Del Gallo v. Parent
| Decision Date | 28 March 2008 |
| Docket Number | C.A. No. 06-30063-MAP. |
| Parties | Rinaldo DEL GALLO, III, Plaintiff v. Roger PARENT, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Karen L. Goodwin, United States Attorney's Office, Springfield, MA, for Pittsfield Post Office.
MEMORANDUM AND ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTIONS FOR MISCELLANEOUS RELIEF (Dkt. Nos. 31, 35, 38, and 39)
Anthony Lewis, in the first line of the introduction to his magnificent book, Freedom for the Speech We Hate: A Biography of the First Amendment, observes that "[o]urs is the most outspoken society on earth." This case probes the proper boundaries of that outspokenness in the nitty-gritty context of a highly local dispute, in the light of authority provided by a sharply divided Supreme Court. See United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990).
Pro se Plaintiff Rinaldo Del Gallo, III, is from time to time a candidate for political office. Defendants, Postmaster Robert Parent and the Pittsfield Post Office, have applied a postal regulation to prohibit Plaintiff from soliciting signatures in support of his political candidacy from the sidewalk owned by the United States Postal Service and immediately adjoining the post office entry. Citing the First and Fourteenth Amendments to the United States Constitution, Plaintiff seeks declaratory and injunctive relief barring Defendants from persisting with this prohibition.
Defendants have moved for summary judgment on the grounds that (1) the sidewalk in question is a non-public forum as a matter of law, (2) the postal regulation prohibiting solicitations related to a political campaign on the postal sidewalk is a reasonable time, place and manner restriction, and (3) the undisputed record confirms that Defendants have enforced the regulation in a manner that is viewpoint-neutral, in the sense that it is not aimed at the content of Plaintiff's speech.
Plaintiff opposes Defendants' motion and has filed his own motion for summary judgment. According to Plaintiff, the sidewalk at issue is a traditional public forum for First Amendment activities both as a matter of fact and law. Alternatively, Plaintiff contends that, even if the sidewalk were a non-public forum and the postal regulation at issue passed constitutional muster, he would still be entitled to judgment as a matter of law based on Defendants' selective enforcement of that regulation arising from their distaste for his political views.
Plaintiff has also filed a motion for a "temporary injunction," and a motion to permit the filing of a late request for an admission. Defendants have not filed any formal opposition to these motions, though their motion for summary judgment implicitly opposes the request for immediate injunctive relief.
The description of the background of this case and the explication of the legal analysis will require some time. In the end, however, the result will be driven by the only reasonable construction of Kokinda. That decision, addressing a parallel postal regulation prohibiting solicitation of "alms and contributions" upon a postal sidewalk substantially identical to the one in this case, produced a plurality opinion with four justices finding that the area was a "non-public forum" and a separate concurrence by Justice Kennedy holding that, regardless of the identification of the forum, the restriction on solicitation in that case was reasonable. 497 U.S. at 737-39, 110 S.Ct. 3115. Despite vigorous and impressive efforts by this pro se litigant, no legally cognizable distinction can be wrought between this case and Kokinda,
For the reasons set forth below, the court will deny Plaintiff's motion for summary judgment (Dkt. No. 31), allow Defendants' motion for summary judgment (Dkt. No. 35), deny Plaintiff's motion for a temporary injunction (Dkt. No. 38), and deny Plaintiffs motion to permit the filing of a late request for an admission (Dkt. No. 39).
In many towns and cities the local post office provides an ideal locale for citizens to meet their neighbors for lobbying, solicitation, and political canvassing. The effort by postal authorities to balance patron access and convenience against First Amendment expression has generated a maze-like pattern of evolving regulations.
The best place to begin an overview of this unfolding regulatory scheme is in 1970, when Congress passed the Postal Reorganization Act, Pub.L. 91-375, 84 Stat. 719 (1970) (), establishing the United States Postal Service ("Postal Service") as an independent entity within the federal government's executive branch. According to Frederick Hintenach, the Manager of Postal Customer Service Operations in Washington, D.C.,
the Postal Service is not supported by tax dollars. Instead, the Postal Service is funded by the revenue it generates from its operations.... Because of the Postal Service's need to generate its operating revenue through the sale of its products and services, customers are vitally important to the Postal Service's business. Thus, Retail Operations must strive to furnish the highest quality customer service possible by providing customers easy access to its products and services.
