Bernbeck v. Gale et al

Filing 59

MEMORANDUM AND ORDER - Defendants objections, Filing No. 51 , to written evidentiary materials are granted and denied as set forth herein. Plaintiff's objections to written evidentiary materials, Filing No. 52 , are denied at this time. Ordered by Judge Joseph F. Bataillon. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENT BERNBECK,
Plaintiff,

8:13CV228

vs.
MEMORANDUM AND ORDER
JOHN A. GALE, Nebraska Secretary of
State,
Defendant.

This matter is before the court on defendant’s objection to evidence, Filing No.
51, and plaintiff’s objection to evidence, Filing No. 52.

Plaintiff brought this action

alleging that he has been denied the right to place initiatives on the ballot in the State of
Nebraska because of (1) his inability to hire paid circulators who receive money per
signature;1 and (2) the requirement of Neb. Const. art. III, § 2 that he obtain 5%
signatures per county.
Filing No. 51
Defendant John Gale objects to the Third Kent Bernbeck Declaration, Filing No.
50-1, as follows:
1. Kent Bernbeck – Third Declaration, Paragraph 2. Object to the final
sentence of Paragraph 2 on the grounds of Relevancy, Lack of
Foundation, and Legal Conclusions by the witness.
2. Kent Bernbeck – Third Declaration, Paragraph 4. Object to Paragraph
4 on the grounds of Relevancy, Lack of Foundation and Legal
Conclusions by the witness.

1

The court dismissed this claim as to defendant TeBrink and as to the issue of paid circulators.
Filing No. 44.

With regard to paragraph 2, the last sentence states: “This requirement dilutes
the voice of citizen signors, myself included, depending on the county that citizen signs
the petition in.” Id. at ¶ 2. First, the court is of the opinion that Mr. Bernbeck can state
his belief as to how this affects him. Second, the court will give this declaration the
appropriate weight it deserves2 once all the evidence is considered.3
With regard to paragraph 4, the language states: “These numbers show that the
principal of ‘one man, one vote’ is violated because more weight and consideration is
given to the signatures of citizens from the rural counties than fellow citizens in nonrural counties.” Id. at ¶ 4. Again, the court is able to discern for itself that which is
evidence and that which is argument. The court views this paragraph primarily as
argument.
Filing No. 52
Plaintiff objects to defendant’s affidavit, Filing No. 49-1, ¶ 4, sentence 4 and
Attachment A submitted by Neal Erickson on the basis of relevance. Sentence 4 states:
Based on my review of those records, I prepared the list attached hereto
and marked as “Attachment A” which shows all initiative and referendum
petition drives for which petitions were submitted to the Secretary of State
for signature verification since 2002, and, of the petitions submitted,
showing: (1) The number of counties for which five percent or more of the
signatures of registered voters were determined to be valid; (2) The
number of counties in which less than five percent of the signature of
registered voters were determined to be valid; and (3) The number of
counties with no signatures submitted.

2

See Harris v. Rivera, 454 U.S. 339, 346 (1981) (“In bench trials, judges routinely hear
inadmissible evidence that they are presumed to ignore when making decisions.”).
3

The parties agreed that this case can be submitted on a stipulated record. Filing No. 47.
2

Id. at ¶ 4, line 4.

Attachment A is the listing of petition drives over the years in

Nebraska. The court has carefully reviewed Attachment A and concludes that at this
time it appears to be relevant in this case. The heart of this case is the right to vote,
and the dilution of votes, and viewing these numbers might be relevant to this issue.
Accordingly, the court will deny plaintiff’s objection at this time. If, however, the court
views all the evidence and determines it is not relevant, the court will not take it into
consideration in making its decision.
THEREFORE, IT IS ORDRED:
1.

Defendant’s objections, Filing No. 51, to written evidentiary materials are

granted and denied as set forth herein.
2. Plaintiff’s objections to written evidentiary materials, Filing No. 52, are denied
at this time.
Dated this 11th day of September, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

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