RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United Food & Commercial Workers No. 02-3415 ELECTRONIC CITATION: 2004 FED App. 0065P (6th Cir.) Local 1099, et al. v. City of Sidney, et al. File Name: 04a0065p.06 Appeal from the United States District Court for the Southern District of Ohio at Dayton. UNITED STATES COURT OF APPEALS No. 00-00296—Walter H. Rice, District Judge. FOR THE SIXTH CIRCUIT _________________ Argued: July 31, 2003
Decided and Filed: March 2, 2004 UNITED FOOD & X COMMERICAL WORKERS - Before: KENNEDY, GILMAN, and GIBBONS, Circuit LOCAL 1099; JUDY BISHOP; - Judges. - No. 02-3415 DOUG BURGSTALLER; JEFF - _________________ CRIDER; RAY EVANS, III; > , BONNIE FRANCE ; CHAD - COUNSEL HELMLINGER ; LEAH - ARGUED: Timothy M. Burke, MANLEY BURKE, HELMLINGER ; TONYA - Cincinnati, Ohio, for Appellants. Boyd W. Gentry, MCCOY ; BRYON O’NEAL; - SURDYK, DOWD & TURNER, Dayton, Ohio, Brian L. JEFF OSTING ; KEITH - Wildermuth, LAW OFFICES OF NICHOLAS E. SUBASHI, - ROBINSON; JESSICA Dayton, Ohio, for Appellees. ON BRIEF: Timothy M. - SAGRAVES, Burke, Rhonda S. Frey, MANLEY BURKE, Cincinnati, - Plaintiffs-Appellants, - Ohio, for Appellants. Edward J. Dowd, SURDYK, DOWD & TURNER, Dayton, Ohio, Brian L. Wildermuth, Nicholas v. - E. Subashi, LAW OFFICES OF NICHOLAS E. SUBASHI, CITY OF SIDNEY; MICHAEL - Dayton, Ohio, Michael Fay Boller, ASSISTANT SHELBY PUCKETT ; STEVEN B. - COUNTY PROSECUTOR, Sidney, Ohio, for Appellees. - WEARLY ; SIDNEY CITY - SCHOOLS; STEVE MILLER; _________________ - KEVIN O’LEARY , - OPINION Defendants-Appellees, - _________________ WAL-MART STORES, INC.; - JOHN WATERS ; GREG - JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs- - appellants, United Food and Commercial Workers Local 1099 FRANKS , - (“Local 1099”) and twelve of its members, brought suit under Defendants. - 42 U.S.C. §§ 1983 and 1985 against defendants-appellees N after they were prohibited from soliciting signatures for a referendum petition outside six polling places on election day
1 No. 02-3415 United Food & Commercial Workers 3 4 United Food & Commercial Workers No. 02-3415 Local 1099, et al. v. City of Sidney, et al. Local 1099, et al. v. City of Sidney, et al.
in Sidney, Ohio. These polling places included four public I. schools, the local Y.M.C.A., and a church. At each location, members of Local 1099 attempted to solicit signatures in A. Factual Background areas on school or private property that were outside of the areas that had been designated as “campaign-free zones” On February 28, 2000, the City Council of Sidney, Ohio, pursuant to an Ohio statute. Nevertheless, appellants were enacted Ordinance No. A-2203, which “effected the rezoning asked to leave the premises, and in many cases they were of Lots 5918 and 6180 from an I-2 Heavy Industrial District threatened with arrest if they failed to comply. At one to a B-2 Community Business District.” The process of location, two individual appellants were threatened with arrest rezoning the property was undertaken for the purpose of even after they had relocated to a spot on a public sidewalk, allowing expansion of a Wal-Mart store at that location. On outside of the campaign-free zone. March 2, 2000, appellants submitted a certified copy of Ordinance No. A-2203 and a pre-circulation referendum Defendants-appellees Sidney City Schools, Superintendent petition to the City of Sidney. Pursuant to the city’s charter, Steve Miller, and Shelby County Sheriff Kevin O’Leary referendum petitions must be filed within two weeks moved to dismiss. The City of Sidney, City Manager following the passage of the ordinance called into question. Michael Puckett, and Chief of Police Steven Wearly moved Given the short amount of time in which they had to collect for judgment on the pleadings. The district court concluded signatures after Ordinance No. A-2003 was enacted on that the appellants had not suffered a deprivation of their First February 28, appellants assert that it was “particularly Amendment rights when they were denied permission to important to gather signatures on March 7, 2000,” the day of solicit signatures at each of the six polling places and granted the primary election in Ohio. On that date, appellants the appellees’ motions. We agree with the district court that gathered to solicit signatures for the petition from voters appellants’ First Amendment rights were not violated when outside six polling places in Sidney. These locations included they were prohibited from soliciting signatures in those areas four public elementary schools (Parkwood, Emerson, that were (a) within the campaign-free zone, regardless of Whittier, and Lowell), the Sidney-Shelby Y.M.C.A. whether the campaign-free zone encompassed a traditional (“Y.M.C.A.”), and Trinity Church of the Brethren (“Trinity”). public forum such as a sidewalk, or (b) on school or private Appellants Judy Bishop, Ray Evans, and Jessica Sagraves property, but outside of the campaign-free zone. However, were at Parkwood; Bryon O’Neal was at Emerson; Keith plaintiffs have alleged facts supporting a claim that they were Robinson and Tonya McCoy were at Whittier; Chad and Leah deprived of their First Amendment rights when they were Helmlinger were at Lowell; Jeff Crider and Jeff Osting were threatened with arrest after they moved to the public sidewalk at the Y.M.C.A.; and Doug Burgstaller and Bonnie France outside of the campaign-free zone at the Y.M.C.A., and to were at Trinity. that extent, their § 1983 claim should be permitted to move forward. We therefore affirm in part, reverse in part, and A set of United States flags was placed outside the entrance remand to the district court for further proceedings consistent of each polling place pursuant to Ohio Rev. Code §§ 3501.30 with this opinion. and 3501.35, which together provide for the creation of a 100- foot campaign-free zone around the entrances to polling places in Ohio. Section 3501.30 instructs each county board of elections to place small United States flags 100 feet from No. 02-3415 United Food & Commercial Workers 5 6 United Food & Commercial Workers No. 02-3415 Local 1099, et al. v. City of Sidney, et al. Local 1099, et al. v. City of Sidney, et al.
