Florida Committee for Liability Ref. v. McMillan

• Decision Date: 26 February 1988
• Docket Number: No. 88-113-Civ-J-12.,88-113-Civ-J-12.
• Citation: 682 F. Supp. 1536
• Parties: FLORIDA COMMITTEE FOR LIABILITY REFORM, Plaintiff, v. James McMILLAN, etc., et al., Defendants, Robert Butterworth, as the Attorney General, State of Florida, Defendant/Intervenor.
• Court: U.S. District Court — Middle District of Florida

682 F. Supp. 1536

FLORIDA COMMITTEE FOR LIABILITY REFORM, Plaintiff, v. James McMILLAN, etc., et al., Defendants, Robert Butterworth, as the Attorney General, State of Florida, Defendant/Intervenor.

No. 88-113-Civ-J-12.

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

February 26, 1988.

William H. Adams, III, Peter L. Dearing, Robert J. Winicki, Barry L. Anderson, Mahoney, Adams, Milam, Surface & Grimsley, Jacksonville, Fla., for Florida Committee for Liability Reform.

James L. Harrison, Steven E. Rohan, Stephen E. Durden, Jacksonville, Fla., for James McMillan, in his official capacity as Sheriff of Duval County, Florida and on behalf of all others similarly situated and Tommie Bell, in her official capacity as Supervisor of Elections for Duval County, Florida, and on behalf of all others similarly situated.

George L. Waas, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for Robert A. Butterworth, Atty. Gen., defendant/intervenor.

Wayne Hogan, Brown, Terrell, Hogan, Ellis, McClamma & Yegelwel, P.A., Jacksonville, Fla., for Academy of Florida Trial Lawyers and Wayne Hogan, amicus curiae.

ORDER GRANTING PRELIMINARY INJUNCTION

MELTON, District Judge.

This cause came on to be heard upon plaintiff's Motion for Preliminary Injunction. The Court has considered the pleadings, plaintiff's Motion for Preliminary Injunction, the memoranda filed herein, the testimony of witnesses and arguments of counsel at the hearing held on February 18, 1988, and the supplemental evidence filed following the hearing. Based on the consideration of these matters, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff Florida Committee for Liability Reform ("Committee") is a political committee registered under the laws of the State of Florida whose principal place of business is located in Duval County. The Committee intends to solicit signatures, for a petition urging a referendum on a proposed state constitutional amendment, from registered voters at polling places during the hours of the primary election to be held on Tuesday, March 8, 1988 ("Super Tuesday"). The Committee admits that an adverse advisory opinion from the Florida Supreme Court may, under some narrow circumstances, deter the intended solicitation of signatures. Transcript of Hearing held Feb. 18, 1988 ("Tr.") at 29 (testimony of Donald C. Jones, Asst. Treasurer of Committee). However, the Committee has avowed that it will proceed with soliciting signatures on Super Tuesday if the Florida Supreme Court has not ruled on their present proposal, id. at 26-27. Moreover, the Committee promises that in any event it will take all measures to draft an acceptable proposal prior to Super Tuesday and present that proposal for signatures. Id. at 27-31.

2. Defendant James McMillan ("McMillan") is the Sheriff of Duval County, Florida, and has statutory responsibility for enforcing order at the polling places, including enforcing the statute. The class represented by McMillan consists of all sheriffs of the various counties throughout the State of Florida. See Order Certifying Defendant Classes, entered Feb. 24, 1988, at p. 5.

3. Defendant Tommie Bell ("Bell") is the Supervisor of Elections for Duval County, Florida, and has statutory responsibility for enforcing order at the polling places and ensuring that all polling places meet the requirements of the statute. The class represented by Bell consists of all supervisors of elections of the various counties through the State of Florida. See id.

4. Defendant Robert Butterworth, as the Attorney General of the State of Florida, has been granted leave to intervene on behalf of defendants in this action.

5. The present motion asks the Court to declare illegal and preliminarily enjoin enforcement of § 102.031(3) of the Florida Statutes (1987) by the two defendant classes during the primary election scheduled for Super Tuesday. The challenged statute provides:

(3)(a) No person, political committee, committee of continuous existence, or other group or organization may solicit voters within 150 feet of any polling place, or polling room where the polling place is a shopping center or mall, on the day of any election.

(b) For the purpose of this subsection, the term "solicit" shall include, but not be limited to, soliciting or attempting to solicit any vote, opinion or contribution for any purpose; distributing or attempting to distribute any political or campaign material; soliciting or attempting to solicit a signature on any petition; and selling or attempting to sell any item, except within an established place of business.

