United Food & Commercial v. City of Sidney, 02-3415.

• Decision Date: 24 March 2004
• Docket Number: No. 02-3415.,02-3415.
• Parties: UNITED FOOD & COMMERCIAL WORKERS LOCAL 1099; Judy Bishop; Doug Burgstaller; Jeff Crider; Ray Evans, III; Bonnie France; Chad Helmlinger; Leah Helmlinger; Tonya McCoy; Bryon O'Neal; Jeff Osting; Keith Robinson; Jessica Sagraves, Plaintiffs-Appellants, v. CITY OF SIDNEY; Michael Puckett; Steven B. Wearly; Sidney City Schools; Steve Miller; Kevin O'Leary, Defendants-Appellees, Wal-Mart Stores, Inc., et al.; John Waters; Greg Franks, Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

364 F.3d 738

UNITED FOOD & COMMERCIAL WORKERS LOCAL 1099; Judy Bishop; Doug Burgstaller; Jeff Crider; Ray Evans, III; Bonnie France; Chad Helmlinger; Leah Helmlinger; Tonya McCoy; Bryon O'Neal; Jeff Osting; Keith Robinson; Jessica Sagraves, Plaintiffs-Appellants, v. CITY OF SIDNEY; Michael Puckett; Steven B. Wearly; Sidney City Schools; Steve Miller; Kevin O'Leary, Defendants-Appellees, Wal-Mart Stores, Inc., et al.; John Waters; Greg Franks, Defendants.

No. 02-3415.

United States Court of Appeals, Sixth Circuit.

Argued: July 31, 2003.

Decided and Filed: March 24, 2004.

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Timothy M. Burke (argued and briefed), Rhonda S. Frey (briefed), Manley Burke, Cincinnati, OH, for Plaintiffs-Appellants.

Edward J. Dowd (briefed), Boyd W. Gentry (argued), Surdyk, Dowd & Turner, Dayton, OH, Nicholas E. Subashi (briefed), Brian L. Wildermuth, (argued and briefed), Law Offices of Nicholas E. Subashi, Dayton, OH, Michael Fay Boller (briefed), Asst. Shelby County Prosecutor, Sidney, OH, for Defendants-Appellees.

Before: KENNEDY, GILMAN, and GIBBONS, Circuit Judges.

AMENDED OPINION

GIBBONS, Circuit Judge.

Plaintiffs-appellants, United Food and Commercial Workers Local 1099 ("Local 1099") and twelve of its members, brought suit under 42 U.S.C. §§ 1983 and 1985 against defendants-appellees after they were prohibited from soliciting signatures for a referendum petition outside six polling places on election day in Sidney, Ohio. These polling places included four public schools, the local Y.M.C.A., and a church. At each location, members of Local 1099 attempted to solicit signatures in areas on school or private property that were outside of the areas that had been designated as "campaign-free zones" pursuant to an Ohio statute. Nevertheless, appellants were asked to leave the premises, and in many cases they were threatened with arrest if they failed to comply. At one location, two individual appellants were threatened with arrest even after they had relocated to a spot on a public sidewalk, outside of the campaign-free zone.

Defendants-appellees Sidney City Schools, Superintendent Steve Miller, and Shelby County Sheriff Kevin O'Leary moved to dismiss. The City of Sidney, City Manager Michael Puckett, and Chief of Police Steven Wearly moved for judgment on the pleadings. The district court concluded that the appellants had not suffered a deprivation of their First Amendment rights when they were denied permission to solicit signatures at each of the six polling places and granted the appellees' motions. We agree with the district court that appellants' First Amendment rights were not violated when they were prohibited from soliciting signatures in those areas that were (a) within the campaign-free zone, regardless of whether the campaign-free zone encompassed a traditional public forum such as a sidewalk, or (b) on school or private property, but outside of the campaign-free zone. However, plaintiffs have alleged facts supporting a claim that they were deprived of their First Amendment rights when they were threatened with arrest after they moved to the public sidewalk outside of the campaign-free zone at the Y.M.C.A., and to that extent, their § 1983 claim should be permitted to move forward. We therefore affirm in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.

I.

