Bernbeck v. Gale

• Decision Date: 14 July 2016
• Docket Number: No. 15-1983,15-1983
• Parties: Kent Bernbeck, Plaintiff–Appellee v. John A. Gale, Nebraska Secretary of State, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

829 F.3d 643

Kent Bernbeck, Plaintiff–Appellee

v.John A. Gale, Nebraska Secretary of State, Defendant–Appellant

No. 15-1983

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2016

Filed: July 14, 2016

Rehearing and Rehearing En Banc Denied September 7, 2016^*

Counsel who presented argument on behalf of the appellant was Ryan Post, AAG, of Lincoln, NE. The following attorneys also appeared on the appellant brief; Leonard Jay Bartel, AAG, of AAG, of Lincoln, NE., David A. Lopez, AAG, of Lincoln, NE.

Counsel who presented argument on behalf of the appellee was David Domina, of Omaha, NE. The following attorney also appeared on the appellee brief; Megan Mikolajczyk, of Omaha, NE.

Before SHEPHERD, BEAM, and KELLY, Circuit Judges.

BEAM

, Circuit Judge.

Kent Bernbeck brought claims under 42 U.S.C. § 1983

against two public officials in their official capacities, alleging that the procedures they enforce for placing initiatives on Nebraska state and municipal ballots violate his rights under the First and Fourteenth Amendments to the Constitution of the United States, and seeking declaratory and prospective injunctive relief. The district court dismissed all but the Fourteenth Amendment claim against Nebraska Secretary of State John Gale, entered judgment for Bernbeck on that claim, enjoined Gale from enforcing certain provisions of the Nebraska Constitution, and awarded Bernbeck attorneys' fees and costs. Gale appeals from both the judgment and the award of attorneys' fees. Because Bernbeck does not possess standing to bring his Fourteenth Amendment claim against Gale, we now vacate in part and remand with instructions to dismiss without prejudice.

I. BACKGROUND

Article III § 2 of the Nebraska Constitution

provides in relevant part:

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 ....

Until 1994, Article III § 4 of the Nebraska Constitution

required that the number of petition signatures needed to satisfy § 2 be calculated as a percentage of the total number of voters that participated in the immediately preceding gubernatorial election. In Duggan v. Beermann , 245 Neb. 907, 515 N.W.2d 788 (1994), however, the Nebraska Supreme Court held that this requirement had been impliedly repealed by an earlier amendment to § 2 and that the required number of petition signatures should instead be calculated as a percentage of total registered voters in the state at the time the petition is filed with the Secretary of State. The practical effect of this decision, in Bernbeck's opinion, was to greatly increase the number of petition signatures needed to place an initiative on the statewide ballot.

Bernbeck, a resident of Douglas County, Nebraska, is a frequent participant in Nebraska's initiative process, having sponsored or cosponsored five statewide initiative petitions and having provided consultation or assistance on four others. Unhappy with the increased burden Duggan

placed upon his efforts, Bernbeck filed two sworn statements with Gale—in January 2012 and again in July—that he was sponsoring a petition drive to amend the Nebraska Constitution to return the petition-signature thresholds for ballot initiatives to their pre-Duggan levels. His July filing also included a sample petition form. Bernbeck stipulated that he never filed a signed petition with Gale, and the record contains no clear indication that he ever went about collecting signatures for that initiative.

Around the same time, Bernbeck circulated petitions in various Nebraska cities and towns for placement of an initiative on their respective municipal ballots. Although the stipulated record on which this case was decided does not specify the objective of this initiative, Bernbeck's complaint alleges it proposed “an ordinance to require associations receiving municipal funds to disclose and publish in a local newspaper of record, all activity taken to influence the Nebraska Legislature, including support and/or opposition to municipal and statewide ballot measures.” The Village of Denton, Nebraska, refused to place Bernbeck's initiative on the ballot because he paid petition circulators by the signature in then-contravention of Nebraska law. See Neb. Rev. Stat. § 32–630(3)(g)

(Reissue 2008 & Cum. Supp. 2014) (repealed 2015). That dispute was fully litigated in Nebraska state court.

Bernbeck brought claims under § 1983

against both Gale and Charlotte TeBrink, clerk of the Village of Denton. Bernbeck alleged that Gale's enforcement of the Nebraska Constitution's “signature-distribution” requirement for initiatives—that an initiative petition contain signatures of at least 5% of the registered voters of each of two-fifths of Nebraska's counties in order to be placed on the statewide ballot—violated his rights under the First Amendment (incorporated through the Fourteenth) to political expression and to petition the government, as well as his voting rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He also alleged TeBrink's enforcement of the paid-circulator prohibition violated his First Amendment rights. The district court found Bernbeck's claims against TeBrink precluded by the previous state-court litigation and dismissed his First Amendment claims against Gale. The district court concluded, however, that the signature-distribution requirement diluted Bernbeck's right to vote in violation of the Fourteenth Amendment. It enjoined Gale from enforcing the relevant provisions of §§ 2 and 4 of the Nebraska Constitution and awarded Bernbeck attorneys' fees and costs. Gale appeals, arguing the district court erred both in its decision and its calculation of attorneys' fees.

II. DISCUSSION

Standing, although not raised by the parties on this appeal, is a “jurisdictional prerequisite” and thus “a threshold issue that we are obligated to scrutinize,” sua sponte if need be. Curtis Lumber Co. v. La. Pac. Corp. , 618 F.3d 762, 770 & n.2 (8th Cir. 2010)

(first passage quoting Medalie v. Bayer Corp. , 510 F.3d 828, 829 (8th Cir. 2007) ). This is because “[j]udicial power to review the legality of official action exists only as an incident of the duty to determine the law applicable to a case properly before the court.” 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531.1 (3d ed. 2008). We review a party's standing de novo. Curtis Lumber , 618 F.3d at 770. Standing requires that in order

[t]o seek injunctive relief, a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.

Summers v. Earth Island Inst. , 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)

. Because these requirements are “an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). This case comes to us at the conclusion of a bench trial, and so we look to see that Bernbeck has proven the elements of standing by a preponderance of the evidence.

Bernbeck's Fourteenth Amendment claim against Gale rests on the allegation that the signature-distribution requirement burdens his rights by placing attenuated value and influence upon the signatures of each voter from a highly populated county as compared with the signatures of each voter from a less populated county. Nebraska is a largely rural state and, according to stipulated figures taken from a U.S. Census Bureau estimate, in 2012 Douglas County—home to Omaha—encompassed roughly 28.7% of Nebraska's total population, which is spread across 93 counties. Thus, according to Bernbeck, the signature of a voter in a rural county on an initiative petition goes further in reaching the target of 5% of that county's registered voters than does the signature of a voter who resides in Douglas County. Bernbeck's complaint can fairly be read as claiming that this disparity invades two distinct interests of his: (1) it burdens his “individual voice and vote as a petition circulator” and (2) it “makes his vote less meaningful than the vote of any other Nebraska voter in any other Nebraska county.” Read generously, Bernbeck in short claims both an interest as a petition circulator¹ in putting his initiative onto the statewide ballot and an interest as one who signs an initiative petition in parity between his signature and those of Nebraskans residing in other counties. Cf. Roberts v. Wamser , 883 F.2d 617, 622 (8th Cir. 1989)

(discussing divergent interests of candidates and voters). We address each of these interests in turn.

A. Bernbeck's Interest in Placing an Initiative on the Ballot

Bernbeck alleges in his complaint that the signature-distribution requirement violates the one-man-one-vote principle...