Dobrovolny v. Nebraska

• Decision Date: 05 June 2000
• Docket Number: No. 4:98CV3305.,4:98CV3305.
• Citation: 100 F.Supp.2d 1012
• Parties: Stan DOBROVOLNY and Steven K. Willey, Plaintiffs, Citizens for Local Option and Control Committee, Nebraska Keno Operators Association, and Richard Bellino, Plaintiff-Intervenors, v. The State of NEBRASKA; Scott Moore, Secretary of State, in his official capacity and as an individual; and Margaret A. Jurgensen, Election Commissioner of Douglas County, Nebraska, individually and in her official capacity, Defendants.
• Court: U.S. District Court — District of Nebraska

100 F.Supp.2d 1012

Stan DOBROVOLNY and Steven K. Willey, Plaintiffs Citizens for Local Option and Control Committee, Nebraska Keno Operators Association, and Richard Bellino, Plaintiff-Intervenors, v. The State of NEBRASKA; Scott Moore, Secretary of State, in his official capacity and as an individual; and Margaret A. Jurgensen, Election Commissioner of Douglas County, Nebraska, individually and in her official capacity, Defendants.

No. 4:98CV3305.

United States District Court, D. Nebraska.

June 5, 2000.

COPYRIGHT MATERIAL OMITTED

Vincent M. Powers, Kathleen M. Neary, Powers Law Firm, Lincoln, NE, Denzel R. Busick, Busick Law Firm, Grand Island, NE, for plaintiffs and plaintiff-intervenors.

Dale A. Comer, L. Steven Grasz, Attorney General's Office, Lincoln, NE, Kristina B. Murphree, Christina A. Lustgarten, Timothy J. Buckley, Jennifer K. Johnson, Douglas County Attorney's Office, Civil Division, Omaha, NE, for defendants.

MEMORANDUM AND ORDER

KOPF, District Judge.

This case is before me for decision after a bench trial. Before issuing my findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a),¹ I will briefly summarize the claims and my decision.

This action was brought by parties who unsuccessfully sought to place initiative petitions on the November 1996 general election ballot in Nebraska. They assert several claims: (1) various voter registration list maintenance provisions found in 42 U.S.C. § 1973gg-6 (1994) were violated; (2) initiative petition signature requirements in Article III, Section 2 of the Nebraska Constitution violate the First Amendment and the Due Process Clause of the Fourteenth Amendment; (3) Neb. Rev.Stat.Ann. § 32-1409 (Lexis 1996) violates the First Amendment and the Due Process Clause; and (4) they were denied access to initiative petition and voter registration records in violation of their First Amendment rights.

Defendants raise two main defenses. They assert that plaintiffs cannot bring a private cause of action under the National Voter Registration Act (NVRA), 42 U.S.C. §§ 1973gg to 1973gg-10 (1994) predicated on state ballot questions. They also assert that this court's earlier decision in Dobrovolny v. Moore, 936 F.Supp. 1536 (D.Neb. 1996) (hereinafter Dobrovolny I), aff'd, 126 F.3d 1111 (8th Cir.1997), cert. denied, 523 U.S. 1005, 118 S.Ct. 1188, 140 L.Ed.2d 319 (1998), operates as a res judicata bar to the claims that the petition signature requirements of the Nebraska Constitution violate the First Amendment and the Due Process Clause.

Subsequent to the submission of this case, the Nebraska Supreme Court ruled that § 32-1409(1) violates the Nebraska Constitution and enjoined the Secretary of State from implementing § 32-1409(1). State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465 (1999). This decision significantly impacts the federal constitutional claims regarding § 32-1409 and access to records.

For the reasons more fully set forth below, I have found for the defendants on all claims. First, plaintiffs and plaintiff-intervenors cannot bring a private cause of action under the NVRA predicated on state ballot questions. Second, Dobrovolny I presents a res judicata bar to the federal constitutional claims regarding the petition signature requirements of the Nebraska Constitution. Third, I do not decide the federal constitutional claims regarding § 32-1409 because the claim is in effect moot given the declaratory judgment and injunction entered in State ex rel. Stenberg v. Moore. Fourth, this court lacks jurisdiction to hear the claims of denial of access to initiative petition and voter registration records in 1996 because there is no longer a live case or controversy regarding the access claim in light of the unique circumstances surrounding the November 1996 general election in Nebraska, the failure to establish any more than isolated instances of denial of access, and the holding of State ex rel. Stenberg v. Moore.

I. BACKGROUND

A. Procedural History

The plaintiffs are Stan Dobrovolny and Steven Willey. The plaintiff-intervenors are Citizens for Local Option and Control Committee, Nebraska Keno Operators Association, and Richard Bellino. For convenience, I will refer to the plaintiffs and the plaintiff-intervenors collectively as "plaintiffs." For a time, plaintiffs sought to bring this action as a class action, but no class was ever certified and this is not a class action. (Order on Pretrial Conference, Filing 109 ¶ B(17).) The defendants are the State of Nebraska, Scott A. Moore (in his official capacity as Secretary of State of Nebraska and in his individual capacity), and Margaret A. Jurgensen (in her official capacity as Douglas County Election Commissioner and in her individual capacity).

