Amicus Curiae Brief — Buckley v. American Constitutional Law Foundation, Inc.

MOTION FILED

JUN 1 8 1996 1

No. 97-930

—e e— èd''''— EE

In The

Supreme Court Of the United States

October Term 1997

VICTORIA BUCKLEY, Colorado Secretary of

State

Petitioner

V.

AMERICAN CONSTITUTIONAL LAW

FOUNDATION, INC., et al.

Respondents

On Petition for A Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

MOTION FOR LEAVE TO FILE AND

PROPOSED AMICUS CURIAE BRIEF OF

NATIONAL VOTER OUTREACH, JNC., IN

SUPPORT OF RESPONDENTS

BARNABY W. ZALL

Counsel of Record for Movant

7018 Tilden Lane

N. Bethesda, MD 20852

(301) 231-6943

June 17, 1998

Movant National Voter Outreach, Inc. (“NVO”),

respectfully moves for leave to file the attached brief

amicus curiae in support of Respondents. Counsel for

Petitioner and Paul Grant, Esq., counsel for some

respondents, have consented to the filing of this brief,

but Counsel of Record for other respondents, Neil

O’Toole, Esq., has denied consent.

NVO, a Nevada corporation, is a political

consulting firm specializing in organizing signature

drives to qualify issues and candidates for ballots

nationwide. NVO officials have been at the forefront

of all major initiative campaigns that have swept the

Nation in the past fifteen years, including: term

limits for elected officials, tax, tort and malpractice

reform, gaming and lotteries, and educational! reform

and school choice. A decision in this case will directly

affect NVO, its employees and contractors, and the

signature drives it organizes.

NVO has conducted over 150 separate, successful

signature drives in thirty-six states and Washington,

D.C., organizing the collection of more than eighteen

million signatures. NVO was the principal organizer

in some of the initiative measures at issue in this

case. See, e.g., Joint Appendix (“Jt. App.”), P. 35.

The briefs filed by Petitioner and the various

governments supporting her suggest that

professional signature collection is responsible for

numerous failings in the initiative process. NVO has

consulted with Respondents’ counsels and believes

that Respondents will not be addressing these points

to the degree necessary for proper resolution of this

case.

NVO is the largest organizer of paid petition

circulation drives in the United States, and believes

that its experience and information about the issues

in this case will provide a perspective not offered by

any party. For example, NVO can illustrate how the

parties and the courts below failed to identify the

proper standard of review, and how the current and

future practices of the petition circulation industry

are different from those assumed by the parties and

the courts below.

Therefore, NVO respectfully prays the Court to

grant it leave to file the attached brief amicus curiae.

BARNABY W. ZALL

Counsel of Record for Movant

7018 Tilden Lane

N. Bethesda, MD 20852

(301) 231-6943

June 17, 1998

No. 97-930

a

In The

Supreme Court Of the United States

October Term 1997

VICTORIA BUCKLEY, Colorado Secretary of

State

Petitioner

V.

AMERICAN CONSTITUTIONAL LAW

FOUNDATION, INC., et ai.

Respondents

On Petition for A Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF OF NATIONAL VOTER

OUTREACH, INC., AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

BARNABY W. ZALL

Counsel of Record for Amicus Curiae

7018 Tilden Lane

N. Bethesda, MD 20852

(301) 231-6943

June 17, 1998

QUESTION PRESENTED

Whether the State of Colorado may

constitutionally regulate the process of circulating

initiative petitions by requiring that: (1) petition

circulators who verify the signatures of petition

signers('] must be registered electors; (2) petition

circulators must wear identification badges; and (3)

proponents of an initiative must file reports

disclosing the amounts paid to circulators and the

identity of petition circulators.

‘Petition circul do not “verify the si ä

signers.” Verification is conducted solely by Petitioner herself

C.R.S. §§ 1-40-116, 117. Circulators have neither the

information nor authority to verify the validity of signatures.

TABLE OF CONTENTS

Interest of Amicus Curiae

Preliminary Statement

Summary of Argument

r ee ge eG ge

I. The Appropriate Standard for Review

is Strict Scrutiny of State Regulation of

Private Individuals’ Core Political Speech

A) Petitions Are Not Ballots and This

Case Involves The Regulation of Private

Speech, Not the “Electoral Process”

B) Private Petition Circulators Are Not

Government Employees, and This Case

Involves Private, Not Government,

II. The State Cannot Show a Compelling

Interest or Rational Basis to Regulate

Circulators’ Political Speech .

A) These Regulations Do Not

Advance Petitioner’s Interest In

Administrative Efficiency .

B) Petitioner’s Regulations Cannot Be

Justified on the Basis of the Content of

Circulators’ Speech 98

C) Petitioner’s Regulations Cannot Be

Justified As A Means To Avoid Fraud .

11

11

11

15

17

17

20

26

D) Petitioner’s Regulations Cannot Be

Justified On the Basis of Assisting Voters

Because They Harm the Voters Without

Any Commensurate Benefit To the

Initiative Process i

Conclusion

TABLE OF AUTHORITIES

Bernbeck v. Moore, 126 F.3d 1114

(8th Cir. 1997)

Biddulph v. Mortham, 89 F.3d 1491

(11th Cir. 1996) .

Board of County Commissioners v. Umbehr,

U.S. _, 116 S.Ct. 2342 (1996)

Brown v. Hartlage, 456 U.S. 45 (1982) .

Citizens Against Legalized Gambling v. D.C.

Board of Elections and Ethics,

501 F.Supp. 786 (D.D.C. 1980) .

Cohen v. California, 403 U.S. 15 (1971)

Committee for Better Health Care for All

Colorado Citizens v. Meyer, 820

P.2d 884 (Colo. 1992)

Delgado v. Smith, 861 F.2d 1489 (11th Cir.

1988), cert. denied, 492 U.S. 981 (1989)

Duke v. Cleland, 5 F.3d 1399 (11th Cir. 1993) .

Fabec v. Beck, 922 P.2d 330 (Colo. 1996)

(en banc) . l

S ®

25, 27

12

9, 16

26, 29

29, 30

21

4,19

12, 15,

17, 24

24

18, 19

First National Bank of Boston v. Bellotti,

435 U.S. 765 (1978)

In the Matter of Proposed Initiative on

Trespass - Streams With Flowing Water,

910 P.2d 21 (Colo. 1996) . 8

Limit v. Maleng, 874 F.Supp. 1138 (W. D.

