Avedisian v. Holcomb

853 F. Supp. 185, 1994 U.S. Dist. LEXIS 6887, 1994 WL 227035
CourtDistrict Court, E.D. Virginia
DecidedMay 24, 1994
DocketCiv. A. No. 94-600-A
StatusPublished

This text of 853 F. Supp. 185 (Avedisian v. Holcomb) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avedisian v. Holcomb, 853 F. Supp. 185, 1994 U.S. Dist. LEXIS 6887, 1994 WL 227035 (E.D. Va. 1994).

Opinion

MEMORANDUM OPINION

CACHERIS, Chief Judge.

Plaintiff, Craig Avedisian (“Avedisian”), has filed a Complaint pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights under the First and Fourteenth Amendments to the United States Constitution. Avedisian is presently before the Court on his petition for a Temporary Restraining Order, seeking to enjoin the defendants from prohibiting him from soliciting citizens to sign his ballot petition for the United States Senate inside the branch offices of the Department of Motor Vehicles (“DMV”). For reasons set forth below, the motion for a Temporary Restraining Order is DENIED.

I.

The basic facts are not in dispute. Avedi-sian is attempting to have his name placed on the ballot in the upcoming senatorial election as an Independent candidate for the United States Senate. To succeed, Avedisian needs to collect the signatures of 14,865 registered voters by 7:00 p.m. on June 14, 1994. In furtherance of his efforts, Avedisian would like to solicit the signatures for his ballot petition from people standing in line inside the DMV branch offices. If allowed to do so, Avedisian said that he would approach the third person in line at the DMV and, if they are registered voters, he would introduce himself, ask them if they would sign his ballot petition, and offer them his campaign literature. Avedisian stated that he would avoid any discussion of substantive issues such as abortion, gun control, health care, etc. If a person is not a registered voter, Avedisian would point out where they could register and offer his assistance if necessary. If someone declines his solicitation, Avedisian said he simply would work backward to the next person in the line.

The DMV refused Avedisian’s request to solicit signatures inside the branch offices, but has allowed him to conduct his activities outside of the offices, so long as he does not block ingress or egress to the building. Because the DMV branch offices conduct voter registration, the DMV contends that granting Avedisian’s request would be a criminal violation of Virginia Code § 24.2-10031, which prohibits the distribution of political literature and other types of political campaigning at a voter registration site, although it permits such activity outside the voter registration site. Avedisian alleges that it is his constitutional right, under the First and Fourteenth Amendment, to conduct the activities inside the DMV branch offices.

II.

In Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 811 (4th Cir.1991), the Fourth Circuit noted that the granting of “interim relief [is] an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it.” Thus, the standard to be applied to requests for a preliminary injunction is

(1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if the requested relief is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest. [187]*187hardship balancing ... by balancing the harm or injury imposed on the plaintiff in the event relief is denied against the harm to the defendant if the relief is granted, and on the basis of such balancing proceeds to determine the degree by which a ‘likelihood of success’ on the merits must be established before relief may issue.

[186]*186Id. at 812. As opposed to various circuits which first emphasize the Plaintiffs “likelihood of success”, the Fourth Circuit prefers to first emphasize the elements of

[187]*187Id. at 811. Thus, the balancing of harms determines “the degree by which the plaintiff must establish the likelihood of success on his part.” Id. at 813. Accordingly, the request for a preliminary injunction is evaluated on a sliding scale approach, so that in an extreme case “if that balance is struck in favor of the Plaintiff, it is enough that grave or serious questions are presented; and Plaintiff need not show a likelihood of success.” Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 196 (4th Cir.1977).

III.

Turning to the first factor, the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, Avedi-sian argues that if he is denied access to solicit signatures inside the DMV offices there is no way he will obtain the necessary number of signatures on his ballot petition, ending his senatorial campaign. However, the plaintiff has access to precisely the same individuals outside the DMV offices as inside. Under the present restriction, Avedisian is free to solicit every DMV customer as they are entering and exiting the building.

In particular, the plaintiff argues that he suffers two harms by being forced to solicit outside the DMV branch offices. The first harm is the discomfort caused by potentially inclement weather. The second harm is that people are much less willing to listen to him as they are rushing in and out of the building. As to the first harm, the Court finds that occasionally having to endure inclement weather does not amount to irreparable harm. Likewise, as to the second harm, the fact that Avedisian would have a more captive audience inside the offices, while admittedly true, does not amount to irreparable harm. By requiring Avedisian to solicit outside everyone is placed in the same position. Avedisian is free to request signatures from every DMV customer if he so chooses, and every customer is free to stop and listen or continue on their way as they so choose. However, if he were allowed to solicit people while they are standing in line inside the DMV, those people would not be free to walk away unless they were willing to forfeit their place in line. The Court feels that “[wjhile petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon a[ ] [captive] audience incapable of declining to receive it.” Lehman v. City of Shaker Heights, 418 U.S. 298, 307, 94 S.Ct. 2714, 2719, 41 L.Ed.2d 770 (1974) (J. Douglas, dissenting). Accordingly, the Court finds that the plaintiff will suffer no irreparable harm if the injunction is denied.

As to the second factor, the Court feels that the likelihood of harm to the defendants if the requested relief is granted is much greater. The DMV offices are small and usually crowded with persons who are trying to obtain licenses, pay tax on vehicles, obtain tags, etc. If Avedisian is permitted to carry on his activities inside the building, then presumably, all other political candidates must be given the same opportunity. This most certainly would lead to disruption of services to the public and would unduly devolve the DMV into an entanglement of the political process. Plaintiff argues that the potential chaos could be controlled by limiting access to one person at a time for a limited period.

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853 F. Supp. 185, 1994 U.S. Dist. LEXIS 6887, 1994 WL 227035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avedisian-v-holcomb-vaed-1994.