Case: Bernbeck v. Gale

U.S. Court of Appeals for the Eighth Circuit

David Domina

COMPLAINT (Declaratory Judgment) & Jury Demand Notice of Constitutional Challenge against All Defendants ( Filing fee $ 400, receipt number 0867-2538740), by Attorney David A. Domina on behalf of Kent Bernbeck(Domina, David) (Entered: 07/30/2013)

Summons Requested as to John A. Gale regarding Complaint 1 . (Domina, David) (Entered: 07/30/2013)

Summons Requested as to Charlotte TeBrink regarding Complaint 1 . (Domina, David) (Entered: 07/30/2013)

TEXT NOTICE OF JUDGES ASSIGNED: Judge Joseph F. Bataillon and Magistrate Judge Thomas D. Thalken assigned. (JSF) (Entered: 07/30/2013)

Summons Issued as to defendants John A. Gale and Charlotte TeBrink. YOU MUST PRINT YOUR ISSUED SUMMONS, WHICH ARE ATTACHED TO THIS DOCUMENT. PAPER COPIES WILL NOT BE MAILED. (JSF) (Entered: 07/30/2013)

SUMMONS Returned Executed upon John A. Gale defendant Kent Bernbeck on 8/3/2013. (Domina, David) (Entered: 08/08/2013)

SUMMONS Returned Executed upon Charlotte TeBrink defendant Kent Bernbeck on 8/5/2013. (Domina, David) (Entered: 08/08/2013)

NOTICE of Appearance by Attorney Stephen D. Mossman on behalf of Defendant Charlotte TeBrink (Mossman, Stephen) (Entered: 08/12/2013)

MOTION for Extension of Time to File a Responsive Pleading by Attorney Stephen D. Mossman on behalf of Defendant Charlotte TeBrink.(Mossman, Stephen) (Entered: 08/12/2013)

TEXT ORDER granting 9 Motion for Extension of Time to File a Responsive Pleading. Charlotte TeBrink answer or response due 9/25/2013. Ordered by Deputy Clerk. (MKR) (Entered: 08/13/2013)

SCHEDULING LETTER: Rule 26 Meeting Report Deadline set for 10/9/2013.Ordered by Magistrate Judge Thomas D. Thalken. (ADB, ) (Entered: 08/13/2013)

MOTION for Extension of Time to File a Responsive Pleading by Attorney L. Jay Bartel on behalf of Defendants John A. Gale, Charlotte TeBrink.(Bartel, L.) (Entered: 08/21/2013)

TEXT ORDER granting 12 Motion for Extension of Time to File a Responsive Pleading. John A. Gale answer or response due 9/25/2013. Ordered by Deputy Clerk. (JSF) (Entered: 08/21/2013)

ANSWER to Complaint 1 with with jury demand by Attorney Stephen D. Mossman on behalf of Defendant Charlotte TeBrink(Mossman, Stephen) (Entered: 09/25/2013)

ANSWER to Complaint 1 by Attorney Dale A. Comer on behalf of Defendant John A. Gale(Comer, Dale) (Entered: 09/25/2013)

REPORT of Rule 26(f) Planning Meeting by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 10/09/2013)

ORDER SETTING SCHEDULE FOR INITIAL PROGRESSION OF A CIVIL CASE - A telephone conference with the undersigned magistrate judge will be held within ten working days following the court's ruling on any motions to dismiss or for summary judgment, for the purpose of reviewing the preparation of the case to date and the scheduling of the case to trial. Plaintiff's counsel shall arrange and initiate the call. Ordered by Magistrate Judge Thomas D. Thalken. (ADB) (Entered: 10/10/2013)

DISCLOSURE Plaintiff's Rule 26(a)(1) by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 10/23/2013)

DISCLOSURE by Attorney Stephen D. Mossman on behalf of Defendant Charlotte TeBrink.(Mossman, Stephen) (Entered: 10/23/2013)

DISCLOSURE of Defendant John A. Gale, Nebraska Secretary of State by Attorney L. Jay Bartel on behalf of Defendant John A. Gale.(Bartel, L.) (Entered: 10/23/2013)

MOTION to sever by Attorney Stephen D. Mossman on behalf of Defendant Charlotte TeBrink.(Mossman, Stephen) (Entered: 11/12/2013)

