United States Court of Appeals
For the First Circuit
No. 07-1876
MIRIAM CURNIN; THOMAS F. CURNIN,
Plaintiffs, Appellants,
v.
TOWN OF EGREMONT; THOMAS GAGE, Town Moderator; BRUCE TURNER,
Board of Selectmen; PHILIP REILLY, Board of Selectmen; MARY
BRAZIE, Board of Selectmen,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Selya, Senior Circuit Judges.
Landis C. Best with whom Judith C. Knight, Joseph H.
Zwicker, Choate Hall & Stewart LLP, Nicholas Boski, and Cahill
Gordon & Reindel LLP were on brief for appellants.
Nancy Frankel Pelletier with whom David S. Lawless and
Robinson Donovan, P.C. were on brief for appellees.
November 29, 2007
LYNCH, Circuit Judge. This case raises First Amendment
questions about limiting the participation of non-voters at a New
England town meeting.
Miriam and Thomas Curnin, who own property but are not
registered to vote in the town of Egremont, Massachusetts, appeal
from the district court's refusal to grant a preliminary injunction
mandating that they be permitted to speak at Egremont's town
meeting. The Curnins contend that the town meeting is a designated
public forum and Egremont's policy of permitting non-voters like
themselves, who own property and pay taxes but are not town meeting
members, to speak only at the discretion of the town meeting and
its moderator violates their First Amendment rights.
We hold that forum analysis is inapposite because the
town meeting is a legislative body in deliberation. The Curnins
are not registered to vote in Egremont and therefore are not town
meeting legislators. The First Amendment does not give non-
legislators the right to speak at meetings of deliberating
legislative bodies, regardless of whether they own property or pay
taxes.
We also reject the Curnins' arguments that Egremont has
engaged in viewpoint discrimination and that the First Amendment is
violated by the discretion vested in the town meeting moderator to
recognize speakers, including individuals not members of the town
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meeting. We affirm the district court's denial of a preliminary
injunction.
I.
The New England town meeting is a special form of
government dating back to the colonial era and often considered an
exemplar of pure democracy. See R. Tilden, Town Government, 38
B.U. L. Rev. 347, 348 (1958).
Town meetings in colonial times were charged with
administrative and judicial as well as legislative duties. R.
Johnson et al., Town Meeting Time: A Handbook of Parliamentary Law
4 (3d ed. 2001). Membership in town meetings was limited to those
who belonged to the established church and owned the requisite
amount of property. Tilden, supra, at 356. Attendance was
compulsory, and those who arrived late were punished with a fine.
Johnson et al., supra, at 3.
Other forms of government have emerged to carry out local
administrative and judicial functions since the colonial era. Id.
at 4. But town meetings continue to exist in New England as a
town's legislative arm and are responsible for the traditional
legislative functions of making laws and controlling spending. Id.
One commentator notes that a town meeting's "votes in municipal
government correspond to those of the General Court [state
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legislature] in the state government and of the Congress in the
national government."1 Tilden, supra, at 349.
Massachusetts law requires that, unless otherwise
provided, each town must hold an annual town meeting in February,
March, April, or May. Mass. Gen. Laws ch. 39, § 9. Special town
meetings are called if a question arises requiring legislative
action before the next annual meeting. At least seven days before
annual town meetings and at least fourteen days before special town
meetings, a town's selectmen must issue a warrant setting forth the
time and location of the meeting and the subjects to be addressed.
Id. § 10. Each town sets its own quorum for town meeting business.
Id. § 13. A moderator elected by the town's voters is responsible
for "presid[ing] and regulat[ing] the proceedings" and "decid[ing]
all questions of order." Id. §§ 14, 15. All of a town's
registered voters can speak and vote at town meeting, unlike the
1
That correspondence admits of one distinction. The town
meeting may embody either direct democracy or representative
democracy; the other two embody representative democracy. In the
early twentieth century, some towns started to find open town
meetings "unwieldy and often unrepresentative of a cross-section of
the town population" and therefore replaced them with
representative town meetings. Johnson et al., supra, at 6. In a
town with a representative meeting, only elected town meeting
members can vote at town meeting, although all registered voters
may attend. Id. at 7. Today, a town with a population over 6,000
may establish a representative town meeting. Mass. Const. art.
