STATE of Louisiana v. Theodore SCHIRMER.
No. 93-KA-2631.
Supreme Court of Louisiana.
November 30, 1994.
Rеhearing Denied March 9, 1995. Order Concurring in Denial of Rehearing March 9, 1995.
646 So.2d 890
CALOGERO, Chief Justice.
646 So.2d 890 (1994)
Richard P.
Richard M. Upton, Baton Rouge, for respondent.
Daniel C. Wirtz, Baton Rouge, for Fox McKeithen, Secretary of State (amicus curiae).
CALOGERO, Chief Justice.*
The State of Louisiana filed a bill of information charging Theodore Schirmer with violating
After considering the statute and the record, we conclude that the trial court was correct in its determination that
I. Facts and Procedural Background
Defendant Theodore Schirmer is the executive director of a group which styles itself “Recall ‘92, Inc.” The organization‘s principal objective was to recall the Governor. It was first necessary to obtain the signatures of one-third of the electorate on a recall petition within a 180-day period.2 See
In October of 1992, the period relevant to this case, Recall 92 was in the middle of its drive (it had until December) to collect the required number of signatures (they were still in need of 750,000 signatures) to force a recall election. Given the voter interest in the November, 1992, presidential election, Recall ‘92 decided to solicit signatures at polling places during the primary election of October 3, 1992, and the general (presidential) election of November 3, 1992.
This decision by Recall ‘92 to appear at the polls on October 3 was influenced in part by a belief that the solicitation at polling places of signatures for the recall petition would not constitute a violation of Louisiana law. Theodore Schirmer, a lawyer by profession, was aware that the Attorney General had issued two opinions addressing the solicitation near polling places of signatures for petitions unrelated to matters on the ballot. These opinions were that such a solicitation of signatures neither violated the Election Code generally nor
On October 1, 1992, however, two days before the scheduled primary elections at which Recall ‘92 planned to make its appearance, the Attorney General issued opinion No. 92-650(A). In that opinion the Attorney General, relying upon Lacour v. State of Louisiana, No. 90-C-1772 (La.App. 4 Cir. 1990), an unpublished opinion out of the Fourth Circuit Court of Appeal, recalled and rescinded his two prior opinions.
Schirmer received a copy of Attorney General Opinion No. 92-650(A) several days prior to the October 3 election. Although Schirmеr instructed Recall ‘92 members to leave polling areas if requested to do so by a poll commissioner, he decided he would personally challenge the constitutionality of
On October 3, Schirmer first attempted to vote at his registered precinct, University Terrace in Baton Rouge, but was denied access to the polls because he was wearing a t-shirt bearing a “Recall ‘92” slogan. Schirmer departed, without incident and without casting a vote, and travelled to the polling place at Lee High School, also in Baton Rouge, where, under the gaze of poll commissioners and other officials, he set up a table and began gathering signatures for the recall petition. After Schirmer refused verbal and written directions to leave, he was placed under arrest.
Following his arrest, Schirmer and related parties filed suit in federal court sеeking declaratory and injunctive relief against the enforcement of
Plaintiffs appealed the federal district court‘s decision to the United States Fifth Circuit Court of Appeals, seeking in the interim temporary injunctive relief pending appeal. In response to the latter, a panel of the Fifth Circuit certified the following question to this Court pursuant to La.S.Ct. Rule XII:
Whether La.R.S. 18:1462A proscribes on election day, outside of the polling place itself but within a radius of six hundred feet from the entrance thereto, all solicitation of signatures for a recall petition that is not on the ballot that is to be voted on at the election for which the polling plаce is open, and in the polling place or said six hundred foot radius all wearing of clothing or buttons bearing visible words or symbols supportive of such recall?
Schirmer v. Edwards, 608 So.2d 948, 948 (La.1992).
