Petition for Writ of Certiorari — Dobrovolny v. Moore

, ———s

No. 97 1187 JAN 1 4 1998

OFFICE OF PHE CLERK

In The

Suprene Court of the Hnited States

le

October Term, 1997

STAN DOBROVOLNY, KENT BERNBECK and RICHARD

BELLINO,

Petitioners,

VS.

SCOTT MOORE, SECRETARY OF STATE OF NEBRASKA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

DENZEL R. BUSICK

Counsel of Record

LUEBS, LEININGER, SMITH,

BUSICK, JOHNSON, BAACK,

PLACZEK & STEELE

Attorneys for Petitioners

Wheeler at First Street

P.O. Box 790

Grand Island, NE 68802

(308) 382-1930

144086 uz

(800) 274-3321 » (800) 359-6859 BS enices, on

A DIVISION OF COUNSEL PRESS

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether the opinion of the United States Court of

Appeals for the Eighth Circuit erroneously held that the inability

of its citizens to know the number of signatures they must obtain

On initiative petitions in order to qualify to have the proposal

thereof placed on the ballot of a general election, pursuant to

such rights as reserved to the citizens in their State Constitution,

does not chill the First Amendment right of freedom of political

speech, to assemble, and to petition their Government?

2. Whether the opinion of the United States Court of

Appeals for the Eighth Circuit erroneously held that the inability

of its citizens to know the number of signatures they must obtain

On initiative petitions in order to qualify to have the proposal

thereof on the ballot of a general election, does not deprive

citizens of their Fourteenth Amendment rights to procedural due

process of law, insofar as it fails to provide them with notice of

what the law requires them to do prior to the date upon which

compliance is mandated?

ii

PARTIES TO THE PROCEEDING

In accordance with Supreme Court Rule 14.1(b), the parties

to the proceeding in the United States Court of Appeals for the

Eighth Circuit, whose judgment is sought to be reviewed herein,

are as follows:

Petitioners:

Stan Dobrovolny, Kent Bernbeck, and Richard

Bellino.;

Respondent:

Scott Moore, Secretary of State of Nebraska.

—~—

lil

TABLE OF CONTENTS

Page

Questions Presented for Review ................... i

a Per ere eee il

a il a cin cin vie we kan tA dea wae ili

ERS ee Vv

EEN ee l

re l

Constitutional Provisions Involved ................ l

INI is od cbc bc biccccdessccese l

eT Us isis cod ew oe da des l

B. Course Of Proceedings In The District Court .. 2

C. Disposition In The District Court And The Court

is Wie ek Rigs \i ys Bisie <s0as vd 000s 2

Reasons for Granting the Writ .................... 3

I. Certiorari Should Be Granted When A Federal

Court Of Appeals Has Rendered A Decision In

Conflict With Prior Decisions Of This Court, And

Has Declined To Rule Upon A Properly Raised

Federal Question Which Has Not Been, But

Should Be Settled By This Court. ........... 3

iv

Contents

Page

II. Insofar As Nebraska’s Constitution, As Interpreted

By The Nebraska Supreme Court, Requires The

Proponents Of Initiative Petitions To File Petitions

Containing Ten Percent Of All Of The State’s Valid

Registered Voters With The Nebraska Secretary

Of State, No Later Than Four Months Before The

General Election For Which They Are Proposed,

But Fails To Insure That Such Proponents Are

Accurately Apprised Of The Number Of

Signatures Actually Needed Before The Filing

Must Be Made, It Needlessly Deprives Proponents

Of Their Rights To Freedom Of Speech, To

Assemble, And To Petition Government For

Redress Of Grievances, In Violation Of The First

Amendment To The United States Constitution,

As Well As Their Right To Due Process Of Law

In Violation Of The Fourteenth Amendment To The

United States Constitution. ................. 4

A. The Nebraska Constitution Poses A Risk Of

Diminishing The Exercise Of Fundamental

First Amendment Rights Of Free Speech.

‘week elie ne ue Reeee eae eben ees 10

B. Nebraska’s Constitution Unnecessarily, And

Without Good Reason, Discourages Free

Speech Under The First Amendment. .... 16

C. Nebraska’s Constitution Infringes On The

Freedom To Assemble. ......cccccceees 18

—————————

Contents

D. Nebraska’s Constitution Significantly

Impairs The Right Of The People To Petition

The Government For Redress Of Grievances.

E. Nebraska’s Constitution Deprives People Of

Both Procedural And Substantive Due

Process Of Law In Violation Of The

Fourteenth Amendment. ............+---

oe eee ee eS ero ea

TABLE OF CITATIONS

Cases Cited:

Bell v. Burson, 402 U.S. 535 (1971) ......-.- eee eees

Biddulph v. Mortham, 89 F.3d 1491 (11th Cir. 1996) ..

Buckley v. Valeo, 424 U.S. 1 (1976) .....-.. esse eee

Bullock v. Carter, 405 U.S. 134 (1972) .........44..

Citizens Against Rent Control v. Berkeley, 454 U.S. 290

< | re renter rrr rer rn err.

Duggan v. Beerman, 245 Neb. 907, 912, 515 N.W. 2d 788

4 SERENE ECT CT oer ree eee er a Le =

Eu v. San Francisco County Democratic Cent. Committee,

P hie @ ea), errr errere ys er rere

Page

19

21

24

19

18, 21

19

vi

Contents

Page

First Nat. Bank of Boston v. Bellotti, 435 U.S. 765

(FFE éKbcien cadena Uededeatenl eck ica ecartee 21

Goldberg v. Kelly, 397 U.S. 254 (1970) .......... 22, 23, 24

Illinois Elections Bd. v. Socialist Workers Party, 440 U.S.

STS CR IOE: 5 Gis is Ree eek elas 4deecwew es 14

Lubin v. Parish, 415 U.S. 709 (1974) ............05. 14

McDonald v. Smith, 472 U.S. 479 (1985) ........... 20

Meyer v. Grant, 486 U.S. 414 (1988) ....10, 11, 12, 14, 15, 17

Mine Workers v. Illinois Bar Assn., 389 U.S. 217 (1967)

OVUTETTTOT TT ore rr a ee te Ee 20

NAACP y. Alabama, 357 U.S. 449 (1958) ........... 19

Norman v. Reed, 502 U.S. 279 (1992) ............. 14, 17

Rice v. Sioux City Memorial Park Cemetery, Inc., 349

Us. Me (hPa? nan ccew cue lbs caus ane beuue we 3

Schaumberg v. Citizens for a Better Environment, 444

ce Bi, || Orr yerrerr rey eee 12

Tashjian v. Republican Party of Connecticut, 479 U.S.

Mee UTPOES 6.6645 858 60 TANNER eee 19

Thomas v. Collins, 323 U.S. 516 (1945) ........... 20

vii

Contents

Page

Thornhill v. Alabama, 310 U.S. 88 (1940) .......-.. 11

United States v. Cruikshank, 92 U.S. 542 (1876) .... 20

Whitney v. California, 274 U.S. 357 (ee 21

Williams v. Rhodes, 393 U.S. 23 (1968) ..........-- 14

Statute Cited:

p BE oA ES. ee ee eee eee eee l

United States Constitution Cited:

First Amendment .........-cccccceccesscens aes passim

Fourteenth Amendment ..........-.++05+55 i, 1, 2,4, 21, 22

Fourteenth Amendment, § 1 ..........--++-eeeeees cbs, 2s

Nebraska Constitution Cited:

ee me a | ree 1, 5, 15, 16, 18, 21

Rules Cited:

Fed. R. Civ. P. 69(A)(2) ..... cc eee ee ccc ee eeecnece 2

Supreme Court Rule 19(1)(b) .... 6... ++ seer eee eens 3

vill

Contents

Other Authorities Cited:

Page

Justice Hugo Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865

ei Pee Pret err errr se Cee TERRE Tee eee Tre

Lincoln, Address at Dedication of National Cemetery at

Gettysburg, Pennsylvania (1863) ............505

Stevens, The Bill of Rights: A Century of Progress, 59 U.