LXXXIX.
In towns using a representative town meeting, registered
voters who are not town meeting members can speak "subject to
conditions prescribed by the meeting." Sec'y of the Commonwealth,
Citizen Info. Serv., Citizen's Guide to Town Meetings, available at
http://www.sec.state.ma.us/cis/cistwn/twnidx.htm.
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colonial requirements tying town meeting participation to property
ownership and church membership. Id. § 18; Sec'y of the
Commonwealth, Citizen Info. Serv., Citizen's Guide to Town
Meetings, available at http://www.sec.state.ma.us/cis/cistwn/
twnidx.htm [hereinafter Citizen's Guide]. Non-voters can attend
and can speak "at the discretion of the moderator or Town Meeting."
Citizen's Guide, supra.
Egremont is a small town in western Massachusetts that
employs an open town meeting, not a representative town meeting, as
its legislative body. As of 2006, it had a population of 1032,
with 875 registered voters.
Egremont's bylaws supplement the state requirements by
providing that all warrants be posted in at least four public
places within the town at least fourteen days before the town
meeting is scheduled to occur; if a special town meeting is called,
the selectmen must place a synopsis of the warrant in the local
newspaper at least fourteen days before the meeting. Sixty voters
must be present at town meeting in order for a quorum to exist.
Egremont's current moderator, Thomas Gage, has adopted a
policy of separating voters from non-voters by giving voters
colored placards. (Under a previous moderator, non-voters were
seated in a separate section of the room.) Unless constrained by
a contrary vote of the town meeting members, the moderator has the
discretion to determine whether non-voters who wish to speak may do
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so. The moderator follows the rules of order set forth in Town
Meeting Time. For example, if there is an appropriate motion to
call the vote, there is no further discussion before the vote.
Thus, even the right of town meeting members to speak is qualified.
The Curnins own a house and pay taxes on it and
approximately 120 acres of land in Egremont, but they are not
registered to vote there. They also have a residence in Larchmont,
New York, where they are registered to vote.
The Curnins point to three specific town meetings at
which they assert they were prevented from speaking on issues
important to them as taxpayers. At the beginning of a special town
meeting to consider a proposed sewer project on May 26, 2005, a
motion was made to allow non-voters to speak. This motion failed
by a vote of 100 to 67. The sewer proposal was defeated, in a
quick succession of motions, without any discussion or debate by
either voters or non-voters.
At the annual town meeting on May 2, 2006, Thomas Curnin
and another non-voter rose to speak on a proposal to amend the
town's zoning laws to limit new commercial space to 10,000 square
feet. Moderator Gage told the other non-voter who wished to speak
to wait and that he would be considered later. At that point, town
meeting members called for a vote on the zoning law amendment;
there were no further comments from either voters or non-voters.
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At a special town meeting on June 21, 2006, voters
considered whether to spend $350,000 on a new fire truck for the
town. Curnin asserts that he wanted to speak about the propriety
of the bid the town received for the truck, although he does not
seem to have made his desire to speak known. Moderator Gage called
for a vote regarding the purchase of the truck after asking two
voters who were about to leave to delay their exit because a quorum
would not exist without them.
On May 2, 2006, the Curnins sought declaratory and
injunctive relief in federal district court under 42 U.S.C. § 1983,
claiming that Egremont's policy of not permitting non-voters who
own property and pay taxes to speak at town meetings violates their
rights under the First and Fourteenth Amendments of the United
States Constitution and similar provisions of the Massachusetts
Constitution.2
On April 13, 2007, the Curnins filed a motion for a
preliminary injunction to force Egremont to permit them to speak at
its annual town meeting on May 1, 2007. The district court denied
the injunction in an oral opinion issued on April 25, 2007. The
district court emphasized that it did not "see how the ownership of
property and the payment of taxes gives someone who is a nonvoting
2
The named defendants are the Town of Egremont; Gage,
Egremont's town meeting moderator; and the town's three selectmen,
Mary Brazie, Bruce Turner, and Philip Reilly. Reilly has since
died and been dismissed from the case.