the polling place on the walkways leading to the entrance in At Emerson, O’Neal and Tambra Young had been order “to mark the distance within which persons other than soliciting signatures for approximately ninety minutes before election officials, witnesses, challengers, police officers, and the school principal ordered them to leave the property and electors . . . shall not loiter, congregate, or engage in any kind threatened to call the police if they did not comply. of election campaigning.” Section 3501.35 further states that Appellants allege that at some time during the morning of in the area between the polling entrance and the two flags, no March 7, Ralph Bauer, a member of the Sidney Board of person “shall loiter or congregate,” “hinder or delay an Elections, called the Sidney Police Department and requested elector,” or “solicit or in any manner attempt to influence any that they send cruisers to Emerson, Lowell, the Y.M.C.A., elector in casting his vote.” and Trinity. Bauer purportedly informed police that the appellants were soliciting signatures at each of these locations Appellants have alleged that at each of the polling places, in areas that were within 100 feet of the polling places. An they were positioned outside or beyond the area marked by officer from the Sidney Police Department arrived at Emerson the flags. They further allege that they solicited signatures at and told O’Neal and Young that his supervisor was on the each location in “a peaceful and non-disruptive manner,” and way and that he would decide whether they could remain the that they “neither interfered with school operations nor property. Shortly thereafter, Sidney Police Captain Kimpel hindered public access [to any of the polling places at issue.]” arrived and told the appellants that if they refused to leave school property they would be trespassing. When O’Neal The locations at which appellants were attempting to solicit asked Kimpel how they could be trespassing on public signatures and the manner in which they were denied access property, Kimpel replied, “I’m not going to argue about this. varied at each polling place. At Parkwood, appellants Bishop, This is your last warning.” According to appellants, “[r]ather Evans, and Sagraves positioned themselves on school than risk receiving a citation or being placed under arrest,” property, but beyond the flag that had been placed outside the they complied with Kimpel’s demand and left the property. entrance to the polling place. They solicited signatures at this location for a short period of time, until the school principal At Whittier, appellants Robinson and McCoy positioned informed them that they would have to relocate to a position themselves outside the side entrance to the polling place. beyond a second flag that had been placed “on the side of the Although flags had been placed 100 feet from the front school parking lot opposite the polling place.” According to entrance to the polling site, there were no flags outside the appellants, this flag was “far in excess of one hundred feet” side entrance. Robinson and McCoy collected signatures for from the entrance to the polling place. Shortly after they had two hours, until they were approached and ordered to leave by relocated to this new position, a deputy from the Shelby the assistant superintendent and a polling judge. The assistant County Sheriff’s Office ordered them to leave the premises superintendent told them that they would have to leave school and threatened them with arrest for trespassing if they failed property because of “safety issues” and that she had already to comply. Appellants then relocated to a public sidewalk, called the police. At this point, Robinson and McCoy left but because most of the voters were parking in the school’s school property and moved to a public sidewalk. Because parking lot, they allege that they were unable to solicit most of the voters were parking in the school’s parking lot, signatures effectively from that location. appellants allege that they were unable to solicit signatures effectively from that location. No. 02-3415 United Food & Commercial Workers 7 8 United Food & Commercial Workers No. 02-3415 Local 1099, et al. v. City of Sidney, et al. Local 1099, et al. v. City of Sidney, et al.
