NO. 82-139
I N THE SUPREME COURT OF THE STATE O F MONTANA
1983
DUANE E . D O R N , i n d i v i d u a l l y a n d
as representative for a l l initiative
petitioners,
P l a i n t i f f s and A p p e l l a n t s ,
VS.
B O A R D OF TRUSTEES OF BILLINGS
SCHOOL DISTRICT # 2 , Y e l l o w s t o n e
C o u n t y ; VIRGIL POORE, S u p e r i n t e n d a n t
of School D i s t r i c t # 2 , e t a l . ,
Defendants and Respondents.
Appeal from: D i s t r i c t Court of t h e Thirteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Yellowstone
Honorable William J. Speare, Judge p r e s i d i n g .
Counsel of Record:
For Appellants:
J e n k i n s Law F i r m , H e l e n a , M o n t a n a
K e l l y J e n k i n s a r g u e d , H e l e n a , Montana
P a t t e n & Renz, B i l l i n g s , Montana
For Respondents:
H a r o l d F . H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
David Hoefer a r g u e d , Deputy County A t t o r n e y , B i l l i n g s
Montana
F e l t & M a r t i n , B i l l i n g s , Montana
Laurence R. M a r t i n a r g u e d and S o l Lovas a r g u e d , B i l l i n g s ,
Montana
F o r Amicus C u r i a e :
T. G. Speare, Billings, Montana
submitted : D e c e m b e r 12, 1982
~ e c i d e d : M a r c h 17, 1983
Filed:
-
CLerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
This appeal results from a Thirteenth Judicial District
Court judgment declaring that respondent's school policy,
which prohibits the collection of initiative petition
signatures within buildings being used as polling places on
election days, does not violate appellant's statutory or
constitutional rights.
This court is asked to decide whether the class
appellant represents has a right to collect initiative
petition signatures within school buildings being used as
polling places on election days and whether the school
district's policy of exclusion violates that right.
Appellant asserts his collection activity within school
buildings used as polling places is protected from the school
district's exclusionary policy under section 13-35-218(5),
MCA and several provisions of the state and federal
constitutions. Appellant specifically claims the policy
violates equal protection, the First and Fourteenth
Amendments and their state counterparts, and the express
right to initiative guaranteed by the 1972 Montana
Constitution.
Before the 1981 general election appellant Dorn
contacted Rimrock Elementary School officials to inform them
that he intended to collect signatures on an initiative
petition inside the Rimrock School on election day.
Respondent school district denied him permission to enter the
school building for that purpose.
On November 3, 1981, over the protests of the Rimrock
School principal, appellant entered the school building. In
the hallway appellant approached two people who were on their
way to vote in the gymnasium where the voting booths were
located. The voters signed the initiative petition after it
was explained to them. The principal then returned to
admonish appellant that respondent Poore intended to have him
ejected from the building by the police. Appellant remained.
Shortly thereafter, respondent Poore and police arrived and
requested appellant leave the premises. Under threat of
arrest appellant left the building.
Appellant, later that day, returned to the school
building with several other persons to solicit signatures.
Appellant and associates entered the building under authority
of a Thirteenth Judicial District Court temporary restraining
order enjoining the school district from preventing appellant
from soliciting signatures within school buildings being used
as polling places.
Pursuant to party agreement and court approval, hearing $
on the temporary order a.nd order to show cause was cancelled.
The temporary order expired by its own terms. Thereafter,
the District Court joined respondent Halland, Yellowstone
County's election administrator, as party defendant and
certified appellant Dorn to represent a class of persons who
collect or intend to collect initiative petition signatures
at polling places on election days. The cause was submitted
to the trial court on a set of agreed facts and motions for
summary judgment.
The District Court rendered summary judgment on behalf
of respondents, concluding:
I1
1. The school district, as a property owner,
has the right to prohibit the solicitation of
initiative petition signatures within its buildings
while they are being used as polling places.
2. The school district's policy permitting
plaintiff initiative petitioners to solicit
signatures outside, but not inside, school
buildings while they are being used as polling
places is a reasonable regulation of materially
disruptive conduct.