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member of the town a status equal to voting members when it comes
to speaking at town meetings." The district court also expressed
skepticism about the Curnins' arguments that Egremont engages in
viewpoint discrimination by allowing voters but not non-voters to
speak and that the discretion in the moderator to decide when a
non-voter can speak creates a First Amendment violation. This
timely appeal followed.
Although the May 2007 town meeting has now passed,
Egremont's policy has not changed, nor has the Curnins' desire to
speak at future town meetings.
II.
We review the denial of a preliminary injunction for
abuse of discretion. Rivera-Feliciano v. Acevedo-Vila, 438 F.3d
50, 63 (1st Cir. 2006). There are no questions of fact in dispute,
so the only issues are ones of law.
The district court correctly considered four factors in
determining whether to issue a preliminary injunction: "(1) the
likelihood of success on the merits; (2) the potential for
irreparable harm if the injunction is denied; (3) the balance of
relevant impositions, i.e., the hardship to the nonmovant if
enjoined as contrasted with the hardship to the movant if no
injunction issues; and (4) the effect (if any) of the court's
ruling on the public interest." Bl(a)ck Tea Soc'y v. City of
Boston, 378 F.3d 8, 11 (1st Cir. 2004) (quoting Charlesbank Equity
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Fund II v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004))
(internal quotation marks omitted).
We turn to whether the Curnins have demonstrated a
probability of success on their First Amendment claims. We engage
in de novo review in First Amendment cases of the district court's
conclusions of law and mixed questions of law and fact. Hurley v.
Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557,
567 (1995).
The Curnins argue that the district court erred by not
analyzing Egremont's town meeting using the methodology of forum
analysis. Forum analysis primarily concerns the use of government
property for speech, and the extent to which government can
restrict speech turns on the category to which property is
assigned. E. Chemerinsky, Constitutional Law 1126-27 (3d ed.
2006). The Supreme Court has distinguished several types of
forums, including traditional public forums, designated public
forums, and non-public forums. Ridley v. Mass. Bay Transp. Auth.,
390 F.3d 65, 76 (1st Cir. 2004). This circuit has used the phrase
"limited public forums" to describe non-public forums, id. at 76
n.4, and we adhere to that usage here.
The Curnins first argue that Egremont's town meeting
qualifies as a designated public forum for two reasons. First,
they argue that Egremont's town meetings must be public forums
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because they are open to the public,3 take place on government
property, and involve important matters of public interest.
Second, they argue by analogy that other courts have held that
municipal-level public meetings are designated public forums and
therefore town meetings are as well. They further argue that even
if the town meeting is not considered a designated public forum but
only a limited public forum, Egremont's policy cannot satisfy the
corresponding level of scrutiny.
The Curnins make a second and separate series of First
Amendment arguments under the rubric of viewpoint-related
discrimination. They assert that the categorical preclusion of
those who are not town meeting members from the right to speak is
a form of viewpoint discrimination. They also argue that
Egremont's policy of letting non-voters speak only at the
discretion of the moderator is unconstitutional. They further
argue that this discretion raises the prospect of possible
viewpoint discrimination by the moderator in his decision to
recognize certain people and not others.
3
The Curnins are incorrect in their subsidiary assertion
that Massachusetts's open meeting requirement applies to town
meetings. It is true that state law provides that "[a]ll meetings
of a governmental body shall be open to the public and any person
shall be permitted to attend any meeting," Mass. Gen. Laws ch. 39,
§ 23B, but town meetings are specifically excluded from the
definition of governmental bodies, id. § 23A (providing in the
definition of "governmental body" that "this definition shall not
include a town meeting"). However, the Curnins are correct in that
town meetings are open to the public. Citizen's Guide, supra.
