99 F.3d 194 (6th Cir. 1996), 95-3067, Sistrunk v. City of Strongsville

Docket Nº:95-3067.
Citation:99 F.3d 194
Party Name:Samantha SISTRUNK, Plaintiff-Appellant, v. CITY OF STRONGSVILLE and Bush-Quayle '92 Committee, Inc., Defendants-Appellees.
Case Date:October 29, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 194

99 F.3d 194 (6th Cir. 1996)

Samantha SISTRUNK, Plaintiff-Appellant,

v.

CITY OF STRONGSVILLE and Bush-Quayle '92 Committee, Inc.,

Defendants-Appellees.

No. 95-3067.

United States Court of Appeals, Sixth Circuit

October 29, 1996

Argued March 18, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Jan.

2, 1997.[*]

Page 195

David J. Hooker, Daniel R. Warren (argued and briefed), Elizabeth A. Costigan, Nicolle M. Clessuras (briefed), Thompson, Hine & Flory, Cleveland, OH, for Plaintiff-Appellant.

John T. McLandrich, Mazanec, Raskin & Ryder (argued and briefed), Cleveland, OH, for Defendant-Appellee City of Strongsville.

Bobby R. Burchfield, Covington & Burling (argued and briefed), Washington, DC, Patrick M. Foy, Gallagher, Sharp, Fulton & Norman, Cleveland, OH, for Defendant-Appellee Bush-Quayle '92 Committee, Inc.

Alfred R. Cowger, Jr., Alcan Aluminum Corp. (briefed), Mayfield Heights, OH, William M. Saks, American Civil Liberties Union of Ohio Foundation (briefed), Cleveland, OH, for amici curiae H. Paul Schwitzgebel and James E. Delong.

John E. Gotherman, Malcolm C. Douglas (briefed), Columbus, OH, for amicus curiae Ohio Municipal League.

Before: NELSON and RYAN, Circuit Judges; SPIEGEL, District Judge. [**]

RYAN, J., delivered the opinion of the court, in which NELSON, J., joined. SPIEGEL, D.J. (pp. 200-203), delivered a separate dissenting opinion.

RYAN, Circuit Judge.

Plaintiff Samantha Sistrunk appeals the judgment for defendants in this action under 42 U.S.C. § 1983 and Ohio law, challenging the defendants' exclusion of all speech opposing then-President George Bush's reelection at a political rally held on public property. Plaintiff argues that the City of Strongsville,

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Ohio, violated her free speech rights by permitting the Bush-Quayle '92 Committee to exclude members of the public from a traditional public forum based on the content of their speech. Plaintiff further argues that the committee acted under color of state law or as a state actor when it denied plaintiff access to the Strongsville Commons.

We conclude that neither the city nor the committee violated plaintiff's constitutional rights even if she was excluded from the Commons because of the content of her speech. Because we find that the plaintiff has not alleged a violation of her free speech rights, we have no occasion to address whether her exclusion from the Commons was state action. We therefore affirm the district court's dismissal for failure to state a claim.

I.

The Strongsville Republican Organization obtained a permit from the city to use certain municipal property, including the Strongsville Commons, for a political rally to be held on October 28, 1992, from 8:30 a.m. to 4:30 p.m. According to the complaint, the Strongsville Republican Organization either permitted or joined with the Bush-Quayle '92 Committee to use the Commons to hold a rally for then-President George Bush. Walter Ehrnfelt, the city's mayor, issued the permit to the applicant organization for the nominal fee of $1. The permit provided that the permittee organization would be entitled to use and/or rent designated offices and chambers of the municipal building and its grounds, including the Commons and the gazebo, for the purposes of receiving and welcoming President Bush and celebrating his visit to the city. The permit specifically provided that the use of the facilities and grounds was limited to the members of the organization and their invitees. The permit also provided that the committee was authorized to further restrict the use of the premises by category of invitation. To attend the rally, members of the public were required to obtain admission tickets, which were available at city hall free of charge on a first come, first served basis.