On October 29, 1992, this Court responded to the certified question. We began by noting that “the clear intent of this statute, when taken as a whole, is to prohibit political activity within 600 feet of the polls on election day in order to prevent disruption of the polling place and the election process.” Schirmer, supra, 608 So.2d at 949. Applying the statute to the particular facts of this case, the Court found that although
We find the solicitation of signatures for a recall petition not on the ballot of that election, but which its backers ultimately hope to get on the ballot, fits this broad definition of handing out or displaying campaign literature. Likewise, we hold the wearing of clothing or buttons supporting such a recall effort is a display of political advertising prohibited by subsection (4).
Id., citing Atty.Gen.Op., No. 92-650(A), and Lacour v. State of Louisiana, supra. We were careful to note, however, that “our opinion deals only with the question certified [one regarding statutory interpretation], and we do not pass on any issues of constitutionality under either the United States Constitution or the Louisiana Constitution.” Id., at 948 n1.
Upon receipt of our answer to the certified question the Fifth Circuit, and armed with this Court‘s construction of
In state court, meanwhile, the criminal prosecution of Schirmer for violating
(1) On October 3, 1992, and at all pertinent times the defendant was conducting his activities within one hundred (100) feet of the polling place at Lee High School, East Baton Rouge Parish, Louisiana;
(2) The activities being conducted by the defendant were concerned solely with the issue of the recall petition of Governor Edwin Edwards which was not on the ballot;
(3) The defendant was not harassing or intimidating any person who was at the polling place to vote;
(4) The defendant was provided written notice to cease his activity or move from the area within six hundred (600) feet of the polling place by the person authorized to provide such notice at the рolling location and defendant refused to comply with the written request;
(5) A police officer was summoned and defendant was arrested for failure to cease his activity within six hundred (600) feet of the polling place.
After considering this joint stipulation and the testimony of several witnesses,6 the trial court declared the statute unconstitutional and quashed the information. The judge noted that Louisiana‘s 600-foot boundary was the second largest in the United States, and that “the majority of states enforce a 100-foot boundary.”7 In addition, the trial court considered the United States Supreme Court‘s pronouncement in Burson v. Freeman, supra, and concluded that “[i]n the Burson case the Supreme Court didn‘t give you a whole lot to go on other than to say there is nothing wrong with a hundred feet.” The judge concluded that the statute as drawn was unconstitutionally overbroad insofar as it prohibits all political activity within 600 feet of polling places, and sustained Schirmer‘s motion to quash “on that basis alone and no other.” The State of Louisiana took exception to this ruling, and moved for and received permission to seek review in this Court. See
Two months later, the United States Fifth Circuit8 handed down a final decision in Schirmer‘s federal appeal. Schirmer v. Edwards, 2 F.3d 117 (5th Cir.1993). Like the federal and state district courts before them, the Fifth Circuit found Burson v. Freeman, supra, the controlling precedent. Following the analysis of the Burson plurality,9 the Fifth Circuit found that the Louisiana statute implicated three
After examining the record before it, the Fifth Circuit concluded “that Louisiana undoubtedly has a compelling interest to protect its citizens’ right to vote.” Schirmer, supra, 2 F.3d at 121. However, at this point in its analysis the Fifth Circuit departed from the prior finding of the state district court under review here, as well as from the reasoning of the prior Fifth Circuit panel which had granted Schirmer and the other federal plaintiffs an injunction for the November 3 election. The federal appellate court found the statute to be “narrowly drawn and not an excessive infringement on the First Amendment.” Id., at 124. In addressing the statute‘s embrace of all political speech, not only speech related to matters on the ballot, the Fifth Circuit found that “[t]he need for a total ban is compelling and Section 1462 is not overbroad.” Id. Based upon these findings, the Fifth Circuit found that Louisiana‘s statute represents a “constitutional compromise” and affirmed the district court‘s dismissal of Schirmer‘s and the other federal plaintiffs’ suit. Id.10