Cal. LE. Bev. 19; FR ZoeBO CIB) cov cswccvasenes

APPENDIX

Appendix A — Opinion of the United States Court of

Appeals for the Eighth Circuit Filed October 16, 1997

eae €@€668028 6602 06802206 46.08 8420 8.68 89 66062884 eS 6 Ee Ss 8

Appendix B — Memorandum and Order of the United

States District Court for the District of Nebraska Filed

Pv ee PP PPT eT TY Eee rT ier ee

21

20

21

la

Ta

l

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eighth Circuit dated October 16, 1997, whose judgment herein

is sought to be reviewed, is unreported but is reprinted in the

separate Appendix to this Petition, App. A, p. la.' The opinion

of the District Court for the District of Nebraska is unreported

but is reprinted in the separate Appendix to this Petition, App.

A, p. 00a.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals for the Eighth Circuit,

was entered on October 16,1997. The jurisdiction of the Supreme

Court is invoked pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves an issue of whether Neb. Const. art. III,

§ 2, violates U.S. Const. amend. I and amend. XIV, § |.

STATEMENT OF THE CASE

A. Nature Of The Case

The case was filed July 3, 1996, seeking declaratory and

injunctive relief, challenging the constitutionality of Neb. Const.

art. III, § 2.

At issue was whether Petitioners’ First Amendment rights

to freedom of speech, and their Fourteenth Amendment rights

to due process of law, were violated by the Nebraska

Constitutional requirement that they, as initiative petition

1. References to this petition will be referred to as _a, references

to the Court of Appeals Appendix will be referred to as A__.

ee

2

proponents, must file initiative petitions with the Nebraska

Secretary of State, no later than four months before the general

election for which a vote thereon is desired, bearing valid

signatures of at least 10% of the registered voters in Nebraska

on that date, regardless of the fact that neither they nor the

Secretary of State knew, or could possibly know, the correct

number of validly registered voters in Nebraska on or before

the last date such filing could be made.

Respondent admits that the exact number of petition

signatures needed to place an initiative proposal on the ballot

of the 1996 general election, could not have been known before

the filing deadline for such initiative petitions, but denies that

the lack of such information violated Petitioners’ First and

Fourteenth Amendment rights, or otherwise rendered the

challenged Nebraska Constitutional provision unconstitutional

under the United States Constitution.

B. Course Of Proceedings In The District Court

The District Court, pursuant to Fed. R. Civ. P. 69(A)(2),

consolidated trial on the merits of the case with the hearing on

Petitioners’ Motion for Preliminary Injunction. A bench trial

was held, evidence adduced, and the matter taken under

submission.

C. Disposition In The District Court And The Court Of

Appeals

After the bench trial, the District Court made findings of

fact, analyzed legal precedents, and dismissed the action (7a-

22a). The Court of Appeals affirmed (1a-6a).

SAS LOR) See

3

REASONS FOR GRANTING THE WRIT

I.

CERTIORARI SHOULD BE GRANTED WHEN A

FEDERAL COURT OF APPEALS HAS RENDERED A

DECISION IN CONFLICT WITH PRIOR DECISIONS OF

THIS COURT, AND HAS DECLINED TO RULE UPON A

PROPERLY RAISED FEDERAL QUESTION WHICH HAS

NOT BEEN, BUT SHOULD BE SETTLED BY THIS

COURT.

Supreme Court Rule 19(1)(b) provides criteria for the

issuance of a writ of certiorari to a federal court of appeals,

specifying that:

Where a court of appeals has ... decided an

important question of federal law which has not been,

but should be, settled by this court; or has decided a

federal question in a way in conflict with applicable

decisions of this court. ...

Although the aforesaid rule is not exhaustive, it is

nevertheless illustrative of issues upon which the writ may be

issued, and in this case the reasons as specified are applicable.

Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70

(1955). First, as will be seen, the decisions of the lower courts

are contrary to prior decisions of this Court. Secondly, the Eighth

Circuit Court of Appeals failed to address two very significant

constitutional questions which were within the purview of the

allegations of the Complaint, and were clearly a part of the case

law discussed in the District Court’s opinion.

4

Il.

INSOFAR AS NEBRASKA’S CONSTITUTION, AS

INTERPRETED BY THE NEBRASKA SUPREME COURT,

REQUIRES THE PROPONENTS OF INITIATIVE

PETITIONS TO FILE PETITIONS CONTAINING TEN

PERCENT OF ALL OF THE STATE’S VALID

REGISTERED VOTERS WITH THE NEBRASKA

SECRETARY OF STATE, NO LATER THAN FOUR

MONTHS BEFORE THE GENERAL ELECTION FOR

WHICH THEY ARE PROPOSED, BUT FAILS TO INSURE

THAT SUCH PROPONENTS ARE ACCURATELY

APPRISED OF THE NUMBER OF SIGNATURES

ACTUALLY NEEDED BEFORE THE FILING MUST BE

MADE, IT NEEDLESSLY DEPRIVES PROPONENTS OF

THEIR RIGHTS TO FREEDOM OF SPEECH, TO

ASSEMBLE, AND TO PETITION GOVERNMENT FOR

REDRESS OF GRIEVANCES, IN VIOLATION OF THE

FIRST AMENDMENT TO THE UNITED STATES

CONSTITUTION, AS WELL AS THEIR RIGHT TO DUE

PROCESS OF LAW IN VIOLATION OF THE

FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

The people of Nebraska reserve the right to amend their

Constitution by an initiative petition process. In 1988, the people

approved a legislative proposal to amend the initiative provisions

of the Constitution to require initiative petition proponents to

obtain signatures from 10% of the state’s registered voters, as

of four months before the general election at which the proposal

is to be submitted for a vote. Previously, the number of signatures

was 10% percent of the electors who voted in the preceding

gubernatorial election. After the 1988 amendment there

remained a question as to whether that was still the required

number.

5

The Nebraska Supreme Court ruled in Duggan v. Beerman,

245 Neb. 907, 912, 515 N.W. 2d 788 (1994), that indeed the

number of signatures required was 10% of the registered voters

in the state on the date the filing was required to be made.

Before 1988, the number of signatures needed to place an

initiative proposal on the ballot in Nebraska was the number of

votes cast in the last gubernatorial election. However, in 1988

Nebraskans voted to amend the Nebraska Constitution so that

the word “electors” as used previously in Neb. Const. art. III,

§ 2, was changed to “registered voters.” Duggan v. Beerman,

245 Neb. 907, 912, 515 N.W. 2d 788 (1994). The effect of the

change, as determined by the Nebraska Supreme Court in

Duggan, was to require at least a greater than fifty percent

increase over the previous requirement in the number of valid

signatures mandated to appear on an initiative petition for its

proposal to qualify for the ballot. Jd. at 914-915.

However, it is not the increase in the number of signatures

required on an initiative petition which prompted this action to

be filed; rather, it is the fact the actual number of signatures

proponents are required to obtain, before filing their petitions,

is not known before the filing deadline.

The importance for a proponent of an initiative petition to

know the actual number of signatures which will be required on

an initiative petition before the filing actually occurs, was noted

by Petitioner Bernbeck in his testimony in several respects: He

testified:

Well, in any petition campaign, you need to have a

buffer to take into account the number of signatures

that will be invalidated through the verification

process.

6

(T12:8-10). He further testified that knowing the correct number

in advance of filing is

... important as a petition planner to be able to look

at the entire picture of the state of Nebraska and be

able to, in a sense, utilize the resources and assets

that we have at our disposal.

(T19:2-5). The District Court’s own questioning of Mr. Bernbeck

further emphasized the point:

[By the Court]

Q. My question to you is: If on July Sth the

number was less than you had anticipated by a

substantial margin, would you want the secretary of

state to use that number rather than a higher number

that might have been calculated at some earlier point

in time?

A. Not to be evasive at all, I want the secretary

of state to use an exact number, a real, accurate

number. Whether that’s higher or lower, it doesn’t

matter. I would like to see him use an exact number

so I can comply with that number.

Q. So you don’t care what the number is, as long

as you know what the number is sufficiently in

advance so you can plan; is that the point?

A. As a petition campaigner, yes, I want a

number that I can comply with.

(T-34:15-25;35:1-3). (Emphasis added).

7

Petitioner Dobrovolny, also testified about the importance

to initiative proponents of knowing the required number of

signatures a reasonable time in advance. He gave testimony, as

follows:

Q. How does the required number of signatures

that you anticipate that you need to achieve your

goal, how does that affect your planning the use of

paid circulators?

A. A great deal. When you're a grass roots

organization which basically has no major

associations, organizations which have ample

funding behind them, you have to basically be a few

people, if you will; you have to be responsible for

the fund-raising and everything that has to do with

that type of thing. And a few thousand signatures

makes a sizable difference in the amount of money

you have to solicit, if you will, to kelp pay the costs

of such a drive.