Wash. 1994) *

Loonan v. Woodley, 882 P. 2d 1380 (Colo.

1994) (en banc) 3

McClellan v. Meyer, 900 P. 2d 24 (Colo. 1995)

Mclntyre v. Ohio Elections Commission,

514 U.S. 334 (1995) . oe

Meyer v. Grant, 486 U.S. 414 (1988)

Minnesota State Board for Community

Colleges v. Knight, 465 U.S. 271 (1984)

Montero v. Meyer, 861 F.2d 603 (10th Cir. 1988),

cert. denied, 492 U.S. 921 (1989)

Rosenberger v. Rector and Visitors of Univ.

of Va., U.S. 115 S.Ct. 2510 (1995)

Rust v. Sullivan, 500 U.S. 173 (1991)

State v. Conifer Enterprises, Inc, 508 P.2d

149 (Wash. 1973) .

Term Limits Leadership Council v. Clark,

984 F.Supp. 470 (S.D. Miss. 1997)

United States v. National Treasury Employees

Union, U.S. 115 S.Ct. 1003 (1995)

8, 20

Urevich v. Woodard, 667 P.2d 760

(Colo. 1983) ;

C.R.S. § 1-40-106 (1997) .

C.R.S. § 140-108

C.R.S. § 1-40-111 .

C.R.S. § 140-112

C.R.S. § 1-40-113 .

C.R.S. § 1-40-114 .

C.R.S. § 1-40-116 .

C.R.S. § 1-40-117 .

C.R.S. § 1-40-130 .

Benjamin, “GOP Drops Dues Initiative, Reaches

Accord with Unions,” Las Vegas Review

Journal, June 17, 1998, URL:

http://www.lvrj.com/lvrj_home/1998/Jun-

17-Wed-1998/ news / 7695188. html

Broder, Calif. GOP’s Bid to Curb Union

Funds Is Faltering,” The ee Post,

May 26, 1998, Al .

California Secretary of State, State Ballot

Measures, http: ns seem een SS. ca. *

Returns / prop 8

California Voter Foundation, Ballot Measures,

California Online Voter Guide - 1998

Primary, June 2, 1998,

http://www.calvoter. *

measures 8 f

Garcia, Spanish-TV Mogul Funds Prop. 227

Foes,” The Sacramento Bee, * 22,

1998, A4 '

iv

13, 14

14

7, 8

23

Germond and Witcover, California's At It

Again, National Journal, * 16,

1998, 1144

Howe, Big Money Swamps the Ballot,

San Francisco Chronicle, May 19, 1998,

Al, URL: http://www.sfgate.com/cgi-

bin/article.cgi?file=/chronicle/archive/

1998/05/19/MN86022.DTL a

Kasindorf, Bilingual Education Ban

Faces Lawsuit,” USA aeg June 4.

1998, 1A 8

Kershner, Democracy Gone Awry, San

Francisco Chronicle, May 18, 1998, Al

URL: http://www.sfgate.com/cgi-

bin/article.cgi?file=/chronicle/archive/

1998/05/18/MN20INT.DTL .

Meyer, Secretary of State, Initiative and

Referendum Instruction Manual,

June 1993 ae Mh he

Nat’! Voter Outreach, 1998 Essential

Elements for Initiatives, 1998

URL: http://www. pasta aca com/

EEchart html

David D. Schmidt, Citizen Lawmakers,

Temple Univ. Press, 1989

21

14

7, 8

19

INTEREST OF AMICUS CURIAE

Amicus National Voter Outreach, Inc. (“NVO”),”

is a political consulting firm specializing in

organizing signature drives to qualify issues and

candidates for the ballot throughout the United

States. NVO officials have been at the forefront of all

major national initiative campaigns in the past

fifteen years, including: term limits for elected

officials, tax, tort and malpractice reform, gaming

and lotteries, and educational reform and school

choice.

NVO has conducted over 150 separate, successful

signature drives in thirty-six states and Washington,

D.C., organizing the collection of more than eighteen

million signatures. NVO was the principal organizer

in some of the initiative measures at issue in this

case. See, e.g., Joint Appendix (“Jt. App.”), P. 35. A

decision in this case will directly affect NVO, its

employees and contractors, and the signature drives

it organizes.

PRELIMINARY STATEMENT

Signature collection is not easy. Sponsoring

organizations must find qualified circulators to stand

on busy street corners asking total strangers to sign a

document which will be forwarded to the government

*Pursuant to Rule 37.6, amicus NVO certifies that no other

person or entity made a monetary contribution to the

preparation and submission of this brief, and that counsel for

amicus wrote this brief without assistance from any other

counsel.

for verification. A reporter who tried circulating

petitions in California recently wrote: “I must have

made 10 attempts without a strike [signature]. And

with each failure, the more tentative I grew.” Howe,

“Big Money Swamps the Ballot,” San Francisco

Chronicle, May 19, 1998, Al.

Circulating petitions is “work. . . time-consuming

and it is tiresome - so much so that it seems that few

but the young have the strength, the ardor, and the

stamina to engage in it, unless, of course, there is

some remuneration.“ Meyer v. Grant, 486 U.S. 414,

423-24 (1988), citing Urevich uv. Woodard, 667 P. 2d

760, 763 (Colo. 1983) and State v. Conifer

Enterprises, Inc, 82 Wash. 2d 94, 104, 508 P.2d 149,

155 (1973)(Rosellini, J., dissenting).

As this suggests, very few modern initiatives

would qualify for the ballot without paying

circulators. Meyer v. Grant, 486 U.S. at 423-24 (limits

on paid petition circulation “makes it less likely that

[initiative proponents] will garner the signatures

necessary to place the matter on the ballot, thus

Some initiative proponents want to minimize the effort to

find volunteer circulators by seeking initiative signatures by

mail, but that cannot be done in Colorado, where circulators

must swear before notaries about the validity of the signatures,

C.R.S. § 1-40-111(2).

It is even difficult for “young, outgoing and politically

committed” circulators to gather signatures. Howe, May 19,

1998. “After a couple of hours, your brain turns to Jello, said

[circulator Christopher] Dunn. “You’re always jumping from

talking to idiots to engaging in graduate school discussions. Plus

you’re constantly dealing with people rejecting you.” Jd.

2

limiting their ability to make the matter the focus of

statewide discussions. ).

