Dorn v. Board of Trustees of Billings School Dist. No. 2
| Citation | 203 Mont. 136,661 P.2d 426,40 St.Rep. 348 |
| Decision Date | 17 March 1983 |
| Docket Number | No. 82-139,82-139 |
| Parties | , 10 Ed. Law Rep. 415 Duane E. DORN, individually and as representative for all initiative petitioners, Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF BILLINGS SCHOOL DISTRICT # 2, Yellowstone County; Virgil Poore, Superintendant of School District # 2, et al., Defendants and Respondents. |
| Court | United States State Supreme Court of Montana |
Jenkins Law Firm, Kelly Jenkins argued, Helena, Patten & Renz, Billings, for plaintiffs and appellants.
Harold F. Hanser, County Atty., David Hoefer argued, Deputy County Atty., Felt & Martin, Laurence R. Martin argued and Sol Lovas, argued, Billings, for defendants respondents.
T.G. Speare, Billings, for amicus curiae.
This appeal results from a Thirteenth Judicial District Court judgment declaring that respondent's school policy, which prohibits the collection of initiative petition signatures within buildings being used as polling places on election days, does not violate appellant's statutory or constitutional rights.
This court is asked to decide whether the class appellant represents has a right to collect initiative petition signatures within school buildings being used as polling places on election days and whether the school district's policy of exclusion violates that right.
Appellant asserts his collection activity within school buildings used as polling places is protected from the school district's exclusionary policy under section 13-35-218(5), MCA and several provisions of the state and federal constitutions. Appellant specifically claims the policy violates equal protection, the First and Fourteenth Amendments and their state counterparts, and the express right to initiative guaranteed by the 1972 Montana Constitution.
Before the 1981 general election appellant Dorn contacted Rimrock Elementary School officials to inform them that he intended to collect signatures on an initiative petition inside the Rimrock School on election day. Respondent school district denied him permission to enter the school building for that purpose.
On November 3, 1981, over the protests of the Rimrock School principal, appellant entered the school building. In the hallway appellant approached two people who were on their way to vote in the gymnasium where the voting booths were located. The voters signed the initiative petition after it was explained to them. The principal then returned to admonish appellant that respondent Poore intended to have him ejected from the building by the police. Appellant remained. Shortly thereafter, respondent Poore and police arrived and requested appellant leave the premises. Under threat of arrest appellant left the building.
Appellant, later that day, returned to the school building with several other persons to solicit signatures. Appellant and associates entered the building under authority of a Thirteenth Judicial District Court temporary restraining order enjoining the school district from preventing appellant from soliciting signatures within school buildings being used as polling places.
Pursuant to party agreement and court approval, hearing on the temporary order and order to show cause was cancelled. The temporary order expired by its own terms. Thereafter, the District Court joined respondent Halland, Yellowstone County's election administrator, as party defendant and certified appellant Dorn to represent a class of persons who collect or intend to collect initiative petition signatures at polling places on election days. The cause was submitted to the trial court on a set of agreed facts and motions for summary judgment.
The District Court rendered summary judgment on behalf of respondents, concluding:
"1. The school district, as a property owner, has the right to prohibit the solicitation of initiative petition signatures within its buildings while they are being used as polling places.
2. The school district's policy permitting plaintiff initiative petitioners to solicit signatures outside, but not inside, school buildings while they are being used as polling places is a reasonable regulation of materially disruptive conduct.
3. The school district's policy permitting plaintiff initiative petitioners to solicit signatures outside, but not inside, school buildings while they are being used as polling places does not violate any right of the plaintiffs guaranteed by the United States or Montana Constitutions.
4. The school district's policy permitting plaintiff initiative petitioners to solicit signatures outside, but not inside, school buildings while they are being used as polling places does not violate the provisions of Section 13-35-218(5), MCA, or any other Montana statute.
5. The private owners of property used as polling places may at any time and for any reason prohibit the solicitation of initiative petition signatures thereon.
6. The County Election Administrator has a duty and may prohibit persons gathering signatures for an initiative petition at any time that he believes said process is interfering with the election process."
We hereafter detail the agreed facts and the District Court findings which bear upon the issues to be resolved.
Posted throughout school buildings within the school district were signs requesting that all persons who enter school buildings, other than students and school personnel, report to the school principal to obtain permission to be in the building. The school board waives this requirement for voters because of the limited purpose and duration of their visit.
Additionally the school district has a written policy prohibiting school or students from serving as enrollment centers or publicity agents for non-school connected activities. This policy has been interpreted to prohibit any kind of solicitation within school buildings, including the solicitation of initiative petition signatures on election days; however, under this policy, the school district has granted standing approval to several children's organizations to distribute information about their organization and activities in school buildings on designated days.
Meanwhile the school district has applied its policy to deny all requests to solicit initiative petition signatures in school buildings on election days. Access to school buildings has been denied to signature solicitors without regard to the contents of a particular petition or the conduct of an individual solicitor. Those who have attempted to solicit signatures in contravention of this policy have been asked to leave.
The policy does not pertain to solicitation of initiative petition signatures on grounds adjacent to school buildings. Such solicitation occurs regularly on election days. The school board has made no attempt to prohibit or otherwise regulate outdoor solicitation.
In Yellowstone County polling places are located in rooms or hallways of private and public buildings. In the past approximately twenty (20) schools within the school district have been used as polling places. Upon entering a school building voters are directed to the polling area by posted signs. Most signature solicitors congregate outside the main entrance to school buildings because that is where most voters enter.
At the time this dispute arose approximately eight to ten initiative petitions either had been or were in the process of being approved for signature collection. Though some were highly controversial none of the initiative petitions for which signatures were sought were ballot issues at the time of solicitation.
The conduct and status of individual solicitors varies in that some are paid and others volunteer; some are peaceful and others are not. It is agreed that each solicitor explains the initiative petition to the voter in the process of requesting his or her signature. When attempts to persuade a voter to sign precipitate arguments, the instigator may be either solicitor or voter. Under the present school district policy these arguments necessarily occur outside school buildings; were the policy changed it is stipulated that any such arguments would occur inside school buildings.
It is agreed noise in hallways distracts students, impairs their concentration, lowers their level of functioning, and affects classroom discipline and teaching effectiveness.
The school district acknowledges the main purpose behind its policy prohibiting solicitation within school buildings is to prevent problems before they start. Its primary concerns are potential disruption of school activities and possible security risks that would attend a more permissive solicitation policy.
The District Court found that the school district's reasons for prohibiting indoor solicitation were valid concerns and fully justified its policy.
The District Court further found that the past activities of solicitors outside school buildings had reasonably lead the school district to forecast substantial disruption and material interference with school functioning if initiative petitioners were permitted inside school buildings.
Finally the District Court found that the process of soliciting initiative petition signatures is not part of the election process.
ISSUE ONE: Whether the school district's policy violates section 13-35-218, MCA?
Appellant contends the school district's policy violates section 13-35-218(5), MCA, because it prohibits solicitation which otherwise would be permitted under statute. Appellant believes the legislative history of a recent amendment to section 13-35-218, MCA, supports his contention.
Prior to 1981, section 13-35-218, MCA, provided in pertinent part, "[n]o person may obstruct the doors or entries of any polling place." Section 13-35-218(4), MCA (1979). During the 1981 legislative session House Bill 336 was introduced to amend section 13-35-218, MCA, to prohibit solicitation of signatures for ballot issues within or near polling places. However, the...
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