions, like the challenge in this case. As
such, we look more closely at the court’s holding in that case.
The plaintiffs in Barkley v. Pool filed an action under a
predecessor statute to § 32-1412, 27 which this court described
as “expressly provid[ing] that injunction will lie to prevent
the secretary of state from submitting a referendum petition
that is legally insufficient.” 28 The plaintiffs sought to enjoin
27 Rev. Stat. § 2339 (1913).
28 Barkley v. Pool, supra note 1, 103 Neb. at 631, 173 N.W. at 601.

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the Secretary of State from submitting to the voters a refer-
endum petition on an act passed by the Legislature, and this
court noted that the “plaintiffs proved that the names of many
persons were fraudulently written [on the petitions] by three
of the circulators.” 29 Based on this proven fraud, the district
court found that all certificates of the three circulators, even
“where the particular certificate has not been proven false or
fraudulent by direct attack upon the signatures covered by the
certificates,” lacked evidentiary value and that supporters of
the referendum had the burden “to furnish testimonial proof
of the genuineness of the signatures and the truthfulness of
these certificates.” 30
On appeal, supporters of the referendum argued that all
“signatures must be presumed genuine and counted, except in
such cases where the plaintiffs have affirmatively shown that
the particular signature is false or fraudulent.” 31 This court
rejected that argument and determined that “[i]n view of the
proof of fraud, of forgery, and of perjury that was perpetrated
by [the three] circulators[,] . . . [t]he trial court did not err in
finding from the evidence that all certificates of the three cir-
culators were impeached and unworthy of credence” and that
the trial court did not err “in refusing, in the absence of proof
of the genuineness of any of the purported signatures appear-
ing on such petitions, to count any names thereon for the
referendum.” 32 This court reasoned that “when the testimony
of a witness on a material point is impeached, all of his testi-
mony may be rejected unless corroborated,” and that although
“the discredited petitions may have contained the genuine sig-
natures of some persons[,] . . . error cannot be predicated on
their rejection, because the burden of proof was on the [sup-
porters of the referendum] to establish that fact . . . when the
29 Id. at 632-33, 173 N.W. at 601.
30 Id. at 634, 173 N.W. at 602.
31 Id. at 635, 173 N.W. at 602.
32 Id.

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probative value of the certificates of the three circulators was
destroyed.” 33 This court quoted with approval the following
portion of an Oregon Supreme Court decision:
“As the circulator of a petition is the agent of the signer,
and his oath is the only evidence of the genuineness of
the signature, it follows as a matter of course that, where
he is shown to have acted fraudulently, the value of his
verification is destroyed, and the petition must fall, unless
the genuine signatures are affirmatively shown. But, in
the absence of evidence of intentional fraud or guilty
knowledge on the part of the circulator, it would be an
unjust rule to deprive the honest signer of his right to
have his signature counted merely because some disquali-
fied person signed, or because some person, without the
knowledge of the circulator, affixed a fictitious name, or
gave a fictitious address.” 34
Kuehn and the Secretary argue that a circulator’s notarized
affidavit is evidence of the matters asserted in the affidavit
and the value of the affidavit because evidence depends on
the honesty and credibility of the notary as much as that of
the circulators at issue in Barkley v. Pool. Therefore, proven
“malfeasance” by a notary with respect to one or more petition
pages impeaches the credibility of the notary as to every peti-
tion page and requires that signatures on all pages notarized by
that notary should lose the presumption of validity.
In response, the Sponsors cite legal propositions that “the
right of initiative is precious to the people and one which
the courts are zealous to preserve to the fullest tenable measure
of spirit as well as letter” and that “[t]he power of initiative
must be liberally construed to promote the democratic process,
and provisions authorizing the initiative should be construed
in such a manner that the legislative power reserved in the
33 Id.
34 Id. at 635-36, 173 N.W. at 602 (quoting State ex rel. v. Olcott, 62 Or. 277,
125 P. 303 (1912)).

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people is effectual.” 35 They argue that extending Barkley v.
Pool in the manner urged would hinder the right of initia-
tive and that “there is no constitutional or statutory basis for
invalidating large swaths of signatures based on purported
notarial errors.” 36
The Sponsors distinguish the circulator fraud in Barkley
v. Pool from the improper notarizations in this case. The
Sponsors argue that the reasoning in Barkley v. Pool was that
“the circulator of a petition is the agent of the signer, and [the
circulator’s] oath is the only evidence of the genuineness of
the signature” and that “the value of [the circulator’s] verifi-
cation is destroyed” where there is “evidence of intentional
fraud or guilty knowledge on the part of the circulator.” 37
The Sponsors further argue that circulators directly interact
with the signers of the petition and therefore can provide
evidence of the genuineness of their signatures in a way that
other individuals, including notaries, cannot. The Sponsors
note that, in this case, the district court found no “‘inten-
tional fraud’” by any of the challenged notaries. 38 They argue
that circulator fraud calls into question whether the petitions
contain sufficient valid signatures of registered voters and is
therefore fundamentally different from improper notarization
that does not directly call the genuineness of such signatures
into question.
The Sponsors also note the district court’s observation that
much has changed since Barkley v. Pool was decided in 1919,
including that “technology has made it easier for county elec-
tion officials to compare a signature on a petition to an indi-
vidual’s voter registration record.” They argue that it is no
35 State ex rel. Brooks v. Evnen, 317 Neb. 581, 594, 10 N.W.3d 887, 897
(2024).
36 Brief for appellees the Sponsors at 40.
37 Barkley v. Pool, supra note 1, 103 Neb. at 635, 636, 173 N.W. at 602
(quoting State ex rel. v. Olcott, supra note 34).
38 Brief for appellees the Sponsors at 32.

