Stan Dobrovolny v. Scott A. Moore

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_________

No. 96-3683
___________

Stan Dobrovolny; Kent Bernbeck; *
Richard Bellino, *
*
Appellants, *
*
v. * Appeal from the United
States District
* Court for the District of
Nebraska.
Scott A. Moore, individually and *
officially, Secretary of State for the *
State of Nebraska, *
*
Appellee.
___________

Submitted: May 20, 1997
Filed: October 16, 1997
___________

Before McMILLIAN, ROSS and FAGG, Circuit Judges.
___________

ROSS, Circuit Judge.

Stan Dobrovolny, Kent Bernbeck and Richard Bellino,
initiative petition organizers (appellants), appeal from
the district court’s1 conclusion that article III, § 2

1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska
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.

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
-2-
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

-3-
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

-4-
initiative process substantially restricts political
discussion . . . Meyer is inapplicable.”

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.

-5-
 III.

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 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

-6-
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).

-7-
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.2

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) (refusing to
consider issues raised for the first time on appeal unless exceptional circumstances
exist).

-8-
 A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH
CIRCUIT.

-9-