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

of Nebraska

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’s conclusion that article III, § 2 1
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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
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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
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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
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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.
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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
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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). 
Appellants also argue that article III, § 2 of the Nebraska Constitution violates 2

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).

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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
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.