In the current legal and political environment, one should never rule a frivolous suit being successful, particularly regarding the civil rights initiatives lead by Ward Connerly. Lawsuits are even repeated exactly verbatim in the same state even after opponents lose, as was the case recently in Missouri challenging MoCRI's attempt to requalify for 2010.

But in Nebraska where voters approved the initiative in 2008, the game clock appears to be winding down with a positive result. NbCRI appears to have won on both late "signature ethics" challenges (the usual meta-"word game" the left plays with "affirmative action" and "deception") and the so-called "single subject rule." In fact, the judge's ruling on that issue is very important, as it represents a common-sense rebuff to the left on an old strategy they played somewhat successfully with the Florida Supreme Court in 2000, and it has bearing on several future states CRI's might appear in.

Below the fold I'm including the raw text of the decision as well as NbCRI's press release. Enjoy.

Follow up:

For Immediate Release Contact: Doug Tietz 1/22/08

Nebraska Civil Rights Initiative Wins Lawsuit

It’s Time to Acknowledge the People’s Decision and Implement Initiative 424

Today, Judge Flowers of the District Court of Lancaster County ruled in favor of the Nebraska Civil Rights Initiative denying the plaintiff’s allegations of ‘fraud’.

“The most common phrase in the judge’s ruling is, “there is no evidence.” It is time for the opposition to put to rest their baseless allegations and acknowledge the people’s decision to end race and gender preferences in public contracting, public education, and public hiring,” said Executive Director, Doug Tietz.

The Nebraska Civil Rights Initiative (NeCRI) is dedicated to giving the people of Nebraska the opportunity to end preferential treatment based on race, gender, ethnicity, or national origin by state or local governments. NeCRI will make Nebraska a place of equal opportunity for all, not a state that uses discrimination as a tool to create “diversity.” Achieving “diversity” should never be an excuse to discriminate!

The ruling is attached to this email.

###

IN THE DISTRICT COURT OF LANCASTER COUNTY, NEBRASKA

STATE OF NEBRASKA ex. rel. )
JEFFREY HALL and EVA SOHL, )
)
Plaintiff, ) CI08 -4055
)
)
vs ) ORDER
)
JOHN GALE et al, )
)
Defendant. )

This suit, brought by the Plaintiffs pursuant to Neb. Rev. Stat. §32-1412(2), seeks an injunction to prevent Initiative 424 from being placed on the ballot for the November 4, 2008 election. For the reasons that follow the request for injunctive relief is denied.

Statement of the Case

Defendants, Nebraska Association of Scholars, Super Tuesday for Equal Rights and Marc Schniederjans, are the sponsors of the so called Civil Rights Initiative which seeks to ban affirmative action in government employment, education and contracting. On August 22, 2008, after a petition drive, Secretary of State Gale determined that more than enough signatures had been gathered to place the issue before the voters and on September 12, 2008, certified a ballot for the November 4, 2008 general election which included the constitutional amendment proposed by the sponsors as Initiative 424. This suit challenges Gale’s determination. Plaintiffs allege the petitions submitted to Gale were insufficient to cause the initiative to placed on the ballot for one or more of the following reasons (1) there was a pervasive and general pattern and ractice of fraud committed by petition circulators, (2) circulators failed to read the object statement to each signer, (3) Gale improperly permitted petitions to be filed in his office on July 4th, (4) circulators failed to sign their oaths in the presence of a notary, (5) circulators left their petitions unattended, (6) circulators permitted petitions to be signed outside their presence, (7) signer information was altered, (8) petitions were bundled, (9) Jill Schniederjans, wife of Marc Schniederjans, notarized some of the petitions, and (10) the initiative violates the single subject rule. Trial was held on October 6th, 7th, 8th and 9th of 2008 after which the matter was argued
orally and in writing.

Evidentiary Rulings

At the time of trial I took under advisement the Defendants’ objections to Attachments L and M of Exhibit 1 (which were also offered as Exhibits 10 and 11) and exhibit 12. The objections to attachments L and M, Exhibit 10 and Exhibit 11 are sustained. The objection to Exhibit 12 is overruled. I also took under advisement the Defendants’ continuing objection, based on hearsay, to permitting witnesses to testify to what circulators said. That objection is now overruled.

Sufficiency of the Petitions

State el rel Stenberg v Moore, 258 Neb. 199, 602 N.W.2d 465 (1999) which cites, among other cases, State ex rel Morris v Marsh, 183 Neb. 521, 162 N.W.2d 262 (1968) and State ex rel Ayres v Amsberry, 104 Neb. 273, 177 N.W. 1179 (1920) provides a good summary of the law that applies to initiative petitions and I will not detail that summary here. Suffice it to say that the power of the initiative must be liberally construed to promote the democratic process and the right of initiative constitutionally provided should not be circumscribed by a narrow and strict interpretation of the statutes pertaining to its exercise. Plaintiffs cite Barkley v Pool, 103 Neb. 629, 173 N.W. 600 (1919) for the proposition that when there is a pervasive pattern of fraud on the part of petition circulators, all of the signatures collected by those circulators should be discounted. The Defendants argue that much has changed since Barkley v Pool was decided and suggest that it is no longer good law. I agree that the changes made in the last 90 years, particularly in the way signatures are now verified, might have lead to a different result had Barkley v Pool arisen in 2009 instead of 1919. I am nevertheless of the belief that when there has been a pervasive pattern and practice of fraud and deception by petition circulators that undermines the integrity of the initiative process, a court has the power to discount, in their entirety, the petitions they circulated.

