Embry v. Lewis

• Decision Date: 12 January 2000
• Docket Number: No. 99-2238,99-2238
• Citation: 215 F.3d 884
• Parties: (8th Cir. 2000) JUANITA EMBRY; RICHARD DELAMATER, APPELLANTS, v. BOB LEWIS, CHIEF OF POLICE; FREDERICK C. BOLAND, PRINCIPAL; DAN LOWRY, DR., SUPERINTENDENT, APPELLEES, ATTORNEY GENERAL OF MISSOURI, AMICUS ON BEHALF OF APPELLANTS. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 884

215 F.3d 884 (8th Cir. 2000)

JUANITA EMBRY; RICHARD DELAMATER, APPELLANTS, v. BOB LEWIS, CHIEF OF POLICE; FREDERICK C. BOLAND, PRINCIPAL; DAN LOWRY, DR., SUPERINTENDENT, APPELLEES, ATTORNEY GENERAL OF MISSOURI, AMICUS ON BEHALF OF APPELLANTS.

No. 99-2238

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 12, 2000

Filed: June 8, 2000

Rehearing and Rehearing En Banc Denied July 14, 2000.

Appeal from the United States District Court for the Western District of Missouri. [Copyrighted Material Omitted]

Before Hansen, Bright, and Fagg, Circuit Judges.

Hansen, Circuit Judge.

Juanita Embry and Richard Delamater appeal the district court's ¹ order granting summary judgment in favor of Bob Lewis, Frederick Boland, and Dan Lowry in this 42 U.S.C. 1983 action. We affirm.

I.

Embry and Delamater were on the grounds of Adams Middle School (the school) in Trenton, Grundy County, Missouri, on November 4, 1997, collecting signatures on an initiative petition drive. A special election for state representative was being held that day, and the school was designated as a polling place. ² Embry and elamater were being paid for each signature collected. Accordingly, they chose to locate at the school because it was identified as having a high voter turnout and a logical place to seek signers for their petition. Delamater set up his table and chair on the grass of the school's west property near but not upon the public sidewalk. This location was more than 25 feet away from the school's polling entrance. Embry left Delamater at the school and went to North Central Missouri Community College to collect signatures.

Around 8:00 a.m., the school principal, Boland, approached Delamater and asked him if he had permission to be on the school property. Delamater indicated that he lacked permission. Delamater stated, however, that he thought he could petition at the school because it was a voting place. Boland then contacted the school superintendent, Lowry. Boland claims that Lowry told him that Boland as the principal had the authority to make the final decision regarding Delamater's presence on the school property. Following his conversation with Lowry, Boland asked Delamater to leave the property, and Delamater complied.

Embry returned to the school around noon and was told that Delamater had gone to the courthouse, which also served as a polling place. At the courthouse, Delamater explained to Embry that Boland had asked him to leave the school property. Embry returned to the school at approximately 1:00 p.m. and began to collect petition signatures. She set up her table on the school property near but not upon the sidewalk. Around 3:00 p.m., Boland approached Embry and told her to leave the school property. At about the same time, Delamater returned to the school. Embry explained to Boland that she had a right to collect signatures at the school because it was a polling place provided she remained at least 25 feet away from the polling entrance. She told Boland that she would not leave the school property. Boland called Lewis, the Police Chief of Trenton, Missouri. After Lewis arrived, he informed Embry that he would arrest her if she did not leave the school property. Embry refused to leave, and Lewis arrested her. Delamater left on his own accord. Embry was released later that day without any charges being filed against her.

Embry and Delamater filed a 42 U.S.C. 1983 complaint against Boland, Lowry, and Lewis alleging a violation of their First Amendment rights. Embry also filed a state law claim for false imprisonment against Lewis. The district court granted summary judgment to Boland, Lowry, and Lewis on the 1983 claim and dismissed without prejudice Embry's state law claim for false imprisonment. Embry and Delamater appeal the grant of summary judgment.

II.

Embry and Delamater claim that petition circulating is core political speech and, as such, is protected by the First Amendment to the United States Constitution. Stated as a general proposition of constitutional law, we agree. On appeal, Embry and Delamater argue that the district court erred in its public forum analysis. The district court concluded that the school, as a whole, was a nonpublic forum. Embry and Delamater contend that the state of Missouri, through Mo. Ann. Stat. 115.117 (West 1997), designated the school property, in particular the limited area on which they located, as a limited public forum for the purpose of voting and electioneering activities on that particular day. ³ In addition, they argue that electioneering activities were allowed at the school on that day, pursuant to Mo. Ann. Stat. 115.637 (West 1997), provided they remained at least 25 feet away from the polling entrance. Embry and Delamater explain that, under a designated public forum analysis, their exclusion can withstand scrutiny only if it was necessary to serve a compelling state interest and was narrowly drawn to achieve that end. In addition, they contend that a reasonable jury could find their exclusion was content-based because Boland read the petition before asking Delamater to leave the property, they assert that Boland did not ask an electioneer who was distributing Republican brochures to leave the property, and Boland admitted he had never before called the police to have a person removed from the property on an election day.

We review the grant of summary judgment de novo. Coplin v. Fairfield Pub. Access Television Comm., 111 F.3d 1395, 1401 (8th Cir. 1997). In conducting our review, we evaluate the record in the light most favorable to the nonmoving party. Id. Summary judgment is appropriate only when there is "no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Id. (quoting Fed. R. Civ. P. 56(c)).

Pursuant to 115.117, the election authority may designate tax-supported public buildings as polling places for any election. The election authority has the right to choose the location of the polling place within the building. See 115.117(1). In addition, the state of Missouri has restricted the types of activities that may occur near a polling place. Section 115.637 of the Missouri Revised Statutes identifies the types of activities that are class four election misdemeanor offenses. Included in the list of offenses are:

Exit polling, surveying, sampling, electioneering, distributing election literature, posting signs or placing vehicles bearing signs with respect to any candidate or question to be voted on at an election on election day inside the building in which a polling place is located or within twenty- five feet of the building's outer door closest to the polling place . . . .

Mo. Ann. Stat. 115.637(18).

The Adams Middle School building was designated as a polling place under Missouri law, and the voting booths were located on the first floor of the school building near the west entrance. Only a portion of the school property was a designated public forum on November 4, 1997, for the limited purpose of voting, in accordance with 115.117. Specifically, this area included the parking lot, the walkway leading to the west entrance, the hallway inside the school leading to the voting booths, and the area containing the voting booths. All other areas of the school property, however,...