Yet paid signature gathering is not a significant

portion of modern initiative budgets. Signature

collecting (including surveys and polling) accounted

for only seven percent of the expenses of the top

California initiatives in the last 40 years. Howe, May

19, 1998. Advertising took more than two-thirds of

the money spent on these initiatives. Id.

Nevertheless, a substantial portion of Petitioner’s

and supporting briefs represents complaints about

paid petition circulation, see, e.g., Petitioner’s Brief

(“Pet. Br.”), 18-24, 31-33, 35-42; Amici Curiae Brief

of Council of State Governments, et al. (“Amici

Council Br.”), 2-12, even though that issue was

settled in Meyer v. Grant, 486 U.S. 414 (1988). “The

concern that persons who can pay petition circulators

may succeed in getting measures on the ballot when

they might otherwise have failed cannot defeat First

Amendment rights.” 486 U.S. at 426 n. 7. Limits on

paid petition circulation violate the First Amendment

by limiting the political speech of initiative

circulators and proponents and lessening the chances

that the proponents will garner sufficient signatures

to place the matter on the ballot. 486 U.S. at 422-23.

Petitioner and amici have this case backwards

when they blame paid petition circulators for a host

of alleged ills in the initiative process. Paid petition

circulation has not stripped the initiative process of

its “democratic essence.” Amici Council Br. 11. The

initiative process requires substantial sums of money

and professional assistance precisely because state

regulation and procedures are so burdensome and the

number of signatures required are so large.

For example, the initiative process is not tolerant

of errors. Petitioner operates under a “perfect

match” system in which signatures must match her

files, even if her files are incorrect or incomplete.

McClellan v. Meyer, 900 P.2d 24, 31-32 (Colo.

1995)(describing Petitioner’s rejection of signatures

because, inter alia, signers included or omitted an

apartment number or street directional (i.e., “N.W.”)

or accurately described newly-annexed cities by their

new names). Petitioner has discarded signatures

because petitions had too many staple holes,

Committee for Better Health Care for All Colorado

Citizens v. Meyer, 820 P.2d 884, 888 (Colo. 1992), and

because signers omitted the designation of Jr. or Sr.,

McClellan, 900 P.2d at 33-34, even though Colorado

doesn’t recognize the designation as part of a name.

Id., 900 P.2d at 36 (Mullarkey, J., concurring in part

and dissenting in part).

In addition, the modern circulation requirements

of every State (except Michigan) can be met only by

circulators with expertise in computerized processing

and verification. For example, Colorado requires all

signature forms to be “machine-readable” or

“scannable” and circulators must use black ink. See,

e.g., Jt. App. 18 (“USE BLACK INK! Computerized

scanners will pick up the information more easily.”);

Meyer, Secretary of State, Initiative and Referendum

Instruction Manual, June 1993, 5 (“PRINTERS

SHOULD USE PMS 310U [black ink] FOR

REPRODUCTION OF SIGNATURE PAGES.”).

Amicus NVO is adapting new technology which

will, if the States agree, permit petition signers to

enter their signatures on portable electronic

equipment. This technology is already in use by

express shipment companies and large department

stores, where paper forms are no longer required.

The equipment will digitize the signatures,

electronically transmit the information and signature

to the State, and instantaneously receive a response

from the State as to whether the signature and other

information is valid.

Since every state except Michigan has

computerized their voter signature verification

records, this type of technological expertise is

increasingly required to participate in petition

signature collection. The advantages accrue to the

voters (whose signatures will be more likely to be

counted), to the government (which will be able to

verify signatures more easily in their computerized

This evolution highlights the point, made in more detail

below, that it is the State which verifies the information, so

that the circulator does not play the asserted “critically

important role in insuring that only valid signatures are

collected.” Petitioner’s Brief (“Pet. Br.”), 25. The circulator is

not required to verify the validity of signatures; the circulator’s

affidavit at issue in this proceeding only demonstrates the

circulator’s belief in the signature’s validity. C.R.S. § 1-40-

130(1)(d); Loonan v. Woodley, 882 P.2d 1380, 1390 (Colo.

1994)(en banc)(only the “subjective belief of the circulator.”).

Until the circulator has instant access to the State’s files, the

circulator cannot verify the information provided by a petition

signer, and consequently the circulator’s affidavit that the

information is genuine, C.R.S. § 1-40-111(2), is largely an empty

gesture.

files), to proponents (who will have more control over

the number of signatures to be collected, and will be

under less pressure to over-collect signatures) and to

circulators (who do not get paid for invalid

signatures). The disadvantage is that the expertise

and equipment required are expensive, and

experienced professionals will probably be needed

even more in the collection phase.

The vast volume of signatures required by

percentage thresholds based on today’s enormous

populations demands professional assistance to

capture sufficient valid signatures within the tight

deadlines imposed by State laws. In Colorado, for

example, petition circulation can take no more than

six months, C.R.S. § 1-40-108, and that period can be

reduced considerably by numerous legal challenges to

ballot and petition language

Paid circulators are simply better at gathering

signatures in a short period of time. See, e.g., Term

Limits Leadership Council v. Clark, 984 F.Supp. 470,

472-73 (S.D. Miss. 1997)(paid circulators averaged

3057 signatures per circulator while volunteer

circulators averaged 251 signatures per circulator).

Petitioner’s and amici’s concerns about the

number and type of initiatives are similarly

overstated. Both Petitioner and amici make much of

Sometimes this procedure can cost proponents several

months of possible circulation time In the Matter of Proposed

Initiative on Trespass - Streams With Flowing Water, 910 P. 2d

21, 30 (Colo. 1996)(Mullarkey, J., dissenting)(procedure can be a

weapon in the “arsenal of those who wish to attack a proposed

initiative on procedural grounds”).

6

the fact that the number of initiatives have

increased’ since this Court permitted payment to

circulators in Meyer v. Grant. Pet. Br., 18; Amici

Council Br., 18.

In fact, the number of initiatives has always been

very small. Schmidt, 39. Only 106 initiatives were

qualified for the ballot nationwide in 1996. Amici

Council Br., 5, n. 5.

Even California, arguably one of the most active

initiative states, had only five citizen-initiated

measures on the June 2, 1998, ballot. California

Voter Foundation, “Ballot Measures,” California

Online Voter Guide - 1998 Primary, June 2, 1998,

http://www.calvoter.org/98primary/measures.