Thus, to summarize, the case now before us arose out of the arrest of Theodore Schirmer on October 3, 1992. That arrest led to the filing of a federal civil suit by Schirmer and related parties, and to a criminal prosecution of Schirmer by the State of Louisiana. The federal suit proceeded to trial first, with the district court finding the statute under which Schirmer was arrested constitutional and dismissing the lawsuit. A panel of the fedеral appellate court, however, expressing doubts as to the statute‘s constitutionality under the
II. Discussion
As the lengthy procedural history of this case suggests, the issues which we consider in this opinion have already been examined in a number of fora, leaving this Court with some not entirely consistent opinions regarding these matters. At the outset we deem it advisable to set forth the basic principles of
The United States Supreme Court has adopted (as in many areas of constitutional jurisprudence) a means-ends analysis or “balancing” approach in assessing the validity of state action which burdens a citizen‘s exercise of free speech. See Konigsberg v. State Bar of California, 366 U.S. 36, 49-51, 81 S.Ct. 997, 1005-07, 6 L.Ed.2d 105 (1961), re‘hg denied, 368 U.S. 869, 82 S.Ct. 21, 7 L.Ed.2d 69 (1961), and other cases cited herein. Under this approach, the State‘s purpose and the means used to achieve that purpose must be sufficiently related to justify any limitation upon free speech, although the extent to which a reviewing court will probe that means-ends relationship is dependent upon the context in which the State action operates and the burden which it imposes. See Board of Airport Comm‘rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 573, 107 S.Ct. 2568, 2571, 96 L.Ed.2d 500 (1987); Cornelius v. NAACP Legal Defense and Ed. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985). For example, regulation of spеech which does not focus upon the particular content of the speech sought to be regulated, but rather which seeks only to limit the time, place, or manner of speech in a non-public forum is subject to a less exacting standard of scrutiny, and the fit between the ends sought and the means used to achieve such regulation must merely be “reasonable” for it to survive judicial scrutiny. See United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality opinion) (postal walkway is a non-public forum, and therefore reasonable, content-neutral regulation is constitutionally permissible). See also Thornburg v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988); Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949).
This case offers a slight variation upon the “strict scrutiny” formula, however, because the affected interests include not only the State‘s interest in regulating elections and the citizen‘s interest in free speech and expression, but also the citizen‘s right to vote without being harassed or intimidated. Thus, this case requires that the defendant‘s right to free speech be reconciled with separate concerns which also possess a constitutional dimension.14 Compare Sheppard v. Maxwell, 384 U.S. 333, 361-363, 86 S.Ct. 1507, 1521-1522, 16 L.Ed.2d 600 (1966) (Court balancing free speech rights of trial participant‘s against an accused‘s right to a fair trial). Fortunately, the United States Supreme Court has addressed this “clash of freedoms” in the case upon which all of the courts which previously entertained this dispute relied in reaching their respective decisions, namely Burson v. Freeman.15
B. Burson v. Freeman: The First Amendment and the Electoral Process
In Burson, the United States Supreme Court considered the constitutionality of a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of a polling place. As noted by the United States Fifth Circuit in its consideration of this case,16 the Burson Court‘s plurality found that the statute in question implicated several core First Amendment concerns, and accordingly subjected the statute to strict scrutiny. The result of this scrutiny was the conclusion that the Tennessee statute was enacted to foster a compelling state interest, namely “protecting voters from confusion and undue influence.” Burson, supra, ___ U.S. at ___, 112 S.Ct. at 1851. In addition, the plurality observed that “[w]hile we readily acknowledge that a law rarely survives (strict) scrutiny, an examination of the evolution of election reform, both in this country and abroad, demonstrates the necessity of restricted areas in or around polling places.” Burson, supra, at ___, 112 S.Ct. at 1852.
