National Ass'n of Social Workers v. Harwood

• Decision Date: 01 August 1995
• Docket Number: No. 95-1090,95-1090
• Citation: 69 F.3d 622
• Parties: NATIONAL ASSOCIATION OF SOCIAL WORKERS, et al., Plaintiffs, Appellees, v. John B. HARWOOD, et al., Defendants, Appellants. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 622

69 F.3d 622

64 USLW 2330

NATIONAL ASSOCIATION OF SOCIAL WORKERS, et al., Plaintiffs, Appellees, v. John B. HARWOOD, et al., Defendants, Appellants.

No. 95-1090.

United States Court of Appeals,First Circuit.

Heard Aug. 1, 1995.

Decided Nov. 13, 1995.

John A. MacFadyen, Providence, for appellants.

Jeffrey B. Pine, Attorney General, and Alan M. Shoer, Special Assistant Attorney General, Providence, on brief for State of Rhode Island, amicus curiae.

Amy R. Tabor, with whom Hardy Wood Tabor & Chudacoff, Pawtucket, was on brief, for appellees.

Before SELYA, CYR and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

Over a century ago, Charles Dudley Warner, a nineteenth-century Connecticut journalist, earned a sliver of immortality by coining the phrase "politics makes strange bedfellows." This appeal, which forges an improbable alliance among such disparate groups as the National Association of Social Workers, the Rhode Island State Rifle and Revolver Association, the Rhode Island Affiliate of the American Civil Liberties Union, the Rhode Island State Right to Life Committee, Inc., the Coalition to Preserve Choice, the National Education Association, and Ocean State Action, proves that the aphorism still has force.

Here, the improbable allies (all private, non-profit organizations) banded together with others to bring an action in Rhode Island's federal district court against John B. Harwood, Speaker of the Rhode Island House of Representatives (the House) and Guido Petteruti, the House's head doorkeeper. ¹ The plaintiffs challenged the constitutionality of House Rule 45--a rule that purports to ban both lobbyists and lobbying from the floor of the House while the House is in session--on its face and as applied. The district court found for most of the plaintiffs and ordered the House to desist from continuing its prevailing practices with regard to the interpretation and enforcement of Rule 45. See National Ass'n of Social Workers v. Harwood, 874 F.Supp. 530 (D.R.I.1995) (Social Workers ). ² Given the benefit of briefing and argument on the doctrine of legislative immunity--a benefit denied to the distinguished district judge, since the defendants inexplicably neglected to raise the issue in the lower court--we reverse.

I. BACKGROUND

We recount the facts "in the light most hospitable to the verdict-winner, consistent with record support." Cumpiano v. Banco Santander P.R., 902 F.2d 148, 151 (1st Cir.1990).

In January 1993, the House, under fresh leadership that had pledged procedural reform, adopted several new rules. Among them was Rule 45 (the full text of which is reproduced in the appendix). On its face, Rule 45 banishes all lobbyists from the floor of the House (and the House lounge) while the House is in session. Nonetheless, the rule permits members of the public to be on the House floor while the House is in session, provided that "they remain seated along the sides of the chamber, refrain from conversation, and maintain the decorum of the House," and provided further that they do not "directly or indirectly engage in the practice of lobbying." Rule 45(b).

Although Rule 45 does not define the term "lobbyist," it incorporates the statutory definition of "lobbying" contained in the Rhode Island Lobbying Act, R.I.Gen.Laws Secs. 22-10-1 to 22-10-12 (the Act). The Act defines "lobbying" as "acting directly or soliciting others to act for the purpose of promoting, opposing, amending, or influencing in any manner the passage by the general assembly of any legislation or the action on that legislation by the governor." Id. Sec. 22-10-2. The Act requires lobbyists for private organizations and interests to register with the Secretary of State, see id. Secs. 22-10-5 & 22-10-6, and to wear identifying badges, see id. Sec. 22-10-8. Government officials who lobby are given considerably more leeway. The Act grants safe passage to many elected officials, see id. Sec. 22-10-3(1), and other public employees, while required to register, are otherwise exempt from the Act's provisions. See id. Sec. 22-10-4.1. Neither elected officials nor other public employees are required to wear identification badges.