There are two complaints in this case: the Third Amended Complaint filed by plaintiffs Dobrovolny and Willey (filing 29) (the "Dobrovolny Complaint") and the Complaint in Intervention filed by plaintiff-intervenors Richard Bellino, Nebraska Keno Operators Association, and Citizens for Local Option and Control Committee (filing 31) (the "Intervenors' Complaint").

In September 1996, a three-day hearing was held before me on motions for a preliminary injunction and sanctions. At the conclusion of that hearing, I found that I had subject matter jurisdiction, but abstained to permit the Lancaster County District Court to decide a case then pending before it. It appeared that the state court would decide state law in a way that would obviate the need for this court to decide difficult federal constitutional questions regarding state law. (Filing 36.)

While the case before me was stayed, Judge Cheuvront, the state district judge, reached a decision on the merits in the case before him. He found that § 32-1409(1) "is unconstitutional in that it unduly restricts the initiative petition process in violation of Article III, § 4 of the Constitution of the State of Nebraska and the First Amendment of the United States Constitution." State of Nebraska ex rel. Dobrovolny v. Moore, Docket 547, Page 043 (Lancaster County District Court Oct. 25, 1996) at p. 7.² Despite the quoted language, Judge Cheuvront's opinion was rendered largely on state law grounds.

On appeal, the Nebraska Supreme Court reversed, finding that plaintiffs had simultaneously sought to enforce § 32-1409 and to challenge its constitutionality, and that parties seeking to enforce a statute were not permitted to challenge its constitutionality.³ State ex rel. Dobrovolny v. Moore, 254 Neb. 392, 576 N.W.2d 772 (1998) (No. S-98-983).

After the Nebraska Supreme Court's decision in State ex rel. Dobrovolny v. Moore, the case before me was reopened. The parties filed motions for summary judgment and partial summary judgment. (Filings 75, 76, and 78). I ruled that: (1) requests for injunctive relief with respect to the November 1996 election are moot and may not be granted; (2) the State of Nebraska has Eleventh Amendment immunity on all claims for general money damages (including petition circulation costs), except to the extent that attorney fees and reasonable expenses may be awarded under the NVRA; (3) the only claim against defendants Moore and Jurgensen for general money damages was made in the Intervenors' NVRA claim, and defendants Moore and Jurgensen, in their official capacities, have Eleventh Amendment immunity on that one claim for general money damages, except to the extent that attorney fees and reasonable expenses may be awarded under the NVRA; and (4) the NVRA does not create a private right of action for money damages independent of attorneys' fees and expenses. (Filing 111.) I reserved judgment on the remaining issues raised by these motions.

A one-day bench trial was held before me on June 16, 1999, with arguments and testimony focusing on the claims that defendants had violated the NVRA.⁴ The motions for summary judgment and partial summary judgment had been voluminously briefed, and the parties submitted pretrial briefs and proposed findings of fact and conclusions of law prior to the bench trial. The parties were given a lengthy period after the conclusion of the bench trial in which to file proposed findings of fact and conclusions of law indexed to the record, as well as any desired additional briefs.

B. The Issues Before the Court

The issues in this case have evolved between the time of the 1996 hearing before me and submission of this case for decision. To the extent the Order on Final Pretrial Conference (filing 109) excludes issues raised in the Third Amended Complaint or the Intervenors' Complaint, the Order on Final Pretrial Conference governs the case. Fed.R.Civ.P. 16(e).⁵ There are five groups of issues.⁶

1. National Voter Registration Act Claims

There are questions whether the State of Nebraska has kept and maintained a reasonably current voter registration system, including a uniform, systematic, and reasonably periodic process for maintaining the State's voter registration list, in violation of the National Voter Registration Act; whether plaintiffs are entitled to recover declaratory relief, equitable relief, or money damages; whether plaintiffs are entitled to recover attorneys' fees, litigation expenses, and costs under the NVRA; and whether the plaintiffs can bring this action as a private cause of action under the NVRA. (Filing 109, ¶¶ C(1), (3) & (5)-(7).)

2. Federal Constitutional Claims Regarding Petition Signature Requirements of Article III, Section 2 of the Nebraska Constitution

Both Due Process Clause and First Amendment claims are raised. The Due Process Clause issue is whether the provisions of Article III, Section 2 of the Nebraska Constitution, as interpreted by the Nebraska Supreme Court, violate the procedural due process rights of petition circulators because circulators of initiative petitions lack prior notice of the number of signatures needed to place an initiative on the ballot, entitling plaintiff...