Kuehn v. Evnen

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 09/04/2026 08:09 AM CDT - 161 - 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.  - 162 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports 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  - 163 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports 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).  - 164 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 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  - 165 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 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).  - 166 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports 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).  - 167 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 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  - 168 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 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).  - 169 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports 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).  - 170 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 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  - 171 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 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  - 172 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 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.  - 173 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 (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”).  - 174 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 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.  - 175 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 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  - 176 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 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).  - 177 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 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.”  - 178 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports KUEHN v. EVNEN Cite as 322 Neb. 161 (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 indivi