: Q. Those costs would include the costs of the

paid circulators?

A. That’s correct, the number of petitions you

must print, a number of different things?

Q. Would that affect your planning in terms of

the number of paid circulators you would need?

A. Absolutely, and did.

(T41:16-25;42: 1-8).

8

Mr. Dobrovolny, under cross-examination, also made it clear

the because the Secretary of States registered voter list is

apparently in a rather constant state of flux and like a “moving

target,” thus making it impossible for the initiative petition

proponents to know if they have made the grade before filing

their petitions. This problem, creates a situation which can be

crucial when trying to decide if more work needs to be done to

further protect the investment already made in the endeavor,

besides creating a tremendous amount of unnecessary

frustration. He testified:

A.

Under the current system, the signature

requirement could change. It could change to the

point where you would look back at it, if you had —

if you looked back at it and say, “Wait a minute. That

was enough at the time. But now since the registered

voter list has changed so much, it is no longer

enough. We’ve got to go back to that county and

add on to those signatures.” That would never happen

with an exact figure.

(T51:14-28).

From the standpoint of Petitioner Bellinc, the issue was

largely a financial concern. He viewed the problem of obtaining

Signatures in terms of the cost per signature. The campaign’s

expenditures for printing, as well as payments to contract

circulators had to be factored into the planning. In his view, the

cost was about $2 per signature obtained. Clearly, not knowing

accurately how many signatures would be required made it

difficult to budget the campaign with limited funds. (T-58:10-

25; 59:1-24).

9

Not only was there a guessing game about what number of

signatures was required on initiative petitions in 1996, that

number was actually dramatically increased by the Secretary of

State’s office between his last reporting before the filing date of

July 5, 1996, and a few days thereafter. In May of 1996

Defendant-Appellee’s office made available to the public an

abstract of Nebraska’s 1996 Primary Election results which

showed 977,342 registered voters (Ex. A { 4). However, after

the last date for filing initiative petitions, Respondent's periodic

survey of registered voters of July 8, 1996, showed a dramatic

increased to 989,383 registered voters (/d.). An increase of

12,042 registered voters! That jump in numbers caused Petitioner

Bellino to be “totally surprised.” (T-58:6-9). Even more dramatic

is the fact that as of July 1995, one year before the deadline

date for filing the initiative petitions at issue, and a time when

at least one of the petition drives was making plans for its

campaign, (T-38:18-21), the number of registered voters reported

by Respondent was 944,135; a 45,248 increase!

Although the increase in the registered voter numbers might

not appear dramatic in an absolute sense, if they are considered

in light of the initiative petition process they can have a very

real impact. As noted in the findings of the District Court, in

1992 an initiative petition campaign proposed adoption of the

Clean Environment Act, and sought placement on the November

1992 general election ballot. Proponents of that initiative petition

timely filed petitions on which the Secretary of State ultimately

determined there were 40,803 valid signatures. However, 41 ,058

were needed. The proposal was denied a place on the ballot

because it was short just 255 signatures (A39-A40).

10

A. The Nebraska Constitution Poses A Risk Of Diminishing

The Exercise Of Fundamental First Amendment Rights Of

Free Speech.

The Nebraska District Court and Eighth Circuit Court of

Appeals gave no weight to Petitioners’ First Amendment claims,

and chose to distinguish this case from Meyer v. Grant, 486

U.S. 414 (1988), which holds that circulation of initiative

petitions involves core political speech warranting strict scrutiny

analysis under the First Amendment.

Petitioners, however, respectfully disagree with the District

Court’s and the Eighth Circuit’s conclusions. If circulating

initiative petitions involves “core speech” as noted by the United

States Supreme Court in Meyer, then any governmental action

impairing the full and unfettered exercise of the right should be

subjected to strict scrutiny analysis, regardless of whether it

involves a legislatively, judicially, or even people imposed

restriction, restraint, or impairment. Surely any governmental

action which causes a party to hesitate to exercise the rights of

free speech, assembly, or petitioning for redress of grievances,

should be viewed as chilling those rights. And, if a party cannot

know before exercising such rights what is expected of them,

and are left to guess, speculate, and conjecture about what is

required will they not think twice or even thrice about planning

and pursuing a venture to inform and persuade the public of the

rightness of their cause?

In Nebraska, initiative petition proponents do not know what

is expected of them until after they must act. They are told they

must file petitions containing the signatures of ten percent of

the validly registered voters in Nebraska by a certain date, but

if they ask what that number is, they are told nobody knows,

even though the result of a miss by an inch is the same as a miss

by a mile.

11

U.S. Const. amend. I provides that Congress

shall make no law . . . abridging the freedom of

speech, or of the press; or the right of people to

peaceably to assemble, and to petition the

Government for a redress of grievances.

U.S. Const. amend. XIV, § 1, makes that mandate applicable to

the State of Nebraska. Thornhill v. Alabama, 310 U.S. 88, 95

(1940); Meyer v. Grant, 486 U.S. 414, 418 (1988).

Despite the lower courts’ views that this case does not

involve a restriction or limitation on core political speech, and

its conclusion that the decision in Meyer was not applicable to

the facts of this case, it should be noted that the opinion in Meyer,

after noting that once a state grants the ‘aitiative petition right

to its citizens, it must do so in full compliance with the United

States Constitution, /d., specifically commented on the fact that

the initiative process entails an important right of expression.

The Court stated:

The circulation of an initiative petition of

necessity involves both the expression oj a desire for

political change and a discussie= ~~ the merits of

the proposed change. Although a petition circulator

may not have to persuade potential signatories that

a particular proposal should prevail to capture their

signatures, he or she will at least have to persuade

them that the matter is one deserving of the public

scrutiny and debate that would attend its

consideration by the whole electorate. This will in

almost every case involve an explanation of the

nature of the proposal and why its advocates support

it. Thus, the circulation of a petition involves the type

of interactive communication concerning political

12

change that is appropriately described as “core

political speech.”

Id. at 421. (Emphasis added). See also Schaumberg v. Citizens

for a Better Environment, 444 U.S. 620 (1980).

It is true, as noted by the District Court, that Meyer involved

a question of whether a prohibition on the use of “paid

circulators” for initiative petitions infringed First Amendment

rights, while this case involves a question of whether not

knowing the number of signatures required on an initiative

petition before it must be filed infringes on First Amendment

rights. In the lower courts’ view the fact that the number of

signatures required on an initiative petition is not known before

the filing must be made

may well make it difficult for the sponsors to plan

their campaign and efficiently allocate their

resources . . . it does not limit the means the initiative

sponsors may use in communicating their message

or in any way limit the content of their message.

(A44).

The lower courts, however, are incorrect in concluding that

the fact of “not knowing” the exact requirement for signatures,

before the filing must be made, has absolutely no impact on the

process of communicating the message of the initiative petition.

After all, it is quite easily inferred that if, as an initiative petition

proponent, you know reasonably well in advance of the time

you must file that you need 98,938 valid signatures rather than

97,342, or 94,413, (A38), you will probably enhance your efforts

to contact more people. Thus, by mere force of logic you will

thereby communicate your message to a greater number of

people.

13

Of course, knowing the number of signatures required,

reasonably well in advance of the final filing date, could also

mean that fewer people would need to be contacted than had

been anticipated when the petition campaign began. As a result,

you may reduce the number of people contacts you will make,

for budgetary considerations, thereby communicating the

message to fewer people. Nevertheless, if the right to free speech

under the First Amendment is involved, and the established

process keeps initiative proponents “in the dark” about what

they are required to do before they must do it, should the courts

decline to strike down the process when, in some circumstances,

it will clearly inhibit expanded communication of the message,

just because other circumstances could occur which would not

result in such expanded communication?

Accordingly,-while the lack of foreknowledge by petition

proponents of the exact signature requirement may not totally

frustrate the communication process, it can in certain very

predictable circumstances impair or lessen the amount of

communication which occurs.

Petitioners, of course, recognize that even if Nebraska’s

system of determining the signature requirement was changed

to insure a definite number will be made known well in advance

of the filing date, it would not necessarily follow that First

Amendment rights would be enhanced. For example, if the

requirement was worded so that initiative proponents are

required to obtain signatures equaling or exceeding 10% of the

number of registered voters in Nebraska during the last

gubernatorial election, whether they voted or not, the number

as of the required filing date would clearly always be known

ahead of time. However, knowing that number in advance would

only insure that petition proponents would try to budget and

target that number, plus a reasonable buffer of additional

signatures, and that would not perforce result in greater

communication of their message.