When the Helmlingers arrived at Lowell, they asked polling in the Y.M.C.A.’s lot, and the deputy had threatened them officials to identify the locations where they would be with arrest if they either entered the parking lot or attempted permitted to gather signatures. The officials replied that they to contact voters in the parking lot, appellants allege that they did not know and called the Board of Elections. According were unable to solicit signatures effectively from this to appellants, one of the officials grabbed the petition out of location. Leah Helmlinger’s hands and said, “Let me take a look at that. So you’re against the Wal-Mart?” After one official At Trinity, Burgstaller and France collected signatures for told them that they could solicit signatures at any point one hour before an officer with the Sidney Police Department beyond the flags, the Helmlingers positioned themselves “on arrived, again allegedly shortly after a phone call from Bauer. the public sidewalk, beyond the two flags.” Appellants allege While the officer was speaking with Burgstaller and France, that shortly after Bauer’s phone call to the Sidney Police a polling judge came out of the church and told them that they Department, an officer arrived at Lowell and told the would be permitted to collect signatures as long as they Helmlingers that school officials had called to complain. The remained beyond a set of flags that had been placed 100 feet officer told the Helmlingers that the flags had not been placed from the polling entrance. The officer disagreed, and told the far enough from the entrance to the polling place at Lowell appellants that it was irrelevant whether they were outside of and that they would have to stay more than 100 feet from that the 100-foot boundary because the church was private entrance. “Rather than risk receiving a citation or being property, and the church wanted them to leave. Rather than [placed under arrest],” the Helmlingers complied with the “risk arrest for trespassing,” Burgstaller and France complied officer’s request and left the property. with the officer’s demand and left church property.
Crider and Osting collected signatures at the Y.M.C.A. for Appellants allege that in response to their petition efforts, approximately one hour before an officer with the Sidney the Mayor of Sidney instructed Puckett to draft a counter- Police Department arrived, allegedly after a phone call from petition to facilitate the removal of signatures from their Bauer, and used a measuring wheel to mark a line 100 feet referendum petition. On March 23, 2000, Puckett presented from the polling place. The officer informed Crider and the Board of Elections with the counter-petition and a list of Osting that they could solicit signatures anywhere beyond that nineteen individuals who purportedly had asked the city to line. After Crider and Osting had been soliciting signatures have their names removed from the referendum petition. for about an hour from this new location, a deputy with the Appellants alleged that the counter-petition failed to comply Shelby County Sheriff’s Department arrived, and, at the with Ohio law, and the Board of Elections referred the issue request of Y.M.C.A. membership director Michael Lieber, to the Ohio Secretary of State. On April 17, 2000, the Board ordered the appellants to leave Y.M.C.A. property. The of Elections informed the City of Sidney that the counter- officer threatened them with arrest if they failed to comply. petition was invalid, and that there were enough valid Crider and Osting again moved to a different location, this signatures on the referendum petition to place the referendum time to a public sidewalk that was more than 100 feet from on the November 2000 ballot. the polling place. The sheriff’s deputy followed and informed them that if they attempted to solicit signatures by calling to The referendum never took place. On April 3, 2000, the anyone in the Y.M.C.A.’s parking lot, he would cite them for Sidney City Council held a special meeting and adopted disorderly conduct. Because most of the voters were parking Ordinance No. A-2207, which repealed Ordinance No. A- No. 02-3415 United Food & Commercial Workers 9 10 United Food & Commercial Workers No. 02-3415 Local 1099, et al. v. City of Sidney, et al. Local 1099, et al. v. City of Sidney, et al.
2203, rendering appellants’ referendum petition on that him in his official capacity, and the City of Sidney, Puckett, ordinance moot. Shortly after Ordinance No. A-2207 was and Wearly filed a motion for judgment on the pleadings. enacted, the City Council adopted Ordinance No. A-2208, The district court granted these motions on March 11, 2002. which effected the same rezoning of lots 5918 and 6180 as The court concluded that the presence of polling sites on the Ordinance No. A-2203. Both Ordinance Nos. A-2207 and A- properties at issue did not transform the areas surrounding 2208 contained emergency clauses that caused them to go into those polling sites into traditional public forums. The court effect immediately. also found that Ohio Rev. Code § 3501.29, which provides that public and private buildings may be utilized “for the B. Procedural History purpose of holding elections,” created a designated public forum “for the limited purpose of voting, [but] not for other On June 13, 2000, appellants filed a complaint in the expressive activities which may accompany elections.” In its United States District Court for the Southern District of Ohio decision granting the motions to dismiss, the court afforded asserting claims under 42 U.S.C. §§ 1983 and 1985. In their appellants an opportunity to file an amended complaint in § 1983 claim, appellants alleged that the appellees deprived order to set forth allegations to support their contention that them of their federal constitutional rights under the First and the Sidney City Schools had, by policy or practice, designated Fourteenth Amendments by preventing them from soliciting school property as a public forum for the purpose of signatures outside the areas demarcated by flags at public campaigning and other expressive activities on days when the polling places on March 7, 2000.1 In their § 1985 claim, schools were being used as polling places. The appellants did appellants alleged that the City of Sidney, Puckett, Wal-Mart, not avail themselves of this opportunity. Since the court Wal-Mart district manager John Waters, and Sidney Wal- concluded that appellants had not alleged sufficient facts to Mart store manager Greg Franks conspired “to prevent [them] support a claim that they were deprived of their First from engaging in their statutorily-protected right to obtain Amendment rights, the court also found that they had failed signatures for the referendum petition, to introduce an to plead that the City of Sidney and Puckett had conspired to improper and misleading ‘counter-petition’ in an attempt to deprive them of those rights, and dismissed their claims under influence the Board of Elections’ decision-making process, § 1985 as well. On April 9, 2002, appellants filed this timely and to circumvent [their] right to a referendum through a appeal. pattern of unlawful, corrupt, and unethical legislative conduct.”2 II. The Sidney City Schools and Miller moved to dismiss. This court reviews a district court’s decision to dismiss a O’Leary filed a separate motion to dismiss the claims against complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998). Rule 12(b)(6) provides that a complaint may be 1 dismissed for failure to state a claim upon which relief may be Appellants voluntarily dismissed their claims against Miller, Puc kett, W early, and O ’Leary in their resp ective individual cap acities. granted. Dismissal pursuant to a Rule 12(b)(6) motion is proper “only if it is clear that no relief could be granted under 2 Appellants have voluntarily dismisse d their claims against W al- any set of facts that could be proved consistent with the Mart, Wa ters, and Franks. allegations.” Id. (citing Hishon v. King & Spalding, 467 U.S. No. 02-3415 United Food & Commercial Workers 11 12 United Food & Commercial Workers No. 02-3415 Local 1099, et al. v. City of Sidney, et al. Local 1099, et al. v. City of Sidney, et al.