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longer true that the circulator’s oath is the only evidence of
the genuineness of signatures, as this court stated in Barkley v.
Pool, because today county election officials verify signatures
prior to the Secretary’s certification of a petition. They con-
tend that verification of signatures on the petitions in this case
“was already accomplished before the Secretary certified the
measures for the ballot.” 39
The district court applied Barkley v. Pool in this case to the
extent it determined that the signatures on all petitions circu-
lated by Egbert lost the presumption of validity because Egbert
committed circulator fraud with respect to signatures on some
petitions he had circulated and certified. No party assigns error
to that portion of the district court’s order, and we have no rea-
son to consider whether Barkley v. Pool is still good law with
respect to proven circulator fraud. Instead, the issue before
us on appeal is whether the district court erred as a matter of
law when it did not apply Barkley v. Pool to determine that
all signatures on petition pages notarized by a notary lose the
presumption of validity when it has been shown that the notary
improperly notarized one or more petition pages. We conclude
that the district court did not err in this respect.
Pursuant to § 32-1409, after receiving initiative petitions,
“the Secretary of State, with the aid and assistance of the elec-
tion commissioner or county clerk, shall determine the validity
and sufficiency of signatures on the pages of the filed peti-
tion,” and thereafter, the “Secretary of State shall total the
valid signatures and determine if constitutional and statutory
requirements have been met.” As part of this process, “[a]ll
signatures secured in a manner contrary to [statutes governing
initiative petitions] shall not be counted,” but “[c]lerical and
technical errors in a petition shall be disregarded if the forms
prescribed . . . are substantially followed.” 40 The focus of the
39 Id. at 50.
40 § 32-1409.

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Secretary of State’s legal sufficiency review under § 32-1409
is determining the validity of signatures of registered voters
and whether the petitions contain the constitutionally required
number of valid signatures. Kuehn’s and the Secretary’s claims
in this action challenge the determination that the Legalization
Petition and the Regulatory Petition had the required number
of valid signatures.
Circulators and notaries have different roles in the petition
campaign, and the notary, unlike the circulator, is not actively
involved in the gathering of signatures and does not see the
registered voters who sign the petitions. Under Neb. Rev. Stat.
§ 32-1401 (Reissue 2016), initiative petitions must comply
with the requirements of § 32-628, and § 32-628(3) requires
an affidavit signed by the circulator on “[e]very sheet of a peti-
tion which contains signatures” in which the circulator swears,
among other things, that “each person whose name appears
on the petition personally signed the petition in the presence
of the affiant[,] . . . that the affiant believes that each signer
has written his or her name [and other information] correctly,”
and that “the affiant believes that each signer was qualified to
sign the petition.” The form provided in § 32-628(3) requires
that the circulator affidavit be subscribed and sworn to before
a notary. We have stated in another context that an affidavit
includes a “declaration or statement of facts . . . confirmed
by the oath or affirmation of the party making it,” 41 but we
further stated:
An affidavit does not, however, require a notary to con-
firm the truth of the facts stated in the affidavit; rather,
the certificate, also known as a jurat, confirms only that
the affiant appeared before the notary, attested to the truth
of his or her statements, and signed the affidavit. 42
41 Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 691, 747
N.W.2d 924, 927 (2008).
42 Id.

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In the context of initiative petitions, the notary, unlike the cir-
culator, is not required to, and generally cannot, attest to the
validity of the signatures of registered voters on petitions.
Barkley v. Pool involved proven circulator fraud, and it was
shown that circulators had fraudulently written names on the
petition. Because the circulators’ certificates as to those sig-
natures were proved false, all the circulators’ certificates lost
evidentiary value regarding the genuineness of the signatures.
But because of the different roles of circulators and notaries,
improper notarization of one or more petition pages does
not have the same bearing on the genuineness of signatures
of registered voters as circulator fraud does. While proven
circulator fraud may be a proper reason for all signatures col-
lected by a circulator to lose a presumption of validity under
Barkley v. Pool, it does not necessarily follow that Barkley v.
Pool requires that signatures on all petition pages notarized by
a notary must lose their presumption of validity because the
notary improperly notarized one or more petition pages.
We have previously determined that the reasoning of Barkley
v. Pool did not apply in another circumstance that did not
involve circulator fraud. In State ex rel. Morris v. Marsh, 43
the Secretary of State had rejected all petitions circulated by
one individual because that individual had signed two similar
petition forms circulated by others, signing one as a resident
of Grand Island, Nebraska, and one as a resident of Omaha,
Nebraska. A dissenting judge cited Barkley v. Pool and stated
that he would “refuse to count the . . . names secured by [that
individual] unless and until they were affirmatively proved
to be genuine.” 44 But the majority rejected the Secretary of
State’s argument that because the individual had violated the
law as a signer of the two other petitions, his sworn state-
ment as a circulator should be regarded as false. The majority
stated that “[c]ases indicating that where there has been proven
43 State ex rel. Morris v. Marsh, 183 Neb. 521, 162 N.W.2d 262 (1968).
44 Id. at 541, 162 N.W.2d at 274 (Spencer, J., dissenting).