A. Factual Background

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 process of rezoning the property was undertaken for the purpose of allowing expansion of a Wal-Mart store at that location. On March 2, 2000, appellants submitted a certified copy of Ordinance No. A-2203 and a pre-circulation referendum petition to the City of Sidney. Pursuant to the city's charter, referendum petitions must be filed within two weeks following the passage of the ordinance called into question. Given the short amount of time in which they had to collect signatures after Ordinance No. A-2003 was enacted on February 28, appellants assert that it was "particularly important to gather signatures on March 7, 2000," the day of the primary election in Ohio. On that date, appellants gathered to solicit signatures for the petition from voters outside six polling places in Sidney. These locations included four public elementary schools (Parkwood, Emerson, Whittier, and Lowell), the Sidney-Shelby Y.M.C.A. ("Y.M.C.A."), and Trinity Church of the Brethren ("Trinity"). Appellants Judy Bishop, Ray Evans, and Jessica Sagraves were at Parkwood; Bryon O'Neal was at Emerson; Keith Robinson and Tonya McCoy were at Whittier; Chad and Leah Helmlinger were at Lowell; Jeff Crider and Jeff Osting were at the Y.M.C.A.; and Doug Burgstaller and Bonnie France were at Trinity.

A set of United States flags was placed outside the entrance of each polling place pursuant to Ohio Rev.Code §§ 3501.30 and 3501.35, which together provide for the creation of a 100-foot campaign-free zone around the entrances to polling places in Ohio. Section 3501.30 instructs each county board of elections to place small United States flags 100 feet from the polling place on the walkways leading to the entrance in order "to mark the distance within which persons other than election officials, witnesses, challengers, police officers, and electors ... shall not loiter, congregate, or engage in any kind of election campaigning." Section 3501.35 further states that in the area between the polling entrance and the two flags, no person "shall loiter or congregate," "hinder or delay an elector," or "solicit or in any manner attempt to influence any elector in casting his vote."

Appellants have alleged that at each of the polling places, they were positioned outside or beyond the area marked by the flags. They further allege that they solicited signatures at each location in "a peaceful and non-disruptive manner," and that they "neither interfered with school operations nor hindered public access [to any of the polling places at issue.]"

The locations at which appellants were attempting to solicit signatures and the manner in which they were denied access varied at each polling place. At Parkwood, appellants Bishop, Evans, and Sagraves positioned themselves on school property, but beyond the flag that had been placed outside the entrance to the polling place. They solicited signatures at this location for a short period of time, until the school principal informed them that they would have to relocate to a position beyond a second flag that had been placed "on the side of the school parking lot opposite the polling place." According to appellants, this flag was "far in excess of one hundred feet" from the entrance to the polling place. Shortly after they had relocated to this new position, a deputy from the Shelby County Sheriff's Office ordered them to leave the premises and threatened them with arrest for trespassing if they failed to comply. Appellants then relocated to a public sidewalk, but because most of the voters were parking in the school's parking lot, they allege that they were unable to solicit signatures effectively from that location.

At Emerson, O'Neal and Tambra Young had been soliciting signatures for approximately ninety minutes before the school principal ordered them to leave the property and threatened to call the police if they did not comply. Appellants allege that at some time during the morning of March 7, Ralph Bauer, a member of the Sidney Board of Elections, called the Sidney Police Department and requested that they send cruisers to Emerson, Lowell, the Y.M.C.A., and Trinity. Bauer purportedly informed police that the appellants were soliciting signatures at each of these locations in areas that were within 100 feet of the polling places. An officer from the Sidney Police Department arrived at Emerson and told O'Neal and Young that his supervisor was on the way and that he would decide whether they could remain on the property. Shortly thereafter, Sidney Police Captain Kimpel arrived and told the appellants that if they refused to leave school property they would be trespassing. When O'Neal asked Kimpel how they could be trespassing on public property, Kimpel replied, "I'm not going to argue about this. This is your last warning." According to appellants, "[r]ather than risk receiving a citation or being placed under arrest," they complied with Kimpel's demand and left the property.

At Whittier, appellants Robinson and McCoy positioned themselves outside the side entrance to the polling place. Although flags had been placed 100 feet from the front entrance to the polling site, there were no flags outside the side entrance. Robinson and McCoy collected signatures for two hours, until they were approached and ordered to leave by the assistant superintendent and a polling judge. The assistant superintendent told them that they would have to leave school property because of "safety issues" and that she had already called the police. At this point, Robinson and McCoy left school property and moved to a public sidewalk. Because most of the voters were parking in the school's parking lot, appellants allege that they were unable to solicit signatures effectively from that location.

When the Helmlingers arrived at Lowell, they asked polling officials to identify the locations where they would be permitted to gather signatures. The officials replied that they did not know and called the Board of Elections. According to appellants, one of the officials grabbed the petition out of Leah Helmlinger's hands and said, "Let me take a look at that. So you're against the Wal-Mart?" After one official told them that they could solicit signatures at any point beyond the flags, the Helmlingers positioned themselves "on the public...