Schaefer v. Cegavsky et al

Filing 24

ORDER denying Schaefer's 22 Motion for preliminary injunction and denying as moot the request for a hearing on that motion combined with a trial on the merits. Schaefer has until 4/26/2016 to show cause why this case should not be dismissed under the doctrine of res judicata. Any reply by the Nevada Secretary of State to Schaefer's response to the the order to show cause must be filed within 7 days of service of Schaefer's response. No further briefing will be permitted. If S chaefer does not file a document showing good cause by 4/26/16, this case will be dismissed in its entirety without further notice and without prejudice. Signed by Judge Jennifer A. Dorsey on 4/12/16. (Copies have been distributed pursuant to the NEF - EW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Michael Schaefer,

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Plaintiff

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v.

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Barbara Cegavsky, Secretary of State,

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2:16-cv-00004-JAD-VCF
Order Denying Motion for Preliminary
Injunction; Denying Request for
Preliminary Injunction Hearing as Moot;
and Ordering Schaefer to Show Cause
Why this Case Should Not Be Dismissed
Under the Doctrine of Res Judicata

Defendant
[ECF 22]

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Michael Schaefer sues the Nevada Secretary State for declaratory and injunctive relief,

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challenging NRS 293.263’s requirement that candidates be listed alphabetically on primary

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ballots for major political parties as a violation of his due-process and equal-protection rights.1 I

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recently dismissed Schaefer’s complaint for failure to state a claim and gave him until April 15,

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2016, to file an amended complaint if he could state a plausible claim for relief.2

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Schaefer timely filed an amended complaint3 and now moves to enjoin the Nevada

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Secretary of State from approving an NRS 293.623-compliant ballot, insisting that the candidates

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appear in a randomly selected order, not alphabetically.4 Schaefer also requests a hearing on his

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motion and to combine that hearing with a trial on the merits.5

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But this is not Schaefer’s first case challenging this Nevada statute as a due-process and

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equal-protection violation. He litigated a nearly identical case that he lost on summary judgment

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in 1998.6 Conveniently, Schaefer makes no mention of his prior, unsuccessful bid to challenge

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ECF No. 21.

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ECF No. 19.

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ECF No. 21.

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ECF No. 22.

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Id.

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Mike Schaefer v. Dean Heller, et al., CV-S-96-492 (RJJ) (D. Nev. 1998).

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this Nevada law. I find that Schaefer has not established that he is likely to succeed on the

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merits—or even that there are serious questions going to the merits—of his claim because it

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appears that his claim is barred by the doctrine of res judicata. I also find that Schaefer merely

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restates in his first amended complaint the same allegations that I previously found insufficient to

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state a plausible claim for relief. Accordingly, I deny Schaefer’s motion for an injunction, I deny

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his request for a hearing on that motion and to combine it with a trial on the merits as moot, and I

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order Schaefer to show cause why this case should not be dismissed under the doctrine of res

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judicata.

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Background

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A.

Schaefer’s prior case challenging the constitutionality of Nevada’s law requiring
alphabetically listed primary ballots was summarily adjudicated in the state’s favor.

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Schaefer intended to seek the 1996 Republican nomination to the U.S. House of

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Representatives for the 2nd Congressional District of Nevada.7 In June of that year, Schaefer

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sued the Nevada Secretary of State (Dean Heller) and the State of Nevada in the U.S. District

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Court in the District of Nevada asking the court to declare that “Nevada statutes mandating

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alphabetical listing of candidates [are] unconstitutional, and to order that the Secretary of State

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determine some procedure to determine ballot listing that affords plaintiff, and other candidates

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for the Republican Nomination to Congress, District 2, with the same opportunity to enjoy First

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Appendix A at 2, ¶ 2 (Complaint for Declaratory Relief (Election Ballot Listing)
(Constitutionality of the Alphabet), ECF 1 in Mike Schaefer v. Dean Heller, et al., CV-S-96-492
(RJJ) (D. Nev.) (“Schafer v. Heller”)).
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Position on the September 3, 1996 ballot.”8 That case was stayed9 but eventually proceeded to

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the dispositive-motion stage with both sides filing competing motions for summary judgment.10

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Then U.S. District Judge Johnnie Rawlinson heard oral argument on the motions on June 9,

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1998.11

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In ruling on the motions, Judge Rawlinson considered the evidence offered by the parties

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and analyzed Schaefer’s challenge to Nevada’s alphabetically listed-ballot law under the standard

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announced by the U.S. Supreme Court in Burdick v. Takushi, 504 U.S. 428 (1992).12 Judge