The district court found that, prior to the adoption of Rule 45, the House provided two galleries overlooking the chamber which were accessible to all members of the public, lobbyists included. In addition, "representatives of both private and governmental organizations were allowed to be present on the floor of the House." Social Workers, 874 F.Supp. at 535. These lobbyists typically occupied seats on the periphery, in an area ranged alongside the two outermost aisles of the House floor. They communicated with legislators in a variety of ways, such as by whispered conversations on the perimeter of the House floor, written notes, physical gestures, and other assorted signals. See id. This buzznacking took place even while the members were debating floor amendments.

After the adoption of Rule 45, access to the overhead galleries remained unchanged. But from that point forward, the House excluded private lobbyists (easily recognized by their obligatory identification badges) from the House floor while the House was in session. The district court found that, in contrast, "agents or employees of governmental bodies [were] allowed to be present on the floor of the House while it [was] in session, as [were] members of the general public." Id. Moreover, the "defendants permitted agents of governmental organizations to be present, to speak, to respond to questions, to provide information, and to confer with legislators on the House floor during House sessions on frequent occasions," notwithstanding the apparently unconditional text of Rule 45. Id. at 537.

The plaintiffs struck back on April 27, 1993. On that date, they filed a civil action under 42 U.S.C. Sec. 1983 (1988) against Messrs. Harwood and Petteruti (as the individuals purportedly responsible for enforcing the House's rules) charging that Rule 45, on its face and as applied, violated the plaintiffs' rights under the First and Fourteenth Amendments. The defendants denied the allegations. Following a four-day bench trial, the judge found for the plaintiffs. See National Ass'n of Social Workers v. Harwood, 860 F.Supp. 943 (D.R.I.1994). The defendants then moved to alter the judgment. While that motion was under advisement, we decided AIDS Action Comm. v. Massachusetts Bay Transp. Auth., 42 F.3d 1 (1st Cir.1994). The judge then issued the opinion that is now before us, 874 F.Supp. 530, modifying the original rescript in certain particulars.

In substance, the court found that the presence of the general public on the perimeter of the House floor--a presence expressly permitted by Rule 45--constituted "communicative and expressive activity," id. at 540; that, due to the communicative possibilities inherent in physical presence, the public's access to the perimeter of the House floor rendered the floor itself a limited-purpose public forum, see id.; and that, therefore, both Rule 45's exclusion of lobbyists and its proscription against lobbying on the House floor constituted impermissible time, place, and manner restrictions on expressive activity, see id. at 540-41. ³ On this basis, the court held that Rule 45, on its face, violated the plaintiffs' First Amendment rights. See id. at 541.

The court also found that the House haphazardly enforced Rule 45, allowing lobbying by government officials while prohibiting others from lobbying. See id. at 535-37. Predicated on this finding, the court concluded that "the application of Rule 45 amounts to a content based restriction on speech." Id. at 541. Because the court could discern no "compelling government interest" that justified the exclusion of private lobbying while sparing governmental lobbying, it held the interpretation and enforcement of Rule 45 invalid under the First Amendment. Id. at 541-42.

In constructing a remedy, the judge, presaging an issue not yet raised by the parties, voiced concerns about judicial interference in legislative affairs. See id. at 542. He therefore declined the plaintiffs' invitation to "require defendants to return to the pre-1993 practice of admitting all lobbyists, public and private, onto the floor of the House on a first-come, first-served basis." Id. Instead, he opted to declare "the current interpretation and enforcement of Rule 45 unconstitutional," and to order the House to refrain from "continuing its current practices with regard to this issue." Id. at 543. ⁴ The House leadership responded on two levels: the House itself passed a new rule barring all persons except legislators and legislative aides from the House floor, and the named defendants launched this appeal.

II. PROCEDURAL DEFAULT

On appeal, the defendants, having engaged new counsel, advance a point that, for some unfathomable reason, they neglected to raise below: the claim that, with regard to the defendants' actions anent Rule 45, they are safeguarded from judicial interference under the federal common law doctrine of absolute legislative immunity. The State of Rhode Island, through its Attorney General, as amicus curiae, lends its support.

It is very late in the day to bring a new argument to the fore. Ordinarily, an appellant who has not proffered a particular claim or defense in the district court "may not unveil it in the court of appeals." United States v. Slade, 980 F.2d 27, 30 (1st Cir.1992). This rule is deeply embedded in our jurisprudence, see, e.g., Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992) ("If any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal."), and we have invoked it with a near-religious fervor, see, e.g., McCoy v. Massachusetts Inst. of Technology, 950...