3. The school district's policy permitting
plaintiff initiative petitioners to solicit
signatures outside, but not inside, school
buildings while they are being used as polling
places does not violate any right of the plaintiffs
guaranteed by the United States or Montana
Constitutions.
4. The school district's policy permitting
plaintiff initiative petitioners to solicit
signatures outside, but not inside, school
buildings while they are being used as polling
places does not violate the provisions of Section
13-35-218(5), MCA, or any other Montana statute.
5. The private owners of property used as
polling places may at a.ny time and for any reason
prohibit the solicitation of initiative petition
signatures thereon.
6. The County Election Administrator has a
duty and may prohibit persons gathering signatures
for an initiative petition at any time that he
believes said process is interfering with the
election process."
We hereafter detail.the agreed facts and the District
Court findings which bear upon the issues to be resolved.
Posted throughout school buildings within the school
district were signs requesting that all persons who enter
school buildings, other than students and school personnel,
report to the school principal to obtain permission to be in
the building. The school board waives this requirement for
voters because of the limited purpose and duration of their
visit.
Additionally the school district has a written policy
prohibiting school or students from serving as enrollment
centers or publicity agents for in non-school connected
activities. This policy has been interpreted to prohibit any
kind of solicitation within school buildings, including the
solicitation of initiative petition signatures on election
days; however, under this policy, the school district has
granted standing approval to several children's organizations
to distribute information about their organization and
activities in school buildings on designated days.
Meanwhile the school district has applied its policy to
deny all requests to solicit initiative petition signatures
in school buildings on election days. Access to school
buildings has been denied to signature solicitors without
regard to the contents of a particular petition or the
conduct of an individual solicitor. Those who have atempted
to solicit signatures in contravention of this policy have
been asked to leave.
The policy does not pertain to solicitation of
initiative petition signatures on grounds adjacent to school
buildings. Such solicitation occurs regularly on election
days. The school board has made no attempt to prohibit or
otherwise regulate outdoor solicitation.
In Yellowstone County polling places are located in
rooms or hallways of private and public buildings. In the
past approximately twenty (20) schools within the school
district have been used as polling places. Upon entering a
school building voters are directed to the polling area by
posted signs. Most signature solicitors congregate outside
the main entrance to school buildings because that is where
most voters enter.
At the time this dispute arose approximatley eight to
ten initiative petitions either had been or were in the
process of being approved for signature collection. Though
some were highly controversial none of the initiative
petitions for which signatures were sought were ballot issues
at the time of solicitation.
The conduct and status of individual solicitors varies
in that some are paid and others volunteer; some are peaceful
and others are not. It is agreed that each solicitor
explains the initiative petition to the voter in the process
of requesting his or her signature. When attempts to
persuade a voter to sign precipitate arguments, the
instigator may be either solicitor or voter. Under the
present school district policy these arguments necessarily
occur outside school buldings; were the policy changed it is
stipulated that any such arguments would occur inside school
buildings.
It is agreed noise in hallways distracts students,
impairs their concentration, lowers their level of
functioning, and affects classroom discipline and teaching
effectiveness.
The school district acknowledges the main purpose behind
its policy prohibiting solicitation within school buildings
is to prevent problems before they start. Its primary
concerns are potential disruption of school activities and
possible security risks that would attend a more permissive
solicitation policy.
The District Court found that the school district's
reasons for prohibiting indoor solicitation were valid
concerns and fully justified its policy.
The District Court further found that the past
activities of solicitors outside school buildings had
reasonably lead the school district to forecast substantial
disruption and material interference with school functioning
if initiative petitioners were permitted inside school
buildings.
Finally the District Court found that the process of
soliciting initiative petition signatures is not part of the
election process.
ISSUE ONE: Whether the school district's policy violates
section 13-35-218, MCA?
Appellant contends the school district's policy violates
section 13-35-218 ( 5 ) , MCA, because it prohibits solicitation
which otherwise would be permitted under statute. Appellant
believes the legislative history of a recent amendment to
section 13-35-218, MCA, supports his contention.
