Bolinske v. North Dakota State Fair Ass'n

• Decision Date: 03 October 1994
• Docket Number: No. 940068,940068
• Parties: Robert V. BOLINSKE, Plaintiff and Appellant v. NORTH DAKOTA STATE FAIR ASSOCIATION, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 426

522 N.W.2d 426

63 USLW 2248

Robert V. BOLINSKE, Plaintiff and Appellant v. NORTH DAKOTA STATE FAIR ASSOCIATION, Defendant and Appellee.

Civ. No. 940068.

Supreme Court of North Dakota.

Oct. 3, 1994.

Robert V. Bolinske, pro se.

Douglas Allan Bahr (argued), Asst. Atty. Gen., Bismarck, for defendant and appellee.

LEVINE, Justice.

Robert V. Bolinske filed a complaint in district court, seeking to permanently enjoin the North Dakota State Fair Association (the Association) from interfering with his right to freely circulate initiative petitions at the North Dakota State Fair. The court granted the Association's motion for a summary judgment, dismissing Bolinske's complaint on its merits, and Bolinske appealed. We affirm, holding that the Association's regulations do not violate Bolinske's right of free speech under the First and Fourteenth Amendments of the United State's Constitution or his right to propose laws by the initiative process under Article III, Section 1, of the North Dakota Constitution.

The Association is a statutory agency created under Section 4-02.1-01, N.D.C.C., to conduct an annual state fair:

"State fair association. A state fair association, to be known as the North Dakota State Fair Association, is hereby created for the purpose of conducting an annual North Dakota state fair and for the purpose of exhibiting at such fair the agricultural, stockbreeding, horticultural, mining, mechanical, industrial, and other products and resources of this state. The North Dakota state fair shall be held at Minot, North Dakota, at a site to be selected by the state fair association. No other fair may be designated as, nor may any other fair call itself, the state fair."

Under Section 4-02.1-13, N.D.C.C., the Association is given broad authority to govern and operate the state fair:

"Bylaws, rules, regulations. The state fair association may make all bylaws, ordinances, rules, and regulations, not inconsistent with law, which it may deem necessary or proper in carrying out the provisions of this chapter and for the government of the grounds on which the state fair is to be held, and for all fairs to be held thereon, and for the protection, health, safety, and comfort of the public. Such bylaws, ordinances, rules, and regulations are in effect from the time of filing with the secretary of the association."

Under Article III, Section 1, of the North Dakota Constitution, the people of this state have reserved the power to propose and enact laws by the initiative process:

"While the legislative power of the state shall be vested in a legislative assembly consisting of a senate and a house of representatives, the people reserve the power to propose and enact laws by the initiative, including the call for a constitutional convention; to approve or reject legislative Acts, or parts thereof, by the referendum; to propose and adopt constitutional amendments by the initiative; and to recall certain elected officials. This article is self-executing and all of its provisions are mandatory. Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers."

To initiate a law, a sponsoring committee of at least 25 electors must present a petition to the Secretary of State for approval as to its form and then circulate copies of the petition to obtain signatures of electors equal in number to two percent of the state's population. Art. III, Secs. 2-4, N.D. Const.

In July 1992, Bolinske was chairman of the sponsoring committee to initiate a measure to create and fund an environmental protection and recycling fund and to impose a fee on the disposal or incineration of waste in this state. See Municipal Services Corp. v. Kusler, 490 N.W.2d 700 (N.D.1992). After his petition was approved by the Secretary of State, Bolinske attempted to circulate the petition at the state fair, to obtain the required number of signatures. However, the fair manager informed Bolinske that he would not be allowed to freely roam the fairgrounds to solicit signatures on petitions, but would be required to solicit signatures from a leased booth space, for a rental fee in an amount depending upon size and location of the space. Bolinske concedes that he refused to apply for a booth, but asserts none was available. Bolinske filed this lawsuit to enjoin the Association from restricting solicitation of signatures on initiative petitions at the state fair. He was granted a temporary restraining order, allowing him to circulate petitions on the fairgrounds without restriction during the remaining two days of the 1992 fair.