69, 73 (1984)). Although we must accept as true all of the every type of government property “without regard to the factual allegations in the complaint, we need not accept as nature of the property or to the disruption that might be true legal conclusions or unwarranted factual inferences. caused by the speaker’s activities.” Id. at 799-800. Rather, Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. the existence of a right of access to government property and 1987) (citations omitted). the extent to which such access may be limited by the government depend on the character of the property at issue. The standard of review applicable to a motion for judgment Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. on the pleadings under Rule 12(c) is the same de novo 37, 44 (1983). standard that is applicable to a motion to dismiss under Rule 12(b)(6). Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12 The Supreme Court has adopted a forum analysis “as a (6th Cir. 2001). In reviewing such motions, we must construe means of determining when the government’s interest in the complaint in the light most favorable to the plaintiff, limiting the use of its property to its intended purpose accept all of the complaint’s factual allegations as true, and outweighs the interest of those wishing to use the property for determine whether the plaintiff undoubtedly can prove no set other purposes.” Cornelius, 473 U.S. at 800. The Court has of facts in support of his claims that would entitle him to identified three types of forums: the traditional public forum, relief. Id. the designated public forum, and the nonpublic forum. Id. at 802. Traditional public forums are those places “which by A. Appellants’ § 1983 Claims long tradition or by government fiat have been devoted to assembly and debate.” Perry, 460 U.S. at 45. Government In order to state a cause of action under § 1983, appellants may also create a public forum by its designation of “a place must allege (1) that they were deprived of a right secured by or channel of communication for use by the public at large for the Constitution or the laws of the United States, and (2) that assembly and speech, for use by certain speakers, or for the the deprivation was caused by a person acting under color of discussion of certain subjects.” Cornelius, 473 U.S. at 802. state law. Moore v. City of Paducah, 890 F.2d 831, 833-34 In traditional and designated public forums, content-based (6th Cir. 1989). To evaluate appellants’ § 1983 claims in this restrictions on speech are prohibited unless necessary to serve case, we must consider whether their First Amendment rights compelling state interests and narrowly tailored to achieve were violated when they were not permitted to solicit those interests. Id. By contrast, restrictions on speech in signatures for their referendum petition in the areas nonpublic forums are permissible so long as they are surrounding the six polling places at issue. viewpoint neutral and reasonable in light of the purpose served by the forum. Id. at 49. Assuming that the solicitation of signatures for a referendum petition is a protected form of speech under the To determine the extent to which the government may limit First Amendment, the mere fact that a certain category of access to its property, then, we must first identify the relevant speech is worthy of constitutional protection does not mean forum to which the appellants sought access, and next that it is “equally permissible in all places and at all times.” consider whether the relevant forum is public or nonpublic, Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. because the government’s ability to place restrictions on 788, 800 (1985). The government is not required to grant speech varies with the type of forum involved. Cornelius, access to all who wish to exercise their right to free speech on 473 U.S. at 797. In this case, appellants were soliciting No. 02-3415 United Food & Commercial Workers 13 14 United Food & Commercial Workers No. 02-3415 Local 1099, et al. v. City of Sidney, et al. Local 1099, et al. v. City of Sidney, et al.