Amici Council of State Governments are also

concerned that “the initiative and referendum has

over time, and particularly in the past 15 years,

"From the beginning of the initiative process through the

Schmidt, Citizen Lawmakers, 1989, 24. In 1914, there were 90

initiatives on ballots nationwide, almost as many as today, even

though fewer states then had the initiative process. Jd., 20.

During and after World War Two, the overall number of

initiatives nationwide was far lower Id. 21.

Even where Initiative use is highest, laws passed by

Initiative represent less than 1 per cent of the total number

enacted.” Schmidt, 39. Kershner, “Democracy Gone Awry,” San

Francisco Chronicle, May 18, 1998, Al (of 956 initiatives

circulated in California since 1912, only 85 passed); see also,

Germond and Witcover, “California’s At It Again. National

Journal, May 16, 1998, 1144 (of about 300 initiatives submitted

in the past 10 years, only 85 have qualified for the ballot and

only a handful have been approved.”).

7

‘slipped away from the citizens it was invented to

serve into the hands of the very kind of wealthy

special interests it was meant to contain.’” Amici

Council Br., 3 (citation omitted). Yet as Professor

Elisabeth Gerber says, “big money can block, but it

can’t pass.” Howe, May 19, 1998.

Recent initiatives are not primarily beneficial to

“wealthy special interests The ballot measures on

the June 2, 1998, California ballot included limiting

labor union political activity, reducing educational

administrative costs, ending bilingual education,

prison sentencing and parole, competitive bidding on

state contracts, judicial discipline, and term limits.

California Voter Foundation, supra.

Voters support the initiative process; a recent

Field Poll in California found that “by 74 percent to 7

percent, the public thinks the initiative process is a

good thing.” Kershner, May 18, 1998. “Even though

special interests are affecting the initiative process,

people see the same problems with the Legislature

and are even more distrustful.” Jd.

The voters can be trusted to evaluate the relative

merits of conflicting arguments. First National Bank

of Boston v. Bellotti, 435 U.S. 765, 791 (1978). If

Even if these initiatives were to promote the interests of

those who can afford to pay seven percent of their budgets to

rejected the idea that Colorado can limit political speech on this

ground. Meyer v. Grant, 486 U.S. at 426 n. 7 (“paid advocacy

‘may influence the outcome of the vote; this would be its

purpose. But the fact that advocacy may persuade the electorate

is hardly a reason to suppress it citing First National Bank of

Boston v. Bellotti, 435 U.S. at 790-91).

8

governments are concerned that voters will be

swayed by the arguments of slick professionals, their

remedy is to speak themselves and convince the

voters of the wisdom of their views. Brown v.

Hartlage, 456 U.S. 45, 60 (1982)(state’s concern over

voters’ “ill-advised” choice does not justify speech

restrictions).

These factors demonstrate the logic of an

initiative proponent’s decision to seek professional

assistance in completing a difficult task in a short

period of time. The high stakes - risking substantial

sums of money and months of work on the possibility

that a form has too many staple holes are the

primary incentives driving the professionalization of

the initiative process.

Initiative proponents, who care deeply about the

topics of their initiatives, and who have lost faith in

the legislative and executive branches of government

to remedy their concerns, should not be relegated to

relying on untrained help when the risks are so high

and the chances for error under complex rules so

great.

SUMMARY OF ARGUMENT

Standard of Review:

Petitioner suggests the standard of review of this

case should be flexible because petition circulators

are part of the electoral process. In fact, under

Colorado law, initiative petitions are not ballot

materials, and the electoral process does not begin

until Petitioner herself has verified the signatures

and qualified the initiative for the ballot. Petition

circulation is purely private speech.

9

Petitioner also suggests that flexible review is

warranted because private circulators are, in essence,

agents of the State as part of the initiative process. In

fact, under Colorado law, petition circulation is a

purely private matter, and the only verification which

matters is that done by the State itself. Circulators’

affidavits of signatures’ validity are recognized in

Colorado solely to insure that circulators are aware

of their responsibilities; circulators and signers are

exercising their personal speech rights rather than

any state action.

This case is about the regulation of private

speech, an area in which state regulation is suspect.

The correct standard of review is that of regulations

which impinge on core political speech in

traditionally public fora: strict scrutiny.

No Compelling Interest or Rational Basis:

Petitioner asserts four rationales to support her

regulations: administrative efficiency; protecting

voters from improper or inadequate speech (i. e.,

content discrimination); avoidance of fraud; and

assisting voters in the initiative process. None of

these rationales demonstrate a compelling interest or

rational basis in regulating circulators’ speech

because Petitioner’s assertions are unsupported by

the modern practice of initiative petition signature

gathering and verification.

The three regulations at issue here do not

advance Petitioner’s asserted interest in

administrative efficiency. The only verification which

matters is Petitioner’s; the registration, reporting

10

and badge requirements simply add complexity with

no effect on determining signatures’ validity.

Similarly, the three regulations limit political

speech by content - most notably by requiring private

speech to carry the government’s message when the

government should be speaking itself. None of the

three regulations add anything to the political debate

in Colorado except to express the State’s displeasure

at paid petition circulators.

Nor are Petitioner’s regulations needed to protect

against fraud. Existing anti-fraud provisions have not

changed since they were recognized in Meyer v.

Grant, and paid petition circulators, in particular,

have powerful economic incentives to prevent fraud.

And Petitioner cannot justify her regulations as

necessary to protect the voters, since they fall most

heavily on those who wish to advocate political

change in Colorado, without benefit to other voters.

The voter registration requirement, for example,

prevents hundreds of thousands of Coloradans from

exercising core political speech, yet Petitioner makes

no mention of the effect of her regulations on these

third parties.

The regulations violate free speech and should be

struck down.

ARGUMENT

I. THE APPROPRIATE STANDARD FOR REVIEW IS

STRICT SCRUTINY OF STATE REGULATION OF

PRIVATE INDIVIDUALS’ CORE POLITICAL SPEECH:

A) Petitions Are Not Ballots and This

Case Involves The Regulation of Private

Speech, Not the “Electoral Process:”

11

Petitioner asserts that this case involves “the

regulation of the electoral process”. Pet. Br., 17. But

simply asserting that the procedures are “designed to

protect the integrity of the State’s initiative

process” does not make signature collection part of

Colorado’s electoral process.

The speech regulations at issue in this case apply

solely to the circulation of initiative petitions.

Colorado law says that “initiative petitions are not

election materials.” C.R.S. § 1-40-114.”