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fraud in the obtaining of one or more petitions by a circulator,
all petitions obtained by him should be disqualified are not
applicable,” 45 and the majority instead stated:
Where there is no evidence of fraud or irregularity on
the part of the circulator in his circulation of the initiative
petitions, evidence that he, as an individual, signed two
other petition forms for the same measure does not
destroy the presumption of validity of his affidavit as a
circulator nor justify the disqualification of concededly
valid signatures obtained by him as circulator. 46
Although the majority did not explicitly cite Barkley v. Pool,
we read the majority in State ex rel. Morris v. Marsh as limit-
ing the reasoning in Barkley v. Pool to proven fraud by a cir-
culator as a circulator.
Courts in other states have declined to invalidate signa-
tures included on all pages notarized by a notary who had
improperly notarized other petitions. In Hendrix v. Jaeger, 47
the “[North Dakota] Secretary of State invalidated every elec-
tor signature appearing on petitions gathered by circulators
whose affidavits were notarized by” a specific notary after
the Secretary of State determined that certain petitions “had
not been signed in the presence of [the specific notary] when
he notarized them.” The Supreme Court of North Dakota
concluded that “the Secretary of State misapplied the law by
imputing fraud from several inconsistent signatures of circula-
tors on several affidavits sworn to before [the specific notary]
and, as a result, disqualify[ied] all . . . signatures on . . . peti-
tions notarized by” the specific notary. 48 The court reasoned
that “[a]lthough fraud in one transaction is certainly relevant
to a notary’s credibility as to another transaction, it is not by
45 Id. at 529, 162 N.W.2d at 268.
46 Id. at 530, 162 N.W.2d at 268.
47 Hendrix v. Jaeger, 979 N.W.2d 918, 920 (2022).
48 Id. at 927.

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itself sufficient to invalidate other acts by the same notary.” 49
After reviewing cases from other states, the North Dakota high
court stated that it found the cases “persuasive in rejecting
wholesale invalidation of signatures for irregularities by the
notary.” 50 The court in Hendrix v. Jaeger determined that when
excluding the “signatures directly connected to the signature
inconsistencies found by the Secretary of State,” the remaining
signatures on all other petitions notarized by the notary were
sufficient “when added to other signatures found valid by the
Secretary of State to qualify the measure for the ballot.” 51
In United Labor Committee of Mo. v. Kirkpatrick, 52 one
of the cases cited in Hendrix v. Jaeger, the Supreme Court of
Missouri stated that although it did not condone the improper
signing of affidavits by a notary public, the fact that a
small number of people abused the statutory process
provided for the people to exercise their constitutionally
reserved right of initiative by presenting the secretary
of state with certain improperly notarized petitions . . .
should not operate to deny the larger body of honest per-
sons who have done all they can do to place this measure
on the . . . ballot the opportunity for its submission to the
entire electorate.
We find the reasoning in Hendrix v. Jaeger and United
Labor Committee of Mo. v. Kirkpatrick, and the cases they
relied upon, to be persuasive when considering our holding in
Barkley v. Pool.
In Barkley v. Pool, this court held that it was not error
when the trial court determined that all signatures on peti-
tions circulated by the circulators who committed fraud lost
the presumption of validity. But this court did not mandate a
49 Id. at 925.
50 Id. at 927.
51 Id.
52 United Labor Committee of Mo. v. Kirkpatrick, 572 S.W.2d 449, 457 (Mo.
1978).

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broad rule of invalidation of signatures based on wrongdoing
related to one or more petition pages. The district court in this
case applied Barkley v. Pool in connection with the proven
circulator fraud by Egbert. But the district court chose not to
apply the rules of Barkley v. Pool to improper notarizations,
and it instead determined that only the signatures on the spe-
cific petition pages shown to have been improperly notarized,
whether by direct or circumstantial evidence, would lose the
presumption of validity.
Having considered the differing roles of circulators and
notaries and the comparative evidentiary value of a circulator’s
affidavit and a notarization, as well as the extent of the deci-
sion in Barkley v. Pool, we determine that the district court did
not err as a matter of law when it did not find that signatures
on all petition pages notarized by a notary lost the presump-
tion of validity based solely on improper notarization of one
or more petition pages. We reject Kuehn’s and the Secretary’s
assignment of error in this regard.
(b) Fifth Amendment
Several witnesses who worked on the petition campaign
invoked the Fifth Amendment either in pretrial depositions
or when called as witnesses at trial. Kuehn and the Secretary
urged the district court to draw adverse inferences from the
witnesses’ invocation of the Fifth Amendment. The trial court
declined to do so, reasoning that (1) § 27-513(1) prohibits
drawing any inference from a claim of the privilege against
self-incrimination under the Fifth Amendment and (2) even if
it had discretion to draw an adverse inference, it found that an
adverse inference was not appropriate in this case.
Regarding the first reason, Kuehn assigns that the district
court erred in determining that an adverse inference cannot be
drawn from an individual’s invocation of the Fifth Amendment
in a civil matter. Kuehn argues that the court erred when it
held that § 27-513 prohibits an adverse inference under any
circumstances, and he asserts that in a civil case, under the