signatures for their referendum petition at various positions a traditional public forum on the basis of the content of their around polling places located on both public and private speech as long as the exclusion is necessary to serve a property, but our inquiry into the relevant forum does not end compelling state interest and narrowly tailored to achieve that merely by identifying these two broad categories: “Rather, in interest. Perry, 460 U.S. at 45. defining the relevant forum we have focused on the access sought by the speaker. When speakers seek general access to Appellants’ complaint in this case makes clear that the public property, the forum encompasses that property.” Id. Helmlingers were deterred from soliciting signatures on the When speakers seek more limited access, however, we must public sidewalk in front of Lowell because the sidewalk was take “a more tailored approach to ascertaining the perimeters within the 100-foot campaign-free zone established by Ohio of [the relevant] forum within the confines” of the Rev. Code §§ 3501.30 and 3501.35. The Supreme Court government property at issue. Id. Appellants here were not upheld the constitutionality of a similar “campaign-free zone” seeking general access to the school and private properties in Burson v. Freeman, 504 U.S. 191, 196-97, & n.2 (1992), involved, but were instead seeking more limited access to the even though the statute in question barred speech in areas that areas surrounding each of the six polling places. These included “quintessential public forums,” such as the streets locations can be grouped into three categories: (1) the public and sidewalks adjacent to polling places. The Court sidewalk within 100 feet of the polling place, (2) the parking concluded that the “campaign-free zone” was necessary in lots and walkways on school or private property leading to the order to serve the state’s compelling interest in protecting polling place, and (3) the public sidewalk beyond 100 feet voters from confusion and undue influence, and that the from the polling place. Having identified these three relevant statute was narrowly drawn to achieve that interest. Id. at 199 forums, we must next consider whether each forum is public (noting that the Court has upheld “generally applicable and or nonpublic, and whether the government’s justification for evenhanded restrictions that protect the integrity and prohibiting appellants from soliciting signatures in each area reliability of the electoral process itself”). In light of a long met the requisite constitutional standard. history of problems with voter intimidation and election fraud in this country, the Court held that Tennessee could decide 1. The Public Sidewalk Within 100 Feet of a Polling that the “last 15 seconds before its citizens enter the polling Place place should be their own, as free from interference as possible.” Id. at 210. The Court did not limit its opinion only Appellants allege that at Lowell, the Helmlingers tried to to those cases where voter confusion and undue influence had solicit signatures from a position “on the public sidewalk.” already been shown: “A long history, a substantial They argue that appellees’ conduct prohibiting them from consensus, and simple common sense show that some soliciting signatures at this location constituted an restricted zone around polling places is necessary to protect impermissible restriction on their speech in a traditional [the fundamental right to vote],” even when that right public forum. Traditional public forums are those places conflicts with the exercise of free speech. Id. at 211. which “by long tradition or by government fiat have been devoted to assembly and debate.” Perry, 460 at 45. While it Thus, a state may require persons soliciting signatures to is true that public sidewalks are generally considered stand 100 feet from the entrances to polling places without traditional public forums, see Frisby v. Schultz, 487 U.S. 474, running afoul of the Constitution. Id. at 211. The 480-81 (1988), speakers may nevertheless be excluded from Helmlingers therefore were not deprived of their First No. 02-3415 United Food & Commercial Workers 15 16 United Food & Commercial Workers No. 02-3415 Local 1099, et al. v. City of Sidney, et al. Local 1099, et al. v. City of Sidney, et al.
Amendment rights when they were ordered to move from the school’s principal, and she was arrested. Id. at 886-87. In a public sidewalk to a position beyond 100 feet from the polling subsequent action brought under § 1983, the plaintiffs argued place. In keeping with Burson, Ohio may prevent persons that Missouri had designated the school property, and in from soliciting signatures within 100 feet of polling places, particular the limited area in which they were located, “as a even in areas that include traditional public forums such as limited public forum for the purpose of voting and sidewalks. electioneering activities on that particular day.” Id. at 887. The Eighth Circuit held that 2. The Parking Lots and Walkways Leading to the Polling Place [o]nly a portion of the school property was a designated public forum . . . for the limited purpose of voting . . . . At Parkwood, Emerson, Whittier, Trinity, and the Specifically, this area included the parking lot, the Y.M.C.A., appellants set up to gather signatures at various walkway leading to the west entrance, the hallway inside locations on school and private property that were outside the the school leading to the voting booths, and the area campaign-free zone established by §§ 3501.30 and 3501.35. containing the voting booths. All other areas of school Appellants argue that the presence of the polling places property, however, remained a nonpublic forum. affected the character of the school and private property that surrounded them. They contend that Ohio created a Id. at 888. The plaintiffs in Embry were not located on those designated public forum by providing for the use of school portions of school property that had been appropriated for and private buildings “for the purpose of holding elections” election purposes; they were on the grassy area located next in Ohio Rev. Code § 3501.29. The district court concluded to the sidewalk. Id. at 888-89. The court concluded that this that by enacting § 3501.29, the Ohio legislature indicated an area remained a nonpublic forum on election day, and that the intent to open up a portion of public school and private decision to exclude the plaintiffs from this portion of school property to registered voters for the limited purpose of voting, property was a reasonable and viewpoint neutral restriction on but not for other expressive activities which may accompany speech in a nonpublic forum. Id. at 889. elections. This “limited designated public forum” included the parking lot, the walkways and hallways leading to the Appellants note that, unlike the plaintiffs in Embry, they polls, and the area containing the voting booths themselves; attempted to solicit signatures from the parking lots and all other areas on school and private property remained walkways leading to the polling places – precisely those areas nonpublic forums. that the Eighth Circuit concluded had been designated as public forums for the limited purpose of voting on election In reaching this conclusion, the district court relied heavily day. They argue that if these areas were in fact designated as on the Eighth Circuit’s decision in Embry v. Lewis, 215 F.3d public forums, the state could not open them up for the 884 (8th Cir. 2000). In Embry, the plaintiffs attempted to limited purpose of voting and at the same time restrict similar gather signatures for a referendum petition outside a school types of expressive activities that were consistent with the building that had been designated as a polling place. Id. at principal function of the forum. Thus, we must decide 886. They set up a table “on the grass of the school’s west whether the parking lot and walkways leading to polling property,” near, but not upon the public sidewalk. Id. One of places are “designated public forums for the limited purpose the plaintiffs refused to leave the property when asked by the of voting,” and whether the action of appellees in restricting No. 02-3415 United Food & Commercial Workers 17 18 United Food & Commercial Workers No. 02-3415 Local 1099, et al. v. City of Sidney, et al. Local 1099, et al. v. City of Sidney, et al.