Prior to 1981, section 13-35-218, MCA, provided in
pertinent part, " [nlo person may obstruct the doors or
entries of any polling place." Section 13-35-218(4), MCA
(1-979). During the 1981 legislative session House Bill 336
was introduced to amend section 13-35-218, MCA, to prohibit
solicitation of signatures for ballot issues within or near
polling places. However, the legislature rejected an
absolute ban on solicitation at polling places and revised
the bill to amend the statute to its present form. Section
13-35-218 (5), MCA, states:
"No person on election day may obstruct the doors
or entries of any polling place or engage in any
solicitation of a voter within the room where votes
are being cast or elsewhere in any manner which in
any way interferes with the election process or
obstructs the access of voters to or from the
polling place."
Appellant concludes that the legislature's intention in
amending the statute was to preserve the right to collect
initiative petition signatures within and at polling places
and the school district's policy must be permanently enjoined
because it thwarts that intent.
The Court is not persuaded by appellant's argument. Its
function in construing and applying statutes is to effect
legislative intent. The primary tool for ascertaining intent
is the plain meaning of the words used. The Court properly
refers to legislative history only when intent cannot be
determined from the content of the statute. The instant
statute does not necessitate such an inquiry.
Section 13-35-218(5), MCA, clearly and unarnbj-guously
proscribes a manner of solicitation which results
interference with the election process or obstruction of
access to and from polling places. In no way does its
wording constitute a guarantee of access to the polling place
to those persons whose manner of solicitation effects no
interference or obstruction. Whatever the extent of
appellant's right to collect initiative petition signatures,
its origin is not in section 13-35-218(5), MCA. The most
that can be read from the words chosen by the legislature is
that some manner of solicitation at polling places on
election day may be permitted. That is not equivalent to
saying it is guaranteed.
We hold that section 13-35-218(5), MCA, in and of
itself, does not preclude the school district from
prohibiting solicitation of initiative petition signatures
within school buildings used as polling places. The District
Court committed. no error in concluding the school district's
policy did not violate that statute.
ISSUE TWO: Whether the school district's policy violates
appellant's federal and state constitutional rights - -
of free
speech, assembly and petition - initiative?
or
Appellant asserts his right to collect signatures for
initiative petitions is guaranteed by equivalent but
independent provisions of the state and federal constitution.
The 1972 Montana Constitution reserves unto the people
the power of initiative. Article V, section 1, Montana
Constitution (1972). This reservation would be ineffectual
if the means by which initiative is invoked, were not
afforded constitutions,- protection. Therefore, we hold that
the First Amendment and its state counterpart, Article 11,
section 6 and 7, Montana Constitution (1972), protects
appellant's activities. The First Amendment was fashioned to
embrace precisely what the initiative process promotes:
"[the] unfettered interchange of ideas for the bringing about
of political and social changes desired by the people." Roth
v. United States (1956) 354 U.S. 476, 484, 77 S.Ct. 1304,
1308, 1 L.Ed.2d 1498, cited in Lewis v. Reader's Digest
(1973) 162 Mont. 401, 409, 512 P.2d 702, 706. Accord, State
v. Conifer Enterprises, Inc. (1973) 82 Wash.2d 94, 508 P.2d
149.
The remaining question is whether appellant can be
constitutionally prohibited from exercising his First
Amendment liberties in school buildings being used as polling
places.
First Amendment protection does not assure appellant's
activities will be beyond restriction, as the First Amendment
does not prohibit all regulation of expressive activities.
First Amendment rights may be governed by appropriate
limitations on the time, place and manner of their exercise.
See, e.g., Heffron v. International Society for Krishna
Consciousness, Inc., (1981) 452 U.S. 640, 101 S.Ct. 2559, 69
L.Ed.2d 298 (state fair rule prohibiting sale or distribution
of any merchandise including printed or written material
except from fixed location); Cox v. New Hampshire (1941) 312
U.S. 569, 61 S.Ct. 762, 85 L.Ed 1049. (statute prohibiting
parade or procession upon a public street without a special
license). And, the state has the power to substantially
restrict or even prohibit exercise of First Amendment rights
on property owned by the government "to preserve the property
under its control for the use to which it is lawfully
dedicated." Adderley v. Florida (1966) 385 U.S. 39, 47, 87
S.Ct. 242, 247, 17 Ij.Ed.2d 149 (criminal trespass convictions
upheld where demonstration on jailhouse grounds not
ordinarily open to public obstructed the jail driveway) .