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Rawlinson found that Schaefer had “not provided any evidence that the alphabetical ballots place

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a severe restriction on candidates. . . .”13 She also found that “the State nevertheless provided a

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rational reason for requiring an alphabetical ballot.”14 Judge Rawlinson therefore concluded that

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the State of Nevada and the Nevada Secretary of State were entitled to summary judgment in

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Appendix A at 5:12-20. Although the only statute mentioned by number in Schaefer’s
complaint in Schaefer v. Heller is NRS 293.265—mentioned once and in parenthetical, see
Appendix A at 3:3—it appears to be a typo because that statute concerns nonpartisan primary
ballots and Schaefer was “seeking the Republican nomination in [the] primary election set for
9/3/96[,]” Appendix A at 2:2–3, which would have, even in 1996, been governed by NRS
293.263.

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Apparently, Schaefer had unsuccessfully challenged this Nevada statute in a Nevada state court
and a stay was imposed while Schaefer appealed that decision to the Nevada Supreme Court.
Appendix B at 1:24–2:14 (Order, ECF 33 in Schaefer v. Heller). Judge Rawlinson recounted that
the Nevada Supreme Court dismissed Schaefer’s appeal because he failed to show in the trial
court that alphabetical listing of candidates provided any with a statistical advantage, and thus
could not show that he was denied due process or equal protection of the laws. Appendix B at
2:9–14. The state moved to stay the case again when Schaefer brought another state-court
proceeding challenging the issue, but because a decision had been issued against him and he was
waiving his right to appeal, the state withdrew its motion to stay. Appendix B at 3:6–12.
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See Appendix B at 1–3.

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Appendix C (Minutes of Court, ECF 32 in Schaefer v. Heller).

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Appendix B at 4:9–7:15.

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Appendix B at 6:19-20.

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Appendix B at 7:7–15.

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their favor, and thus granted those defendants’ motion for summary judgment and denied

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Schaefer’s competing motion for summary judgment.15 The Clerk of Court then entered

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judgment in favor of the Nevada Secretary of State and the State of Nevada and against Schaefer

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and closed the case.16

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B.

Schaefer’s current case likewise challenges the constitutionality of Nevada’s
alphabetically listed primary ballots.

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Schaefer currently intends to seek the 2016 Democratic nomination to the U.S. House of

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Representatives for the 4th Congressional District of Nevada.17 Donning a familiar mantle,

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Schaefer sues the Nevada Secretary of State for an order declaring that NRS 293.263’s

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requirement that candidates be listed alphabetically on ballots for major political parties violates

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his due process and equal protection rights. He also seeks an injunction requiring the Nevada

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Secretary of State to list the candidates on the ballot “in a randomized alphabetical order. . . .”18

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Upon adopting the report and recommendation of U.S. Magistrate Judge Cam Ferenbach,

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I recently dismissed Schaefer’s complaint with leave to amend.19 Schaefer timely amended20 and

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now moves for a preliminary injunction and requests a hearing on that motion to be combined

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with a trial on the merits of his due-process and equal-protection challenge to Nevada’s

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alphabetical-ballot requirement.21

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Appendix B at 7:16–19.

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Appendix D (Judgment in a Civil Case, ECF 34 in Schaefer v. Heller).

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See ECF No. 21.

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See id. at 5.

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ECF No. 19.

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ECF No. 21.

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ECF No. 22.

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Discussion

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The U.S. Supreme Court instructed in Winter v. Natural Resources Defense Council, Inc.

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that a plaintiff seeking injunctive relief “must establish that he is likely to succeed on the merits,

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that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

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equities tips in his favor, and that an injunction is in the public interest.”22 The Ninth Circuit

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subsequently recognized in Stormans, Inc. v. Selecky that the Supreme Court had “definitively

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refuted” the circuit’s possibility-of-irreparable-harm test.23 However, several panels of the Ninth

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Circuit have since instructed that “if a plaintiff can only show that there are ‘serious questions

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going to the merits’—a lesser showing than likelihood of success on the merits—then a

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preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s

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favor,’ and the other two Winter factors are satisfied.”24

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To obtain injunctive relief, Schaefer must therefore show either that he is likely to

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succeed on the merits of his claim that NRS 293.263 violates his due-process and equal-

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protection rights or that there are serious questions going to the merits of his claim. Schaefer’s

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prior, summarily adjudicated case that unsuccessfully challenged the constitutionality of this

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same Nevada statute appears to pose an insurmountable obstacle for him to make the showing

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required under either test.