the appellants’ ability to solicit signatures in these areas was does not automatically follow that electioneering is allowed permissible. anywhere outside the 25 foot line.”). As we have already noted, the government creates a Although the issue was not squarely before the court in designated public forum where it opens up its property for use Embry because the plaintiffs in that case were on the grassy by the public as a place for expressive activity. Perry, 460 area located next to the sidewalk, the Eighth Circuit described U.S. at 45. The government does not create a public forum by the parking lot and walkways leading to the polling places as inaction or by permitting limited discourse, but only by “designated public forums for the limited purpose of voting.” intentionally opening up a nontraditional forum for public We respectfully disagree. The forum at issue here is neither discourse. Cornelius, 473 U.S. at 802. In determining a traditional public forum nor a government-designated one. whether the government has intended to open up its property By opening up portions of school and private property for use for use as a designated public forum, the Supreme Court has as polling places on election day, Ohio has not opened up a said that we must look to the policy and practice of the nontraditional forum for public discourse. In fact, there is no government, as well as to the nature of the property and its evidence in the record of discourse of any sort. There is no compatibility with expressive activity. Id. evidence of expressive activity occurring anywhere on the properties involved, other than “each voter’s communication There is no evidence in the record in this case that indicates of his own elective choice[,] and this has long been carried that Ohio intended to open up nontraditional forums such as out privately – by secret ballot in a restricted space.” See schools and privately-owned buildings for public discourse Marlin v. Dist. of Columbia Bd. of Elections & Ethics, 236 merely by utilizing portions of them as polling places on F.3d 716, 719 (D.C. Cir. 2001) (holding that the interiors of election day. Appellants were given the opportunity by the polling places are nonpublic forums). district court to amend their complaint in order to set forth allegations supporting their contention that the government When the district court, following the decision in Embry, had, by policy or practice, designated the property described the parking lots and walkways leading to the surrounding the polling places as a public forum for the polling places as “limited designated public forums,” it may purposes of campaigning or other expressive activities. They have had in mind the “limited public forum” described in did not avail themselves of this opportunity. Appellants also Good News Club v. Milford, 533 U.S. 98, 106 (2001). In argue that § 3501.30's designation of a campaign-free zone Good News, the Supreme Court employed the term “limited outside every polling place is evidence of the compatibility of public forum” to refer to a forum that the state had reserved expressive activity with polling places because it “implies an “for certain groups or for the discussion of certain topics.” Id. expectation that people will gather at polling places to express In such forums, government restrictions on speech must be themselves.” The district court rejected this argument, and so reasonable and viewpoint neutral, the same standards that do we. Just because certain types of speech are expressly apply to restrictions on speech in nonpublic forums. Id. Our prohibited within a certain area does not mean that they are circuit and others have noted the confusion surrounding the therefore permissible outside that area. See Embry, 215 F.3d use of the terms “designated public forum” and “limited at 888-89 (“Although Missouri law makes it an offense to public forum.” See, e.g., Goulart v. Meadows, 345 F.3d 239, electioneer within 25 feet of a polling place’s outer door, it 249 (4th Cir. 2003); DeBoer v. Vill. of Oak Park, 267 F.3d 558, 567 (7th Cir. 2001) (“[T]he use of this terminology . . . No. 02-3415 United Food & Commercial Workers 19 20 United Food & Commercial Workers No. 02-3415 Local 1099, et al. v. City of Sidney, et al. Local 1099, et al. v. City of Sidney, et al.