Indeed, the so-called "non-public forum" cases consistently
establish that government ownership or control of a facility
does not guarantee the public absolute and unrestricted
access for the purpose of exercising First Amendment
liberties. See, e.g., U.S. Postal Service v. Council of
Greenburgh Civic Associations (1981) 453 U.S. 114, 101 S.Ct.
2676, 69 L.Ed.2d 517 (statute prohibiting distribution of
unstamped mailable matter in authorized letterboxes); Jones
v. North Carolina Prisoners' Labor Union, Inc. (1977) 433
U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (prison regulation
prohibiting a prisoner's union from holding meetings,
soliciting other inmates for membership or obtaining bulk
mailing privileges) ; Greer v. Spock (1976) 424 U.S. 828, 96
S.Ct. 1211, 47 L.Ed.2d 505 (army regulation prohibiting
political speeches on military base); and Lehman v. City of
Shaker Heights (1974) 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d
770 (municipal policy prohibiting paid political advertising
in its mass transit system).
It is equally well established, however, that when a
government owned or controlled facility is opened as a forum
for assembly or speaking by some groups, government may not
prohibit others from assembling or speaking on the basis of
what they intend to say, Police Dept. of City of Chicago v.
Mosley (1972) 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212, and
differential access policies must be factually based and
finely tailored to serve substantial state interests. See,
e. g. , Perry Local Educators ' Association v. Hohlt (7th Cir.
1981) 652 F.2d 1286 prob. juris. noted, 454 U.S. 1140; Gay
Students Organization v. Bonner (1st Cir. 1974) 509 F.2d 652;
National Socialist White People's Party v. Ringers (4th Cir.
1973) 473 F.2d 1010; Hennessey v. Independent School District
No. 4 (Okla. 1976) 552 P.2d 1141.
Likewise, when property owned or controlled by the
government is a public forum, few restrictions on its use for
exercise of First Amendment freedoms are tolerated; any
regulation must not only be content-neutral but must he
closely related to a significant governmental interest and
must be the least restrictive means of serving that interest.
See, e.g., New York City Unemployed and Welfare Council v.
Brezenoff (2nd Cir. 1982) 677 F.2d 232; ACORN v. Dallas
County Hospital District (5th Cir. 1982) 670 F.2d 629,
modifying 656 F.2d 1175 and reversing 478 F.Supp 1250.
Appellant contends this Court should employ the test
articulated in Grayned v. City of Rockford (1972) 408 U.S.
104, 92 S.Ct. 2294, 33 L.Ed.2d 222, to determine whether the
school district's policy constitutes reasonable regulation of
expressive activity in school buildings on election days. We
In Grayned, several persons who participated in a
demonstration on a public sidewalk near a high school were
convicted under an anti-noise ordinance, which read in
pertinent part, as follows:
"[Nlo person, while on public or private grounds
adjacent to any building in which a school or any
class thereof is in session, shall willfully make
or assist in the making of any noise or diversion
which disturbs or tends to disturb the peace or
good order of such school session or class thereof.
I1
e .
Evidence at trial was sharply contradictory regarding the
disruptive nature of the demonstration. The demonstrators
challenged the ordinance on its face as being overbroad
contending it unduly interfered with their First and
Fourteenth Amendment rights to picket on a public sidewalk
near a school.
The United States Supreme Court upheld the ordinance and
reiterated that reasonable "time, place, and manner"
regulations on the right to use a public place for expressive
activity, may be necessary to further significant
governmental interests. The Court explained:
"The nature of a place, 'the pattern of its normal
activities, dictate the kinds of regulations of
time, place, and manner that are reasonable.'
