National Ass'n of Social Workers v. Harwood

• Decision Date: 10 January 1995
• Docket Number: Civ. A. No. 93-0229 P.
• Citation: 874 F. Supp. 530
• Parties: NATIONAL ASSOCIATION OF SOCIAL WORKERS, et al., Plaintiffs, v. John B. HARWOOD, et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

874 F. Supp. 530

NATIONAL ASSOCIATION OF SOCIAL WORKERS, et al., Plaintiffs, v. John B. HARWOOD, et al., Defendants.

Civ. A. No. 93-0229 P.

United States District Court, D. Rhode Island.

January 10, 1995.

COPYRIGHT MATERIAL OMITTED

Amy Tabor, Pawtucket, RI, for plaintiffs.

Richard Gonnella, Providence, RI, for defendants.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

This case questions the constitutionality of a rule of the Rhode Island House of Representatives which plaintiffs claim is interpreted and enforced so as to allow governmental lobbyists onto the floor of the House while the House is in session while denying lobbyists for private organizations the same access. Plaintiffs claim that this rule, Rule 45, violates their First and Fourteenth Amendment rights.

This issue was first presented to the Court in dual motions for summary judgment, which were both denied. After a trial on the merits, I issued a memorandum and order on August 25, 1994. National Assoc. of Social Workers v. Harwood, 860 F.Supp. 943 (D.R.I. 1994). The defendants subsequently filed a motion to alter the judgment, contending that this Court misapplied the limited public forum doctrine set forth in Perry Educ. Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) and in Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Subsequent to the publication of my original opinion, the First Circuit issued AIDS Action Comm. v. Massachusetts Bay Transp. Auth., 42 F.3d 1 (1st Cir.1994). In recognizing the "murky status" of the public forum doctrine, the court emphasized that the government's intent to create a public forum is critical to the determination that a limited public forum has been established. AIDS Action Comm., 42 F.3d at 8. In light of defendants' motion and the intervening First Circuit opinion, I now modify the original memorandum and order with this opinion.

I. Factual Background:

The case initially came before this court on motions for Summary Judgment filed by both plaintiffs and defendants. In my opinion of November 9, 1993 denying both motions, I discussed the facts of the case at length, and I reproduce that discussion verbatim below:

Involved in this controversy is the interplay between Rhode Island House of Representatives Rule 45 and Rhode Island General Laws 22-10-2(a), 22-10-5, and 22-10-8. The plaintiffs contend that the foregoing rule and general laws are being interpreted by the defendants in an impermissibly unconstitutional manner violative of the First Amendment (freedom of speech) and the Fourteenth Amendment (Equal Protection).

The factual setting giving rise to this litigation is simple. The defendants, John Harwood, Speaker of the House, and Guido Petteruti, Head Doorkeeper, are excluding from the House floor, while it is in session, all lobbyists who must comply with the registration and badge wearing requirements of R.I. Gen. Laws 22-10-5 and 22-10-8. At the same time, they are permitting certain persons, exempted by 22-10-3 and 22-10-4.1 to remain even though some of said exempted individuals may be lobbyists.

In February of 1993, the Rhode Island House of Representatives adopted new rules. These include Rule 45, which excludes lobbyists from the floor and the lounge of the House of Representatives when the House is in session.¹ The plaintiffs in this case include non-profit organizations,² individuals who are registered lobbyists for these organizations, and elected members of the Rhode Island House of Representatives. They challenge this Rule as it is interpreted and enforced by the defendants, John Harwood and Guido Petteruti, respectively the Speaker of the House and the Head Doorkeeper of the House.

The parties disagree as to what sorts of activity and behavior by members of the public were allowed by House Rules and practice prior to the 1993 adoption of Rule 45. According to the plaintiffs, "for many years prior to 1993, private lobbyists and government employees were on the floor of the House on a regular basis, providing information and seeking to influence legislation." (Mem.P. & A.Supp.Pls.' Mot. Summ.J. at 5.) The floor of the House was open to the public, including lobbyists, on a first-come, first-serve basis while the House was in session. (Id. at 4.) The plaintiffs maintain that both private and governmental lobbyists were quiet and maintained decorum during House sessions, and that, to their knowledge, no private or governmental lobbyist was ever removed from the House floor by the Speaker of the House, the House Doorkeeper, or the Assistant Doorkeepers for being noisy and disruptive. (Id. at 6-7.) The lobbyists and legislators would communicate with each other in the following ways: in whispered conversations initiated by legislators and occurring in the back or side of the Chamber, outside the closed door of the Chamber, or in the House Lounge; via written notes conveyed by House pages; or with written drafts of proposed floor amendments given from legislators to lobbyists. (Id. at 8-9.)