has introduced some analytical ambiguity because the must be assessed in light of the purpose of the forum and all [Supreme] Court previously had employed the term ‘limited of the surrounding circumstances. Cornelius, 473 U.S. at public forum’ as a subcategory of the designated public 810. According to appellants’ complaint, school officials forum, subject to the strict scrutiny governing restrictions on asked them to leave the premises because they were designated public forums”); Putnam Pit v. City of Cookeville, concerned about “safety issues.” At the Y.M.C.A. and 221 F.3d 834, 842 n.5 (6th Cir. 2000).3 We do not need to Trinity, police officers were responding to requests from the delve deeply into the nuances of designated versus limited owners of those properties when they asked appellants to public forums in this case, however, because these types of leave the premises. Appellants argue that their exclusion forums are characterized by discourse, and discourse is what from these properties was unreasonable because they were is absent here. That some expressive activity occurred within soliciting signatures in a peaceful and non-disruptive manner. the context of the forum created “does not imply that the However, the government does not need to wait “until havoc forum thereby [became] a public forum for First Amendment is wreaked to restrict access to a nonpublic forum.” purposes.” Cornelius, 473 U.S. at 805. In the absence of Cornelius, 473 U.S. at 810. Furthermore, appellees could evidence of an intent on the part of the government to open prohibit appellants from soliciting signatures if they thought these nontraditional forums for public discourse, limited or that their activities would disrupt the polling place or the otherwise, we conclude that the parking lots and walkways school or private property surrounding it. “Although the leading to the polling places are nonpublic forums, with no avoidance of controversy is not a valid ground for restricting different status than the remaining areas on school and private speech in a public forum, a nonpublic forum by definition is property. not dedicated to general debate or the free exchange of ideas. The First Amendment does not forbid a viewpoint-neutral Having concluded that the parking lots and walkways exclusion of speakers who would disrupt a nonpublic form leading to the polling places are nonpublic forums, we must and hinder its effectiveness for its intended purpose.” Id. next consider whether the restriction on soliciting signatures Appellants argue in their brief that their exclusion from the was reasonable and viewpoint neutral. The reasonableness of areas outside of the polling places was an attempt to suppress the government’s restriction on access to a nonpublic forum their speech because public officials opposed their views, but they have alleged no facts to support this allegation. There is no contention, for example, that others were permitted to 3 solicit signatures for referendum petitions on other topics, or The Fourth Circuit treats the terms “d esignated public forum” and that anyone was allowed to engage in other types of “limited public forum,” as two names for the same type of forum. electioneering activities within these areas. Under these Goulart, 345 F.3d at 250. Some circuits co nsider the limited public forum to be a subcategory of the designated public forum. Donovan v. circumstances, we conclude that the decision to exclude Punxsutawney Area Sch. Dist., 336 F.3d 211 , 225 (3d Cir. 20 03); Hopper appellants from soliciting signatures in the parking lots and v. City of Pasco, 241 F.3d 1067, 1075-76 (9th Cir. 2001). Still others walkways leading to the polling places was reasonable and consider the limited public forum to be a subse t of the nonpublic forum viewpoint neutral, and that the appellants’ First Amendment classificatio n. Summum v. City of Ogden, 297 F.3d 995, 100 2 n.4 (10th rights were not violated when they were denied access to Cir. 20 02 ). W e need not resolve this issue here because we conclude that the parking lots and sidewalks leading to the polling places are no npub lic these nonpublic forums. forums, but we note tha t the result in this case would be the same if we had co ncluded that these areas were instead limited public forum s. No. 02-3415 United Food & Commercial Workers 21 22 United Food & Commercial Workers No. 02-3415 Local 1099, et al. v. City of Sidney, et al. Local 1099, et al. v. City of Sidney, et al.
3. The Public Sidewalk Beyond 100 Feet From the appropriate level of scrutiny is initially tied to whether the Polling Place restriction distinguished between prohibited and permitted speech on the basis of content. See Frisby, 487 U.S. at 481. In a footnote in its opinion dismissing the claims against Content-neutral regulations are those that are “justified the Sidney City Schools and Miller, the district court stated without reference to the content of the speech.” Virginia that “[t]here is no allegation that the [appellants] were denied State Bd. of Pharmacy v. Virginia Citizens Consumer the ability to solicit signatures from adjacent, public property Counsel, Inc., 425 U.S. 748, 771 (1976). Content-based such as the sidewalks in front of the polling place.” United restrictions, on the other hand, regulate speech on the basis of Food & Commercial Workers, Union Local 1099 v. City of the ideas expressed. R.A.V. v. City of St. Paul, 505 U.S. 377, Sidney, 199 F. Supp. 2d 739, 742 n.6 (S.D. Ohio 2002). This 382 (1992). It is impossible to determine from this record conclusion is contrary to allegations in the complaint that whether the deputy’s threat of arrest was based on the content appellants were prohibited from soliciting signatures from the of the appellants’ speech or on content-neutral time, place, public sidewalk within the campaign-free zone at Lowell, and and manner concerns. At this stage of the litigation, it from the public sidewalk outside the campaign-free zone at suffices to say that appellants have alleged facts supporting a the Y.M.C.A. We have already determined that appellants claim that their First Amendment rights were violated when were not