Juanita EMBRY; Richard Delamater, Appellants, v. Bob LEWIS, Chief of Police; Frederick C. Boland, Principal; Dan Lowry, Dr., Superintendent, Appellees, Attorney General of Missouri, Amicus on Behalf of Appellants.
No. 99-2238
United States Court of Appeals, Eighth Circuit
Filed June 8, 2000
Rehearing and Rehearing En Banc Denied July 14, 2000
Submitted Jan. 12, 2000.
Burks cites Thorne v. Welk Investment, Inc., 197 F.3d 1205 (8th Cir.1999), for the proposition that it is an abuse of discretion for a trial court to fail to consider attorney fees awarded in similar cases. In Thorne, however, we found that it was an abuse of discretion to fail to consider awards in comparable cases where the requested fees, on their face, were remarkably high given the type of case. We stated, “When, as here, the amount sought by the prevailing party is far more than one would expect for a case of its complexity and novelty, the court should reference awards in similar cases.” Id. at 1213.
Here, there is no claim that the requested fees were especially high—or especially low—for a case of the novelty and complexity of the one here. Rather, the trial court properly reduced those requested fees to reflect the degree of success obtained by the plaintiff. Thus, Thorne is distinguishable from the case at bar.
What is more, however, Burks does not suggest that the trial court should have compared its award of fees to awards for similarly situated plaintiffs. Rather, Burks argues that the trial court should have compared the fees it granted to Burks’ counsel to the fees charged by Siemens’ counsel. Such an apples-to-oranges comparison is not required by law and would not be advisable. The most obvious flaw with this proposed requirement is that making such a comparison—where the benchmark for the award of plaintiff‘s attorney fees is “reasonableness“—would require the trial court to first determine whether the defendant‘s counsel billed a reasonable amount. Such a scheme does not make sense, and it was not an abuse of discretion for the trial court to decline to make such a comparison.
The district court‘s award of attorney fees is affirmed.
Robert B. Best, Jr., Kansas City, MO, argued (Jennifer K. Wilson, Kansas City, MO, on the brief), for Appellees Dan Lowry and Frederick C. Boland.
Carol C. Barnett, St. Joseph, MO, argued (Erin A. Webber, St. Joseph, MO, on the brief), for Appellees.
Before HANSEN, BRIGHT, and FAGG, Circuit Judges.
HANSEN, Circuit Judge.
Juanita Embry and Richard Delamater appeal the district court‘s1 order granting summary judgment in favor of Bob Lewis, Frederick Boland, and Dan Lowry in this
I.
Embry and Delamater were on the grounds of Adams Middle School (the school) in Trenton, Grundy County, Missouri, on November 4, 1997, collecting signatures on an initiative petition drive. A special election for state representative was being held that day, and the school was designated as a polling place.2 Embry and Delamater were being paid for each signature collected. Accordingly, they chose to locate at the school because it was identified as having a high voter turnout and a logical place to seek signers for their petition. Delamater set up his table and chair on the grass of the school‘s west property near but not upon the public sidewalk. This location was more than 25 feet away from the school‘s polling entrance. Embry left Delamater at the school and went to North Central Missouri Community College to collect signatures.
Around 8:00 a.m., the school principal, Boland, approached Delamater and asked him if he had permission to be on the school property. Delamater indicated that he lacked permission. Delamater stated, however, that he thought he could petition at the school because it was a voting place. Boland then contacted the school superintendent, Lowry. Boland claims that Lowry told him that Boland as the principal had the authority to make the final decision regarding Delamater‘s presence on the school property. Following his conversation with Lowry, Boland asked Delamater to leave the property, and Delamater complied.
Embry returned to the school around noon and was told that Delamater had gone to the courthouse, which also served as a polling place. At the courthouse, Delamater explained to Embry that Boland had asked him to leave the school property. Embry returned to the school at approximately 1:00 p.m. and began to collect petition signatures. She set up her table on the school property near but not
Embry and Delamater filed a
II.