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The Curnins' first group of arguments, based on forum
analysis, is incorrect under First Amendment doctrine. Forum
analysis of any sort is inapposite in the context of complaints
about the deliberations of a legislative body, as Egremont's town
meeting is. We reject forum analysis entirely as an inappropriate
model to apply to the deliberations of a town legislative body.4
The registered voters who speak and vote at Egremont's town meeting
do so in their capacity as legislators. Since they are not
registered voters, the Curnins are not legislators. Non-
legislators have no First Amendment right to address sessions of
deliberating legislative bodies.
The Supreme Court has never extended First Amendment
forum analysis to a deliberating legislative body or to the body's
rules about who may speak. While no Supreme Court case is directly
on point, the Court has addressed the underlying issue of the
public's ability to address government policymakers:
The Constitution does not grant to members of the
public generally a right to be heard by public bodies
making decisions of policy. . . . Policymaking organs
in our system of government have never operated under a
constitutional constraint requiring them to afford
every interested member of the public an opportunity to
present testimony before any policy is adopted. . . .
Public officials at all levels of government daily make
4
Even were we to apply the forum analysis model, we would
hold, similar to the Supreme Court's analysis in United States v.
Am. Library Ass'n, 539 U.S. 194 (2003), that "the public forum
principles on which [plaintiffs rely] are out of place in the
context of this case. [Town meetings are] neither a traditional
nor a designated public forum." Id. at 205.
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policy decisions based only on the advice they decide
they need and choose to hear. To recognize a
constitutional right to participate directly in
government policymaking would work a revolution in
existing government practices.
Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 283-84
(1984). In Knight, the Court rejected First Amendment claims by
plaintiffs that they had a right to force officers of the state,
acting in an official capacity, to listen to them in a particular
formal setting. Id. at 283.
The Curnins' next forum-related argument, which proceeds
by analogy, fails because the cases they cite involve municipal-
level public meetings that allowed members of the public to speak
during designated portions of the meetings but shut out certain
speakers during those portions. See Mesa v. White, 197 F.3d 1041,
1043 (10th Cir. 1999) (former county commissioner prevented from
speaking during public comment period of county commission
meeting); Piscottano v. Town of Somers, 396 F. Supp. 2d 187, 193-94
(D. Conn. 2005) (resident concerned about town official's behavior
prevented from speaking during public comment portion of Board of
Selectmen meeting); Scroggins v. City of Topeka, 2 F. Supp. 2d
1362, 1365-66 (D. Kan. 1998) (resident cut off while attempting to
criticize mayoral appointment during public comment portion of city
council meeting); Pesek v. City of Brunswick, 794 F. Supp. 768, 774
(N.D. Ohio 1992) (resident prevented from speaking during public
comment portion of city council meeting on grounds that he was also
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a town employee). The Curnins have not identified any comparable
public comment period at Egremont's town meeting.
More generally, the fact that the town meeting is a
deliberating legislative body implicates the principle that courts
are reluctant to interfere with the rules and procedures adopted by
legislatures. Under the Speech or Debate Clause of the U.S.
Constitution, Article I, section 6, there are constitutional
separation of powers protections for Congress. See, e.g.,
Eastland v. U.S Servicemen's Fund, 421 U.S. 491, 502 (1975) ("The
purpose of the Clause is to insure that the legislative function
the Constitution allocates to Congress may be performed
independently."); Gravel v. United States, 408 U.S. 606, 616
(1972); see also L. Tribe, American Constitutional Law 370 (2d ed.
1988). This immunity extends to injunctive relief. Eastland, 421
U.S. at 503. No explicit federal constitutional protections cover
state or local legislative bodies. However, there are still
federalism and separation of powers concerns, which have led to the
adoption of similar immunities for state legislators. See Knight,
465 U.S. at 285; Nat'l Ass'n of Soc. Workers v. Harwood, 69 F.3d
622, 629 (1st Cir. 1995) (citing Supreme Court of Va. v. Consumers
Union of the U.S., Inc., 446 U.S. 719, 732-33 (1980)).