deprived of their First Amendment rights at Lowell they were threatened with arrest even after they had moved to because, although they were on the public sidewalk, they the public sidewalk. It was not necessary for them to first were also within the 100-foot campaign-free zone established expose themselves to arrest or prosecution in order to be able by §§ 3501.30 and 3501.35. Now we must decide whether to seek relief. See Steffel v. Thompson, 415 U.S. 452, 459 appellants were deprived of their First Amendment rights (1974). We leave it to the district court on remand to when a deputy with the Shelby County Sheriff’s Office determine whether the deputy’s threat of arrest was motivated threatened two of the appellants with arrest if they attempted by reasonable time, place, and manner concerns, or whether to solicit signatures by calling out to anyone in the Y.M.C.A. it was an impermissible content-based restriction on speech parking lot, even after they had relocated to a public sidewalk in a traditional public forum. See Pouillon v. City of Owosso, beyond 100 feet from the polling place. 206 F.3d 711, 717-18 (6th Cir. 2000). “[S]peech in public areas is at its most protected on public Because appellants have not alleged facts supporting their sidewalks, a prototypical example of a traditional public claims that their First Amendment rights were violated when forum.” Schenck v. Pro-Choice Network of W. New York, 519 they were denied the opportunity to solicit signatures at the U.S. 357, 377 (1997). As we have already noted, in a four public schools involved in this case, we affirm the traditional public forum, content-based restrictions on speech district court’s decision dismissing their § 1983 claims must be necessary to serve compelling state interests and against the Sidney City Schools and Superintendent Miller. narrowly tailored to achieve those interests. Perry, 460 U.S. Appellants’ remaining § 1983 claims are against the City of at 45. The state may also enforce regulations of the time, Sidney and O’Leary, Puckett, and Wearly in their official place, and manner of expression, provided the regulations (1) capacities. As the district court noted, a claim against an are content-neutral, (2) are narrowly-tailored to serve a officer or employee of a governmental entity in his or her significant government interest, and (3) leave open ample official capacity is a claim against the governmental entity alternative channels of communication. Id. Thus, the itself. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 No. 02-3415 United Food & Commercial Workers 23 24 United Food & Commercial Workers No. 02-3415 Local 1099, et al. v. City of Sidney, et al. Local 1099, et al. v. City of Sidney, et al.
(1989); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245- remaining defendants in their § 1985 claim are the City of 46 (6th Cir. 1989). The district court construed the claims Sidney and City Manager Puckett. against O’Leary, Puckett and Wearly in their official capacities as claims against the City of Sidney, and so do we.4 To state a cause of action under § 1985, appellants must Thus, while we reverse the district court’s decision dismissing prove the existence of a conspiracy among two or more appellants’ § 1983 claims against the City of Sidney, we note persons. Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. that in order to be successful on remand, appellants must Bd. of Educ., 926 F.2d 505, 509 (6th Cir. 1991). In this case, prove not only that their expression was in fact deterred or appellants are alleging a conspiracy between the city and one chilled by the deputy’s conduct at the Y.M.C.A., but also that of its officers acting in his official capacity. This court has the deputy threatened to arrest them because of the content of rejected the concept of an “intra-corporate conspiracy” and their message and not merely because he had valid content- has held that an entity cannot conspire with its own agents or neutral time, place, and manner concerns. Additionally, in employees. See id. Since the remaining § 1985 defendants order to hold the City liable under § 1983, appellants must be are the City and one of its employees, appellants cannot meet able to prove that the deputy acted pursuant to an official their burden of proving a conspiracy between two or more municipal policy or custom. See Monell v. Dep’t of Social persons. We therefore affirm the district court’s decision Servs., 436 U.S. 658, 691 (1978). dismissing their claims under § 1985.
B. Appellants’ § 1985 Claim III.
In addition to their § 1983 claims, appellants also alleged For the foregoing reasons, we affirm the district court’s in their complaint that the City of Sidney, Puckett, Wal-Mart, decision dismissing appellants’ § 1983 claims against the and two of Wal-Mart’s employees conspired to prevent them Sidney City Schools, Miller, O’Leary, Puckett, and Wearly. from “engaging in their statutorily-protected right to obtain We also affirm the district court’s decision dismissing signatures for a referendum petition, to introduce an improper appellants’ § 1985 claims against the City of Sidney and and misleading ‘counter-petition’ in an attempt to influence Puckett. We reverse the district court’s decision dismissing the Board of Elections’ decision-making process, and to appellants’ § 1983 claims against the City of Sidney insofar circumvent their right to a referendum through a pattern of as it relates to activities on the public sidewalk outside the unlawful, corrupt, and unethical legislative conduct,” in campaign-free zone at the Y.M.C.A., and remand to the violation of § 1985. Because the appellants have dismissed district court for further proceedings consistent with this their claims against the three Wal-Mart defendants, the only opinion.
4 Because the appellants have not addressed the district court’s dismissal of their claims aga inst M iller, Puc kett, and W early in their official capa cities in their b riefs or o therwise, they have waive d this argument on appeal, and we affirm the district court’s decision dismissing those claims. See United States v. Elder, 90 F.3d 111 0, 1118 (6th Cir. 199 6).