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appropriate circumstances, an inference may be drawn when a
party or a nonparty invokes the Fifth Amendment.
Kuehn’s and the Secretary’s arguments in support of other
assignments of error implicate the district court’s second rea-
son, that adverse inferences were not appropriate in this case
even if the court had discretion to draw adverse inferences.
They argue that the district court should have drawn nega-
tive inferences regarding specific notaries or to find a gen-
eral practice of rule-breaking by the campaign’s notaries. We
address the district court’s general determinations regarding
Fifth Amendment issues before we turn in the next sections to
considering Kuehn’s and the Secretary’s arguments regarding
specific findings.
The district court determined that § 27-513(1) prohibited it
from drawing any inference from any witness’ invocation of
the Fifth Amendment. Kuehn notes that since the enactment
of § 27-513 in 1975, this court has recognized that “where a
defendant in a civil case refuses to testify on the ground that
the evidence may incriminate him or her, the trier of fact may
draw an adverse inference from the refusal.” 53 Recognizing that
these cases involved a party invoking the Fifth Amendment,
Kuehn cites federal cases to the effect that under certain cir-
cumstances, a fact finder may draw adverse inferences when
a nonparty witness invokes the Fifth Amendment in a civil
case. 54 The district court acknowledged the precedent from this
court but noted that none of the cases discussed § 27-513.
We need not decide in this case whether our precedent
regarding 	adverse 	inferences 	in 	civil 	cases 	is 	consistent
with § 27-513, or whether and how the holding in those
53 In re Estate of Jeffrey B., supra note 6, 268 Neb. at 773, 688 N.W.2d at
145 (citing Wilson v. Misko, supra note 6). Accord State ex rel. Schuler v.
Dunbar, supra note 6.
54 See, Academy Bank, N.A. v. AmGuard Ins. Co., 116 F.4th 768 (8th Cir.
2024); Cerro Gordo Charity v. Fireman’s Fund Am. Life Ins., 819 F.2d
1471 (8th Cir. 1987).

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cases extends to nonparty witnesses who invoke the Fifth
Amendment in a civil case. Even if the precedent applies to
the witnesses at issue in this case, the cases provide only that
a fact finder may, but is not required to, draw an inference.
The district court stated that even if § 27-513 did not prohibit
an inference and it had discretion to draw adverse inferences,
it would not be appropriate to draw adverse inferences from
the witnesses’ invocation of the Fifth Amendment in this case,
considering that criminal charges were being pursued and
individuals were being investigated related to their roles in the
petition campaign.
Assuming § 27-513(1) does not prohibit drawing an infer-
ence and our precedent regarding parties who invoke the
Fifth Amendment in civil cases applies to nonparty witnesses,
at most, the district court as fact finder had discretion to
draw an inference from the witnesses’ invocation of the Fifth
Amendment. It was not required to do so, and we determine
that the district court did not err as a matter of law when it
exercised its discretion and declined to draw adverse inferences
from the invocation of the Fifth Amendment by the witnesses
in this case.
(c) Specific Notaries and Circulators
Having considered the district court’s general determinations
regarding Barkley v. Pool and the Fifth Amendment, we turn to
Kuehn’s and the Secretary’s assignments of error regarding the
district court’s findings related to specific notaries and circula-
tors. Kuehn asserts that the district court should have invali-
dated all petition pages notarized or circulated by Eggers,
Connely, Todd, Lawlor, Coryell, and Vodehnal. The Secretary
asserts that the district court should have invalidated all peti-
tion pages notarized by Eggers, Connely, Bowling-Martin, and
Petersen. Much of both Kuehn’s and the Secretary’s arguments
regarding these specific notaries relate to Barkley v. Pool and
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The 	Secretary’s 	argument 	regarding 	Eggers, 	Connely,
Bowling-Martin, and Petersen is that the “district court incor-
rectly limited Barkley [v. Pool] to circulators” 55 and improp-
erly applied its discretion when determining whether improper
notarizations on more petition pages should be imputed to
other petition pages notarized by that notary. The Secretary
asserts that this was an “error of law.” 56 However, we con-
cluded above that it was not an error of law when the district
court chose not to apply the reasoning in Barkley v. Pool to
improper notarization and instead determined that only signa-
tures on pages shown by direct or circumstantial evidence to
have been improperly notarized would lose a presumption of
validity. The Secretary’s arguments regarding specific notaries
do not persuade us that the district court’s determination was
improper whether as a general matter or with respect to any
specific individual.
Kuehn similarly argues that proven improper notarizations
by Eggers, Connely, Todd, Lawlor, and Coryell should have
resulted in signatures on all pages notarized by them losing
the presumption of validity. We reject these arguments for the
reasons we rejected similar arguments by the Secretary.
Kuehn characterizes the actions of Vodehnal, who cir-
culated 	petitions 	after 	they 	were 	notarized, 	as 	circulator
“malfeasance” 57 and argues that signatures on all petitions
circulated by Vodehnal should have lost the presumption of
validity. The district court treated Vodehnal’s actions in the
same manner it treated improper notarization and did not apply
the reasoning of Barkley v. Pool. We agree that the incident
involving Vodehnal was more akin to improper notarization
than circulator fraud, and we find no error in the district court’s
findings on claims regarding Vodehnal.
55 Brief for appellee the Secretary on cross-appeal at 27.
56 Id.
57 Brief for appellant at 44.