14

That, however, is not the point of being rid of the First

Amendment impairment inherent in the existing system.

Regardless of whether a more definite system in the future would

enhance message communication, the present system contains

a flaw which poses a very real risk of diminished communication

in the future, if it is left in place. That this can occur is proven

by the fact that between May of 1996 and July 8, 1996, a date

three days after the filing deadline, the number of registered

voters being reported by the Secretary of State had increased

by over 12,000 voters.

It is the real risk that communication can be diminished by

Nebraska’s current system which should bring into play strict

scrutiny analysis in this case. Generally, strict scrutiny review

is the most stringent form of judicial review. Under strict scrutiny

review, the Court requires the state to justify its actions by

showing that it has a “compelling interest” and that the means

the state chooses to realize its interest infringes as little as

possible on the exercise of individual rights. The Supreme Court

has consistently applied strict scrutiny analysis to ballot access

restrictions. Williams v. Rhodes, 393 U.S. 23 (1968); Norman v.

Reed, 502 U.S. 279 (1992); Illinois Elections Bd. v. Socialist

Workers Party, 440 U.S. 173 (1979); Bullock v. Carter, 405 U.S.

134 (1972); Lubin v. Parish, 415 U.S. 709 (1974).

It is noteworthy that the Supreme Court in Meyer considered

the initiative process to be not only important core political

speech, it commented, as follows:

We agree with the Court of Appeals’ conclusion

that the statute trenches upon an area in which the

importance of First Amendment protections is “at

its zenith.” For that reason the burden that Colorado

must overcome to justify this criminal law is well-

nigh insurmountable.

486 U.S. at 425.

15

While the provision at issue herein does not criminalize

the exercise of a First Amendment right, as did the statute in

Meyer, this case nonetheless involves an area in which a First

Amendment right is indeed at “its zenith,” and the District Court

erred in not considering the continuing risk of an adverse impact

on the exercise of free speech which Nebraska’s “by guess and

by golly” system of informing petition proponents of pre-filing

signature requirements now sanctions.

Furthermore, Neb. Const. art. III, § 2, compromises the First

Amendment in an oblique but nonetheless invidious manner, by

discouraging people from even becoming involved in an

initiative petition campaign when they are told at the outset that

the ultimate standard of qualification, to even have the right to

compete, will not be known until after the attempt to qualify is

made. An analogy may help to illustrate this point.

POLE VAULT ANALOGY

Assume a group of athletes are told there are wonderful

trophies to be won if they can first qualify for entry in a certain

contest. After qualifying they will then have to not only compete,

but also win a majority of the public’s approval of their particular

performance in a public arena, before they can earn one of the

wonderful trophies.

They are then told that the entry fee in terms of dollars is

extremely high, and that a tremendous amount of preparation

and very hard work is necessary just to have the right to qualify.

They are told that the qualifying event is the same for all who

enter, and are not already daunted by the task. That qualifying

event is a pole vault. However, it is not just an ordinary pole

vault. In this pole vault event they are told they will first be

blindfolded, and that although they will be pointed in the general

direction of the bar they must vault, they will not be told exactly

16

how high the bar is above the ground. They are also told that as

they approach the bar, it will be moving either up or down, and

nobody knows for sure exactly how high it will be when they

reach it. Finally, they are again reminded that even if under

those circumstances they manage to clear the bar, their success

at that point will only give them a chance to later try to win a

majority of the public’s approval for the ultimate performance

of their chosen event.

NOTE: The reason the bar in the analogy is

described as moving is because the number of

registered voters in Nebraska is in a constant state

of flux. Not only are new people presumably

registering to vote almost daily, the Court can surely

take judicial notice of the fact that on a daily basis

people who have previously registered to vote are

becoming ineligible to be on the list because they

have either died, moved out of state, or become

felons. Of course, Nebraska statutes require a

purging of names from the registered voter list in

such cases. Neb. Rev. Stat. § 32-326 (1994 Supp.).

For initiative proponents the effect of Neb. Const. art. III,

§ 2, is somewhat reminiscent of an old Johnny Cash tune: “How

high’s the water Mama? Its six feet high and risen!” They know

things may be bad, they just don’t know how bad!

B. Nebraska’s Constitution Unnecessarily, And Without

Good Reason, Discourages Free Speech Under The First

Amendment.

The lower courts both found Petitioners’ inability

to know the precise number of signatures they need

in order to have their initiative measures placed on

Ce

17

the ballot does not in any way restrict or inhibit their

ability to circulate petitions or engage in core

Political speech,

At most, in the lower courts’ opinions, the Nebraska process

might make it more “difficult for the Sponsors to plan their

process, is not a free Society’s goal of obtaining a free flow of

ideas, (good, bad, and otherwise), seriously jeopardized?

Frankly, even if all the challenged provision did was to make

it more difficult for initiative Proponents “to plan” or “allocate

resources” in the Preparation for, or furtherance of, a petition

when measured under Strict scrutiny analysis, should represent

a State interest “sufficiently weighty” to justify its existence.

Norman y, Reed, 502 U.S. 279, 288-289 (1991). Norman is also

18

provision in the Illinois Constitution, was subject to being further

reviewed by the United States Supreme Court under provisions

of the United States Constitution, and thereupon reversed and

modified. So also should the ramifications of the Nebraska

Supreme Court in Duggan v. Beerman, 245 Neb. 907, 515 N.W.

2d 788 (1994), be subject to further consideration in federal

court under provisions of the United States Constitution.

The problem with the provision challenged in this case is

not that it creates a higher signature requirement than had

previously prevailed for initiative petitions, but that it could have

created the higher signature requirement in a manner which

would not keep petition proponents “in the dark” as to what is

expected of them until after the deadline is already past. The

“higher number” requirement could be accomplished along with

an established “known number” requirement if either Nebraska’s

Constitution, or legislation passed pursuant thereto, simply

provided that petition proponents must obtain signatures from

10% of the valid registered voters, as determined on January |

of the year in which the petitions will be tendered for the ballot,

or on any other day certain which precedes the filing deadline

by a reasonable amount of time.

C. Nebraska’s Constitution Infringes On The Freedom To

Assemble.

Although Plaintiff Appellants have focused primarily on free

speech issues under the First Amendment, it is also suggested

that Neb. Const. art. III, § 2, violates the right of freedom to

assemble guaranteed by the First Amendment, for many of the

same reasons it violates the right of free speech. In this regard,

if persons can be discouraged from even undertaking an initiative

petition campaign, as previously noted, it logically follows they

will also be inhibited in their ability to call meetings or form

groups, organizations, and coalitions for such purposes.

19

Effective advocacy of both public and private points

of view, Particularly controversial ones, is undeniably

enhanced by Sroup association, as this Court has

more than once recognized by remarking upon the

close nexus between the freedoms of speech and

assembly.

In Buckley v. Valeo, 424 U.S. 1, 15 (1976), the Court noted:

“The First Amendment Protects political association as well as

political expression.”

Any state action which impinges upon such right of

assembly and association should be subject to strict scrutiny

and voided, unless there is a very compelling state interest in

preserving such an impingement. Eu v. San Francisco County

Democratic Cent. Committee, 490 U.S. 214 (1989); Tashjian v.

Republican Party of Connecticut, 479 U.S. 208 (1986); Citizens

Against Rent Control v. Berkeley, 454 U.S. 290 (1981).

D. Nebraska’s Constitution Significantly Impairs The Right

Of The People To Petition The Government For Redress Of

Grievances.

Petitioners recognize that thus far it appears the United

States Supreme Court has not directly spoken to the issue of

whether the initiative petition process, recognized in some states,

is necessarily protected by that part of U.S. Const. amend. I,

which protects the right of the people “to petition their

Government for a redress of grievances.”

20

However, there is certainly reason to conclude that once

such a right is recognized by a state, it become protected by the

aforesaid provision. See McDonald v. Smith, 472 U.S. 479, 481

(1985), wherein it was noted that James Madison had during a

congressional debate on the Petition Clause made it clear the

people had the right to communicate their will or grievances

through direct petitions to the legislature and government

officials. See also Mine Workers v. Illinois Bar Assn., 389 U.S.