(Dkt. No. 36, Ex. 2, Hintenach Decl. ¶¶ 4, 6.)
The Postal Service has promulgated regulations governing conduct on postal property in the Federal Register. Pursuant to 39 C.F.R. § 232.1(h)(1),
Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, soliciting and vending for commercial purposes (including, but not limited to, the vending of newspapers and other publications) displaying or distributing commercial advertising, collecting signatures on petitions, polls, or surveys (except as otherwise authorized by Postal Service regulations), are prohibited.
39 C.F.R. § 232.1(h)(1) (2007) (emphasis added).
The predecessor to this provision, 39 C.F.R. § 232.6(h)(1),1 did not prohibit campaigning on postal property. See Miscellaneous Amendments, 37 Fed.Reg. 24,346, 24,347 (Nov. 16, 1972). The Postal Service added this ban in 1978 to "prevent abuses and to preclude any appearance of partisan endorsement or preference." Conduct on Postal Property, 43 Fed.Reg. 38,824, 38,824 (Aug. 31, 1978); see also Conduct on Postal Property, 42 Fed.Reg. 63,911, 63,911 (Dec. 21, 1977) (). According to Hintenach, the campaigning prohibition "covers all aspects of political activity, including soliciting signatures to place a candidate's name on an election ballot." (Hintenach Decl. ¶ 9.)2
On June 28, 1998, the Postal Service amended § 232.1(h)(1) by adding prohibitions against "soliciting signatures on petitions, polls, and surveys" and "impeding ingress to or egress from post offices." See 39 C.F.R. § 232.1(h)(1) (1999).3 Defendants contend that this amendment came in response to "widespread customer complaints" concerning "signature-gathering activities on postal property." (Hintenach Decl. ¶ 10.) According to Hintenach,
The substance of the complaints was that the signature solicitation disturbs and impedes customers' use of the postal facilities and, thus, access to postal services. Also, until the enactment of the broader ban on signature solicitation, postmasters ... had the difficult task of determining whether ... a given signature solicitation involved campaigning for election to public office because the campaigning prohibition did not cover signature solicitation for other purposes.
(Id.)4
The signature solicitation ban gave rise to a lawsuit by proponents of various ballot initiatives. See Initiative & Referendum Inst. v. U.S. Postal Serv., 116 F.Supp.2d 65, 68 (D.D.C.2000) ("IRI I"). After the district court allowed the Postal Service's motion for summary judgment, see Initiative & Referendum Inst. v. U.S. Postal Serv., 297 F.Supp.2d 143 (D.D.C.2003) ("IRI II"), the Postal Service published a bulletin instructing postmasters that circulators wishing to collect signatures on petitions, polls, or surveys should
not be prohibited from standing on exterior parts of Postal Service property that are open to the public and passing out informational leaflets, holding up a sign, or both. The leaflet or sign could provide relevant information about the petition, poll, or survey, and direct Postal Service customers to nearby non-Postal Service property ... where they can sign the petition, poll, or survey, if they so desire.
(Dkt. No. 36, Ex. 4, Postal Bulletin 22119 (Jan. 8, 2004),)
When the Circuit Court for the District of Columbia subsequently reversed, see Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299 (D.C.Cir.2005) ("IRI III"), the Postal Service once again amended § 232.1(h)(1), this time by replacing the word "soliciting" with "collecting," see 39 C.F.R. § 232.1(h)(1) (2006). According to the Postal Service, the purpose of this amendment was "to clarify that the prohibition against soliciting signatures on postal property refers to the actual collection of the signatures and not to communication that promotes the signing of petitions, polls, and surveys somewhere other than on Postal Service premises." Conduct on Postal Property, 70 Fed.Reg. 72,078, 72,078 (Dec. 1, 2005).
The upshot of these amendments is that persons currently are permitted to come on postal property to pass out issue-oriented, non-political leaflets and request that postal costumers come to locations off postal property to sign petitions, polls, and the like. Political campaigning of any kind, however, is still barred.
IRI III also prompted the Postal Service to amend 39 C.F.R. § 232.1(a). That...
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