State v. Schirmer

• Decision Date: 30 November 1994
• Parties: 93-2631 La
• Court: Louisiana Supreme Court

Page 890

646 So.2d 890

93-2631 La. 11/30/94

STATE of Louisiana v. Theodore SCHIRMER.

No. 93-KA-2631.

Supreme Court of Louisiana.

Nov. 30, 1994.

Rehearing Denied March 9, 1995.

Order Concurring in Denial of Rehearing

March 9, 1995.

Richard P. Ieyoub, Atty. Gen., Douglas P. Moreau, Dist. Atty., D. Carson Marcantel, Gwendolyn K. Brown, Baton Rouge, and James M. Ross, Monroe, for applicant.

Richard M. Upton, Baton Rouge, for respondent.

Daniel C. Wirtz, Baton Rouge, for Fox McKeithen, Secretary of State (amicus curiae).

[93-2631 La. 1] CALOGERO, Chief Justice. ^*

The State of Louisiana filed a bill of information charging Theodore Schirmer with violating LSA-R.S. 18:1462(A), subsections (2), (3) and (4). In order to provide a sanctuary around polling places so that the electorate might exercise its right to vote without interference and without fear of harassment or intimidation, this statute effectively prohibits all political speech, including that unrelated to matters on the ballot, at a distance of up to 600 feet from polling places on election days. ¹ [93-2631 La. 2] Defendant filed a motion to quash the information, alleging that the statute under which he was being prosecuted was unconstitutional. The trial court granted the defendant's motion, finding the statute's proscription of all political speech, including that unrelated to matters on the ballot, within 600 feet of the polling place on election days, to be an unconstitutionally overbroad limitation upon the defendant's right of free speech and expression. The State of Louisiana sought review in this Court, invoking our supervisory and appellate jurisdiction. We docketed the case as an appeal under Article V, § 5(D) of the Louisiana Constitution of 1974, since it involves a statute's having been declared unconstitutional.

After considering the statute and the record, we conclude that the trial court was correct in its determination that LSA-R.S. 18:1462(A)(3) and (4) are unconstitutionally overbroad. In addition, we find LSA-R.S. 18:1462(A)(2) unconstitutionally vague, as it fails to establish adequate guidance to authorities for its enforcement. For the reasons set forth in this opinion, we affirm the judgement of the district court declaring the statute unconstitutional, in violation of the First and Fourteenth Amendments of the United States Constitution.

I. Facts and Procedural Background

Defendant Theodore Schirmer is the executive director of a group which styles itself "Recall '92, Inc." The organization's principal objective was to recall the Governor. It was first necessary to obtain the signatures of one-third of the electorate on a recall petition within a 180-day period. ² See LSA-R.S. 18:1300.1 et seq.

In October of 1992, the period relevant to this case, Recall [93-2631 La. 3] 92 was in the middle of its drive (it had until December) to collect the required number of signatures (they were still in need of 750,000 signatures) to force a recall election. Given the voter interest in the November, 1992, presidential election, Recall '92 decided to solicit signatures at polling places during the primary election of October 3, 1992, and the general (presidential) election of November 3, 1992.

This decision by Recall '92 to appear at the polls on October 3 was influenced in part by a belief that the solicitation at polling places of signatures for the recall petition would not constitute a violation of Louisiana law. Theodore Schirmer, a lawyer by profession, was aware that the Attorney General had issued two opinions addressing the solicitation near polling places of signatures for petitions unrelated to matters on the ballot. These opinions were that such a solicitation of signatures neither violated the Election Code generally nor LSA-R.S. 18:1462(A) specifically, as long as the activity did not interfere with the voting process. See Atty.Gen.Op., Nos. 91-597 (November 12, 1991), and 92-650 (September 24, 1992).

On October 1, 1992, however, two days before the scheduled primary elections at which Recall '92 planned to make its appearance, the Attorney General issued opinion No. 92-650(A). In that opinion the Attorney General, relying upon Lacour v. State of Louisiana, No. 90-C-1772 (La.App. 4 Cir.1990), an unpublished opinion out of the Fourth Circuit Court of Appeal, recalled and rescinded his two prior opinions.

Schirmer received a copy of Attorney General Opinion No. 92-650(A) several days prior to the October 3 election. Although Schirmer instructed Recall '92 members to leave polling areas if requested to do so by a poll commissioner, he decided he would personally challenge the constitutionality of LSA-R.S. 18:1462(A). Accordingly, he alerted the officials charged with enforcing the Election Code of his intentions.