Joint STIPULATION regarding Order Setting Schedule for Initial Progression of a Civil Case, 17 Stipulation and Joint Motion to Modify Progression Order by Attorney Dale A. Comer on behalf of Defendant John A. Gale.(Comer, Dale) (Entered: 11/12/2013)

TEXT ORDER adopting 22 Stipulation and Joint Motion to Modify Progression Order. The October 10, 2013, Progression Order 17 is deemed modified as requested. Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 11/13/2013)

MOTION for Summary Judgment by Attorney Stephen D. Mossman on behalf of Defendant Charlotte TeBrink.(Mossman, Stephen) (Entered: 12/02/2013)

INDEX in support of MOTION for Summary Judgment 24 by Attorney Stephen D. Mossman on behalf of Defendant Charlotte TeBrink. (Attachments: # 1 Affidavit of Charlotte TeBrink, # 2 Affidavit of Stephen D. Mossman)(Mossman, Stephen) (Entered: 12/02/2013)

BRIEF in support of MOTION for Summary Judgment 24 by Attorney Stephen D. Mossman on behalf of Defendant Charlotte TeBrink.(Mossman, Stephen) (Entered: 12/02/2013)

MOTION for Summary Judgment of Defendant John A. Gale, Nebraska Secretary of State, In His Official Capacity by Attorney Dale A. Comer on behalf of Defendant John A. Gale.(Comer, Dale) (Entered: 12/02/2013)

INDEX in support of MOTION for Summary Judgment of Defendant John A. Gale, Nebraska Secretary of State, In His Official Capacity 27 by Attorney Dale A. Comer on behalf of Defendant John A. Gale. (Attachments: # 1 Affidavit John A. Gale, Nebraska Secretary of State, # 2 Affidavit L. Neal Erickson, # 3 Affidavit Charlotte TeBrink, # 4 Affidavit L. Jay Bartel)(Comer, Dale) (Entered: 12/02/2013)

BRIEF in support of MOTION for Summary Judgment of Defendant John A. Gale, Nebraska Secretary of State, In His Official Capacity 27 by Attorney Dale A. Comer on behalf of Defendant John A. Gale.(Comer, Dale) (Entered: 12/02/2013)

Unopposed MOTION for Extension of Time by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) Modified on 12/17/2013 to correct document type (JSF). (Entered: 12/17/2013)

TEXT NOTICE OF INCORRECT EVENT used when filing the Motion for Extension of Time to File Responsive Pleading 30 by Deputy Clerk. In the future, use the event Motion to Extend. (JSF) (Entered: 12/17/2013)

TEXT ORDER granting 30 the plaintiff's unopposed Motion for Additional Time. The plaintiff shall have until January 6, 2014, to file a response to the defendants' motions for summary judgment 24 and 27 . Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 12/17/2013)

INDEX in opposition to MOTION for Summary Judgment of Defendant John A. Gale, Nebraska Secretary of State, In His Official Capacity 27, MOTION for Summary Judgment 24 by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck. (Attachments: # 1 Exhibit Amended Complaint CI4 10-cv-3001, # 2 Exhibit Gale Answer to Amended Complaint CI 4 10-cv-3001, # 3 Exhibit Order to file Stipulated Record CI 4 10-cv-3001, # 4 Exhibit Order Denying Motion to Dismiss (# 14, 16, & 28) CI 4 10-cv-3001, # 5 Exhibit Part 1 Stipulation of Facts CI 4 10-cv-3001, # 6 Exhibit Part 2 Stipulation of Facts CI 4 10-cv-3001-2, # 7 Exhibit Morfeld's Answer Amended Complaint CI 4 10-cv-3001, # 8 Exhibit Memorandum nd Order CI4 10-cv-3001, # 9 Exhibit Judgment CI4 10-cv-3001, # 10 Exhibit Kent Bernbeck Declaration, # 11 Exhibit Kent Bernbeck 2nd Declaration, # 12 Exhibit Clint Backhaus Declaration, # 13 Exhibit Fred Boehmke Declaration, # 14 Exhibit John Caldera Affidavit, # 15 Exhibit Paul Jacob Declaration, # 16 Exhibit Complaint, Amended Complaint, Judgment CI 12-2488)(Domina, David) (Entered: 01/06/2014)