The Colorado statute stating that initiative

petitions are not election materials was enacted after

the decisions in Montero v. Meyer, 861 F.2d 603, 609

(10th Cir. 1988), cert. denied, 492 U.S. 921

(1989)(“Under the Colorado Constitution, one who

circulates an initiative petition exercises an

individual right solely for the circulator and not for

the state”) and Delgado v. Smith, 861 F. 2d 1489,

1497 (11th Cir. 1988), cert. denied, 492 U.S. 981

(1989)(“It is only after a petition is successfully

' See, e. g, Biddulph v. Mortham, 89 F.3d 1491, 1498 (11th

Cir. 1996)(“The ‘governmental hindrance’ referred to in

Delgado (v. Smith, 861 F.2d 1489 (11th Cir. 1988)] is not the

state’s regulation of its initiative process in general, but rather

burdens on the petition circulation aspect of that process in

particular”).

i Petitions - Not Election Materials - No Bilingual Language

Requirement. The general assembly hereby determines that

initiative petitions are not election materials or information

covered by the federal “Voting Rights Act of 1965”, and

therefore are not required to be printed in any language other

than English to be circulated in any county in Colorado.” C.R.S.

§ 1-40-114.

12

subscribed to that it becomes a matter to be put to a

vote - a part of the electoral process.)

In Montero, the Tenth Circuit said:

We therefore conclude that the “electoral

process” to which the minority language

provisions of the [Voting Rights] Act apply does

not commence under Colorado law until the

Secretary of State certifies the measure is

qualified for placement upon the ballot, and that

signing of an initiated petition is not “voting.”

861 F.2d at 607.

There is an important policy rationale for this

distinction: the initiative petition may never enter

the electoral arena, yet it may still be effective to

“achieve political change in Colorado.” Meyer v.

Grant, 486 U.S. at 421. This can be illustrated in one

of 1998’s most controversial initiative battles:

“paycheck protection” or “workers’ rights.” See,

generally, Broder, “Calif. GOP’s Bid to Curb Union

Funds Is Faltering,” The Washington Post, May 26,

1998, Al.

Faced with polls showing overwhelming support

for a California initiative which would require prior

consent for payroll deductions for political spending,

labor unions drafted a “counter-initiative that would

have curbed businesses’ political contributions.

Rather than file it, they took it into negotiations with

the state Chamber of Commerce and emerged with

an agreement that business would not put its muscle

13

behind” the prior consent initiative. Broder, May

26, 1998, A5, col. 3.

A similar scenario just played out in Nevada,

where “paycheck protection” proponents withdrew

their initiative in an agreement to block a counter-

initiative. Benjamin, GOP drops dues initiative,

reaches accord with unions,” Las Vegas Review

Journal, June 17, 1998, URL:

http://www.lvrj.com/lvrj_home/1998/Jun-17-Wed-

1998/news/7695188.html.

As these episodes demonstrate, initiatives that are

not yet filed and qualified for the ballot are simply a

political activity. The State has no role:

The State does not initiate the petition,

does not draft the language of the petition,

does not address the merits of the proposal

and does not participate in any way in the

circulation of the petition or in the collection

of signatures. Rather, all of this action is taken

by private citizens. The state’s responsibility is

to ensure that the petition meets the

requirements of law and will fairly present the

proposition that may or may not be placed

before the electorate. Such regulation is not

These political negotiations apparently were successful.

Kasindorf, Bilingual Education Ban Faces Lawsuit,” USA

Today, June 4, 1998, 1A, col 5 (“U.S. Chamber of Commerce

official Bruce Josten said union threats of retaliatory legislation

intimidated businesses from taking a more active role in favor of

the measure. Without business support, the “paycheck

protection” initiative failed. California Secretary of State, State

Ballot Measures, http://primary98.ss.ca.gov/Returns/prop.

14

sufficient to transpose such private conduct

into state action.

Delgado v. Smith, 861 F.2d at 1497.

Nor does this political speech look like an

“electoral process.” No “voting” occurs at this stage.

Montero, 861 F.2d at 607; Delgado, 861 F.2d at 1493.

Indeed, voting may never occur on an initiative

proposal. Proponents may choose not to proceed at

any stage of the initiative process — even after

collecting signatures sufficient to qualify the

initiative for the ballot - and the election machinery

of the State will not be implicated. There is no

penalty for proponents who choose to halt or divert

their political efforts short of ballot qualification.

Montero, 861 F.2d at 609.

Thus, unless and until initiatives are verified by

the State and the measure is qualified for the ballot,

the initiative process is just like any other form of

protected political speech. It is not part of the

“electoral process.” Petitioner cannot justify her

regulations under a flexible standard on this ground.

B) Private Petition Circulators Are Not

Government Employees, and This Case

Involves Private, Not Government, Speech:

Petitioner and amici also argue that private

circulators have been, in effect, “deputized” to

perform important State functions. * “Deputizing”

8 See, e.g.: Petitioner’s Brief (Pet. Br.”) 24-25 (“. . the

affidavit requirement which reflects the important

(continued...)

15

circulators places them closer to government,

increasing government’s power to direct their speech.

The threshold step in any First Amendment

speech analysis is to identify the speaker. This

Court’s unconstitutional conditions precedents lie on

a “speech spectrum” ranging from private persons to

government employees. Board of County

Commissioners u. Umbehr, U.S. _,116S.Ct.

2342, 2350 (1996). Government’s power over a

person’s speech depends on the speaker’s proximity

to government; the closer to government, the greater

government’s interest in the speech. Id.; Rosenberger

v. Rector and Visitors of Univ. of Va., U.S.

115 S.Ct. 2510, 2518-19 (1995); Rust v. Sullivan, 500

U.S. 173, 192-96 (1991).

The problem with asserting this power over

circulators’ and signers’ speech is that the speech is

not the government’s. The State is not the speaker,

nor has it enlisted or paid the circulators to convey

13 i

(continued)

administrative role petition circulators play in the initiative

process. 25 (“circulators serve a critically important role in

insuring that only valid signatures are collected. (citations

omitted).

“This speech spectrum ranges from “government

employees, whose close relationship with the government

requires a balancing of important free speech and government

interests, to. users of public facilities and recipients of

small government subsidies, who are much less dependent on

the government but more like ordinary citizens whose

viewpoints on matters of public concern the government has no

legitimate interest in repressing.” 116 S.Ct. at 2350.