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Kuehn also argues with respect to Eggers, Lawlor, and
Coryell that their invocation of the Fifth Amendment supported
adverse inferences that should have resulted in signatures on
all pages circulated or notarized by them losing their presump-
tion of validity. We determined above that the district court did
not err as a matter of law when it exercised its discretion and
chose not to draw adverse inferences as a general matter, and
Kuehn’s arguments regarding specific witnesses do not con-
vince us that the district court erred when it declined to draw
adverse inferences to other acts of these persons as notaries or
as circulators.
To the extent Kuehn argues that the district court should
have found improper notarizations on specific petition pages
based on direct evidence, rather than imputing from other
pages or drawing negative inferences, we determine that the
number of signatures affected by these alleged instances of
improper notarizations were relatively small. Assuming the
signatures on specific pages urged by Kuehn should have lost
a presumption of validity, the exclusion of these signatures
would not change the numbers such that the petitions did not
contain sufficient signatures. The district court stated in its
order that it was possible that it “missed a few petitions that
should lose their presumption of validity.” But it further stated
that its “judgment does not turn on the inclusion or exclusion
of a few petitions” and that even if the signatures on all the
petition pages specifically challenged as evidencing improper
notarization lost the presumption of validity, Kuehn and the
Secretary would still fall short of showing that the petitions
were legally insufficient. The same reasoning applies to these
allegations on appeal. Having reviewed Kuehn’s arguments
regarding specific petition pages, we find that whether review-
ing for clear error or by de novo review, the district court did
not err in its findings related to specific pages to an extent that
would change the ultimate determination that Kuehn and the
Secretary had not shown that the petitions did not contain suf-
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(d) General Practice of Rule-breaking by Notaries
Finally, the Secretary assigns that the district court erred in
failing to find a general practice of rule-breaking by notaries
in the petition campaigns. The Secretary argues that if the
proven instances of improper notarization did not result in
enough signatures losing the presumption of validity, then the
court should have found a general practice of rule-breaking by
notaries in the campaign that would have shifted the burden to
the Sponsors to rehabilitate the signatures.
The Secretary’s argument in this regard focuses on three
campaign workers—Eggers, Connely, and Bowling-Martin—
who invoked the Fifth Amendment in depositions or at trial.
The Secretary argues that the district court should have drawn
adverse inferences from the invocation of the Fifth Amendment
by these campaign workers as evidence of a general practice
of rule-breaking by notaries on the campaign. The Secretary
contends that if the signatures on pages notarized by these
campaign workers lost their presumption of validity, the peti-
tions would not have enough valid signatures to be certified
and the burden would have shifted to the Sponsors to rehabili-
tate signatures.
Like our resolution of Kuehn’s argument that the district
court should have drawn adverse inference from campaign
workers’ invocation of the Fifth Amendment, we determine
that the district court did not err when it did not draw adverse
inferences from the invocation of the Fifth Amendment by
specific notaries to support finding a general practice of
rule-breaking by notaries on the campaign. The Secretary’s
argument is not clear whether a finding of a general prac-
tice of rule-breaking would compromise the presumption of
validity only as to signatures on pages notarized by persons
who invoked the Fifth Amendment, or as to all petition
pages gathered by the campaign. In any event, we find no
error in the district court’s failure to find a general practice
of rule-breaking based on the evidence generally or based

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specifically on negative inferences from the invocation of the
Fifth Amendment by specific campaign workers.
(e) Finding of Legal Sufficiency
Kuehn further assigns that the district court erred in deter-
mining 	that 	the 	petitions 	had 	sufficient 	valid 	signatures
of registered voters to satisfy the 7-percent constitutional
requirement to be placed on the ballot. Kuehn’s argument
in support of this assignment of error generally depends on
his argument that when individuals have been shown to have
improperly notarized one or more pages, signatures on all
pages notarized by those individuals should lose their pre-
sumption of validity.
We rejected that argument both as a legal matter and as
relevant to specific notaries or circulators. We similarly reject
Kuehn’s argument that the district court erred in finding that
the petitions satisfied the 7-percent threshold necessary to
appear on the ballot.
3. Kuehn’s Motion to Amend
Kuehn’s final assignment of error is that that the district
court erred when it overruled his motion to amend his plead-
ings to conform to the evidence. After the court entered its
order, both Kuehn and the Secretary filed motions to amend
their pleadings to conform to the evidence under Neb. Ct.
R. Pldg. § 6-1115(b). The court denied both motions. The
Secretary did not assign error to the overruling of his motion,
and therefore, the Secretary’s motion is not discussed fur-
ther herein.
Section 6-1115(b) was amended effective January 1, 2025,
but at the time that Kuehn filed his motion, § 6-1115(b) pro-
vided, in part:
When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to

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raise these issues may be made upon motion of any party
at any time, even after judgment; but failure so to amend
does not affect the result of the trial of these issues.
In his motion to amend, Kuehn took issue with the court’s
statement that he had not adequately pled that any circula-
tor committed fraud. But he argued that even if he did not
plead the issue, issues of “circulator fraud and malfeasance”
were tried without objection, and he moved to file a second
amended complaint to conform to the evidence that was pre-
sented at the trial.
In its order overruling Kuehn’s motion, the district court
disagreed with Kuehn’s argument that issues of “‘circulator
malfeasance’” were tried by consent. The court indicated that
what Kuehn referred to as “circulator malfeasance” included
acts such as signing a circulator’s affidavit outside the pres-
ence of a notary or self-notarizing petitions that one had cir-
culated. The court determined that evidence of such acts was
also relevant to Kuehn’s claims of improper notarization and
that therefore, it could not find implied consent to issues of
“circulator malfeasance.” The court stated that Kuehn might
have a stronger argument that there was implied consent that
the issue of Egbert’s circulator fraud was considered as part of
Kuehn’s complaint, as well as the Secretary’s cross-claim. But
the court stated that any amendment to add a claim to Kuehn’s
complaint regarding Egbert’s circulator fraud would be futile
because the court “would still dismiss [Kuehn’s] complaint
because he has not shown that enough signatures lost their
presumption of validity.”
On appeal, Kuehn argues that the issue of “circulator mal-
feasance” was made a part of the case when evidence was
presented without objection by the Sponsors of acts by Egbert
and Vodehnal as circulators and by persons such as Connely,
Lawlor, and Coryell, who had acted both as circulators and
as notaries. He contends that the district court erred when it
overruled his motion to amend his complaint to conform to
this evidence.

