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 Unite d States District
* Court for the District o f 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.

Sta n Dobrovolny, Kent Bernbeck and Richard Bellino , initiative petition organizers (appellants), appeal from the district court’s conclusion that article III, § 2 1-2-

of t he Nebraska Constitution, as interpreted by th e Nebraska S upreme Court in Duggan v. Beermann , 515 N.W.2d 788, 793-9 4 (Neb. 1994), does not violate their right to freedom of speech or procedural due process a s guaranteed by the First and Fourteenth Amendments. We affirm.

I.

Artic le II, §§ 1, 2 and 4 of the Nebrask a Constitution, allow the people of Nebraska to amend their state constitution through the initiative petitio n pro cess. Under article III, § 2, as interpreted i n Dugg an , the number of petition signatures necessary t o place an initiative measure on the ballot is equal to 10% of th e number of registered voters in Nebraska on th e date that initiative petitions must be submitted to th e Nebra ska secretary of state. 515 N.W.2d at 793-94. A s
a re sult, initiative proponents cannot know the exac t number of signatures necessary to place their measures on the b allot until they submit their petitions to th e secretary of state for review. Appellants brought thi s § 1983 action, alleging that article III, § 2 violate s their First Amendment right to free speech, as well a s their right to due process of law under the Fourteent h Amendment, because they have insufficient pri or notice of the number of signatures required for any give n initiative petition.

II.
Appellants rely primarily on Meyer v. Grant , 486 U.S

. 414 (1988), to support their contention that th e-3-

established procedure for calculating the req uired number of s ignatures violates their First Amendment right t o free speech. In Meyer , the Supreme Court held that a Colorado statute, which made it a felony to pa y circulators of initiative petitions, violated the Firs t Amen dment. In its First Amendment analysis, the Cour t applied “exacting scrutiny” because the statut e restricted “the type of interactive-4-

communication concerning political change that i s appropriately described as ‘core political sp eech.’” Id

. at 420-22.

We agree with the district court’s conclusion tha t the appellants’ inability to know in advance the exac t number of signatures required in order to place thei r init iative measures on the ballot in no way restricte d their abil ity to circulate petitions or otherwise engage in politic al speech, and therefore the decision in Meyer is inap plicable. In contrast to the Colorado statut e which limi ted the number of voices available to convey a particular political message, as well as the size of the
au dience that could be reached, the constitutiona l provision at issue here does not in any way impact th e communication of appellants’ political message o r otherwise restrict the circulation of their initiativ e peti tions or their ability to communicate with voter s about their proposals. Nor does the provision regulat e the content of appellants’ political speech. While th e Nebr aska provision may have made it difficult fo r appellants to plan their initiative campaign an d efficiently allocate their resources, the difficulty o f the proces s alone is insufficient to implicate the First Amen dment, as long as the communication of idea s asso ciated with the circulation of petitions is no t affecte d. As the Eleventh Circuit noted in Biddulph v

. Morth am , 89 F.3d 1491, 1498 (11th Cir. 1996), cert

. denied , 117 S. Ct. 1086 (1997), “ Meyer does not requir e
us to subject a state’s initiative process to stric t scrutiny i n order to ensure that the process be the most effi cient or affordable. Absent some showing that th e-5-

in itiative process substantially restricts politica l discussion . . . Meyer is inapplicable.”

Bec ause article III, § 2, as interpreted by th e Nebr aska Supreme Court in Duggan , does not involv e rest rictions on the circulation of petitions nor th e comm unication of speech, political or otherwise, w e affirm the district court’s conclusion that t he provision does not violate the First Amendment.-6- III.

The appellants also argue that article III, § 2 viol ates their right to procedural due process becaus e th e appellants and other initiative proponents ar e without notice of the precise minimum number of vali d registered voter signatures required to place a n init iative on the ballot prior to the time they fil e thei r petitions with the State. Hence, appellant s contend their expenditures of time and money is placed at risk for no compelling governmental reason.

The possession of a protected life, liberty o r prop ertyinterest is a condition precedent to th e gove rnment’s obligation to provide due process of law , and where no such interest exists, there can be no du e process violation. Movers Warehouse, Inc. v. City o f Littl e Canada , 71 F.3d 716, 718 (8th Cir. 1995). Th e appellants contend that they have a property interest at stak e in their initiative campaigns because of thei r investments of time, money and effort in the initiativ e process. They also assert that they have some kind o f liberty interest that is affected by the fact that the y cannot know the exact number of signatures necessary t o plac e an initiative on the ballot during an initiativ e campaign. Those asserted interests purported ly give them a right to procedural due process. We disagree.
Clearly , the right to a state initiative process i s not a right guaranteed by the United States C onstitution, but i s a right created by state law. See Taxpayer s United for Assessment Cuts v. Austin , 994 F.2d 291, 29 5 (6th Cir. 1993). Moreover, the procedures involved i n-7-

the initia tive process, including the calculation of the numb er of signatures required to place an initiativ e measure on the ballot, are state created and defined

. Th erefore, if any right to the initiative process o r specifically to prior notice exists, it is de pendent upon
a fin ding that state law has created in appellants a n inter est substantial enough to rise to the level of a “leg itimate claim of entitlement” protected by the Du e Process Cl ause. Board of Regents v. Roth , 408 U.S. 564, 577 (1 972); Montero v. Meyer , 13 F.3d 1444, 1447 (10t h Cir.), cert. denied , 513 U.S. 888 (1994).Appellants also argue that article III, § 2 of the Nebraska Constitution violates 2 theircons titutional rights to assembly, to petition the government for redress o f grievances and to substantive due process. Because these claims were not properl y raised before the district court, we decline to consider t hem for the first time on appeal. See Re nfro v. Swift Eckrich, Inc. , 53 F.3d 1460, 1464 (8th Cir. 1995) (refusing t o con sider issues raised for the first time on appeal unless exceptional circumstance s exist).

-8- The state “retains the authority to interpret [the] scope and availability”of any state-conferred right o r interes t. Biddulph , 89 F.3d at 1500 (quoting Gibson v

. Fires tone , 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, app ellants can claim no constitutionally-protected right to place issues before the Nebraska electorate; any opportunity to do so must b e subject to compliance withstate constitutional requirements. See id . at 1446-47. Nor d o appel lants have a state right to prior notice of th e exac t number of signatures required to place a n initiative measure onthe 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 foregoi ng, the judgment of the district court is affirmed. 2-9-

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHT H CIRCUIT.