Regardless of whether it could be of constitutional
dimension, no concern is raised in this case of plaintiffs having
been excluded from any meaningful opportunity to make their views
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known to the voters. The Curnins concede there are alternative
ways to make their views known, but argue that the most effective
method of influencing votes is speaking at town meeting. They
argue that because there is no guarantee which registered voters
will attend a particular town meeting, they cannot influence the
town meeting because they cannot be certain that the voters they
lobby will ultimately attend. Still, however, there are a wide
variety of ways to lobby town meeting members who are likely to
attend outside the meeting itself, and uncertainty as to individual
attendance is a problem shared with legislators at any level of
government, including Congress.
The Curnins have a number of other means of influencing
local decisionmaking, both formal and informal, available to them.
All members of the public can speak at meetings of Egremont's Board
of Selectmen, and Thomas Curnin has in fact spoken at such meetings
in the past. The selectmen play a significant role in town
governance in general as well as in town meetings in particular:
they issue the warrants that determine town meeting agendas and
make recommendations to town meeting regarding each item in the
town's budget. The Curnins are also free to attend and speak at
the public forums that are held in Egremont from time to time for
discussion of important issues. For instance, such public forums
were held on the proposed sewer system prior to the town meeting at
which it was discussed. Additionally, the Curnins have less formal
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means of influence available to them, including writing letters to
the editor of the local newspaper, taking out advertisements in the
local newspaper, and sending mailings to voters.
There is no doubt the Curnins have a legitimate interest
in attempting to influence the policy choices made by the town of
Egremont. That does not create a right to speak before a
legislative body. Our analysis does not change, as the Curnins
contend, because Egremont's town meeting embodies direct rather
than representative democracy; members of the town meeting are
still legislators.
We turn to the viewpoint discrimination argument, which
has several levels. The Curnins first argue that Egremont engages
in viewpoint discrimination by granting different speaking rights
to voters and non-voters. This claim fails. The distinction
between those who are and are not town meeting members is not based
on viewpoint at all. In fact, the distinction between giving
qualified speaking rights to legislators, but not to non-
legislators, is entirely rational. The legislative body has
limited time to get its work done. Indeed, the distinction made is
entirely content-neutral.5 In their second level of potential
discrimination claims based on viewpoint, the Curnins argue that
5
The equal protection claim asserted by the Curnins adds
nothing to their case. This case also does not involve
restrictions based on the subject matter or nature of speech in a
public forum. Cf. Carey v. Brown, 447 U.S. 455, 459-61 (1980).
Likewise, their due process claim is futile.
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the moderator has an impermissible amount of discretion, in
violation of the First Amendment. They rely on an analogy to the
licensing context, where the Supreme Court has struck down schemes
giving public officials excessive discretion in making decisions
such as when to issue permits for demonstrations and parades. See,
e.g., City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750,
772 (1988) (striking down scheme giving mayor complete discretion
in deciding whether to issue permits for newspaper dispensing
machines on public property). These cases are different in kind.
They do not involve speech before deliberating legislative bodies.
In such bodies, some measure of discretion is inherent in
the role of the moderator. The moderator is charged with
facilitating an efficient and orderly town meeting. As the
Massachusetts Supreme Judicial Court put it: "A moderator must make
judgments on the spot. He must deal with disputants without the
protective formality of a judicial proceeding, and he must contend
with voters who are not necessarily experienced in the law or
conversant with town meeting procedures." MacKeen v. Town of
Canton, 399 N.E.2d 22, 24 (Mass. 1980).
To the extent the Curnins suggest that the moderator's
discretion could enable him to engage in viewpoint discrimination,
there is no evidence of any such behavior here. No evidence has
been presented to suggest that Egremont is attempting to "give one
side of a debatable public question an advantage in expressing its
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views," First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 785
(1978). We need not consider whether there is any cognizable
constitutional claim raised if a moderator of a legislative body
were to allow non-voters to speak for a limited period but then
call on speakers representing only one side of an issue. Nor is
there any evidence that the government was preferring only the
views of the present administration of the town. The facts raise
neither claim.
The judgment of the district court denying preliminary
injunctive relief is affirmed.
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