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The basis of the U.S. District Court for the District of Nevada’s subject-matter

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jurisdiction in Schaefer’s prior case of Mike Schaefer v. Dean Heller, et al., CV-S-96-492 (RJJ)

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(D. Nev.) (“Schafer v. Heller”), was federal-question jurisdiction.25 After trial by the court on the

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Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).

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Stormans v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter, 555 U.S. at 22).

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Shell Offshore v. Greenpeace, 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting with emphasis
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)); accord Towery v.
Brewer, 672 F.3d 650, 657 (9th Cir. 2012) (quoting Cottrell, 632 F.3d at 1135)).
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See Appendix A at 1:18–22 (“This case involves a federal question, jurisdiction existing
pursuant to Constitution, Art. III, sec. 2, and Title 28, U.S. Code, sec. 1331[ ], providing for
original jurisdiction inactions [sic] ‘arising under the Constitution, laws or treaties of the United
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parties’ competing motions for summary judgment, the court in Schafer v. Heller entered

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judgment in favor of the State of Nevada and Nevada Secretary of State and against Schaefer on

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his claim challenging the constitutionality of Nevada’s law requiring candidates be listed

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alphabetically on primary ballots.26

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“The preclusive effect of a federal-court judgment is determined by federal common

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law.”27 “For judgments in federal-question cases[,] . . . federal courts participate in developing

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‘uniform federal rule[s]’ of res judicata, which [the U.S. Supreme] Court has ultimate authority

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to determine and declare.”28 “The preclusive effect of a judgment is defined by claim preclusion

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and issue preclusion, which are collectively referred to as ‘res judicata.’”29 “Under the doctrine

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of claim preclusion, a final judgment forecloses ‘successive litigation on the very same claim,

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whether or not relitigation of the claim raises the same issues as the earlier suit.’”30 “Issue

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preclusion, in contrast, bars ‘successive litigation of an issue of fact or law actually litigated and

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resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in

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the context of a different claim.”31 “By ‘preclud[ing] parties from contesting matters that they

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have had a full and fair opportunity to litigate,’ these two doctrines protect against ‘the expense

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and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on

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judicial action by minimizing the possibility of inconsistent decisions.’”32

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States.’”).
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See Appendix D; Appendix B at 7:16–21.

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Taylor v. Sturgell, 553 U.S. 880, 891 (2008) (citing Semtek Int’l v. Lockheed Martin, 531 U.S.
497, 507–08 (2001)).
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Id. (citing Taylor, 553 U.S. at 508).

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Id. at 892.

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Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)).

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Id. (quoting New Hampshire, 532 U.S. at 748–49).

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Id. (quoting Montana v. U.S., 440 U.S. 147, 153–54 (1979)).

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Schaefer previously litigated and lost on summary judgment his claim that NRS 293.263

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violates his due-process and equal-protection rights by requiring that candidates be listed

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alphabetically on primary ballots for major political parties. Schaefer’s current lawsuit seeks to

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litigate the same claim and issues of fact and law that were actually litigated and resolved in a

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valid court determination that was essential to Judge Rawlinson’s prior judgment. Schaefer does

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not address his prior, unsuccessful challenge of this Nevada statute, and the allegations in his

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first amended complaint merely restate what I previously found to be insufficient to state a

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plausible claim for relief.33 Because it appears that his claim in this case is barred by the doctrine

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of res judicata, I find that Schaefer has not shown that he is likely to succeed on the merits of his

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claim or that there are serious questions going to its merits.

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Conclusion

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Accordingly, IT IS HEREBY ORDERED that Schaefer’s motion for preliminary

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injunction [ECF 22] is DENIED and Schaefer’s request for a hearing on that motion

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combined with a trial on the merits [ECF 22] is DENIED as moot.

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IT IS FURTHER ORDERED that Schaefer has until Tuesday, April 26, 2016, to show

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cause why this case should not be dismissed under the doctrine of res judicata. Any reply by

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the Nevada Secretary of State to Schaefer’s response to the order to show cause must be

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filed within seven days of service of Schaefer’s response. No further briefing will be

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permitted. If Schaefer does not file a document showing good cause by April 26, 2016, this

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case will be dismissed in its entirety without further notice and with prejudice.

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DATED: April 12, 2016

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_______________________________
_______________________
_ ___ _ _
_ __
__
Jennifer A. Dorsey
ifer A Dorsey
r
o
United States District Judge
ed States District Judge
tates
tate D
ud
ud
dg

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See ECF No. 22.
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Appendix A

Appendix B

Appendix C

Appendix D