NO. 82-139 INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

DUANE E. DORN, individually and asrepresentative for all initiative petitioners, Plaintiffs and Appellants,

VS. BOARD OF TRUSTEES OF BILLINGS SCHOOL DISTRICT #2, Yellowstone County; VIRGIL POORE, Superintendant of School District #2, etal., Defendants and Respondents.

Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone Honorable William J. Speare, Judge presiding. Counsel of Record: For Appellants: Jenkins Law Firm, Helena, Montana Kelly Jenkins argued, Helena, Montana Patten & Renz, Billings, Montana For Respondents: Harold F. Hanser, County Attorney, Billings, Montana David Hoefer argued, Deputy County Attorney, Billings

Montana Felt & Martin, Billings, Montana Laurence R. Martin argued and Sol Lovas argued, Billings,

Montana For Amicus Curiae: T. G. Speare, Billings, Montana

submitted: December 12, 1982 ~ecided:March 17, 1983 Filed:

- CLerkMr. Justice Frank B. Morrison, Jr. delivered the Opinion of theCourt.

This appeal results from a Thirteenth JudicialDistrict 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 constitutionalrights. 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'spolicy of exclusionviolates that right. Appellant asserts his collection activity within school buildings used aspolling places isprotected 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 schooldistrictdenied him permission to enter the school building for thatpurpose. On November 3, 1981, over the protests of the Rimrock School principal, appellant entered the school building. In the hallway appellantapproached two peoplewhowere on theirway to vote in the gymnasium where the voting booths were located. The voters signed the initiativepetition after it

was explained to them. The principal then returned to admonish appellant that respondent Poore intended tohave him ejected fromthebuildingby thepolice. Appellant remained. Shortly thereafter, respondent Poore and police arrived and requested appellant leave the premises. Under threat of arrest appellant left thebuilding. Appellant, later that day, returned to the school building with several other persons to solicit signatures. Appellant and associatesentered the building under authority of aThirteenth Judicial District Court temporary restraining orderenjoining the school district from preventing appellant from soliciting signatures within school buildings being used

aspolling places. Pursuant to party agreement and court approval,hearing $ on the temporaryordera.ndorder to show causewas 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 appellantDorn to representa class of personswho collect or intend to collect initiativepetition signatures at polling places on election days. The causewas 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 signatureswithin itsbuildings while they arebeing used aspolling 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 pollingplaces is a reasonable regulation of materially disruptiveconduct. 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 doesnotviolate any rightof theplaintiffs 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.nytime 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 electionprocess."

We hereafter detail.theagreed 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 obtainpermission 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. Thispolicy hasbeen interpreted toprohibit 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 itspolicy 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. Thosewho 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 signatureson 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 signatureswere sought were ballot issues at the time of solicitation. The conduct and status of individual solicitors varies in that some arepaid and othersvolunteer; some arepeaceful and others are not. It is agreed that each solicitor explains the initiativepetition to the voter in the process of requesting his or her signature. When attempts topersuade 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 schoolbuldings; were thepolicy 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 schooldistrictacknowledges themain 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 solicitationpolicy. The District Court found that the school district's reasons for prohibiting indoor solicitation were valid

concernsand fully justified itspolicy. 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 interferencewith school functioning if initiative petitioners were permitted inside school buildings. Finally the District Court found that the process of soliciting initiative petition signatures is notpart of the electionprocess. ISSUE ONE: Whether the school district's policyviolates section 13-35-218, MCA? Appellant contends the school district's policyviolates section 13-35-218(5),MCA, because itprohibits solicitationwhich otherwisewould 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 solicitationof 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 solicitationof avoter within the room wherevotes 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 pollingplace." 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 schooldistrict'spolicymustbe permanently enjoined because it thwarts that intent. TheCourt isnotpersuadedby appellant'sargument. Its function in construing and applying statutes is to effect legislativeintent. Theprimary tool forascertaining intent is the plain meaning of thewords used. The Court properly refers to legislative history only when intent cannot be determined from the content of the statute. The instant statutedoes notnecessitate suchan 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 ofaccess to and from polling places. In no way does its wording constituteaguarantee of access to thepolling place to those persons whose manner of solicitation effects no interference or obstruction. Whatever the extent of appellant's right to collect initiativepetition signatures, its origin is not in section 13-35-218(5), MCA. The most that can be read from thewords chosenby 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 notviolate that statute. ISSUETWO: Whether the school district's policy violates appellant's federal and state constitutional rights of free 