217 (1967); Thomas v. Collins, 323 U.S. 516 (1945); United

States v. Cruikshank, 92 U.S. 542 (1876).

Petitioners also recognize that the United States Court of

Appeals for the Eleventh Circuit rejected the idea that the

Petition Clause of the First Amendment is applicable to the

initiative petition process. In Biddulph v. Mortham, 89 F.3d 1491

(11th Cir. 1996), a case relied on by the lower courts in this

action, it was noted that

... in the initiative petition process people do not

seek to make wishes known to government

representatives but instead to enact change by

bypassing their representatives altogether.

Accordingly, based on the apparent reasoning that the Petition

Clause of the First Amendment only applies to petitions to

governmental representatives, the court in Biddulph concluded

the Clause was not applicable initiative petitions.

However, despite the review of precedents in the Biddulph

case, it is suggested that the opinion applies a much too narrow

interpretation to the meaning of the word “government” as used

in the Petition Clause of the First Amendment. No less an

authority on our government than Abraham Lincoln once noted

that ours is “. . . a government of the people, by the people, and

for the people. . . .” Lincoln, Address at Dedication of National

Cemetery at Gettysburg, Pennsylvania (1863).

21

our government is “the people,” and not merely public Officials,

will of the majority, expressed in the State’s Constitution, he or

She is guaranteed the right under the First Amendment to petition

to plainly mean what it plainly says. Justice Hugo Black, The

Bill of Rights, 35 N.Y.U. L. Rev. 865 ( 1960).

Of The Fourteenth Amendment.

Whenever a state law, regulation, or Provision is chatlenged

as violative of the First Amendment, U.S. Const. amend. I, an

of Progress, 59 U. Chi. L. Rey. 13, 20, 25-26 (1992).

However, in this case it is suggested that the Fourteenth

Amendment is implicated even more directly because, not only

does Neb. Const. art. ITI, § 2, as interpreted in Duggan vy,

Beerman, 245 Neb. 907, 912, 515 N.W. 24 788 (1994), and as

22

applied by the Respondent, violate the First Amendment as

heretofore noted, it also violates the Fourteenth Amendment due

process clause. It does so insofar as it fails not only to mandate

reasonable time prior notice, it fails to mandate that any prior

notice be given to initiative petition proponents of the precise

minimum number of valid registered voter signatures they must

file, before they must file. They are thereby compelled by the

provision to run the risk of losing the benefit of the expenditures

of money and time they invested in an initiative petition

campaign, without knowing reasonably in advance of the

deadline whether they could or should have done more. Their

money and effort is needlessly required to be placed at risk, for

no compelling governmental reason whatsoever.

Thus Petitioners herein were deprived of procedural due

process of law, because of a lack of prior notice. They were also

deprived of substantive due process of law not only from a

personal liberty .candpoint under the First Amendment, but also

from an economic standpoint because they had made an

investment of money, time, and effort in a cause in which they

believed, but were unnecessarily denied an opportunity to do

more to protect that investment, because the government did

not, and, in light of the challenged provision, probably could

not supply them with factual information required to make an

informed judgment about whether they should spend more, or

work harder, to protect their investment.

Of course, this Brief has already touched upon the manner

in which First Amendment “personal liberties” are involved in

this case and how those liberties were infringed by the lack of

“prior notice,” under the challenged provision. To the extent

procedural and substantive due process issues apply to the

economic question, Petitioners rely primarily on drawing an

analogy to the case of Goldberg v. Kelly, 397 U.S. 254 (1970).

In that case the Supreme Court held that procedural due process

23

requires that welfare recipients must be Provided with adequate

notice and an evidentiary hearing before benefits may be

discontinued. Jd. at 260-268. In Goldberg, the Plaintiffs alleged

that certain New York State and New York City officials, who

administered federal and state welfare Programs, had terminated

While drawing an analogy to the foregoing cases is by no

means a perfect fit, those case do set a backdrop against which

this case can be juxtaposed. Considering the fact that the

Petitioners have invested time, money, and effort into their

also fair to assume they have a right to protect that property

interest, and that the State should not needlessly cause harm to

that interest or make it unnecessarily difficult for them to protect

that interest. Accordingly, if the State were to propose that it

Providing prior notice and an Opportunity to be heard before

such action could be taken.

Of course, the state in this case did not attempt to prevent

Petitioners from even filing the petitions. The state did, however,

i ability to protect their Property interest by

imposing a Constitutional provision making it impossible for

them to know reasonably in advance of the final day they can

24

still protect that investment, whether they need to do so or not.

Because they are given no prior notice of the standard they must

meet, they simply cannot protect themselves or otherwise make

an informed decision as to whether they need to do so, or not!

Unfortunately, that problem could not, and cannot, be solved

by any hearing before the deadline, because even if a hearing

were held, Respondent would still be unable to give a precise

answer before the filing deadline.

Nonetheless, even though a hearing in this case would not

remedy the denial of due process arising from the lack of prior

notice, the fact due process is denied by Nebraska’s “in the dark”

initiative petition procedure, cannot be denied.

In Goldberg and Bell prior notice and a hearing were

necessary to remedy the due process problems therein presented.

Here, all that is needed is reasonable prior notice of the criteria

which must be met, before the parties are put at risk.

CONCLUSION

Wherefore, Petitioners pray that a writ of certiorari be

granted.

Respectfully submitted,

DENZEL R. BUSICK

Counsel of Record

LUEBS, LEININGER, SMITH,

BUSICK, JOHNSON, BAACK,

PLACZEK & STEELE

Attorneys for Petitioners

Wheeler at First Street

P.O. Box 790

Grand Island, NE 68802

(308) 382-1930

PPR CAEL 5 VES EOS I Sot eae re . — a y wie

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

FILED OCTOBER 16, 1997

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 96-3683

Stan Dobrovolny; Kent Bernbeck; Richard Bellino,

Appellants,

v.

Scott A. Moore, individually and officially, Secretary of State

for the State of Nebraska,

Appellee.

Appeal from the United States District Court

for the District of Nebraska.

Submitted: May 20, 1997

Filed: October 16, 1997

Before McMILLLAN, ROSS and FAGG, Circuit Judges.

ROSS, Circuit Judge.

Stan Dobrovolny, Kent Bernbeck and Richard Bellino,

initiative petition organizers (appellants), appeal from the district

court’s' conclusion that article III, § 2 of the Nebraska

1. The Honorable Richard G. Kopf, United States District Judge

for the District of Nebraska

2a

Appendix A

Constitution, as interpreted by the Nebraska Supreme Court in

Duggan v. Beermann, 515 N.W.2d 788, 793-94 (Neb. 1994),

does not violate their right to freedom of speech or procedural

due process as guaranteed by the First and Fourteenth

Amendments. We affirm.

I.

Article II, §§ 1, 2 and 4 of the Nebraska Constitution, allow

the people of Nebraska to amend their state constitution through

the initiative petition process. Under article III, § 2, as interpreted

in Duggan, the number of petition signatures necessary to place

an initiative measure on the ballot is equal to 10% of the number

of registered voters in Nebraska on the date that initiative

petitions must be submitted to the Nebraska secretary of state.

515 N.W.2d at 793-94. As a result, initiative proponents cannot

know the exact number of signatures necessary to place their

measures on the ballot until they submit their petitions to the

secretary of state for review. Appellants brought this § 1983

action, alleging that article III, § 2 violates their First

Amendment right to free speech, as well as their right to due

process of law under the Fourteenth Amendment, because they

have insufficient prior notice of the number of signatures

required for any given initiative petition.

II.

Appellants rely primarily on Meyer v. Grant, 486 U.S. 414

(1988), to support their contention that the established procedure

for calculating the required number of signatures violates their

First Amendment right to free speech. In Meyer, the Supreme

Court held that a Colorado statute, which made it a felony to

pay circulators of initiative petitions, violated the First

on 9 OE eR RAE eg ORO NRE tat Age

3a

Appendix A

Amendment. In its First Amendment analysis, the Court applied

“exacting scrutiny” because the statute restricted “the type of

interactive communication concerning political change that is

appropriately described as ‘core political speech.’ ” Jd. at 420-

22.