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Evidence regarding the campaign workers named by Kuehn
was addressed by the district court in its order. After con-
sidering all the evidence presented and arguments made by
Kuehn and the Secretary, the court determined that they had
not shown that enough signatures lost their validity to render
the petitions legally insufficient. The issues Kuehn sought to
amend his complaint to include were considered by the court
and did not change its ultimate conclusions regarding the legal
sufficiency of the petitions.
[7] Because the amendment sought by Kuehn would not
have changed the result, we find no abuse of discretion in
the overruling of Kuehn’s motion to amend the complaint.
Our case law provides that a trial court’s denial of leave to
amend pleadings is appropriate only in those limited circum-
stances in which undue delay, bad faith on the part of the
moving party, futility of the amendment, or unfair prejudice
to the nonmoving party can be demonstrated. 58 Kuehn did
not move to amend the complaint until after the district court
had entered its order and the court found that amendment
would be futile with regard to Egbert because it had already
considered evidence regarding Egbert. For similar reasons,
amendment would also have been futile regarding Kuehn’s
allegations related to other circulators. Evidence regarding the
allegations was also considered by the court in its order, and
amending the complaint to add the allegations would not have
changed the court’s determination that Kuehn had not shown
that enough signatures lost their validity. We reject this assign-
ment of error.
VI. CONCLUSION
We conclude that the district court did not err when it did not
extend the reasoning of Barkley v. Pool to determine that sig-
natures on pages beyond those shown to have been improperly
58 United Gen. Title Ins. Co. v. Malone, supra note 17.

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notarized lost the presumption of validity, or when it declined
to draw adverse inferences from the invocation of the Fifth
Amendment by campaign workers. We further conclude that
the district court did not err in its findings specific to Eggers,
Connely, Todd, Lawlor, Coryell, Vodehnal, Bowling-Martin,
and Petersen in its findings regarding general rule-breaking by
notaries in the campaign, or in its ultimate finding regarding
the sufficiency of valid signatures on the petitions. In addition,
we find no abuse of discretion in the court’s denial of Kuehn’s
motion to amend the complaint. We therefore affirm the dis-
trict court’s order.
Affirmed.
Cassel, J., concurring.
I write separately to emphasize a point that might otherwise
be overlooked. The authorities cited in the court’s opinion
implicitly presume that each notary public is independent and
disinterested. But where proof demonstrates otherwise, that
presumption fails.
If a notary becomes personally invested in the success of a
petition drive, notarial failure becomes much more likely. And
if sufficient proof establishes widespread and pervasive notarial
failure or, worse yet, participation in a scheme to defraud, then
a court should require proof of the affected signatures’ validity.
If the sponsor then fails to provide such proof, the signatures
should be disqualified.
Here, however, the majority correctly gives weight to the
district court’s findings that the notarial failure did not reach
that level. With that understanding, I join the court’s opinion.
Freudenberg, J., joins in this concurrence.
Stacy, J., concurring.
I concur with the judgment on appeal but write separately
to suggest that in a future case, we should revisit our case law
permitting the practice of joining a preelection challenge to the

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legal sufficiency of an initiative petition under Neb. Rev. Stat.
§ 32-1412 (Cum. Supp. 2024) with a declaratory judgment
action seeking a declaration of legal insufficiency under the
Uniform Declaratory Judgments Act (UDJA). 1 We endorsed
this practice in Duggan v. Beermann (Duggan I), 2 decided
in 1994, and in Duggan v. Beerman (Duggan II), 3 decided in
1996, and the district court in this case expressly relied on that
precedent to conclude that the legal sufficiency of the initiative
petition remained justiciable postelection through the declara-
tory judgment action. Despite Nebraska’s permissive joinder
rules, 4 I question whether our reasoning in Duggan I and
Duggan II was sound.
Here, relying on the decisions in Duggan I and Duggan
II, John Kuehn filed a preelection challenge to the medical
cannabis petitions, seeking both injunctive and declaratory
relief. More specifically, he sought (1) a finding that the ini-
tiative petitions were not legally sufficient and an injunction
preventing the measures from being placed on the ballot 5
and (2) a declaratory judgment 6 holding that the initiative
petitions were not legally sufficient and the measures pro-
posed therein were invalid. The Secretary of State of Nebraska
(the Secretary) filed a cross-claim seeking similar declaratory
relief. On appeal, all parties agree that the occurrence of the
election rendered moot all requests for injunctive relief based
1 See Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016).
2 See Duggan v. Beermann, 245 Neb. 907, 515 N.W.2d 788 (1994).
3 See Duggan v. Beermann, 249 Neb. 411, 544 N.W.2d 68 (1996).
4 See Neb. Rev. Stat. §§ 25-701 to 25-705 (Reissue 2016).
5 See § 32-1412(2) (“[o]n a showing that an initiative or referendum petition
is not legally sufficient, the court, on the application of any resident, may
enjoin the Secretary of State” from certifying the measure for the official
ballot).
6 See §§ 25-21,149 to 25-21,164.

