# Petition for Writ of Certiorari — Dobrovolny v. Moore

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1005

## Text

, ———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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0 A ER Gat NCA AY: 1 I S05

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.

:
:
|

l6a

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

17a

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

19a
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

20a

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.

2la
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

22a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2081%3A1. Public record. Not legal advice.