Finding that “[a] long history, a substantial consensus, and simple common sense show that some restricted zone around polling
The Burson plurality at this point, however, departed from the traditional strict scrutiny analysis. It chose, instead, what it termed a “modified `burden of proof‘” approach, focusing not upon alternative means of achieving the compelling legislative purpose, but rather whether the means chosen by the State “significantly impinged” upon constitutionally protected rights. Burson, supra, ___ U.S. at ___, 112 S.Ct. at 1857. The plurality made clear that this departure from precedent was “because a government has such a compelling interest in securing the right to vote freely” that “`Legislatures... should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively.‘” Id., at ___, ___, 112 S.Ct. at 1856, 1857, quoting Munro v. Socialist Workers Party, 479 U.S. 189, 195-196, 107 S.Ct. 533, 537-538, 93 L.Ed.2d 499 (1986). The plurality was also careful to specify the limited context in which this “modified `burden of proof‘” was to operate: “it applies only when the
Considering the statutory 100 foot proscription upon campaign advertising and voter solicitation before it, the Burson plurality declared, with little discussion, that “[w]e do not think that the minor geographic limitation prescribed by (the Tennessee legislature) constitutes such a significant impingement.” Burson, supra, at ___, 112 S.Ct. at 1857. The plurality did go on to note that “[a]t some measurable distance17 from the polls, of course, governmental regulation of vote solicitation could effectively become an impermissible burden.” Id. Confining its decision to the facts before it, the plurality concluded only that “it is sufficient to say that in establishing a 100-foot bоundary, Tennessee is on the constitutional side of the line.” Id.
C. Application of the Burson Plurality‘s Approach to LSA-R.S. 18:1462(A)(3) and (4)
There is no doubt that the activities engaged in by Schirmer constituted “political speech,” triggering the strict scrutiny analysis described supra. See Meyer v. Grant, 486 U.S. 414, 421-422, 108 S.Ct. 1886, 1892, 100 L.Ed.2d 425 (1988) (“the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as `core political
Like the Burson plurality, we believe that “some restricted zone is necessary in order to serve the States’ compelling interest in preventing voter intimidation and election fraud.” Burson, supra, at ___, 112 S.Ct. at 1855. This concern is at least as compelling in Louisiana, given what the Secretary of State, in his amicus curiae brief to this Court, terms our “unique and colorful political history, ... a history rife with election tampering, intimidation, and fraud.” The record before us contains testimony by a number of state officials attesting to the fact that the challenged statute‘s purpose is to create a protected zone wherein voters may exercise their right to vote free from unwanted interference or influence. Thus, like the United States Fifth Circuit, “[w]e conclude that Louisiana undoubtedly has a compelling interest in protecting its citizens’ right to vote,” and that a prohibitory statute somewhat like
Given this determination, we move to the question of whether the statute “significantly impinges” upon First Amendment freedoms. Were our review limited solely to the activities of Schirmer and the statute‘s effect “as applied,” this Court, in light of Burson, would have no difficulty in finding defendant Schirmer‘s activities legitimately proscribed. The record contains a joint stipulation of fact, noted supra, which includes an agreement between the parties that Schirmer was at all relevant times conducting his activities within 100 feet of a polling place. Although not directly related to matters on the ballot, Schirmer‘s conduct, given his close proximity to the polling place, certainly offered the possibility of disrupting the voting process and intimidating prospective voters.
The Burson plurality observed that within Tennessee‘s “minor geographic limitation” of 100 feet a comprehensive ban on any activity which threatened the integrity of the election process was permissible. The plurality‘s reasoning was that although a more narrowly drawn statute, one directly addressing attempts to interfere with the electoral process, might be an available alternative, “[i]ntimidation and interference laws fall short of serving a State‘s compelling interests because they `deal with only the most blatant and specific attempts’ to impede elections.”18 Burson, supra, ___ U.S. at ___, 112 S.Ct. at 1855, citing Buckley v. Valeo, 424 U.S. 1, 28, 96 S.Ct. 612, 639, 46 L.Ed.2d 659 (1976) (per curiam) (еxistence of bribery statute does not preclude need for limits on campaign contributions). Indeed, “undetected or less than blatant acts may nonetheless drive the voter away before remedial action can be taken.” Id. In light of the Burson plurality‘s approval of the 100 foot boundary employed by Tennessee, were the Louisiana statutory ban on all political speech limited to a 100 foot radius about polling places, we would likely reverse the ruling of the district court declaring the statute unconstitutional.19