Plaintiff alleged that the Commons is a public forum, that it is located in the center of the city, that it was dedicated by the city's founder to the inhabitants of Strongsville for exclusive use as a public common area, and that for the last 165 years "countless public gatherings and festivals have been held on the Commons, including community art fairs and amusement and entertainment events, as well as Strongsville's 'Community Day.' " Pursuant to a city ordinance, the mayor's office has the authority to regulate the use of the Commons; any person or organization wishing to use the Commons must apply to the mayor's office for permission.

The committee prohibited rally participants from carrying or displaying signs or buttons that carried messages critical of President Bush; however, it allowed participants to display approved signs and buttons which carried messages either supporting the President or neutral to his support. Plaintiff, a high school student at that time, obtained a ticket to the rally and was transported to the rally on a bus provided by the Strongsville public school system. Plaintiff wore several buttons on her jacket--a picture of a classmate, a red ribbon drug-free pin, and a political button endorsing Bill Clinton for President. Plaintiff was stopped outside the rally entrance by a committee official who told her that she could not carry or display the Bill Clinton button inside the rally. The official did not object to any of the other buttons plaintiff wore. Plaintiff relinquished her Bill Clinton button to the committee official before entering the rally.

When confronted with questions after the rally about the committee's activities in suppressing opposing speech, Strongsville's chief of police was quoted as saying that the committee was entitled to exclude ticket holders from the rally on the basis of speech content because the property had been leased for the day by the committee. Plaintiff claims that this response indicates that the city had knowledge beforehand of the committee's intention to exclude from the Commons political expression that was not supportive of President Bush and that the city had adopted a policy beforehand that caused the deprivation of free speech rights in a public forum.

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Plaintiff alleged that a symbiotic relationship existed between the city and the committee, such that the committee's activities in holding the rally can be treated as those of the city itself. In support of this proposition, plaintiff made the following allegations: The city's chief official, Mayor Ehrnfelt, helped organize the rally. The tickets indicated that Mayor Ehrnfelt was a sponsor of the event, stating: "Mayor Walter F. Ehrnfelt and the Republican Party invite you to see and hear President George Bush and the Oakridge Boys at Strongsville Commons Wednesday, October 28, 1992." At the bottom of the tickets appeared the printed statement: "paid for by Bush-Quayle '92 Election Committee, Inc." Among the other political literature disseminated to the public at city hall was an advertisement stating: "Mayor Walter F. Ehrnfelt invites you to come and see ... President George Bush," below which the advertisement stated: "Send the media a message that we will win!!!" The city openly encouraged citizens to attend the rally and facilitated the distribution of tickets to the public by allowing tickets to be distributed from Strongsville City Hall. Officials of the city, including the mayor himself, actually took part in the rally. The mayor was present on the gazebo on which President Bush and celebrities who publicly endorsed the President's candidacy were seated during the rally. A banner was prominently displayed on the gazebo declaring "Strongsville Trusts George Bush." The Strongsville public schools encouraged local students to attend the rally by offering students the option of attending the rally instead of their regularly scheduled classes, and by providing students with free transportation to the rally on city school buses. Additionally, the Strongsville High School marching band performed at the rally. Finally, the city provided police protection and other municipal services for the rally.

The district court found that the complaint failed to state a claim against either the city or the committee because the city's involvement in the rally was largely passive and wholly diverse from the committee's actions. The district court therefore concluded that the challenged private conduct was not attributable to the state for the purposes of a 42 U.S.C. § 1983 action. The district court also found that plaintiff had failed to state a claim under the Ohio constitution because the protections provided her under the Ohio constitution extended no farther than the protections accorded her under the First Amendment to the United States Constitution.

II.

Determining whether the district court properly dismissed a claim is a question of law subject to de novo review. See Mertik v. Blalock, 983 F.2d 1353, 1356 (6th Cir.1993). In conducting this review, we "construe the complaint liberally in the plaintiff's favor and accept as true all factual allegations and permissible inferences therein." Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.1994). A motion to dismiss may be granted under Fed.R.Civ.P. 12(b)(6) "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).

The First Amendment as applied to the states through the Fourteenth Amendment provides that the government "shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. CONST. amend. I.

Although, as the dissent observes, we do not ordinarily decide constitutional issues if a case can be resolved on non-constitutional grounds, we think it is appropriate, for two reasons, in this case to proceed directly to the First Amendment issue: 1) as...

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