BRIEF in opposition to MOTION for Summary Judgment of Defendant John A. Gale, Nebraska Secretary of State, In His Official Capacity 27, MOTION for Summary Judgment 24 by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 01/06/2014)

ATTORNEY LETTER by Clerk that Attorney Megan N. Mikolajczyk has not registered for admittance to practice nor registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (MLF, ) (Entered: 01/10/2014)

Unopposed MOTION to Extend by Attorney L. Jay Bartel on behalf of Defendants John A. Gale and Charlotte TeBrink.(Bartel, L.) Modified on 1/13/2014 to add second defendant per attorney request and correct event type.(JAB) (Entered: 01/13/2014)

TEXT ORDER granting 36 Unopposed Motion for Extension. The defendants Charlotte TeBrink and John A. Gale, Nebraska Secretary of State, shall have an extension of time until January 24, 2014, to file a reply in support of their Motions for Summary Judgment 24 and 27 . Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 01/13/2014)

APPLICATION/ORDER admitting for full-time admission Attorney Megan N. Mikolajczyk for Plaintiff Kent Bernbeck. Ordered by Deputy Clerk. (JSF) (Entered: 01/14/2014)

REPLY BRIEF in support of MOTION for Summary Judgment 24 by Attorney Stephen D. Mossman on behalf of Defendant Charlotte TeBrink.(Mossman, Stephen) (Entered: 01/24/2014)

OBJECTION to Index,,,, 33 by Attorney Stephen D. Mossman on behalf of Defendant Charlotte TeBrink.(Mossman, Stephen) (Entered: 01/24/2014)

REPLY BRIEF in support of MOTION for Summary Judgment of Defendant John A. Gale, Nebraska Secretary of State, In His Official Capacity 27 by Attorney Dale A. Comer on behalf of Defendant John A. Gale.(Comer, Dale) (Entered: 01/24/2014)

OBJECTION to Index 33 in opposition to Motion for Summary Judgment 27 by Attorney Dale A. Comer on behalf of Defendant John A. Gale. (JSF) (Entered: 01/27/2014)

ORDER granting 21 Motion to sever. The Second Claim for Unlawful Distribution Requirement is dismissed as to defendant Charlotte TeBrink. Ordered by Judge Joseph F. Bataillon. (ADB) (Entered: 01/30/2014)

MEMORANDUM AND ORDER that Defendant TeBrink's motion for summary judgment 24 is granted and she is dismissed from this case. The motions for summary judgment 24 and 27 are granted with regard to the issue of paid circulators. Defendant Gal e's motion for summary judgment against plaintiff for the residency requirements 27 is denied. The defendants' objection to indices 40 and 42 are denied. The magistrate judge is ordered to progress this case either to trial or schedule deadlines for cross-motions for summary judgments as to the merits of the residency requirement. Ordered by Judge Joseph F. Bataillon. (JSF)

TEXT ORDER SETTING HEARING: The court will hold a telephone conference on March 6, 2014, at 9:30 a.m. for the purpose of reviewing the preparation of the case to date and scheduling the case to trial. Plaintiff's counsel shall initiate the conference with the undersigned magistrate judge and participating counsel. Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 03/04/2014)

LETTER by Attorney Stephen D. Mossman on behalf of Defendant Charlotte TeBrink.(Mossman, Stephen) (Entered: 03/06/2014)

ORDER that this matter is before the court following a telephone planning conference with counsel on March 6, 2014. The parties agreed this matter can be submitted for a decision on a stipulated record with written briefs and arguments from the parties. Deadlines set forth in the order. Ordered by Magistrate Judge Thomas D. Thalken. (ADB)

STIPULATION regarding Order, Set/Reset All Deadlines, Terminate Deadlines and Hearings,,, 47 by Attorney Dale A. Comer on behalf of Defendant John A. Gale. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Comer, Dale) (Entered: 05/02/2014)

INDEX Order, Set/Reset All Deadlines, Terminate Deadlines and Hearings,,, 47 by Attorney Dale A. Comer on behalf of Defendant John A. Gale. (Attachments: # 1 Affidavit L. Neal Erickson)(Comer, Dale) (Entered: 05/16/2014)