Upon conclusion of the fair, the Association filed a motion, requesting dismissal of Bolinske's lawsuit. In support of its motion, the Association presented to the court its written regulations, governing solicitation and allocation of booth space at the state fair. The Association's rule on soliciting, as amended on July 21, 1992, says:

"No person, parties or organizations shall distribute any kind of literature, or gather signatures for petitions, other than from a paid concession location--no walking concessions nor gathering of signatures for petitions other than from a paid concession location will be allowed."

The Association's current policy regarding allocation of booth space, as adopted June 10, 1993, provides:

"SALES OF EXHIBIT SPACE SELECTION CRITERIA

"I. In order to attract and maintain high-quality concessions and exhibits, it is the policy of the Fair Association to annually extend to the concessionaires and exhibitors from the prior year's state fair the opportunity to renew their space rental contracts for the next state fair. Space rental contract renewals are made on the basis of a renewal for the same space, purpose, products, and ownership as in the prior year. The Fair Association reserves the right not to renew any space rental contract where the concessionaire or exhibitor has violated any rule or regulation of the Fair Association or any state or federal law.

"II. As close to January 1 as is practical, the Fair Association will send renewal applications to concessionaires or exhibitors from the prior year's state fair. The applications must be returned within 30 days of mailing to assure timely processing of the renewal application.

"III. Application forms will be available and new applications for concession and exhibit space for the state fair shall be accepted by the Fair Association beginning on February 1 of each year. Space shall be rented to new applicants on a first-come, first-serve basis with the exception that fair management or its representatives shall limit the number of similar products being sold to an amount that permits reasonable sale opportunities. For example, state fair could sell 50 hot dog spaces but limits the number to 10 or 20. This exception applies only to commercial booths.

"IV. Concessionaires and exhibitors renewing space rental contracts and concessionaires and exhibitors entering into new space rental contracts must meet quality and standards requirements established by current Fair Association rules or regulations."

The trial court concluded these were reasonable regulations, imposed by the Association under its responsibility "to regulate the fair crowd and activities." The court concluded the restrictions on soliciting at the state fair did not violate Bolinske's constitutional right of free speech or his constitutional right to propose laws by the initiative process, and it granted the Association's motion, dismissing Bolinske's complaint with prejudice.

On appeal, Bolinske claims the Association's restrictions on circulating initiative petitions at the state fair violate his constitutional right of free speech and his constitutional right to initiate laws by the initiative process. The Association responds that these limitations upon the petitioning process are reasonable time, place, and manner restrictions, necessary for the safety and convenience of fair patrons and for maintenance of traffic flow at the state fair, to facilitate the statutory purposes and objectives of the fair.

The Association argues that Bolinske has no standing to assert that it acted arbitrarily in selecting renters, because Bolinske never applied to rent a booth. We disagree that Bolinske's failure to apply for a booth rental denies him standing to raise a First Amendment challenge to the Association's application of its regulations. State action can be challenged on overbreadth grounds for its potential to chill or infringe free speech even though the challenger's rights may not have been violated under the circumstances. Forsyth County, Ga. v. Nationalist Movement, --- U.S. ----, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992); see also State v. Anderson, 427 N.W.2d 316 (N.D.) (footnote 1), cert. denied, 488 U.S. 965, 109 S.Ct. 491, 102 L.Ed.2d 528 (1988).

The Association also argues that Bolinske's issue about arbitrary application is moot, because effective relief cannot now be granted. However, the Association concedes that Bolinske's argument that the Association's current regulations are facially unconstitutional is a "live issue" and not moot. In this appeal, Bolinske does not request compensation or other relief for past actions of the Association. He merely requests a prospective declaration "that [i]nitiative [p]etitions may be freely circulated on public property."

An appeal is moot when an appellate court is unable to render effective relief due to the lapse of time or the occurrence of related events. Pelkey v. City of Fargo, 453 N.W.2d 801 (N.D.1990). However, we will not dismiss an appeal as moot if the controversy is one of great public interest and involves the authority and power of public officials, or where the matter is capable of repetition, yet evading review. North Dakota Council of School Administrators v. Sinner, 458 N.W.2d 280 (N.D.1990). The issues raised here are definitely capable of repetition without...