On October 3, Schirmer first attempted to vote at his registered precinct, University Terrace in Baton Rouge, but was [93-2631 La. 4] denied access to the polls because he was wearing a t-shirt bearing a "Recall '92" slogan. Schirmer departed, without incident and without casting a vote, and travelled to the polling place at Lee High School, also in Baton Rouge, where, under the gaze of poll commissioners and other officials, he set up a table and began gathering signatures for the recall petition. After Schirmer refused verbal and written directions to leave, he was placed under arrest.

Following his arrest, Schirmer and related parties filed suit in federal court seeking declaratory and injunctive relief against the enforcement of LSA-R.S. 18:1462(A). On October 19 and 20, 1992, the United States District Court for the Middle District of Louisiana, Polozola, J., presiding, conducted a two-day trial to determine the constitutionality of LSA-R.S. 18:1462(A). At the trial's conclusion, the district court, relying primarily upon Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), found that the statute was constitutional. Accordingly he dismissed the plaintiffs' lawsuit and denied injunctive relief for the November 3 election.

Plaintiffs appealed the federal district court's decision to the United States Fifth Circuit Court of Appeals, seeking in the interim temporary injunctive relief pending appeal. In response to the latter, a panel of the Fifth Circuit certified the following question to this Court pursuant to La.S.Ct. Rule XII:

Whether La.R.S. 18:1462A proscribes on election day, outside of the polling place itself but within a radius of six hundred feet from the entrance thereto, all solicitation of signatures for a recall petition that is not on the ballot that is to be voted on at the election for which the polling place is open, and in the polling place or said six hundred foot radius all wearing of clothing or buttons bearing visible words or symbols supportive of such recall?

Schirmer v. Edwards, 608 So.2d 948, 948 (La.1992).

On October 29, 1992, this Court responded to the certified question. We began by noting that "the clear intent of this statute, when taken as a whole, is to prohibit political activity within 600 feet of the polls on election day in order to prevent disruption of the polling place and the election process." Schirmer, supra, 608 So.2d at 949 (La.1992). Applying the statute [93-2631 La. 5] to the particular facts of this case, the Court found that although LSA-R.S. 18:1462(A)(1) did not apply to Schirmer's actions, "subsections (3) and (4) clearly prohibit the conduct at issue." ³ Id. Specifically, we stated the following:

We find the solicitation of signatures for a recall petition not on the ballot of that election, but which its backers ultimately hope to get on the ballot, fits this broad definition of handing out or displaying campaign literature. Likewise, we hold the wearing of clothing or buttons supporting such a recall effort is a display of political advertising prohibited by subsection (4).

Id., citing Atty.Gen.Op., No. 92-650(A), and Lacour v. State of Louisiana, supra. We were careful to note, however, that "our opinion deals only with the question certified [one regarding statutory interpretation], and we do not pass on any issues of constitutionality under either the United States Constitution or the Louisiana Constitution." Id., at 948 n1.

Upon receipt of our answer to the certified question the Fifth Circuit, and armed with this Court's construction of LSA-R.S. 18:1462(A), granted Schirmer's and the other plaintiffs' motion for injunctive relief pending disposition of their appeal. ⁴ [93-2631 La. 6] Specifically, the federal appellate court enjoined state officials from enforcing LSA-R.S. 18:1462(A) so as to preclude Schirmer and others from soliciting, on public streets, sidewalks or other outdoor public areas, signatures for the recall petition at polling sites during the November 3 presidential election. Schirmer v Edwards, No. 92-3900 (5th Cir. Oct. 29, 1992). The injunction did, however, allow enforcement of the statute within 100 feet of the entrances to polling places.

In state court, meanwhile, the criminal prosecution of Schirmer for violating LSA-R.S. 18:1462(A) proceeded, and on July 19, 1993, a hearing was held in conjunction with Schirmer's motion to quash the bill of information. ⁵ In conjunction with this hearing the State and Schirmer entered into a joint stipulation of fact which set forth the following:

(1) On October 3, 1992, and at all pertinent times the defendant was conducting his activities within one hundred (100) feet of the polling place at Lee High School, East Baton Rouge Parish, Louisiana;

(2) The activities being conducted by the defendant were concerned solely with the issue of the recall petition of Governor Edwin Edwards which was not on the ballot;

(3) The defendant was not harassing or intimidating any person who was at the polling place to vote;

(4) The defendant was provided written notice to cease his activity or move from the area within six hundred (600) feet of the polling place by the...