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Dobrovolny v. Moore

United States Court of Appeals, Eighth Circuit
Oct 16, 1997
126 F.3d 1111 (8th Cir. 1997)

Summary

holding signature requirement to place initiative on ballot did not impinge upon speech

Summary of this case from Gallivan v. Walker

Opinion

No. 96-3683

Submitted May 20, 1997

Filed October 16, 1997

Counsel who presented argument on behalf of the appellant was John Boehm of Lincoln, NE. Denzel R. Busick of Grand Island, NE appeared on the brief.

Counsel who presented argument on behalf of the appellee was Dale A. Comer of Lincoln, NE.

Appeal from the United States Court for the District of Nebraska.

Before McMILLIAN, ROSS and FAGG, Circuit Judges.


Stan Dobrovolny, Kent Bernbeck and Richard Bellino, initiative petition organizers (appellants), appeal from the district court's conclusion that article III, Section(s) 2 of the Nebraska 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.

The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska

I.

Article II, Section(s) 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, Section(s) 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 Section(s) 1983 action, alleging that article III, Section(s) 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 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.'" Id. 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."

Because article III, Section(s) 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.

III.

The appellants also argue that article III, Section(s) 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 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); Montero 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.

IV.

Based on the foregoing, the judgment of the district court is affirmed.

Appellants also argue that article III, Section(s) 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) (refusing to consider issues raised for the first time on appeal unless exceptional circumstances exist).


Summaries of

Dobrovolny v. Moore

United States Court of Appeals, Eighth Circuit
Oct 16, 1997
126 F.3d 1111 (8th Cir. 1997)

holding signature requirement to place initiative on ballot did not impinge upon speech

Summary of this case from Gallivan v. Walker

finding no precedent holding that "signing a petition to initiate legislation is entitled to the same protection as exercising the right to vote"

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concluding that a Nebraska law establishing a procedure for calculating the number of signatures required to place an initiative on the ballot does not implicate the First Amendment, although it “may have made it difficult for appellants to plan their initiative campaign and efficiently allocate their resources”

Summary of this case from Voting for Am., Inc. v. Steen

In Dobrovolny, by contrast, we considered whether a Nebraska constitutional provision violated the First Amendment. 126 F.3d at 1112.

Summary of this case from SD Voice v. Neom

distinguishing Meyer by noting the unconstitutional Colorado statute outlawing payments to petition circulators "limited the number of voices available to convey a particular message, as well as the size of the audience that could be reached"

Summary of this case from Voice v. Noem

In Dobrovolny, we distinguished between initiative petition laws that only make the process "difficult" and those that affect "the communication of ideas associated with the circulation of petitions."

Summary of this case from Miller v. Thurston

In Dobrovolny v. Moore, 126 F.3d 1111, 1112–13 (8th Cir. 1997), we rejected similar First and Fourteenth Amendment challenges to the initiative process authorized by the Nebraska Constitution, under which the requisite number of signatures needed to place an initiative measure on the ballot could not be calculated with certainty until the date on which the initiative petition was submitted to the secretary of state for certification.

Summary of this case from Macmann v. Matthes

In Dobrovolny, the plaintiffs raised similar due-process arguments, contending that they had a property interest in the initiative process in light of their investment of time, money, and effort in that process and that they had a liberty interest in the initiative process that encompassed the right to know in advance the specific number of signatures needed for certification of an initiative petition.

Summary of this case from Macmann v. Matthes

In Dobrovolny v. Moore, 126 F.3d 1111, 1112-13 (8th Cir. 1997), cert. denied, 118 S. Ct. 1188 (1998), we held that the principles laid out in Meyer did not invalidate a Nebraska constitutional provision that required initiative petitions to include signatures equal to 10 percent of the number of voters registered on the day that the petitions were to be submitted.

Summary of this case from Wellwood v. Johnson

In Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997), the Eighth Circuit affirmed the district court's rejection of freedom of speech and procedural due process challenges to Nebraska's initiative petition procedures.

Summary of this case from Wilson v. City of Columbia

acknowledging that a Nebraska law that "made it difficult ... to plan" an initiative campaign and allocate resources did not implicate the First Amendment

Summary of this case from DSCC v. Simon

declining to apply Meyer to a statutory minimum signature requirement that did not allow proponents to know the exact number of signatures required until they submitted their petitions

Summary of this case from Chances v. Hobbs
Case details for

Dobrovolny v. Moore

Case Details

Full title:Stan Dobrovolny; Kent Bernbeck; Richard Bellino, Appellants, v. Scott A…

Court:United States Court of Appeals, Eighth Circuit

Date published: Oct 16, 1997

Citations

126 F.3d 1111 (8th Cir. 1997)

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