DECLARATION of Kent Bernbeck by Attorney Megan N. Mikolajczyk on behalf of Plaintiff Kent Bernbeck. (Attachments: # 1 Exhibit Kent Bernbeck Third Declaration)(Mikolajczyk, Megan) (Entered: 05/16/2014)

OBJECTION Written Evidentiary Objections By The Defendant John A. Gale by Attorney L. Jay Bartel on behalf of Defendant John A. Gale.(Bartel, L.) (Entered: 06/16/2014)

OBJECTION by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 06/16/2014)

BRIEF Plaintiff's Trial Brief by Attorney Megan N. Mikolajczyk on behalf of Plaintiff Kent Bernbeck.(Mikolajczyk, Megan) (Entered: 07/17/2014)

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Attorney Megan N. Mikolajczyk on behalf of Plaintiff Kent Bernbeck. (Mikolajczyk, Megan) (Entered: 07/17/2014)

STIPULATION and Joint Motion to Modifiy Scheduling Order by Attorney L. Jay Bartel on behalf of Defendant John A. Gale.(Bartel, L.) (Entered: 08/07/2014)

TEXT ORDER granting 55 the parties' Joint Motion to Modify Scheduling Order. The Order 47 is hereby amended to allow the defendant an extension of time until September 9, 2014, to file a brief and final argument together with his proposed findings of fact and conclusions of law. The plaintiff shall have until October 1, 2014, to file a reply brief and rebuttal argument, whereupon the matter will be deemed submitted. Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 08/08/2014)

BRIEF Trial Brief of Defendant John A. Gale, Nebraska Secretary of State by Attorney L. Jay Bartel on behalf of Defendant John A. Gale.(Bartel, L.) (Entered: 09/09/2014)

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Attorney L. Jay Bartel on behalf of Defendant John A. Gale. (Bartel, L.) (Entered: 09/09/2014)

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)

BRIEF in Response to Defendant's Answer Brief by Attorney Megan N. Mikolajczyk on behalf of Plaintiff Kent Bernbeck.(Mikolajczyk, Megan) (Entered: 10/01/2014)

MEMORANDUM AND ORDER that the court finds the distribution requirement set forth in the Neb. Const., art. III, §§ 2 and 4 unconstitutional under the Fourteenth Amendment to the United States Constitution. The court issues a permanent i njunction enjoining the defendant from enforcing the distribution requirement in Neb. Const., art. III, §§ 2 and 4. The plaintiff has 30 days from the date of this order to file a properly supported motion for costs and attorney fees. Thereafter, the defendant shall have 30 days to respond, and the plaintiff shall have 7 days to file a reply brief. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

MOTION for Attorney Fees and Expenses by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 11/11/2014)

Unopposed MOTION for Clarification of Defendant Gale by Attorney L. Jay Bartel on behalf of Defendant John A. Gale.(Bartel, L.) (Entered: 11/19/2014)

ORDER - THEREFORE, IT IS ORDERED THAT the defendant's motion, Filing No. 63, is granted as set forth herein. Ordered by Senior Judge Joseph F. Bataillon. (TCL) (Entered: 11/19/2014)

DECLARATION regarding MOTION for Attorney Fees and Expenses 62 Declaration of Kent Bernbeck by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 12/02/2014)

DECLARATION regarding MOTION for Attorney Fees and Expenses 62 Declaration of David A. Domina by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 12/02/2014)

DECLARATION regarding MOTION for Attorney Fees and Expenses 62 Megan Mikolajczyk Declaration by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 12/02/2014)

INDEX in support of MOTION for Attorney Fees and Expenses 62 by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 12/02/2014)

BRIEF in support of MOTION for Attorney Fees and Expenses 62 by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 12/02/2014)

BRIEF in opposition to Plaintiff's Motion for Attorneys' Fees and Expenses by Attorney L. Jay Bartel on behalf of Defendant John A. Gale.(Bartel, L.) (Entered: 01/02/2015)

INDEX in support of Brief 70 in Opposition to Plaintiff's Motion for Attorneys Fees and Expenses by Attorney L. Jay Bartel on behalf of Defendant John A. Gale. (Attachments: # 1 Affidavit, # 2 Affidavit)(Bartel, L.) (Entered: 01/02/2015)

BRIEF in support of MOTION for Attorney Fees and Expenses 62 by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 01/12/2015)

