Federal appeals panel rejects signature-gatherers’ civil rights lawsuit

Tuesday, June 13, 2000

Two people thrown off the grounds of a Trenton, Mo., middle school while soliciting signatures for a petition drive have failed to convince a federal appeals court panel to reinstate their civil rights lawsuit.

On Nov. 4, 1997, Juanita Embry and Richard Delamater were collecting signatures on the grounds of Adams Middle School, soliciting signatures for a referendum to increase the authority of counties to regulate billboards. A special election for state representative was being held that day and the school was a designated voting place.

Principal Frederick Boland told the petitioners to leave, explaining that they were not allowed to gather signatures on school property.

Embry and Delamater argued that they had a First Amendment right to circulate petitions at polling places, as long as they remained at least 25 feet away from the polling entrance.

After Embry refused to leave, Boland called city Police Chief Bob Lewis. Embry was arrested, and then released later that day. No charges were brought.

The two petition circulators filed a federal lawsuit, contending that Lewis, Boland and school Superintendent Dan Lowry had violated their First Amendment rights.

U.S. District Judge Gary A. Fenner granted summary judgment to the defendants in April 1999. On appeal, a unanimous three-judge panel of the 8th U.S. Circuit Court of Appeals affirmed Fenner’s decision in its June 8 opinion in Embry v. Lewis.

“Although Missouri law makes it an offense to electioneer within 25 feet of a polling place’s outer door, it does not automatically follow that electioneering is allowed anywhere outside the 25 foot line,” the panel wrote.

“Access to a nonpublic forum can be restricted, provided the restrictions are reasonable and are not an effort to suppress opposing viewpoints,” the panel wrote.

“The fact that Boland read the petition before asking Delamater to leave the property does not, by itself, indicate that Boland excluded Delamater based upon the content of the petition,” the panel wrote.

Arthur Benson, attorney for the plaintiffs, said that he would seek full panel review of the decision.

“The decision permits the school district to allow members of the public to use its sidewalks on election days to vote while prohibiting members of the public seeking to petition for the redress of grievances under the First Amendment,” Benson said. “This is unlawful content discrimination.”

Carol Barnett, Lewis’ attorney, said that “the appeals court panel correctly decided the First Amendment issues.” She added that the court did not even reach the issue of whether the defendants were entitled to qualified immunity.