United Food and Comm. Workers v. City of Sidney
| Decision Date | 02 May 2001 |
| Docket Number | No. C-3-00-296.,C-3-00-296. |
| Citation | 174 F.Supp.2d 682 |
| Parties | UNITED FOOD AND COMMERCIAL WORKERS, LOCAL UNION 1099, et al., Plaintiffs, v. CITY OF SIDNEY, OHIO, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Timothy Michael Burke, Steven M. Ingram, Manley, Burke, Lipton & Cook, Cincinnati, OH, for plaintiffs.
Edward Joseph Down, Jenks, Surdyk & Cowdry Co., LPA, Dayton, OH, for defendants.
Micholas Edward Subashi, Brian L. Wildermuth, Law Office of Nicholas E. Subashi, Dayton, OH, for Sidney City Schools and Steve Miller.
Michael Fay Boller, Kerrigan, Boller & Stevenson, Sidney, OH, for Mark Schemmel.
Jeffrey S. Sutton, Chad A. Readler, Jones, Day, Reavis & Pogue, Columbus, OH, for Wal-Mart Stores Inc.
DECISION AND ENTRY SUSTAINING THE MOTION OF DEFENDANTS SIDNEY CITY SCHOOLS AND STEVE MILLER (IN HIS OFFICIAL CAPACITY) TO DISMISS (DOC. #8); MOTION OF DEFENDANT STEVE MILLER TO DISMISS CLAIMS AGAINST HIM IN HIS INDIVIDUAL CAPACITY (DOC #8) OVERRULED AS MOTT; PLAINTIFFS ARE GRANTED LEAVE TO FILE AMENDED COMPLAINT, WITHIN TWENTY (20) DAYS FROM DATE, SUBJECT TO THE STRICTURES OF RULE 11, SETTING FORTH ALLEGATIONS THAT SIDNEY CITY SCHOOLS HAS, BY POLICY OR PRACTICE, DESIGNATED SCHOOL PROPERTY AS A PUBLIC FORUM, FOR THE PURPOSE OF CAMPAIGNING AND OTHER EXPRESSIVE ACTIVITIES, ON DAYS WHEN THE SCHOOL IS BEING USED AS A POLLING PLACE
This litigation arises out of the Defendants' alleged refusal to allow the Plaintiffs to solicit signatures at various polling places, located primarily on public school property, and the Defendants' alleged attempts to thwart Plaintiffs' referendum efforts through the use of unlawful legislative conduct. Plaintiffs Judy Bishop ("Bishop"), Doug Burgstaller ("Burgstaller"), Jeff Crider ("Crider"), Ray Evans, III ("Evans"), Bonnie France ("France"), Chad Helmlinger, Leah Helmlinger, Tonya McCoy ("McCoy"), Bryon O'Neal ("O'Neal"), Jeff Osting ("Osting"), Keith Robinson ("Robinson"), and Jessica Sagraves ("Sagraves") are members of Plaintiff United Food and Commercial Workers Local Union 1099 ("UFCW").1
Pending before the Court is the Motion of Defendants Sidney City Schools and Steve Miller to Dismiss, pursuant to Fed. R.Civ.P. 12(b)(6) (Doc. # 8). As a means of analysis, the Court will first set forth the factual circumstances giving rise to this litigation and the standard governing Defendants' Motion, and then will turn to the parties' arguments. For the reasons assigned, Defendants' Motion is SUSTAINED.
On February 28, 2000, the City Council of Sidney, Ohio, enacted Ordinance No. A-2203, which effected the rezoning of Lots 5918 and 6180 from an I-2 Heavy Industrial District to a B-2 Community Business District. The apparent effect of the ordinance was to allow the expansion or the construction of a Wal-Mart store at that location. On March 2, 2000, Plaintiffs submitted a certified copy of that ordinance and a pre-circulation referendum petition to the City of Sidney, seeking a referendum on Ordinance No. A-2203.3 On March 7, 2000, the day of the primary election in Ohio, the individual Plaintiffs solicited signatures for the referendum petition from voters outside of polling places in Sidney, Ohio. At issue are Plaintiffs' attempts to solicit signatures on the property of four Sidney public schools, namely Parkwood Elementary School, Emerson Elementary School, Whittier Elementary School, and Lowell Elementary School, as well as at the Sidney-Shelby County Y.M.C.A. and the Trinity Church of the Brethren.
The factual circumstances at each of these polling sites is substantially similar. A few of the individual Plaintiffs attempted to collect signatures from voters.4 They acted in a peaceful and non-disruptive manner, and neither interfered with the operations of the facilities nor hindered public access to the polling place. At all times, Plaintiffs remained outside the area marked by two small United States flags, which had been placed outside of the polling place, within which area "electioneering" was not to take place. After soliciting signatures for a period of time, the property owner requested that the Plaintiffs relocate. Soon thereafter, a police officer or a deputy from the Shelby County Sheriff's Office was called to the location, and Plaintiffs were ordered to leave the premises, under threat of arrest for trespassing on private property. Rather than face arrest, each of the Plaintiffs complied with the deputy's request. Plaintiffs allege that the efforts to prevent them from soliciting signatures for the referendum petition outside of polling places was encouraged and orchestrated by the City of Sidney and, in particular, by Michael Puckett ("Puckett"), the City Manager.