However, Schirmer‘s motion to quash was granted by the court below not because
the (challenged statute) may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct. For in appraising a statute‘s inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar.21
This is not to say that a more narrowly drawn statute, perhaps one which addresses only advertising and voter solicitаtion relative to matters on the ballot, like the 100 foot Tennessee statute in Burson, supra, but one which operates within 600 feet of a polling place, would similarly fail to pass constitutional muster. After all, the more narrowly tailored a statute is, the less protected speech it reaches, and concomitantly the less it impinges upon First Amendment freedoms. The “modified `burden of proof‘” test
We stress that there is no mathematical formula which marks the zones of permissible and impermissible regulation of speech, no “`litmus-paper test’ that will separate valid from invalid restrictiоns.” Burson, supra, ___ U.S. at ___, 112 S.Ct. at 1857, quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983), quoting Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974). The constitutional problem with
D. The Constitutionality of LSA-R.S. 18:1462(A)(2)
Our decision to strike
This Court earlier visited this subsection of the statute in State v. Stilley, 416 So.2d 928 (La.1982), which also involved the prosecution of a defendant for refusing to leave the premises of a polling place after being instructed to do so. At the time of the Stilley decision,
The Legislature promptly acted to amend the statute. See La.Acts 1982, No. 778, § 1. The amended version of
The United States Supreme Court has “recognized ... that the more important aspect of the vagueness doctrine `is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.‘” Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1859, 75 L.Ed.2d 903 (1983), quoting Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). We have recognized the compelling interest which the State has in maintaining the orderliness and integrity of the election process, but “[a]s weighty as this concern is, ... it cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity.” Kolender, supra, 461 U.S. at 361, 103 S.Ct. at 1863 (citation omitted).24
We do not say that the Legislature cannot place limitations upon persons remaining in and around the environs of a polling place; in fact, we have already stated that such limitations are often necessary to the efficient functioning of the electoral process. We merely hold that the existence of such limitations cannot depend solely upon the whim and caprice of the official on-the-spot. See State v. Broom, 439 So.2d 357, 369 (La.1983) (plurality opinion). While we recognize that the State‘s Executive branch and district attorneys are accorded some discretion in the manner in which they enforce and prosecute criminal statutes, it is solely the province of the Legislature to designate the boundary between criminal and non-criminal conduct. See
E. LSA-R.S. 18:1462(A)(1)
Since Schirmer was not charged with its violation, we note that this decision in no way concerns the continued viability of
III. Summary
In summary, we find
JUDGEMENT OF THE DISTRICT COURT AFFIRMED.
MARCUS, J., dissents.
WATSON and KIMBALL, JJ., dissent and assign reasons.
DENNIS, J., concurs and assigns reasons.
WATSON, Justice, dissenting.
Schirmer v. Edwards, 2 F.3d 117 (5th Cir. 1993), U.S. cert. denied, ___ U.S. ___, 114 S.Ct. 1396, 128 L.Ed.2d 70, 62 U.S.L.W. 3657, held that
For the reasons assigned by the U.S. Fifth Circuit in Schirmer v. Edwards, I respectfully dissent.
KIMBALL, Justice, dissenting.
The constitutionality of
The majority now strikes as unconstitutional the very same statutory provisions considered by the Fifth Circuit in Schirmer v. Edwards, supra, and assertedly does so on federal constitutional grounds. However, I see no reason to depart from the federal appellate court‘s interpretation of federal constitutional law. Although decisions of intermediate federal appellate courts are not binding upon this court, they are persuasive, State v. White, 321 So.2d 491 (La.1975), and highly persuasive when based on interpretation of the United States Constitution. For these reasons, I respectfully dissent.
DENNIS, Justice, concurring.
I respectfully concur.
The defendant challenged the constitutionality of
ON REHEARING
Rehearing denied.
WATSON, J., concurs and assigns reasons.
MARCUS, KIMBALL and VICTORY, JJ., would grant a rehearing.
JOHNSON, J., not on panel.
WATSON, Justice, concurring in denial of rehearing.
On further reflection, and after considering the effect, particularly in urban areas, of a 600-foot (two football fields) prohibition against any type of political speech, I have concluded there is an unreasonable impingement on the United States and the Louisiana Constitutions. Therefore, I concur in the denial of a rehearing.