Although a silent vigil may not unduly interfere
with a public library, making a speech in the
reading room almost certainly would. That same
speech should be perfectly appropriate in a park.
- crucial is basical5 whether the manner the
The
expression
question is
incompatible with
of
normal actizty - - particular placeat?
of a -
particular time . .
[Iln assessing the
reasonableness of a regulation, we must weigh
heavily the fact that communication is involved;
the regulation must be narrowly tailored to further
the State's legitimate interest .Free .
expression 'must not, in the guise of regulation,
be abridged or denied. ' " (citations and footnotes
omitted) 408 U.S. at 116-117, 92 S.Ct. at
2303-2304. (emphasis added).
In upholding the ordinance, the Court emphasized that:
"[the] antinoise ordinance goes no further than
Tinker [v. Des Moines Independent Community School
District (1969) 393 U.S. 503, 89 S.Ct. 733, 21
L.Ed.2d 7311 says a municipality may go to prevent
interference with its schools. It is narrowly
tailored to further Rockford's compelling state
interest in having an undisrupted school session
conducive to the students' learning, and does not
unnecessarily interfere with First Amendment
rights. - - having an impermissibly broad
Far from
prophylatic ordinance, ~ o z f o r d punishes only
conduct which disrupts - - about to disrupt
or is
normal school activities." 408 U.S. 119, 92
S.Ct. at 2305. (emphasis added).
Tinker v. Des Moines Independent Community School
District, supra, struck down a school policy of suspending
students who refused to remove armbands worn to protest the
Vietnam War. The record disclosed the involved students
neither interrupted school activities nor sought to intrude
in school affairs or the lives of others; their expression
caused discussion outside the classroom but no interference
with work or disorder.
In accomodating First Amendment rights with the "special
characteristics of the school environment,' 393 U.S. at 506,
89 S.Ct. at 736, the United States Supreme Court recognized
that "'wide exposure to . . . robust exchange of ideas'" is
"an important part of the educational process" and should be
nurtured. 393 U.S. at 512, 89 S.Ct. at 739-740.
The Court concluded that free expression could not be
barred from all parts of a school building or its immediate
environs, but that expressive activity may be prohibited if
it "materially disrupts classwork or involves substantial
disorder or invasion of the rights of others1'. 393 U.S. at
513, 89 S.Ct. at 740. The Court made clear that
"undifferentiated fear or apprehension of disturbance is not
enough to overcome the right to freedom of expression". 393
U.S. at 508, 89 S.Ct. at 737.
The District Court erred by failing to apply the
incompatibility test of Grayned and by neglecting to
carefully scrutinize the school district's policy in light of
Grayned and Tinker. One simply cannot equate public schools
with military reservations or jail enclosures and conclude
that the uses to which they are dedicated cannot be preserved
unless expressive activities are prohibited or substantially
restricted. Grayned, 408 U.S. at 121, fn 49, 92 S.Ct. at
2306; Tinker, 393 U.S. at 512, fn 6, 89 S.Ct. at 739. Nor is
it appropriate to conclude, as the school district suggests,
that because expressive activities may be constitutionally
prohibited in privately owned shopping centers not dedicated
to public use, Lloyd Corporation, Ltd. v . Tanner (1972) 407
U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, appellant's
a.ctivities may be excluded from public school buildings
expressly dedicated to public use for education of students
and elections. See, sections 13-3-105 (4), 20-1-305 (1),
20-6-602, MCA.
In the context of a school environment, incompatible
expression must be found in substantial disruption of or
material interference with normal school activities, Grayned,
408 U.S. at 118, 92 S.Ct. at 2304; "undifferentiated fear or
apprehension of disturbance is not enough to overcome the
right of freedom of expression". Tinker, 393 U.S. at 508, 89
S.Ct. at 737. Moreover, a decision as to whether a manner of
expression is incompatible, must be on an individual basis,
given a particular fact situation, Grayned, 408 U.S. at 119,
92 S.Ct. at 2305, and not by means of broad classifications,
especially those based on subject matter. Mosley, 408 U.S.
at 101, 92 S.Ct. at 2293; see, also, Consolidated Edison Co.
v. Public Service Commission (1980) 447 U.S. 530, 100 S.Ct.