In this case, however, the facts do not support a finding that there was any pervasive pattern and practice of fraud, misrepresentation or deception. It is true that the law requires a circulator to state the object of the petition to a person before he or she signs it. But it does not require that the object statement printed on the front of the petition be read verbatim to each person beforehand. It is sufficient that circulators summarize, generally, the object or purpose of the petition in a way that is not misleading. This, for the most part, they did. While the words used by the circulators were not always the same and the explanation of it arguably incomplete, signers were told that the object of the petition was to ban or end affirmative action or preferences in employment and/or education. That is what it is intended to do.District Court of Lan The fact that some circulators did not say that it would end preferences based on ethnicity and national origin as well as a race and gender does not render the explanation misleading. The same is true if the circulator failed to say that preferences in government contracting would be ended as well as preferences in government employment and/or education.

As for the other irregularities claimed by the Plaintiffs, there is no evidence of any petition being altered and no credible evidence that bundling occurred. There was evidence of petitions being left unattended, but no evidence that an unattended petition was signed. There was evidence of one or more petitions being signed while the circulator was nearby but engaged in conversation with someone else. There may have been occasions on which a circulator signed his or her oath at a table a few feet away from the notary, rather than directly in front of the notary. But there is no evidence that when this happened, that circulator did not thereafter appear personally before the notary so that his or her identity and signature could be verified and the oath taken. Indeed, even Robert Harlak, Plaintiff’s primary witness in this regard, said when he brought in the petitions he claimed he signed at home, that he appeared personally before the notary to take his oath and verify his identity and signature on those petitions. While one could argue that “irregularities” occurred, the evidence presented by the Plaintiffs does not permit me to find that any substantial number of signatures, let alone more that 24,000, should be discounted.

I find the Secretary of State was within his authority to open his office on the Fourth of July to accept initiative petitions for the November election if that is what he chose to do. Plaintiffs’ argument that the signatures on the petitions received that day should be discounted is without merit. Equally without merit is their argument that Jill Schniederjans could not notarize any petitions circulated by persons other than her husband, because he was a sponsor of the initiative measure.

Single Subject Rule

The single subject rule was added to Article III § 2 of the Nebraska Constitution in 1998. It is a limitation on the ability to amend the Constitution through the initiative process which the people imposed upon themselves. The parties agree, as do I, that the test for evaluating whether an initiative seeking a constitutional amendment contains more than one subject is the “natural and necessary connection” test set forth in Munch v Tusa, 140 Neb. 457, 300 N.W. 385 (1941). The question is whether the provisions of the proposed initiative have a natural and necessary connection to each other and to the measure as whole.

The general purpose of Initiative 424 is found in section (1) and is to ban preferences based on race, sex, color, ethnicity or national origin in public employment, public education and public contracting. Section (2) says that the ban applies to conduct occurring after its effective date. Sections (3), (4) and (5) exempt from the ban bonafide qualifications based on sex, court orders and consent decrees in effect at the time of its enactment, and action necessary to prevent a loss of federal funds. Section (6) identifies the governmental units to which the ban applies and section (7) says that the remedies available for violations of the ban are the same as those otherwise provided for the violations of Nebraska’s anti discrimination laws. These provisions have a natural and necessary connection to each other and to the measure as a whole. It is true that the initiative spells out the activities of government that are included within the ban and provides a remedy for those who engage in prohibited acts. But an initiative with a single distinct purpose does not violate the single subject rule because its provisions include details relating to its implementation. See In re Proposed Initiative 1997-1998 #74, 962 P. 2d 27 (Colo 1998). I find the amendment passes the Munch test and does not violate the single subject rule.

IT IS THEREFORE ORDERED that the relief requested by Plaintiffs is denied and judgement be entered for the Defendants. Costs are taxed to Plaintiffs.

My bailiff shall mail a copy of this order to counsel of record.

Footnotes (ed: provided online in endnote style):
Because Neb. Rev. Stat. 32-1412(2) provides the plaintiffs an adequate remedy at law they are not entitled to a mandamus and their request for one will not be further considered. In addition, even though the election has passed, pursuant to Duggan v Beerman, 241 Neb. 411, 544 N.W. 68 (1996), this case is not moot.
This is not to say that no signer was misled by a circulator. Linda Kern, Ann Nuss and Christyna Wells testified that they felt misled and each had her name removed after signing a petition. From their testimony it appears that the circulators who approached them provided an inadequate statement of the object of the petition and may have misled them into believing it did something they supported. Certainly that was the case with Ann Nuss. I can’t help but note in passing, that those who support affirmative action believe that describing Initiative 424 as a “civil rights” initiative is misleading, while those who believe that reverse discrimination is the result of affirmative action do not. Over 150 people who signed the initiative petition asked Gale to remove their names, which he did. It is possible that some of those people may have been misled. It is also possible that some did not understand what they were told or simply changed their minds after thinking it over or talking with others about it later.

Dated _________________, 2009.

By the Court:

___________________________
. Karen B. Flowers, District Judge

By the Court:

___________________________
. Karen B. Flowers, District Judge