We agree with the district court’s conclusion that the

appellants’ inability to know in advance the exact number of

Signatures required in order to place their initiative measures

on the ballot in no way restricted their ability to circulate

petitions or otherwise engage in political speech, and therefore

the decision in Meyer is inapplicable. In contrast to the Colorado

statute which limited the number of voices available to convey

a particular political message, as well as the size of the audience

that could be reached, the constitutional provision at issue here

does not in any way impact the communication of appellants’

political message or otherwise restrict the circulation of their

initiative petitions or their ability to communicate with voters

about their proposals. Nor does the provision regulate the content

of appellants’ political speech. While the Nebraska provision

may have made it difficult for appellants to plan their initiative

campaign and efficiently allocate their resources, the difficulty

of the process alone is insufficient to implicate the First

Amendment, as long as the communication of ideas associated

with the circulation of petitions is not affected. As the Eleventh

Circuit noted in Biddulph v. Mortham, 89 F.3d 1491, 1498 (11th

Cir. 1996), cert. denied, 117 S. Ct. 1086 (1997), “Meyer does

not require us to subject a state’s initiative process to strict

scrutiny in order to ensure that the process be the most efficient

or affordable. Absent some showing that the initiative process

substantially restricts political discussion. . . Meyer is

inapplicable.”

4a

Appendix A

Because article III, § 2, as interpreted by the Nebraska

Supreme Court in Duggan, does not involve restrictions on the

circulation of petitions nor the communication of speech,

political or otherwise. we affirm the district court’s conclusion

that the provision does not violate the First Amendment.

Ill.

The appellants also argue that article III, § 2 violates their

right to procedural due process because the appellants and other

initiative proponents are without notice of the precise minimum

number of valid registered voter signatures required to place an

initiative on the ballot prior to the time they file their petitions

with the State. Hence, appellants contend their expenditures of

time and money is placed at risk for no compelling governmental

reason.

The possession of a protected life, liberty or property

interest is a condition precedent to the government’s obligation

to provide due process of law, and where no such interest exists,

there can be no due process violation. Movers Warehouse Inc. v.

City of Little Canada, 71 F.3d 716, 718 (8th Cir. 1995). The

appellants contend that they have a property interest at stake in

their initiative campaigns because of their investments of time,

money and effort in the initiative process. They also assert that

they have some kind of liberty interest that is affected by the

fact that they cannot know the exact number of signatures

necessary to place an initiative on the ballot during an initiative

campaign. Those asserted interests purportedly give them a right

to procedural due process. We disagree.

Clearly, the right to a state initiative process is not a right

guaranteed by the United States Constitution, but is a right

i Aye Are ae ONIN © PORNO

Wie + ~~ See

Sa

Appendix A

created by state law. See Taxpayers United for Assessment Cuts

v. Austin, 994 F.2d 291, 295 (6th Cir. 1993). Moreover, the

procedures involved in the initiative process, including the

calculation of the number of signatures required to place an

initiative measure on the ballot, are state created and defined.

Therefore, if any right to the initiative process or specifically to

prior notice exists, it is dependent upon a finding that state law

has created in appellants an interest substantial enough to rise

to the level of a “legitimate claim of entitlement” protected by

the Due Process Clause. Board of Regents v. Roth, 408 U.S.

564, 577 (1972); Montere v. Meyer, 13 F.3d 1444, 1447 (10th

Cir.), cert. denied, 513 U.S. 888 (1994). The state “retains the

authority to interpret [the] scope and availability” of any. state

conferred right or interest. Biddulph, 89 F.3d at 1500 (quoting

Gibson v. Firestone, 741 F.2d 1268, 1273 (11th Cir. 1984)). “[A]

liberty interest created by state law is by definition circumscribed

by the law creating it.” Montero, 13 F.3d at 1450.

Clearly, appellants can claim no constitutionally-protected

right to place issues before the Nebraska electorate; any

opportunity to do so must be subject to compliance with state

constitutional requirements. See id. at 1446-47. Nor do

appellants have a state right to prior notice of the exact number

of signatures required to place an initiative measure on the ballot.

Having no such right under state law, the appellants have no

right or interest which would entitle them to due process

protection.

6a

Appendix A

IV.

Based on the foregoing, the judgment of the district court

is affirmed.’

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

2. Appellants also argue that article III, § 2 of the Nebraska

Constitution violates their constitutional rights to assembly, to petition

the government for redress of grievances and to substantive due process.

Because these claims were not properly raised before the district court,

we decline to consider them for the first time on appeal. See Renfro v.

Swift Eckrich, Inc., 53 F.3d 1460, 1464 (8th Cir. 1995) (reusing to consider

issues raised for the first time on appeal unless exceptional circumstances

exist).

—————

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7a

APPENDIX B — MEMORANDUM AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEBRASKA FILED AUGUST 15, 1996

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

4:CV96-3262

STAN DOBROVOLNY, KENT BERNBECK and RICHARD

BELLINO,

Plaintiffs,

vs.

SCOTT MOORE, Secretary of State for the State of Nebraska,

Individually and Officially,

Defendant.

MEMORANDUM AND ORDER

The plaintiffs filed this action on July 3, 1996 seeking

declaratory and injunctive relief challenging the constitutionality

of the Nebraska Constitution, Article III, Section 2 as interpreted

by the Nebraska Supreme Court in Duggan v. Beermann, 245

Neb. 907, 515 N.W. 2d 788 (1994), (Filing 1 J 1.) At issue is

whether determining the number of signatures required to place

an initiative measure on the general election ballot on the date

the signatures are due based on the number of registered voters

on that date violates the petitioners First Amendment or Due

Process rights under the United States Constitution.

Contemporaneous with the filing of their complaint, the

8a

Appendix B

plaintiffs moved for a preliminary injunction (filing 2), and

pursuant to Federal Rule of Civil Procedure 65(a)(2) I ordered

that trial on the merits of this action be consolidated with the

hearing on Plaintiffs’ Motion for Preliminary Injunction. (Filing

7.)

After a bench trial on the merits of Plaintiffs’ complaint, I

now set forth the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).'

L.

I find the material facts to be these:

1. Plaintiffs are Nebraska residents who are supporters and

organizers of various initiative petition drives. (Filing 1 JJ 2-4,

6-8.)

a. Plaintiff Kent Bernbeck is co-chair of the Nebraska

Term Limits Committee, an organization devoted to the

circulation of an initiative petition and passage of a constitutional

amendment that would limit the terms of elected officials. (Jd.

{ 6.)

b. Plaintiff Stan Dobrovolny is president of Nebraskans

for Equal Taxation, an organization devoted to the circulation

of an initiative petition and passage of a constitutional

amendment regarding property taxes. (/d. ¥ 7.)

c. Plaintiff Richard Bellino is a sponsor of the Initiative

1. Any finding of fact that is more properly construed as a conclusion

of law shall be so construed. Likewise, any conclusion of law that is

more properly construed as a finding of fact shall be so construed.

RAS YN ty 9 ARAL.

9a

Appendix B

to Preserve Nebraska Assets and Live Horse Racing which

Proposes an amendment to the Nebraska Constitution which

would legalize gambling. (Jd. { 8.)

2. The initiative petition Organizations referenced in the

plaintiffs’ complaint have all presented petitions with signatures

to the office of the Nebraska Secretary of State in an attempt to

place their various initiative proposals on the November 1996

general election ballot in Nebraska. (Exhibit A, Stipulation of

fact J 6.)

3. Defendant Scott Moore is a resident of Lincoln,

Lancaster County, Nebraska, and is the duly elected and

currently serving Secretary of State of the State of Nebraska.

(Id. | 1.)

4. Under the provisions of Neb. Rev. Stat. § 32-201 (Michie

1995), defendant Scott Moore has authority to decide disputed

points of Nebraska election law. (Exhibit A, Stipulation of fact

{ 3.)

5. Under the provisions of Neb. Rev. Stat. § 32-202 (Michie

1995), defendant Scott Moore has authority to supervise the

conduct of primary and general elections in this State, and to

develop and print manuals and pamphlets dealing with the

initiative and referendum process in Nebraska and the nature of

individual initiative and referendum measures. (Exhibit A,

Stipulation of fact J 2.)

The Nebraska Initiative Process

6. The State of Nebraska allows its citizens to amend the

state constitution through the initiative process. Neb. Const. art.