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on the alleged legal insufficiency of the petitions, 7 but they
disagree whether the election rendered the requested declara-
tory relief moot.
I understand the majority opinion to avoid a lengthy dis-
cussion of mootness by assuming without deciding that under
our reasoning in Duggan I and Duggan II, the occurrence of
the election did not render the declaratory relief moot and the
legal sufficiency of the initiative petition remains justiciable.
I respectfully suggest that before we rely on this precedent
again, we should reexamine its reasoning.
Duggan I involved a preelection challenge to an initiative
petition proposing a measure that would impose term limits on
several federal and state elective offices. A citizen and regis-
tered voter filed an action alleging the initiative petition was
legally insufficient for several reasons, including an insuffi-
cient number of signatures. The action requested (1) an injunc-
tion to prevent the Secretary from placing the measure on the
ballot pursuant to the predecessor statute to § 32-1412 8 and (2)
a declaratory judgment pursuant to the UDJA finding that the
number of petition signatures did not meet the constitutional
threshold for placement on the ballot and thus the measure
was invalid. The district court denied all relief and dismissed
the action prior to the election. The measure was subsequently
submitted to and approved by the voters.
On appeal after the election, we held in Duggan I that
although 	the 	request 	for 	injunctive 	relief 	was 	“moot, 	as
7 See, Common Cause v. Evnen, 321 Neb. 682, 36 N.W.3d 490 (2026)
(explaining issue becomes moot when it no longer rests upon existing
facts); Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018) (explaining
injunctive relief is preventive or protective and injunction will not issue
after act complained of has occurred); Duggan I, supra note 2. See, also,
Neb. Rev. Stat. § 32-1407(2) (Cum. Supp. 2024) (“[a]ll signed initiative
petitions shall become invalid on the date of the first general election
occurring at least four months after the date on which the copy of the form
is filed with the Secretary of State”).
8 See Neb. Rev. Stat. § 32-706 (Reissue 1993).

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that remedy can no longer provide [the appellant] with the
relief he requested, the requested declaratory judgment as
to the number of signatures is not [moot].” 9 We proceeded
to consider the merits of the requested declaratory relief and
ultimately determined that the number of petition signatures
failed to meet the constitutional threshold by “at least 30,000”
signatures. 10 Concluding there had not been “substantial com-
pliance” with the procedural limitations placed on the initiative
power by the Nebraska Constitution, we held that the measure
was “not properly placed on the ballot and therefore must be
declared void, despite . . . approval by the voters.” 11
Duggan II was another preelection challenge to an initiative
petition proposing a measure to impose term limits. After the
Secretary certified the measure for placement on the ballot,
four “citizens and registered voters” filed an action alleg-
ing the “initiative petition was defective in fatal ways.” 12
Specifically, the citizens alleged the petition had an insuffi-
cient number of valid signatures, the proposed measure was
unconstitutional, the form of the petition failed to comply with
certain statutory requirements, and submission of the measure
proposed by the petition would violate the resubmission clause
of Neb. Const. art. III, § 2. The action sought (1) an injunction
under the applicable statute 13 to prevent the Secretary from
placing the measure on the ballot and (2) a declaratory judg-
ment under the UDJA finding the “entirety of the initiative
measure was invalid in form, lacking in sufficient signatures,
and unconstitutional.” 14
The district court considered only the request for injunc-
tive relief, reasoning that its jurisdiction to determine legal
9 Duggan I, supra note 2, 245 Neb. at 911, 515 N.W.2d at 791.
10 Id. at 916, 515 N.W.2d at 794.
11 Id.
12 Duggan II, supra note 3, 249 Neb. at 418, 544 N.W.2d at 74.
13 See § 32-706 (Reissue 1993).
14 Duggan II, supra note 3, 249 Neb. at 419, 544 N.W.2d at 74.

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sufficiency was limited to the relief expressly authorized by
§ 32-706. After the district court denied injunctive relief,
the measure was placed on the ballot and was subsequently
approved by Nebraska voters. Postelection, the citizens filed
a motion for new trial, arguing that because the measure had
been approved, their request for declaratory relief had become
justiciable. The district court overruled the motion.
On appeal, Duggan II held as a threshold matter that the
district court erred in concluding that preelection challenges
under § 32-706 (the predecessor of § 32-1412) could not be
joined with declaratory judgment actions. Duggan II reasoned
that “[t]here is nothing within § 32-706 itself which precludes
it from being joined with a prayer for declaratory relief” 15 and
noted that it was a common practice to “combine a prayer for
injunctive relief with a prayer for declaratory relief.” 16 The
opinion then proceeded to address the denial of declaratory
relief, focusing primarily on the substantive constitutional
challenge to the measure but also addressing several of the
legal insufficiencies in the petition. Duggan II ultimately held
that certain portions of the measure were unconstitutional
and were so intertwined that the entire measure had to be
declared void.
Both Duggan I and Duggan II can be read to endorse the
practice of joining a preelection legal sufficiency challenge
under § 32-1412 with a declaratory judgment action seeking a
similar determination of legal insufficiency. But neither opin-
ion analyzed the propriety of using the UDJA to determine
the legal sufficiency of an initiative petition, and I see several
issues that deserve more analysis.
First, the scope of the UDJA is not unlimited; it authorizes
any person “interested under a deed, will, written contract
or other writings constituting a contract, or whose rights,
status or other relations are affected by a statute, municipal
15 Id. at 422, 544 N.W.2d at 76.
16 Id. at 423, 544 N.W.2d at 76.

