Citizens in Charge

In a decision released late yesterday, Federal Judge Joseph Bataillon struck down Nebraska’s initiative law requiring petition circulators to be residents of the state, declaring the statutory provision “unconstitutional” as a violation of the First Amendment rights of Nebraskans.

The decision was a surprise to many observers. Although in recent years residency laws have been struck down unanimously by three separate federal circuit courts (Sixth, Ninth and Tenth), there is an Eight Circuit case from a decade ago (Initiative & Referendum Institute v. Jaeger), which upheld a North Dakota residency law. When plaintiffs sought a preliminary injunction in this case, Judge Bataillon denied it and signaled that the Jaeger case would be controlling.

In his memorandum and order released yesterday, the judge wrote: “During the preliminary injunction hearing, the court determined that Jaeger would most likely apply. However … Following the submission of evidence and argument, the court believes that Jaeger is distinguishable. The Eighth Circuit in Jaeger specifically stated that there was ‘no evidence in the record’ of the alleged burden associated with the ban.”

Citizens in Charge, et al, also challenged Nebraska’s requirement that petitions state in large red type whether they are circulated by a paid circulator or a volunteer. The judge upheld that provision, writing, “The court does not find that this is a pejorative label or compelled speech, but instead concludes that this language is intended merely to inform the electorate of the paid or volunteer status.”

The case is entitled Citizens in Charge v. Gale (4:09CV3255). Nebraska’s Secretary of State John Gale was sued in his official capacity in a challenge brought by Citizens in Charge and Nebraska citizens Mike Groene and Donald Sluti, and later joined by the Libertarian Party of Nebraska and the Libertarian National Committee as plaintiff-intervenors. The American Civil Liberties Union litigated the case on behalf of all the plaintiffs.

In addition to other evidence, plaintiffs entered numerous statements made by legislators during debate over the unconstitutional statute into the record. In his ruling, the judge noted this prescient warning to legislators by the law’s sponsor, Senator Schimek: “At the risk of sounding too much like I’m preaching or too much like a school teacher here, I would tell you don’t come to the microphone and say we don’t want outsiders in our state because we don’t like outsiders or we don’t like what they have to say. That’s the wrong reason.”

Judge Bataillon also issued his opinion in a related case, Bernbeck v. Gale, in which he upheld the ban on compensation for petition circulators based on the number of signatures they gather, i.e. their productivity. Kent Bernbeck, a long-time petition activist, also challenged the state’s residency law and prevailed (in accordance with the decision in Citizens in Charge v. Gale).

Appeals are likely by one side or the other on most if not all of the decisions rendered yesterday in these two cases.

A full copy of the judge’s memorandum and order in Citizens in Charge v. Gale can be found here.