16

}

:

‘

:

|

4

-

7

its own message. As shown above, these messages are

solely private; the State has no role.

Even the petitions are not government speech,

since they are neither government property, nor

effective until qualified for the ballot. Montero v.

Meyer, 861 F.2d at 607; Delgado v. Smith, 861 F.2d

at 1497. If the circulators withdraw the measure

before qualification, “the state can do nothing to

effect the initiated measure.” Montero, 861 F.2d at

609.

The circulators on the streets and the people who

sign petitions are actively engaged in “core political

speech” in traditionally public fora. Meyer v. Grant,

486 U.S. at 422. The only true effect of Petitioner’s

regulations is on the pure speech of the circulators

and the signers.

Thus, Petitioner’s characterization of the

standard for review is wrong on two grounds: this is

not an “electoral” case but a pure speech one; and

the speech is purely private, rather than that of a

person associated with some governmental function.

The appropriate standard of review for this case is

that used for State regulation of core political speech

in traditionally public fora: strict scrutiny.

II. THE STATE CANNOT SHOW A COMPELLING

INTEREST OR RATIONAL BASIS TO REGULATE

CIRCULATORS’ POLITICAL SPEECH:

A) These Regulations Do Not Advance

Petitioner’s Interest In Administrative

Efficiency:

Petitioner asserts “circulators serve a critically

important role in insuring that only valid signatures

17

are collected.” Pet. Br. 25. Yet it is Petitioner’s own

signature verification process which is “to maintain

integrity in the initiative process.” Fabec v. Beck, 922

P.2d 330, 335 (Colo. 1996)(en banc).

The validity of petition signatures is generally not

within circulators’ knowledge or control. The only

function of the circulator’s affidavit of validity is to

assure “the circulators were aware of their important

role in implementing all of the statutory safeguards

and in assuring the validity of the signatures they

collect.” Loonan v. Woodley, 882 P.2d 1380, 1385

(Colo. 1994). No matter how strenuously a circulator

attests to the validity of a signature, Petitioner is

required to perform her own verification and proceed

accordingly. C.R.S. § 1-40-116(2).

Using her computerized system, it is Petitioner

herself who verifies signatures. Jd. Petitioner has the

information necessary to verify electors’ current

addresses, signatures, and other authentication

information. Circulators do not; until they have

access to Petitioner’s files, they know only what

appears before them on a busy street corner.

This reliance on circulators’ affidavits is not

necessary now that virtually every initiative State

verifies the petition signatures presented by the

circulators. 19 States perform actual verifications of

signatures against voter rolls. Nat'l Voter Outreach,

Arkansas. Arizona, Arkansas, California, District of

Columbia, Florida, Idaho, Illinois, Maine, Massachusetts,

Mississippi, Missouri, Montana, Nebraska, Nevada, Ohio, Utah,

Washington, and Wyoming. Some states combine verification

(continued...)

18

1998 Essential Elements for Initiatives, 1. Eight

perform statistically-valid random sample

verifications. Jd. Only two states, Oklahoma and

South Dakota, presume signatures are valid if the

circulator provides a notarized affidavit. Jd.

Colorado uses both scientific random sampling

and actual verification of each signature to determine

the validity of signatures. C.R.S. §§ 1-40-116(4), 1-40-

117. Only the Secretary of State’s verification

matters. If the Secretary deems the signatures

invalid, the signature is not counted, no matter what

the circulator’s affidavit says. C. R. S. § 1-40-116(3).

There are many instances in which signatures

were invalidated for failure of the circulator or a

notary to follow the Secretary’s complicated rules.

For example, courts have had to rule on the reasons

petitions had too many staple holes, Committee for

Better Health Care, 820 P.2d at 888, use of pens by

notaries, Fabec v. Beck, 922 P.2d at 342 n. 6, whether

the judge recognized particular notaries’

handwriting, id, 922 P.2d at 345, and whether

Petitioner’s list of cities could be used even though it

was not current or accurate. McClellan v. Meyer, 900

P.2d at 32.

(continued)

methods.

1% arizona, California, Colorado, District ot Columbia,

Michigan, Nevada, North Dakota, and Oregon. If the random

sample falls short of a pre-determined level, the State examines

the validity of all signatures. In Colorado the level is between

90% and 110% of the number of signatures needed to qualify for

the ballot. C.R.S. § 1-40-116(4).

19

In these cases, it simply didn’t matter what the

circulator’s affidavit said. The only legally-effective

“protection” of the integrity of the initiative process

was the Secretary’s, not the circulator’s affidavit of

belief or good faith. The effect of the Secretary’s

actions, however, was to cut off the speech — the

“expression of a desire for political change” (Meyer v.

Grant, 486 U.S. at 421) - of the signers.

The injury here is to both the circulator and the

voters whose signatures are not counted because of a

procedural error. Under the regulations at issue in

this proceeding, the circulator is forced to speak in a

fashion which has no relationship to the interests

allegedly protected by the circulator’s “critical” role

in the initiative process. Voters’ speech in favor of

political change - signatures on petitions - is

discarded in support of an affidavit whose sole role is

circulators’ unsupported subjective beliefs. This is

neither compelling nor rational.

B) Petitioner’s Regulations Cannot Be

Justified on the Basis of the Content of

Circulators’ Speech:

Similarly, since Petitioner’s regulations affect

only private political speech in traditionally-public

fora, they cannot be justified on the basis of

protecting voters from hearing the “wrong” political

speech. Meyer v. Grant, 486 U.S. at 426 n. 7, citing

First National Bank of Boston v. Bellotti, 435 U.S.

765, 790-91 (1978). Yet that is what Amici Council of

State Governments say: “signature solicitation is

often more akin to hucksterism than political

discourse.” Amici Council Br., 9. This charge has

20

been rejected by this Court. Meyer v. Grant, 486 U.S.

at 421-422 & n. 4 (“This testimony provides an

example of advocacy of political reform that falls

squarely within the protections of the First

Amendment.”).

This position is also incorrect in light of modern

initiative practice. The reason people like to sign

initiative petitions is because they - individually and

personally - are “empowered.” Initiatives are “direct

democracy” an opportunity to express a desire for

political change. 486 U.S. at 423.

Amicus NVO has observed this impulse first-hand

more than 18 million times. Yet in virtually every

instance, the circulator must first explain to a

prospective signer that the petition is for an initiative

and what the initiative does. Jd.