Embry and Delamater claim that petition circulating is core political speech and, as such, is protected by the First Amendment to the United States Constitution. Stated as a general proposition of constitutional law, we agree. On appeal, Embry and Delamater argue that the district court erred in its public forum analysis. The district court concluded that the school, as a whole, was a nonpublic forum. Embry and Delamater contend that the state of Missouri, through
We review the grant of summary judgment de novo. Coplin v. Fairfield Pub. Access Television Comm., 111 F.3d 1395, 1401 (8th Cir.1997). In conducting our review, we evaluate the record in the light most favorable to the nonmoving party. Id. Summary judgment is appropriate only when there is “no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Id. (quoting Fed.R.Civ.P. 56(c)).
Pursuant to
Exit polling, surveying, sampling, electioneering, distributing election literature, posting signs or placing vehicles bearing signs with respect to any candidate or question to be voted on at an election on election day inside the building in which a polling place is located or within twenty-five feet of the building‘s outer door closest to the polling place....
The Adams Middle School building was designated as a polling place under Missouri law, and the voting booths were located on the first floor of the school building near the west entrance. Only a portion of the school property was a designated public forum on November 4, 1997, for the limited purpose of voting, in accordance with
Public schools are not deemed public forums unless the “school authorities have ‘by policy or by practice’ opened those facilities ‘for indiscriminate use by the general public.‘” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Perry Educ. Ass‘n. v. Perry Local Educators’ Ass‘n., 460 U.S. 37, 47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). Government ownership of the school property does not automatically open that property to the public. See United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). There is no evidence in the record that the school officials opened up the school for “indiscriminate use by the general public.” In fact, it was the state of Missouri, not the school officials, that opened a portion of the school to registered voters for the limited purpose of voting. This action by the state of Missouri, pursuant to
Embry and Delamater suggest that
We have found no Missouri case supporting Embry‘s and Delamater‘s broad reading of
Access to a nonpublic forum can be restricted, provided the restrictions are reasonable and are not an effort to suppress opposing viewpoints. See Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). The decision to exclude Embry and Delamater from the school property was reasonable because school officials have broad discretion in restricting visitors on school property to protect the safety and welfare of the school children. See Hall v. Board of Sch. Comm‘rs of Mobile County, Alabama, 681 F.2d 965, 969 (5th Cir. Unit B 1982). Adams Middle School‘s policy of requiring visitors to receive permission from the school before using the school property is a reasonable response to the school‘s concerns regarding safety and disruption. The exclusion of Embry and Delamater, who made no effort to seek or receive permission to use the school property, was reasonable.
In addition, the record does not support Embry‘s and Delamater‘s contention that their exclusion was content-based. 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. Additionally, Boland‘s deposition testimony that he had never before called the police to remove a person from the school property on an election day does not suggest that Boland‘s exclusion of Embry and Delamater was content-based because there is no indication in the deposition testimony that Boland ever was aware of any other people on the school property on an election day who were not there simply for the purpose of voting. Moreover, there is no evidence in the record that Boland was aware of a man distributing Republican literature on the school property for a period of twenty or thirty minutes early in the afternoon on November 4, 1997. Mere speculation or conjecture is not enough to withstand a motion for summary judgment. See Wilson v. Int‘l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir.1995).
III.
Accordingly, we affirm the district court‘s order granting Boland, Lowry, and Lewis summary judgment on the § 1983 claim and conclude there was no abuse of discretion in dismissing without prejudice the state law false imprisonment claim once the federal claim had been dismissed.
Shabanali LADHA; Khatoon Ladha; Farzana S. Ladha, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 98-70772.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 8, 2000*
Filed June 1, 2000
As Amended June 30, 2000.
* The panel finds this case appropriate for submission without oral argument pursuant to Fed. R.App. P. 34(a).