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ordinance, contract or franchise” to seek a declaratory judg-
ment on “any question of construction or validity arising under
the instrument, statute, ordinance, contract, or franchise and
obtain a declaration of rights, status or other legal relations
thereunder.” 17 An initiative petition is none of these things,
and I question whether the text of the UDJA can be read to
empower courts of record to issue declaratory judgments
regarding the legal sufficiency of initiative petitions. Our cases
have not explained how such preelection challenges might fit
within the subject matter jurisdiction conferred by the UDJA,
and I am not convinced they do.
Relatedly, I do not read either Duggan I or Duggan II to
have separately considered the jurisdictional question of the
plaintiffs’ standing to bring a declaratory judgment action
challenging the legal sufficiency of an initiative petition.
Instead, both cases seemed to assume that because the plain-
tiffs were authorized to challenge the petition’s legal suf-
ficiency under the predecessor to § 32-1412, they also had
standing to bring a declaratory judgment action challenging
legal sufficiency. Based on that precedent, which no one has
challenged in this appeal, I understand the majority opinion to
assume without deciding that Kuehn had standing to challenge
the legal sufficiency of the petition in a declaratory judgment
action. That may be a fair assumption under Duggan I and
Duggan II, but standing to bring a declaratory judgment action
usually requires more.
Under 	Nebraska 	law, 	it 	is 	a 	jurisdictional 	prerequisite
for 	obtaining 	declaratory 	relief 	that 	the 	party 	must 	have
a legally protectible interest or right in the controversy at
issue. 18 Sometimes referred to as a “litigable” interest, we
have described this as an issue of standing, and standing is a
17 § 25-21,150.
18 See, e.g., Nebraska Firearms Owners Assn. v. City of Lincoln, 319 Neb.
723, 24 N.W.3d 891 (2025); State ex rel. Hilgers v. Evnen, 318 Neb. 803,
19 N.W.3d 244 (2025).

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jurisdictional component of a party’s case, because only a party
who has standing may invoke the jurisdiction of a court. 19 To
show standing, “it is generally insufficient for a plaintiff to
have merely a general interest common to all members of the
public.” 20 I see no principled reason why these settled stand-
ing principles would not apply to declaratory judgment actions
challenging the legal sufficiency of initiative petitions, assum-
ing such actions are permissible in the first instance.
Beyond these jurisdictional concerns, other rules limiting
the availability of declaratory judgments cause me to ques-
tion our case law permitting the use of declaratory judgment
actions to challenge the legal sufficiency of initiative peti-
tions. It is a settled principle that declaratory relief will not lie
when another equally serviceable remedy is available. 21 When
a declaratory judgment action is used to raise the same legal
sufficiency questions presented in an action for mandamus
or injunctive relief under § 32-1412, this rule is implicated.
Our opinions in Duggan I and Duggan II did not discuss this
rule or attempt to explain why joining a declaratory judgment
action challenging the legal sufficiency of an initiative petition
with a nearly identical preelection challenge under § 32-1412
would not run afoul of that rule. And it is notable that in State
ex rel. Wagner v. Evnen, 22 we applied the rule to preclude
declaratory relief under similar circumstances.
19 See id.
20 Nebraska Firearms Owners Assn., supra note 18, 319 Neb. at 730, 24
N.W.3d at 898.
21 See, N’Da v. Golden, 318 Neb. 680, 694, 18 N.W.3d 570, 582 (2025)
(“a declaratory judgment will generally not lie where another equally
serviceable remedy is available”); Mueller v. Peetz, 313 Neb. 173, 181,
983 N.W.2d 503, 509 (2023) (“an action for a declaratory judgment will
not lie where another equally serviceable remedy is available”). Accord,
State ex rel. Wagner v. Evnen, 307 Neb. 142, 162, 948 N.W.2d 244, 260
(2020) (“a declaratory judgment will generally not lie where another
equally serviceable remedy is available”).
22 State ex rel. Wagner, supra note 21.

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In that case, a Nebraska resident filed an original action in
this court seeking both a declaratory judgment that a measure
proposed by an initiative petition violated the single subject
rule of Neb. Const. art. III, § 2, and a writ of mandamus
directing the Secretary of State to withhold the measure from
the ballot because it violated the single subject rule. We
expressly held that the petitioner was not entitled to “relief
in the form of both a declaratory judgment and a writ of
mandamus.” 23 State ex rel. Wagner applied the rule that “a
declaratory judgment will generally not lie where an equally
serviceable remedy is available” 24 and concluded that because
mandamus afforded an “adequate and equally serviceable” 25
remedy for the alleged single subject violation, the petitioner
could not also seek declaratory relief.
We often say 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 the spirit and letter of the
law. 26 To ensure that our case law advances this goal, I think
we should reexamine our reasoning in Duggan I and Duggan
II to more thoroughly analyze whether declaratory judgment
actions can be used to raise preelection challenges to the legal
sufficiency of initiative petitions and, if so, to clarify who has
standing to bring such actions and to analyze whether chal-
lenges to the legal sufficiency of an initiative petition remain
justiciable postelection.
23 Id. at 162, 948 N.W.2d at 260.
24 Id.
25 Id. at 163, 948 N.W.2d at 260.
26 See, e.g., Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016);
Stewart v. Advanced Gaming Tech., 272 Neb. 471, 723 N.W.2d 65 (2006).