2326, 65 L.Ed.2d 319. Finally, to be permissible, any
regulation of expressive activities must be the least
restrictive means of furthering the state's interest in
providing a school environment conducive to student's
learning, Grayned, supra.
The policy prohibiting appellant's solicitation
activities is not premised on any actual instances in which
indoor or outdoor solicitation activities have either
substantially disrupted, or threatened to substantially
disrupt, normal school activities. From the stipulated
facts, the most that can be said regarding the
incompatibility of solicitation activities and school
functioning is that the hallways might be noisier or more
congested while solicitors converse with registered voters
regarding the contents and merits of a particular initiative
petition. That is not analogous to making a speech in the
reading room of a library, which is how the United States
Supreme Court illustrated the incompatibility test it
articulated in Grayned. Furthermore, the record is devoid of
any facts to substantiate the school districts's security
concern.
Finally the school district's policy is not narrowly
tailored to further its interests in undisrupted school
functioning. Less restrictive means of achieving the
objective were not tried.
Unlike the ordinance upheld in Grayned, the school
district's policy applies throughout the day, irrespective of
whether or not classes are in session, and reaches all
solicitors, irrespective of whether or not they conduct their
activities peaceably. Like the ordinance struck down by
Moslev, the school district's policy selectively excludes
solicitation on the basis of subject matter and
undifferentiated fear of disruption.
In its present form the school district's policy
unnecessarily infringes on the First Amendment liberties of
appellant and the class he represents. Therefore, the
District Court's order is reversed and the school district's
policy is hereby declared to b
We concur:
Chief Justice
Justices
Mr. Justice Fred J. Weber concurs and dissents as
follows :
I agree with the holding of the majority that in its
present form the school district's policy unnecessarily
infringes on the First Amendment liberties of the appellant
and the class he represents and is therefore
unconstitutiona.1. I am also in agreement with the general
principles of law set forth in the majority opinion upon
which the conclusion was reached.
However, I disagree with the majority's conclusion that
the policy prohibiting solicitation is not premised on any
actual instances in which solicitation activities have
substantially disrupted or threatened to substantially
disrupt normal school activities. Paragraph 21 of the facts
stipulated to by all parties states in pertinent part:
"21. Exercising the right to vote does not require
conversation, except for purposes of confirming
registration and signing the precinct register.
The solicitation of petition signatures requires
conversation between solicitors and solicitees, to
explain the proposal, request signatures, and
discuss the issues. The process of collecting
signatures includes not only the request to sign,
but also the attempt to persuade to sign. - -
In fact,
arguments between voters - solicitors have
and
occurred, sometimes precipated 2 voters - and
sometimes precipitated solicitors. Noise - -
in the
hallways distracts - students, impairs their
the
concentration. lowers their level of functionina. d .
a n d classroom disciplineand teachin
effectiveness. Under present ~ c h x Distric:
policy, the noise and arguments occur outside
school buildings. If solicitation were permitted
inside school buildings, any such arguments would
occur inside." (Emphasis added)
These stipulated facts establish something significantly
greater than an "undifferentiated fear of disruption." In
view of these stipulated and agreed facts, it is reasonable
to conclude that the school district properly could apply its
policies to those periods of time when classes are in session
and students would be adversely affected. I would therefore
approve such a policy which is properly limited in time and
place in order to protect undisrupted school functioning.
Such a limited or restricted policy would clearly meet the
test of Grayned, in which the United States Supreme Court
approved an anti-noise ordinance directed at the "making of
any noise or diversion which disturbs or tends to disturb the
peace or good order of such school session or class thereof
. . ." Sufficient facts have been established in this case
to warrant a policy of the type adopted by the school board.
Simply stated, the present policy is too broad.
My purpose is to emphasize that a policy of this type
may be adopted if it is properly limited in the manner
described in the majority opinion.
Mr. Chief Justice Frank I. Haswell:
I concur in the foregoing separate opinion of Mr.
Justice Fred J. Weber.