Most of these conversations are brief Yet a

failure of “the luxury of discussing meaningful

aspects of the initiative proposal,” Amici Council Br.,

9, does not diminish the First Amendment

protections afforded the briefer speech. The First

Amendment protects the guttural dissent as well as

lofty intellectualism. Cohen v. California, 403 U.S.

15, 26 (1971)(protecting a “single four-letter

expletive”).

In addition, amici ignore the language of the

petition itself. Every petition states “Do not sign this

petition unless you have read or have had read to you

the proposed initiative or referred measure or the

«Here, sign this. It will really p__s off (California

Governor] Pete Wilson.” Howe, May 19, 1998.

21

summary of an initiated measure in its entirety and

understand its meaning.” Jt. App. 20, 23, 28, 30. This

Court has found this warning to signers one of

several protections which “seem adequate to the task

of minimizing the risk of improper conduct in the

circulation of a petition”. Meyer v. Grant, 486 U.S. at

427.

Similarly amici States of Washington, et al., focus

on the content of circulators’ speech when they say

“whether a circulator is paid or volunteer is also

important information that may affect some voters’

decisions about whether to sign a petition.” Amici

Brief of States of Washington, et al., 22.

So long as paid petition circulation is lawful and

necessary to place most initiatives on the ballot, what

does it benefit the voters to know that a circulator is

paid? There is no connection between the pay of the

circulators and the subject of the initiative.

Nor is the badge any advantage to voters. The

badge a circulator must wear in Colorado states the

circulator’s name, and includes the phrase “PAID

CIRCULATOR in bold-faced type which is clearly

legible” and the name and telephone number of the

“individual employing the circulator.” C.R.S. § 1-40-

112(b). Circulators are usually independent

contractors, paid by a manager, who is not either the

proponent or the initiative’s financial backers; for

example, in most cases, the badge will not even

identify Amicus NVO (much less the initiative

proponent) as the entity which hires the manager.

Any benefit to voters from disclosure of

information will usually come from identifying

financial backers of the initiative, and that

22

identification is not done by the circulator’s badge or

monthly reports. So the only information the badge

provides the voters is the circulator’s name and that

the circulator is paid. The circulator’s name is

protected by this Court’s deference to anonymous

political speech; petition circulation is the kind of

individualized personal speech which warrants the

protection of anonymity. McIntyre v. Ohio Elections

Commission, 514 U.S. 334 (1995).

Disclosing that the circulator is paid shows only

the State’s own distaste for paid circulation. If the

State dislikes paid circulators, it should say so itself,

not force private circulators to carry its message.

The reports Petitioner requires of circulators are

subject to the same objections. The monthly report,

in particular, represents the State’s effort to force

lin the recent battle over California’s “English for the

Children” initiative Proposition 227 to require children to be

taught English, disclosure reports indicated that the principal

financial backer of the opponents was the owner of a Spanish-

language broadcast interest. Garcia, “Spanish-TV Mogul Funds

Prop. 227 Foes,” The Sacramento Bee, May 22, 1998, A4. None

of this information would have been disclosed by a circulator’s

badge or report.

Petitioner and amici argue that circulators have been

deputized by the State and that this obviates McIntyre’s

protection. See, e g., Amici Brief of States of Washington, et al.

19. As shown above, however, circulators are private citizens,

not state actors. Amici claim that circulators cannot change

petition texts and thus are not like handbill authors, id., but the

protection afforded circulators is not for the text of the petition.

Their political speech is both their conversations with likely

signers and their actions in circulating the petitions themselves.

Meyer v. Grant, 486 U.S. at 421-22.

23

political speech at a point when the initiative itself

may never become part of the Colorado electoral

process. Petitioner’s confusion on this point is most

evident when she complains that

the Tenth Circuit did not explain why it is

acceptable to require a petition circulator to

disclose his or her name and address as part of an

affidavit filed with the Secretary of State with the

petition, but improper to require the same

disclosure in a report filed with the Secretary of

State at the same time.

Pet. Br., 43.

Although amicus NVO does not support the

affidavit requirement for circulators (because it is an

empty gesture in today s initiative process), the

simple answer is that, under Colorado law, the

petition becomes “election material” only when it is

qualified for the ballot. C. R. S. § 1-40-114. Reports

applicable to a time when the petition is “purely

private speech,” Lelgado, 861 F.2d at 1497 n. 7, and

“an individual right solely for the circulator and not

for the state,” Montero, 861 F.2d at 609, should be

subject to strict scrutiny. These reports add nothing

to the political debate and inject the State into

political discussions through speech limitation, rather

than by its own government speech. C, Duke v.

Cleland, 5 F.3d 1399, 1403 (11th Cir.

1993)(contrasting Delgado with the situation where

the actor “is a creature of state law and its actions

are attributable to the state.”).

And the requirement that a circulator be a

registered elector succumbs to the same logic. As

Petitioner says, “the addition of the minimal

24

requirement that voters and circulators register to

vote” is a “small thing taken away from them.” Pet.

Br., 35. Yet even a “small thing taken away” in

exchange for suppression of core political speech may

violate the First Amendment. The voter registration

requirement mutes the speech of hundreds of

thousands of Coloradans and acts as a “wholesale

deterrent to a broad category of expression by a

massive number of potential speakers.” United States

v. National Treasury Employees Union, U.S.

115 S.Ct. 1003, 1013 (1995)(restriction on

compensation for off-the-job expression violates

speech rights of government employees).

The Eighth Circuit recently rejected a similar

requirement that circulators be registered voters:

in no other situation does Nebraska law

prohibit or restrict Nebraskans who advocate or

oppose electoral measures from hiring or

recruiting non-registered voters to champion their

cause, including hiring non-registered lobbyists,

non-registered campaign workers or campaign

managers, or non-registered persons to run a

telephone bank opposing various initiatives.

Bernbeck v. Moore, 126 F.3d 1114, 1117 (8th Cir.

1997); see also, Term Limits Leadership Council, 984

F.Supp. at 475 (striking qualified elector requirement

for circulators).

The State has done enough to protect its citizens

from the “dangers” of paid circulators. It has passed

laws and vigorously defended them. It warns every

signer to read and understand the initiative before

signing. C.R.S. § 1-40-106.

25

Voters have the right to make “ill-advised

choices.” Brown v. Hartlage, 456 U.S. at 60 (“The

State’s fear that voters might make an ill-advised

choice does not provide the State with a compelling

justification for limiting speech.”). The State’s

remedy if it disagrees is to speak itself, and convince

voters of the wisdom of its views, not to compel

circulators to speak or restrict their First

Amendment rights, and not to negate voters’

advocacy of political change by discarding their

signatures where they made a choice the State

considers “ill-advised.”

