Daily Herald Co. v. Munro

758 F.2d 350, 11 Media L. Rep. (BNA) 1033

Opinions

PER CURIAM.

This matter is before us as an expedited appeal.

We must decide whether the district court erred in entering summary judgment on its own motion in this matter in favor of the State of Washington. We conclude that the district court acted improvidently because material issues of fact remain unresolved. There are also questions of law upon which we are reluctant to rule in the absence of initial consideration and resolution by the district court.

Under Rule 56(c) of the Federal Rules of Civil Procedure, a summary judgment may not be granted if there are genuine issues of material fact that are not resolved by the affidavits submitted by the parties. Jewel Companies, Inc. v. Payless Drug Stores Northwest, Inc., 741 F.2d 1555 (9th Cir.1984).

In granting summary judgment, the district court declared that Washington Rev. Code § 29.51.020(l)(e) did not violate the first and fourteenth amendments to the Constitution. Section 29.51.020(l)(e) provides that no person may, “[o]n the day of any primary, general or special election, ... within a polling place, or in any public area within three hundred feet of any entrance to such polling place: ... Conduct any exit poll or public opinion poll with voters.”

We have reviewed only the briefs and the excerpts of record. Because this appeal was expedited so that we could attempt to resolve the propriety of the issuance of the summary judgment by election day, we have not yet received or reviewed the full record presented to the district court. We are satisfied from a review of the partial record presented to us by the parties, that the following issues must be resolved by the trial court before an appellate court can reach the merits of appellants’ constitutional challenge.

Disputed Issues to be Resolved by the District Court.

We have discerned several genuine issues of material fact which must be resolved before review is appropriate in this case. Intermixed with them, and to some degree dependent upon them, are issues of law upon which we prefer to have the district court’s considered determination. The issues to be decided are:

One. What is an exit poll as that term is used in the statute?

Two. Assuming an exit poll is limited to the random handing out of questionnaires as voters leave the polls, is such conduct disruptive to peace, order, and decorum and therefore subject to regulation under Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1965)?

Three. Can statistically reliable polls be conducted outside a 300-foot radius? The State of Washington suggests that a telephone poll would be as effective. Appellants claim an exit poll is the only feasible method.

Four. What is the minimum area around a polling place in which to ensure that potential voters are not disrupted — the voting booth, the room where the booth is located, the public sidewalk around the building, the adjacent public street?

Five. Does the presence of clusters of media pollsters — representing appellants ABC, NBC, CBS, The Daily Herald and The New York Times accosting exiting voters— discourage other persons from casting their ballots?

Six. Did the State of Washington, in enacting its ban on exit polls, intend to remedy disruption in and around polling places or was its true motive the prevention of the projection and predication of election results prior to the closing of the polls?

Seven. Does the alleged “under inclu- • siveness” of the statute cast a doubt concerning the evil Washington is seeking to remedy? Which was the primary purpose of the regulation — disruption of peace, order, and decorum in and around polling places to prevent harassment of potential voters — or suppression of the content of the expression?

Eight. If the State’s true motive in enacting section 29.51.020(l)(e) was to prevent disruption in and around polling places, could it have done so through regulations that are less intrusive upon activities protected by the first amendment? The parties agree that the state may enact regulations to insure peace, order and decorum in and around polling places. See Brown v. Hartlage, 456 U.S. 45, 52, 102 S.Ct. 1523, 1528, 71 L.Ed.2d 732 (1982) (“the states have a legitimate interest in preserving the integrity of their electoral process”). We cannot determine the serious constitutional questions raised by appellants in their action for a declaration that the Washington statute is unconstitutional and that its enforcement should be enjoined without a trial on the merits of the foregoing issues.

As this court said in Kuzinich v. County of Santa Clara, 689 F.2d 1345 (9th Cir. 1982) (as amended in 1983), “A summary judgment is proper here only if it can be said that viewing the evidence in the light most favorable to [the appellants] it appears as a matter of law that the purpose of the ordinance was to serve some substantial public interest unrelated to the suppression of free speech.” Id. at 1348-1349.

We cannot say that the State of Washington was entitled to a summary judgment as a matter of law. The evidence does not foreclose the possibility that the State of Washington was motivated by an intent to suppress “constitutionally protected ideas.” Board of Education v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 2812, 73 L.Ed.2d 435 (1982).

Because there are genuine issues of material fact as to whether this statute was necessary to protect the peace, order, and decorum, summary judgment should not have been granted.

The judgment of the district court granting summary judgment on its own motion on behalf of the State' of Washington is reversed.

This matter is remanded to the district court for a trial on the merits of all unresolved factual issues, and for determination, upon a more fully developed record, of the decisive legal issues.