In response to Plaintiffs' referendum efforts on March 7th, the Mayor of Sidney instructed Puckett to draft a "counter-petition" form to facilitate the removal of signatures from the referendum petition. The counter-petition forms were available at the City Clerk's office for members of the public to sign. In addition, Puckett provided blank copies of the counter-petition directly to Wal-Mart, and asked the company to provide a place in the lobby of its existing Sidney store for the public to sign. Wal-Mart complied with that request.
On March 23, 2000, Puckett presented the referendum petition, the counter-petition, and a list of nineteen individuals, who had contacted the City and purportedly asked to have their names removed from the petition, to the Shelby County Board of Elections. The Board of Elections referred the issue of the validity of the counter-petition to the office of the Ohio Secretary of State.
On April 3, 2000, the Sidney City Council held a special meeting, for the purpose of circumventing the referendum. At that meeting, the City Council adopted Ordinance No. A-2207, which repealed Ordinance No. A-2203. Thereafter, the City Council adopted Ordinance No. A-2208, which rezoned lots 5918 and 6180 from an I-2 Heavy Industrial District to a B-2 Community Business District, in exactly the same manner as had Ordinance No. A-2203. Both Ordinance No. A-2207 and A-2208 were passed as emergency measures, pursuant to Sidney Code of Ordinances § 3-14, which permits the City Council to adopt an emergency ordinance that takes effect upon passage. Plaintiffs allege that the City Council's adoption of Ordinance Nos. A-2207 and A-2208 violated a number of legislative requirements. In particular, Plaintiffs allege that Councilwoman Doris Blackston was a Wal-Mart employee, creating a conflict of interest, yet she actively participated in the presentation and passage of the ordinances. They further allege that Ordinances Nos. A-2207 and A-2208 were not valid emergency measures, and that they circumvented the process for zoning changes, set forth in Sidney Code of Ordinances Chapter 1153.
On April 17, 2000, the Shelby County Board of Elections informed the City of Sidney that the counter-petition was invalid and that no signatures would be removed from the referendum petition on that basis. After a review of the referendum petition, the Board of Elections concluded that there were 525 valid signatures and 283 invalid signatures, a sufficient amount to place the referendum on the November, 2000, ballot.5 Plaintiffs allege that the repeal of Ordinance No. A-2203 by Ordinance No. A-2207 was performed in order to render the referendum petition moot.
On June 13, 2000, Plaintiffs initiated this litigation against the City of Sidney; Sidney City Schools; the Shelby County Sheriff's Office; Puckett; Steven P. Wearly, the Chief of Police of the Sidney Police Department; Steve Miller, Superintendent of Sidney City Schools; Mark Schemmel, Shelby County Sheriff; Greg Franks, Manager of the Sidney Wal-Mart store; John Waters, District Manager for Wal-Mart Stores, Inc.; and Wal-Mart Stores, Inc (Doc. # 1).6 Plaintiffs have since voluntarily dismissed, without prejudice, their claims against the three Wal-Mart Defendants, the Shelby County Sheriff's Office, and Defendant Steve Miller, in his individual capacity only (Doc. # 5, Doc. # 15).
In their Complaint, Plaintiffs set forth two claims for relief. In Count One, Plaintiffs allege that Defendants have deprived them of their rights, under the First and Fourteenth Amendments to the United States Constitution, to freedom of expression, freedom of assembly, and freedom to petition the government for redress, in violation of 42 U.S.C. § 1983, by preventing them from soliciting signatures outside of the areas demarcated by flags at public polling places. In Count Two, they further allege that Defendants City of Sidney, Puckett, Waters, and Wal-Mart have conspired, in violation of 42 U.S.C. § 1985: 1) to prevent them from engaging in their right to obtain signatures for a referendum petition, 2) to introduce an improper and misleading "counter-petition" in an attempt to influence the Board of Elections' decision-making process, and 3) to circumvent Plaintiff's right to a referendum through a pattern of unlawful legislative conduct.
When considering a motion to dismiss pursuant to Rule 12(b)(6), the court must "construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief." Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.) (citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993), cert. denied, 519 U.S. 1008, 117 S.Ct. 510, 136 L.Ed.2d 400 (1996)); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Barrett v. Harrington, 130 F.3d 246 (6th Cir.1997), cert. denied, 523 U.S. 1075, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998) (...
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United Food and Commer. Workers v. City of Sidney
...was directed solely at the Plaintiffs' claim under § 1983 and the First Amendment.4 See United Food and Commercial Workers, Local Union 1099 v. City of Sidney, 174 F.Supp.2d 682 (S.D.Ohio 2001). In particular, the Court concluded that refusing to permit Plaintiffs to solicit signatures on s......