(c) Each supervisor of elections shall determine and inform the clerk of each precinct of the area within which soliciting is unlawful, based on the particular characteristics of that polling place. The supervisor or the clerk may take any responsible action necessary to ensure order at the polling places affected by such soliciting, including:

1. Designating a specific limited area for soliciting, and

2. Having disruptive and unruly persons removed by law enforcement officers from the polling place.

The statute became effective October 1, 1987. See 1987 Fla. Laws ch. 87-363, § 15.

6. The current statute is the culmination of twelve years of legislative experimentation by the State of Florida. Prior to 1976, two statutes regulated the area surrounding polling places. Section 101.121, as enacted at that time, limited those persons who could be within 15 feet of the polling place to persons who were in line to vote. Fla.Stat. § 101.121 (1975). Section 104.36 forbade the distribution of political literature and the solicitation of votes from an elector within 100 yards of any polling place. Fla.Stat. § 104.36 (1975). In 1976, the Attorney General's Office opined that the latter statute did not limit the solicitation of signatures for petitions seeking the submission of a proposed constitutional amendment at a future election. Op. No. 76-44, 1976 Fla. Att'y Gen.Ann.Rep. 76, rendered Feb. 24, 1976. The state legislature responded by amending the section to outlaw "soliciting or attempting to solicit any vote, opinion, or contribution for any purpose; soliciting or attempting to solicit a signature on any petition." Fla. Stat. § 104.36 (1977) (as amended by 1976 Fla. Laws ch. 61, § 1).

In 1984, a political committee successfully enjoined enforcement of § 104.36 as a facially overbroad infringement of the right to speak freely and petition the government for redressing grievances. Clean-Up '84 v. Heinrich, 582 F.Supp. 125 (M.D.Fla.1984), aff'd, 759 F.2d 1511 (11th Cir.1985). Shortly after the affirmation of the preliminary injunction in Clean-Up '84, the Florida Legislature reformed its electoral regulations by amending § 102.031 to provide a procedure by which organizations such as the Committee could give advance notice of their intention to solicit near polling places and thereby give election officials an opportunity to make arrangements to ensure order. See 1985 Fla.Laws ch. 205, § 2. At the same time, the distance surrounding a polling place in which only electors are permitted, as set forth in § 101.121, was extended to 50 feet. See id. § 1. The reform additionally excepted commercial businesses, privately owned homes, and privately owned property from the effect of the new 50-foot exclusionary zone. See id. The current statute, enacted in 1987, finally repealed § 104.36 and replaced the notice-and-solicit procedure of § 102.031 with the presently challenged 150-foot radius in which solicitation of votes, opinions, contributions, and signatures is prohibited. See 1987 Fla.Laws ch. 184, § 4, re-enacted ch. 363, § 15. The 1987 amendments also changed the requirement of the 50-foot exclusionary zone in § 101.121 from the polling place to the polling room.

7. Defendants presented testimony from Donald L. Hersey ("Hersey"), Supervisor of Elections for Putnam County and President of The Florida State Association of Supervisors, and Lee Jarrell ("Jarrell"), Assistant Supervisor of Elections for Duval County, concerning the events which prompted the 1987 changes in § 102.031 and the interests allegedly advanced by the statute in its current form. This testimony is not legislative history and was not represented as such. However, it sheds light on the factual basis which might support whatever legislative purposes are otherwise proved.

8. Hersey testified that "one of the biggest problems" prompting § 102.031(3) was the objection by churches, some of which withdrew as polling places following the 1986 election, to the content of specific solicitations for signatures on petitions seeking a constitutional amendment legalizing casino gambling and to the general practice of solicitations for signatures. Tr. at 44, 46. Jarrell confirmed this observation. Id. at 68. Hersey also identified "numerous complaints" from persons over the posting of candidate literature as close as 50 feet from the polling places. Id. at 44. Jarrell added that the 50-foot restriction did not adequately deal with disruptions at a school when polls were located there. Id. at 69. The Court observes that this testimony was anecdotal and the prevalence of these problems was not established.

9. Defendants McMillan and Bell did not submit formal legislative history, although defendant/intervenor Butterworth entered into evidence two staff analyses from the Florida House of Representatives Committee on Ethics and Elections and a letter of transmittal from Committee Staff Director Wayne R. Malaney to State Representative Dorothy Sample. Intervenor's Exh. No. 3. Plaintiff Committee submitted tapes from hearings concerning H.B. 549, which became § 102.031(3), held before a subcommittee and the Florida House Committee on Ethics and Elections. Butterworth's documents do not discuss the purpose of the statute or the factual basis for the choice of the 150-foot distance....