Defendants make several responses to plaintiffs' assertions that historically lobbyists were allowed on the House floor while the House was in session in order to provide information to legislators and to attempt to influence legislation. First, defendants claim that "to the extent that any of these activities were being conducted while the House was in session, they were in clear contravention of the then existing rules relative to decorum and debate."³

(Defs.' Mem.Law Opp'n.Pls.' Mot. Summ.J.Supp.Own Mot.Summ.J. at 2.) Also, defendants dispute plaintiffs' claim that such activities were occurring while the House was in session. "Nowhere in any of the depositions or affidavits taken in this matter is there any information remotely constituting evidence that the House of Representatives, while in session, has been some sort of a forum for the expression and communication of ideas by persons who are not elected members of that body." (Id. at 4, emphasis added.) Finally, defendants say that if such lobbying did take place on the floor of the House while the House was in session prior to 1993, it occurred without the knowledge and acquiescence of the former Speakers of the House. (Id. at 4.)

Despite these disagreements between plaintiffs and defendants as to what sorts of activities lobbyists properly engaged in under the pre-1993 House rules, neither plaintiffs nor defendants dispute the fact that all lobbyists, whether representing private or governmental organizations, could be present on the floor of the House prior to the adoption of Rule 45. Thus, before 1993, all lobbyists had the same opportunity to be present on the floor of the House and to gather information regarding last minute changes in the agenda and floor amendments.⁴

On its surface, Rule 45 appears to ban the presence of all lobbyists and the practice of lobbying from the floor of the House and the House lounge. Rule 45(b) explicitly incorporates the definition of "lobbying" provided by Rhode Island General Laws § 22-10-2, a definition which does not distinguish between private and governmental lobbyists.⁵ Indeed, R.I.Gen.Laws § 22-10-2(b) defines "lobbyist" as "any person who engages in lobbying as the appointed representative of another person" and does not make reference to the identity of the lobbyist's employer. Defendants maintain that this view of Rule 45 is the correct one, and that "Rule 45 ... is just a logical extension of the rule respecting decorum and debate, and simply circumscribes the activities of registered lobbyists while the House is in session." (Defs.' Mem.Law Opp'n.Pls.' Mot.Summ.J.Supp.Own Mot. Summ.J. at 3.)

However, plaintiffs contend that although the language of Rule 45 may appear to bar all lobbyists in an even-handed way, the defendants are applying Rule 45 in a fashion that has non-neutral consequences. Plaintiffs argue that Rule 45 is being interpreted by defendants in conjunction with the definitions and exemptions of R.I.Gen. Laws § 22-10 in a way that bars only private lobbyists from the House floor and lounge, but allows lobbyists for governmental organizations to remain.⁶ As a result, the plaintiffs claim that they are being prevented from receiving crucial information on political activities, information to which governmental lobbyists still have access. Specifically, plaintiffs maintain that under the provisions of R.I.Gen.Laws § 22-10, "only lobbyists for private organizations are required to wear badges which identify them as lobbyists, and which identify the organizations they represent" (Mem.P. & A. Supp.Pls.' Mot. Summ.J. at 13), and that, pursuant to their enforcement of Rule 45, defendants are barring only those people who are wearing lobbyist badges, but not those governmental lobbyists that are exempt from wearing a badge under R.I.Gen.Laws § 22-10-4.1.⁷

National Association of Social Workers v. Harwood, No. 93-0229, 1993 WL 742703 at *1-2 (D.R.I. Nov. 10, 1993). The motions for summary judgment being denied, the case was tried from July 5 through 8, 1994.

II. Discussion:

Based on the evidence and testimony presented at trial, this Court has made a series of factual determinations. To begin with, the Court finds that prior to Rule 45's adoption, representatives of both private and governmental organizations were allowed to be present on the floor of the House. They were allowed to be seated along the outside aisles (in what the Court has termed "the permitted area") and were allowed to communicate with legislators via whispered conversations on the sides or in the back of the chamber, via written notes passed by pages or other legislators, or via physical gestures and signals. They also discussed matters with legislators in the House Lounge. They were able to communicate with legislators during debates on floor amendments. Tr., 7/5/94 at 38-39, 42-46, 168-171. However, the Court...