Clean-Up'84 v. Heinrich, 84-245 Civ-T-15.

• Decision Date: 05 March 1984
• Docket Number: No. 84-245 Civ-T-15.,84-245 Civ-T-15.
• Citation: 582 F. Supp. 125
• Parties: CLEAN-UP '84, Plaintiff, v. Walter C. HEINRICH, etc., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

582 F. Supp. 125

CLEAN-UP '84, Plaintiff, v. Walter C. HEINRICH, etc., et al., Defendants.

No. 84-245 Civ-T-15.

United States District Court, M.D. Florida, Tampa Division.

March 5, 1984.

Stephen F. Hanlon, George Sheldon, Tampa, Fla., for plaintiff.

Sara Fotopolous, Tampa, Fla., for defendant Krivanek.

David Farash, Tampa, Fla., for defendant Heinrich.

James Sloan, Tallahassee, Fla., for defendant Firestone.

ORDER

CASTAGNA, District Judge.

The Court has for consideration plaintiff's motion for preliminary injunctive relief, filed February 15, 1984. The complaint in this suit names Walter Heinrich, Sheriff of Hillsborough County as representative of a class of defendants including all Sheriffs in the State of Florida.¹ The Court granted a motion for leave to intervene filed by the Florida Secretary of State, George Firestone. All parties were represented by counsel at the hearing on this motion, held February 29, 1984. Both plaintiff and defendant Firestone have submitted affidavits and memoranda on this issue, and the Court heard argument from all parties.

In this suit, plaintiff challenges the constitutionality of Fla.Stat. § 104.36. Among other things, this statute makes it a misdemeanor for any person to solicit or attempt to solicit a signature on any petition within 100 yards of any polling place on the day of any election. Plaintiff proposes to solicit signatures on initiative petitions from persons at polling places on March 13, 1984, the date of Florida's presidential preference primary election. Because the enforcement of this statute would allegedly violate the First Amendment rights of its members, plaintiff seeks an injunction preventing Florida Sheriffs from enforcing the statute on March 13, 1984.

After considering the affidavits, the papers submitted by the parties, and the arguments presented at the hearing, the Court makes the following findings:

1. There is a substantial likelihood that plaintiff will prevail on the merits of its challenge to Fla.Stat. § 104.36. Besides prohibiting laws abridging freedom of speech, the First Amendment proscribes legislative attempts at restricting the right to petition the Government for a redress of grievances. While plaintiff's members have the right to speak freely and petition the Government for redressing grievances, the State also has the right to enact reasonable regulations to ensure orderly elections. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), States have the power to regulate the time, place and manner in which elections are held, but this power is subject to constitutional limitations. Rock v. Bryant, 459 F.Supp. 64 (D.C.Ark.1978) aff'd 590 F.2d 340 (8th Cir. 1978).

Although the state has the right to reasonably regulate the election process, § 104.36 may well be facially invalid because it is overbroad. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). As pointed out in plaintiff's affidavits, this statute applies to procuring petition signatures within 100 yards of any polling place, an area which may often include residences, businesses, union halls, etc. Furthermore, the statute may infringe on constitutional protections by not limiting its regulation of protected speech by the least restrictive means. Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). As pointed out by plaintiff, there may well be other, more precise and limited methods by which the election process can be protected from disruption. Florida law already prohibits breaches of the peace and disorderly conduct. Fla.Stat. § 877.03. All Sheriffs and officers are required to perform their duties relating to elections. Fla.Stat. § 104.11. Other portions of the code reveal that the election process can be protected without the blanket infringement of First Amendment rights alleged in the challenged statute. See e.g. Fla.Stat. § 104.051, 104.061, 104.091, 104.185, 104.19, 104.23 and 104.41. Therefore, because it appears that this statute may be overbroad and is not drawn in the least restrictive manner, the Court finds that there is a substantial likelihood that plaintiff will succeed on the merits of its challenge to Fla. Stat. § 104.36.

2. The Court also finds that plaintiff's members will suffer irreparable injury if the requested relief is not granted. Even temporary deprivations of First Amendment rights cause irreparable harm. Citizens For A Better Environment v. Park Ridge, 567 F.2d 689, 692 (7th Cir. 1975). Here, plaintiff's members seek to use the March 13, 1984 primary election as a method of obtaining signatures from registered voters on petitions. Plaintiff is attempting to obtain these signatures in an effort to get a proposed amendment to the Florida Constitution on the ballot in November, 1984. Restricting access to voters on March 13, 1984 will work an irreparable harm to plaintiff's members in that legitimate pursuit.

3. The Court finds that granting the preliminary injunction would not substantially harm defendants in any sense. There are already available means by which the integrity of the election process can be protected.

4. Finally, the Court finds that granting the relief requested would serve the public interest. All citizens have an interest in a robust debate on public issues. Plaintiff's members seek to add to this debate by asking their fellow citizens to join them in proposing an addition to the State's Constitution....