What the State cannot do, and what it has done

here, is to force speech in violation of the First

Amendment. The badge, registration and reporting

requirements for circulators are beyond the State’s

power under the First Amendment.

C) Petitioner’s Regulations Cannot Be

Justified As A Means To Avoid Fraud:

Nor can Petitioner’s regulations be justified on

the basis of avoiding fraud by circulators, since their

real effect falls on voters’ core political speech and

alternative methods are available to avoid real fraud.

To restrict core political speech, the government

must demonstrate a substantial need. There was no

evidence that petition circulators in Colorado have

engaged in significant instances of fraud which could

be eliminated by the badge, residence and other

regulations at issue here, yet that specific evidence

26

would be required to restrict speech.” Meyer v.

Grant, 486 U.S. at 427-28; see, also, Limit v. Maleng,

874 F.Supp. 1138 (W.D. Wash. 1994); Term Limits

Leadership Council, 984 F.Supp. at 472-75.

As the Court noted in Meyer v. Grant, the risk of

fraud is minimized at the petition circulation stage.

486 U.S. at 427; Bernbeck v. Moore, 126 F.3d at 1117

(same). The Court found Colorado’s “arsenal of

safeguards to protect against the danger of signature

fraud,” id., was adequate to the task without

restricting core political speech. 486 U.S. at 427.

Those laws have not been weakened since Meyer.

Nor can Petitioner claim that professional petition

circulators represent a significantly greater risk of

fraud than any other political speaker. This Court

expressly rejected that idea in Meyer:

we are not prepared to assume that a

professional circulator - whose qualifications for

similar future assignments may well depend on a

reputation for competence and integrity - is any

more likely to accept false signatures than a

volunteer who is motivated entirely by an interest

in having the proposition placed on the ballot.

20 The frauds described in Petitioner’s and amici’s briefs

included: “obfuscation” by the placement of competing

propositions on the ballot, Pet. Br. 20, a “higher percentage of

invalid signatures” by paid circulators than volunteers, Pet. Br.

22 (comparing signatures in Florida on a casino gambling

initiative against the “Save Our Sealife” ban on gill-netting),

and a circulator paid for several thousand signatures she had

not collected. Amici Brief of States of Washington, ef al., 4. Yet

none of these frauds would have been prevented by the

regulations at issue here.

27

486 U.S. at 426.

The district courts in Limit v. Maleng, 874

F.Supp. 1138 (W.D. Wash. 1994) and Term Limits

Leadership Council, Inc. v. Clark, 984 F.Supp. 470

(S.D. Miss. 1997) both found no evidence of fraud

caused by non-registered circulators. In fact, the

district court in Limit found that the rate of

signature invalidity was greater for volunteers than

for professional circulators. 874 F.Supp. at 1140 n. 3.

Amicus NVO, as a business practice, guarantees

that at least 70% of the signatures collected will be

valid, or it will collect more signatures at no cost to

the client. Similarly, NVO will not pay its circulators

for any signatures unless the circulator achieves an

75% validity rate for collected signatures. NVO and

its circulators thus have powerful economic

incentives to provide only valid signatures.

It would be strange to permit Colorado to argue

now what was unavailing in Meyer: that paid

professional circulators are so prone to fraud and

abuse that the regulations which were adequate to

prevent fraud then are now not up to the task.

D) Petitioner’s Regulations Cannot Be

Justified On the Basis of Assisting Voters

Because They Harm the Voters Without Any

Commensurate Benefit To the Initiative

Process:

Nor can Colorado justify its speech regulations on

the basis that they protect voters, because their only

effect is to suppress speech among voters. If

circulators fail to wear their badges, turn in their

28

reports, or register to vote, all signatures collected by

those circulators are discarded. C.R.S. § 1-40-113(1).

The signatures, like the circulators’ actions, are

not voting, Montero, 861 F.2d at 607 (“signing of an

initiated petition is not ‘voting.’”), subject to the

State’s power to regulate elections. Instead, signers,

like circulators, “seek by petition to achieve political

change in Colorado; their right freely to engage in

discussions concerning the need for that change is

guarded by the First Amendment.” Meyer v. Grant,

486 U.S. at 421.

Although the State need not listen to an

“individual’s communication on public issues, that is

because the individual’s remedy is “to be registered

principally at the polls.” Minnesota State Board for

Community Colleges v. Knight, 465 U.S. 271, 285-86

(1984). But here the State is closing off the ballot box

as well as the speech, and the logic does not apply:

Where petitions have been invalidated

because of the failure of the person circulating

the petition to comply with the laws, the

reasoning generally seems to be that the

omission raises doubts as to the validity of the

signatures themselves.

Citizens Against Legalized Gambling v. D.C. Board of

Elections and Ethics, 501 F.Supp. 786, 790 (D.D.C.

1980)(citations omitted).

Aside from an “ill-advised choice” by the voters -

a ground forbidden to the State, Brown v. Hartlage,

456 U.S. at 60 - the failure to wear a badge, register

to vote or file a monthly report do not raise doubt as

to the validity of the signatures. Since Colorado has

all the information it needs to verify these signatures,

29

and since the effect of the three regulations is solely

on core political speech, and not on the validity of the

signatures, Petitioner should not limit the signers’

political speech by discarding their signatures. “To

deny the persons who signed these petitioners the

chance to have those signatures count — solely

because of misconduct by others that does not cast

doubt on the signatures themselves - would force this

Court to stand on form over substance.” Citizens

Against Legalized Gambling, 501 F.Supp. at 790.

Even if Petitioner could justify her regulation of

circulators’ conduct, she should not be permitted to

cut off innocent third-parties’ First Amendment

rights without showing that such speech restrictions

are the narrowest possible. She has not made such a

showing; in fact, she has made no showing at all

concerning the rights of third parties.

Thus, Petitioner’s regulations are not compelling,

rational, or narrowly tailored; they should not stand.

CONCLUSION

For the reasons noted, Petitioner’s regulations

should be struck down, and the lower court upheld.

BARNABY W. ZALL

Counsel of Record for Amicus Curiae

7018 Tilden Lane

N. Bethesda, MD 20852

(301) 231-6943

June 17, 1998

30