III, §§ 1, 2, 4.

ae

10a

Appendix B

7. The right to the initiative petition process in Nebraska

is created by Article III of the Nebraska Constitution, and the

pertinent provisions are as follows:

... The people reserve for themselves, however, the

power to propose laws, and amendments to the

constitution, and to enact or reject the same at the

polls, independent of the Legislature, and also

reserve power at their own option to approve or reject

at the polls any act, item, section, or part of any act

passed by the Legislature.

Neb. Const., art. III, § l.

The first power reserved by the people is the initiative

whereby laws may be enacted and constitutional

amendments adopted by the people independently

of the Legislature. This power may be invoked by

petition wherein the proposed measure shall be set

forth at length. If the petition be for the enactment

of a law, it shall be signed by seven percent of the

registered voters of the state, and if the petition be

for the amendment of the Constitution, the petition

therefor shall be signed by ten percent of such

registered voters. In all cases the registered voters

signing such petition shall be so distributed as to

include five percent of the registered voters of each

of two-fifths of the counties of the state, and when

thus signed, the petition shall be filed with the

Secretary of State who shall submit the measure thus

proposed to the electors of the state at the first

general election held not less than four months after

such petition shall have been filed.

Neb. Const., art. III, § 2.

lla

Appendix B

* * *

The whole number of votes cast for Governor at the

general election next preceding in filing of an

initiative or referendum petition shall be the basis

on which the number of signatures to such petition

shall be computed.

Neb. Const., art. III, § 4.

8. In Duggan v. Beermann, 245 Neb. 907, 515 N.W.2d 788

(1994) the Nebraska Supreme Court held that the number of

signatures required by the Nebraska constitution for placement

of an initiative measure on the general election ballot is equal

to 10 percent of the number of registered voters in Nebraska

measured on the date the signatures are turned in to the Secretary

of State for certification.

Registered Voters

9. Each county in Nebraska keeps an up to date public

record of the number of registered voters in that county. That

information is not available over the telephone, but any member

of the public, including the plaintiffs, may review the list of

registered voters in person. (Tr. 35:3-25:; 66:19-67:16.)

10. In conformance with his duties under Neb. Rev. Stat.

§ 32-202(9) (Michie 1995) to prepare and transmit reports as

required by the National Voting Rights Act of 1993, 42 U.S.C.

§§ 1973 et seg., defendant Scott Moore, or staff members in his

office under his supervision, compiles listings of the total number

of registered voters in the State of Nebraska on a periodic basis.

In addition, defendant Scott Moore, or staff members in his office

12a

Appendix B

under his supervision, prepare such listings in connection with

the canvass books and abstracts for the primary and general

elections held in the State of Nebraska. (Exhibit A, Stipulation

of fact J 3.)

11. The periodic listings of the total number of registered

voters in the State of Nebraska and the canvass books and

abstracts of the primary and general elections held in the State

of Nebraska are matters of public record which are available to

all members of the public including the plaintiffs in this action.

(Id. J 3.)

12. From the period of time from the November 1994

general election through the present, defendant Scott Moore, or

staff members, in his office under the supervision of the

Secretary of State, prepared listings of the total number of

registered voters in the State of Nebraska on five occasions. All

the information in each listing was available to the public,

including the plaintiffs ir: this action. The nature of each listing,

the total number of registered voters in Nebraska at that time,

and the date that the information became available to the public

for each of those five occasions are as follows:

a. Canvass Book, 1994 General Election —

919,321 registered voters — available to the

public, December, 1994

b. Periodic survey of registered voters — 944,135

registered voters — available to the public, July,

1995.

c. Periodic survey of registered voters — 962,869

registered voters — available to the public,

January, 1996.

13a

Appendix B

d. Abstract of 1996 Primary Election results —

977,342 registered voters — available to the

public, May, 1996.

e. Periodic survey of registered voters — 989,383

registered voters — available to the public, J uly

8, 1996.

(Id. J 4.)

13. Defendant Scott Moore caused press releases to be

issued by his office stating the number of registered voters in

Nebraska on May 9, 1996, and on June 12, 1996. True and

correct copies of those press releases are in the record. Apart

from these two releases, defendant Scott Moore can produce no

additional press releases concerning the number of registered

voters in Nebraska issued during the time period from J anuary,

1995, through July, 1996. (/d.)

14. Subsequent to the periodic survey of registered voters

completed in July 1996, defendant Scott Moore announced to

the public that 98,938 signatures would be needed to place

initiative measures on the ballot for the Nebraska statewide

general election to be held in November, 1996. He made that

announcement on July 8, 1996. (Id. J 5.)

15. Based upon the receipts issued by the staff in the office

of the Nebraska Secretary of State, acting under the supervision

of defendant Scott Moore, to representatives of each of those

petition organizations, those organizations purported to present

initiative petitions to the Office of the Secretary of State

containing the following numbers of signatures:

l4a

Appendix B

a. Nebraska Term Limits Committee —159,334 signatures

b. Nebraskans for Equal Taxation —107,670 signatures

c. Initiative to Preserve Nebraska — 133,100 signatures

Assets and Live Horse Racing

(Id. { 6.)

16. Pursuant to the provisions of Neb. Rev. Stat. { 32-1409

(Michie 1995), defendant Scott Moore is currently in the process

of determining the validity and sufficiency of the signatures

submitted in connection with each of those initiative petition

measures so as to decide whether the constitutional and statutory

requirements have been met to place those measures on the

November general election ballot. (Exhibit A, Stipulation of

fact J 6.)

17. Based upon the Canvass Book prepared by the Nebraska

State Board of Canvassers, 586,542 persons voted for Governor

at the general election held in November, 1990. (/d.

{ 7.)

18. Based upon the Canvass Book prepared by the Nebraska

State Board of Canvassers, 579,561 persons voted for Governor

at the general election held in November, 1994. (/d.)

19. In 1992, various individuals and entities sponsored an

initiative effort to place the Clean Environment Act on the

November, 1992, Nebraska general election ballot. The initiative

effort proposed a statute which would use the proceeds of certain

taxes on cigarettes to establish a program to maintain and restore

pure water, air, and land in Nebraska through various means.

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Appendix B

The clean Environment Act initiative sponsors presented their

initiative petitions to Allen J. Beermann, Nebraska Secretary of

State, on July 3, 1992. On September 2, 1992, Mr. Beermann

entered and order in which he refused to place the Clean

Environment Act on the November general election ballot. The

Clean Environment Act petitions contained 40,803 valid

Signatures, and 41,058 Signatures were required to place an

initiative proposal for a statute on the 1992 general elections

ballot under the applicable provisions of the Nebraska

Constitution. (Jd. J 8.)

20. Defendant Scott Moore was deposed, under oath, in

Bernbeck, et al. v. Scott Moore, United States District Court for

the District of Nebraska, Case No. 4:CV96-3263, on July 17,

1996. A true and correct copy of the cover page and pages 66

and 67 of that deposition, including questions posed to defendant

Moore and his answers to those questions, is a part of the record.

The parties stipulate that this deposition testimony may be

considered as testimony of defendant Scott Moore in this action.

(Id. J 9.)

21. A lawsuit was filed at Docket 530, Page 222, in the

District Court of Lancaster County, Nebraska, styled State of

Nebraska ex rel. Don Stenberg, Attorney General of Nebraska

v. Scott Moore, Secretary of State of the State of Nebraska. Trial

in that case was held on March 11, 1996, and a true and correct

copy of Judge McGinn’s final order is a part of the record. Judge

McGinn’s decision in that case is currently on appeal in the

Nebraska Supreme Court as Case No. $96-0697 (Jd. | 10.)?

2. Essentially, the judge ruled that the constitutional amendment

which inadvertently caused the problem in this case contained appropriate

explanatory language under relevant Nebraska law.

:

:

|

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Appendix B

II. LAW

At issue are questions of law concerning the

constitutionality of the Nebraska Supreme Court’s construction

of sections of the Nebraska Constitution regarding the

calculation of the number of signatures required in order to place

an initiative on the ballot. A brief history of the relevant

Nebraska constitutional provisions is helpful at this point.

A. History on Number of Signatures Required

Prior to 1998, the number of signatures needed to place an

initiative on the ballot in Nebraska was based on the number of

votes in the last gubernatorial election. In 1988 Nebraskans

amended their constitution to change the terminology in Article

III, sections 2 and 3 from “electors” to “registered voters” when

referring to the eligibility of an initiative and referendum petition

signatory. See, Pt. 1,47. Article III, section 4 was unchanged

by the 1988 amendment. 7d.