MEMORANDUM AND ORDER that plaintiff's Motion for Attorney Fees 62 is granted in part and denied in part as follows: The Court awards plaintiff $87,915.00 in attorneys' fees and $561.54 in costs. In all other respects the motion is denied. A separate judgment will be entered in accordance with this memorandum and order. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

JUDGMENT is hereby entered in favor of the plaintiff and against the defendant pursuant to the memorandum and order 61 . Judgment for attorneys' fees is entered in favor of the plaintiff and against the defendant pursuant to the memorandum and order 73 . Ordered by Senior Judge Joseph F. Bataillon. (ADB) (Entered: 04/08/2015)

MOTION to Stay of Judgment Pending Appeal by Attorney L. Jay Bartel on behalf of Defendant John A. Gale.(Bartel, L.) (Entered: 04/23/2015)

BRIEF in support of MOTION to Stay of Judgment Pending Appeal 75 by Attorney L. Jay Bartel on behalf of Defendant John A. Gale.(Bartel, L.) (Entered: 04/23/2015)

REPLY regarding MOTION to Stay of Judgment Pending Appeal 75 Plaintiff's Declination to Oppose Motion for Stay of Judgment Pending Appeal by Attorney David A. Domina on behalf of Plaintiff Kent Bernbeck.(Domina, David) (Entered: 04/27/2015)

ORDER that the defendant's Motion for stay of judgment pending appeal 75 is granted. Ordered by Senior Judge Joseph F. Bataillon. (ADB) (Entered: 04/30/2015)

NOTICE OF APPEAL regarding Order on Motion for Attorney Fees, 73, Judgment,, Terminated Case, 74, Memorandum and Order,, 61 by Attorney L. Jay Bartel on behalf of Defendant John A. Gale. Filing fee $ 505, receipt number 0867-2946428. (Bartel, L.) (Entered: 05/05/2015)

NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by Clerk to USCA regarding Notice of Appeal to USCA 79, Memorandum and Order 61, Memorandum and Order 73 and Judgment 74 . Notice of Appeal filed on 5/5/15 by Defendant John A. Gale. (JSF) (Entered: 05/05/2015)

SCHEDULING LETTER from USCA - 8th Circuit as to Notice of Appeal to USCA 79 . (Attachments: # 1 Transmittal Letter) (JSF) (Entered: 05/12/2015)

1 Transmittal Letter

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COPY of Opinion of USCA - 8th Circuit, Appellate Docket Number 15-1983, regarding Notice of Appeal to USCA 79 . Because we conclude Bernbeck does not possess standing to bring his Fourteenth Amendment claim, we are without authority to do anything but vacate that portion of the district court's judgment and remand with instructions to dismiss that claim without prejudice. (Attachments: # 1 Transmittal Letter, # 2 Letter to Publisher)(TCL) (Entered: 07/14/2016)

Mail Returned as Undeliverable addressed to dale.comer@nebraska.gov regarding Opinion (Copy) of USCA 82 . E-mail not resent to dale.comer@nebraska.gov because the attorney is no longer with the Attorney General's Office. (TCL) (Entered: 07/14/2016)

COPY of Order (Judgment) from USCA - 8th Circuit (15-1983) This appeal from the United States District Court was submitted on the record of the district court, briefs of the parties and was argued by counsel. After consideration, it is hereby ordered and adjudged that the judgment of the district court in this cause is vacated in part and the cause is remanded to the district court for proceedings consistent with the opinion of this court. (TCL) (Entered: 07/14/2016)

COPY of Order from USCA - 8th Circuit (15-1983). The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. Judge Murphy, Judge Smith and Judge Kelly would grant the petition for rehearing en banc. (GJG) (Entered: 09/07/2016)

MANDATE/JUDGMENT from USCA - 8th Circuit (15-1983) regarding Notice of Appeal to USCA, 79 . In accordance with the opinion 82 and judgment 84 of 07/14/2016, and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above-styled matter. (GJG) (Entered: 09/14/2016)

ORDER OF DISMISSAL - THEREFORE, IT IS ORDERED THAT plaintiff's Fourteenth Amendment claim, as discussed in Filing No. 82 , is dismissed without prejudice. Ordered by Senior Judge Joseph F. Bataillon. (TCL)