The 1988 amendment resulted in an apparently

unanticipated inconsistency in the Nebraska constitution

regarding the base number to be used when calculating how

many signatures were necessary. “Succinctly, article III, { 2,

provides that the number of signatures required is 10 percent of

registered voters. Article III, { 4, provides that the number of

signatures would be based on the votes of the last gubernatorial

election.” Duggan, 245 Neb. at 912, 515 N.W.2d at 792. In

1994 the Nebraska Supreme Court was called upon to resolve

the inconsistency created by the 1998 change in terminology.

In a unanimous decision the Nebraska Supreme Court held

that the conflicting sections of the constitution could not be

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Appendix B

reconciled and that the most recent amendment was controlling.

Therefore, article III, section 2 as amended in 1988 effectively

“repeal[ed] the reference in article III, section 4” which

previously required the Secretary of State to ascertain the number

of signatures required for an initiative measure to be placed on

the ballot to be based upon the votes of the last gubernatorial

election. Jd. at 915, 515 N.W. 2d at 793. With this history in

mind, I now turn to the plaintiff’s claims in the present case.

B. Plaintiff’s Claims

In their complaint the plaintiff’s allege that because of the

Nebraska Supreme Court’s ruling in Duggan, they are unable to

“know the number of signatures required to place an initiative

on ballot until after the deadline for filing such petitions.” (Filing

1 { 9.) The plaintiffs assert that this lack of notice “violates

freedom of a speech and procedural due process as guaranteed

by the First and Fourteenth Amendments[s] to the U.S.

Constitution.” (/d., 14.)

1. First Amendment Claim

The plaintiffs rely on Meyer v. Grant, 486 U.S. 414 (1988),

to support their claim under the First Amendment. In that case

the United States Supreme Court concluded that circulating an

initiative petition involved core political speech and thus any

restriction on that speech was subject to strict scrutiny under

the First Amendment. The Court then struck down a Colorado

statute making it a felony to pay circulators of initiative petitions.

Plaintiffs’ reliance on Meyer v. Grant is misplaced in this context.

That the plaintiffs cannot know the precise number of

Signatures they will need in order to have their initiative

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Appendix B

measures placed on the ballot does not in any way restrict or

inhibit their ability to circulate petitions or engage in core

political speech. The statute in Meyer v. Grant that was

invalidated was directly linked to the petition sponsor’s speech

and efforts to communicate with other voters about proposed

legislation. Making it a felony to pay a petition circulator limited

the number of voices and hours available for the petition

sponsors to convey their message, and also limited the size of

the audience that would ultimately be reached. /d. at 422-23.

Those limitations in turn made it less likely that the petition

drives would obtain the number of signatures necessary to place

the measure on the ballot.

The plaintiffs in this case are not faced with any restrictions

on how they may communicate their political message. This

system may well make it difficult for the sponsors to plan their

campaign and efficiently allocate their resources, but it does

not limit the means the initiative sponsors may use in

communicating their message or in any way limit the content of

their message. See Biddulph v. Mortham, No. 95-3131, 1996

WL 400009, at *9 (11th Cir. Aug. 1, 1996) (per curiam) (Meyer

and First Amendment scrutiny inapplicable to an initiative

process that is merely “burdensome because it is unpredictable

and imposes unnecessary costs on initiative sponsors.”). For

these reasons, the Nebraska Supreme Court’s interpretation of

the Nebraska Constitution, article III, section 2, does not violate

Plaintiffs’ First Amendment rights.

2. In the Due Process Claim

The plaintiffs’ complaint also alleges that the manner in

which the required number of signatures for an initiated measure

is determined violates their rights to procedural due process.

The possession of a protected life, liberty or property interest is

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Appendix B

a condition precedent to the government's obligation to provide

due process of law, and wher no such interest exists, there can

be no due process violation. Movers Warehouse, Inc. v. City of

Little Canada, 71 F.3d 716, 718 (8th Cir. 1996). For the reasons

discussed below I find and conclude that the plaintiffs do not

have any such protected interest, and they are therefore not

entitled to any procedural due process protections.

In their pretrial brief the plaintiffs contend that a

“substantive liberty interest — the right to petition one’s

government” is violated by the method of determining the

required number of signatures. (Pls.’ Pretrial Br. at 4.) “The

inability to have actual notice of the required number of

Signatures” prior to the date the Signatures are due “is an

interference or infringement of the exercise of this liberty

interest.” (Pls.’ Reply to Def.’s Pretrial Br. at 4)

It is clear that the right to an initiative process is not a right

guaranteed by the United States Constitution. Taxpayers United

for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993)

(discussing Meyer v. Grant), 486 U.S. 414, 424 (1988)). It is

also clear that once a state confers upon its citizens the right to

an initiative, the state may not implement procedures to limit

that state created right in contravention of the United States

Constitution. Jd. However, there is an important categorical

difference between granting and defining the right to an initiative

process in the state constitution and Statutory procedures enacted

to implement the right so defined by the state constitution.

The principal stated in Meyer v. Grant is that a state that

adopts an initiative procedure violates the federal constitution

if there are procedures implemented that unduly restrict the

federal rights of the citizens who support the initiative. Meyer

inte iti ane

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Appendix B

v. Grant, however, does not prohibit Nebraska citizens from

creating self-imposed constitutional limitations when defining

the scope of the right they are creating.

In a case that involved a challenge to a statutory provision

in Colorado restricting participation in the initiative process to

registered voters of the state of Colorado, the district court for

the District of Colorado found the source of that restriction did

not derive from the statute being challenged, but it was a self-

imposed restriction the voters of Colorado added their

constitution. American Constitutional Law Foundation, Inc. v.

Meyer, 870 F.Supp. 995, 1002 (D. Colo. 1994).

Because the source of the restriction derived from the

Colorado constitution wherein the right itself is granted and

defined, the federal court found that while it had authority to

review other statutes that merely implemented the right the court

did not have the authority to review the scope of the right as

defined by the citizens of Colorado. The court stated:

The people are the source of the power and they may

exercise their sovereign authority to limit the scope of

that power so long as there is no discriminatory

classification. The Colorado electorate chose to restrict

participation in the petitioning process to registered

voters. This decision is not subject to any level of review

by this court in the context of this case.

Id. a

Such a conclusion is equally applicable here.

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Appendix B

Unlike the statute challenged in Meyer v. Grant which

limited the right given, the plaintiffs here challenge the very

definition of the right conferred. The source of the right to initiate

legislation is the Nebraska Constitution as is the requirement

that 10 percent of all “registered voters” must Sign an initiative

petition before the measure may be placed on the ballot.

Therefore, in Duggan the Nebraska Supreme Court was not

called upon to interpret a regulation or statute that would limit

the right to the initiative procedure, the court instead ascertained

what the right itself meant and what the will of the people was

in enacting the constitutional amendment in 1988.

What the plaintiffs are really disputing in this case is the

Nebraska Supreme Court’s interpretation of the Nebraska

constitution. However, this court has no authority to second-

guess the Nebraska Supreme Court’s construction of its on

constitution. Simply, but precisely, put “this decision is not

subject to any level of review by this court in the context of this

case.” American Constitutional Law Foundation, Inc. y. Meyer,

870 F.Supp. at 1002. See also Biddulph, No. 95-3131, 1996

WL 400009, at *8 (“The rights [to place an initiative on the

ballot] derive from wholly state-created procedures by which

issues that might otherwise be considered by elected

representatives may be put to the voting populace. The state,

having created such a procedure, retains the authority to interpret

its scope and availability.”); Reeves v. Hopkins, 76 F.3d 1424,

1427 (8th Cir. 1996) (holding that the “Nebraska Supreme Court

is the final arbiter of Nebraska law” and that “it is not the

Province federal courts to reexamine State determinations of

State law questions.”

In summary, the plaintiffs have no federal constitutional

right to define the state constitutional right of the initiative

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Appendix B

expressed in the document defining their own government and

interpreted by their own high court. Therefore I conclude that

the plaintiffs have failed to establish that they have been deprived

of a constitutionally protected liberty interest which would

entitle them to procedural due process protections.

Accordingly,

IT IS ORDERED that judgment shall be entered by separate

document providing in substance that Plaintiffs shall take

nothing against the Defendant and this case is dismissed.

DATED this 15th day of August, 1996.

BY THE COURT:

s/ Richard G. Kopf

RICHARD G. KOPF

United States District Judge