### -- speech,assembly and petition 

### - or initiative? Appellant asserts his right to collect signatures for initiative petitions is guaranteed by equivalent but independent provisions of the state and federalconstitution. 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'sactivities. TheFirst Amendment was fashioned to embrace precisely what the initiative process promotes: "[the]unfettered interchangeof ideas for the bringing aboutof political and social changes desiredby thepeople." 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)162Mont. 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 schoolbuildingsbeing used as polling places. First Amendment protection does not assure appellant's activities will be beyond restriction,as theFirstAmendment 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) 452U.S. 640, 101S.Ct. 2559, 69 L.Ed.2d 298 (statefair ruleprohibiting saleordistribution of any merchandise including printed or written material except from fixed location); Coxv. 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 FirstAmendment rights

onproperty owned by the government "topreserve 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, 17Ij.Ed.2d 149 (criminaltrespass 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 facilitydoes 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)418U.S. 298, 94 S.Ct. 2714, 41L.Ed.2d 770 (municipalpolicy prohibiting paid political advertising in itsmass 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, governmentmay 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)408U.S. 92,92S.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 (7thCir. 1981) 652 F.2d 1286 prob. juris. noted, 454 U.S. 1140; Gay Students Organizationv. Bonner (1stCir. 1974) 509 F.2d 652; National SocialistWhite People's Party v. Ringers (4thCir. 1973) 473 F.2d 1010; Hennesseyv. Independent School District No. 4 (Okla.1976) 552 P.2d 1141. Likewise, when property owned or controlled by the government is apublic forum, fewrestrictions on its use forexercise 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 656F.2d 1175and 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 schooldistrict'spolicy constitutes reasonable regulationof expressiveactivity in school buildingson electiondays. 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 pertinentpart, 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 sessionor 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. TheUnited States SupremeCourtupheld the ordinanceand reiterated that reasonable "time, place, and manner" regulations on the right touse apublic place forexpressiveactivity, may be necessary to further significant governmental interests. The Court explained: "The nature of aplace, 'thepattern 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. The crucial question is whether the manner of 

## - expression is basical5 incompatible with the normal actizty 

### - of 

### - a particular placeat? 

### - particular time 

# . . [Iln assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulationmust be narrowly tailored to further the State's legitimate interest 

# . . Free expression 'must not, in the guise of regulation, be abridged or denied.

### '" (citationsand footnotes omitted) 408 U.S. at 116-117, 92 S.Ct. at 2303-2304. (emphasisadded). In upholding the ordinance, the Court emphasized that: "[the] antinoise ordinance goes no further than Tinker [v.DesMoines IndependentCommunity School District (1969) 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 7311 says a municipalitymay go toprevent 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. 

### -- Far from having an impermissibly broad prophylatic ordinance, ~ozfordpunishes only conduct which disrupts 

### - or 

### - is about to disrupt normal school activities." 408 U.S. 119, 92 S.Ct. at 2305. (emphasisadded). Tinker v. Des Moines Independent Community School District, supra, struck down a school policy of suspending studentswho 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 accomodatingFirstAmendment rightswith the "special characteristicsof the school environment,' 393 U.S. at 506, 89 S.Ct. at 736, the United States Supreme Court recognizedthat "'wide exposure to

# . . . robust exchange of ideas'" is "an important part of the educationalprocess" 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 schooldistrict'spolicy in light of Grayned and Tinker. One simply cannot equatepublic schools with military reservations or jail enclosures and conclude that the uses to which they are dedicated cannotbe 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.ctivitiesmay 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 ormaterial interferencewith normal school activities,Grayned, 408 U.S. at 118, 92S.Ct. at 2304; "undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedomof expression". Tinker, 393U.S. at 508, 89 S.Ct. at 737. Moreover, adecisionas towhether amanner of expression is incompatible,must be on an individualbasis, 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 inGrayned. 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 objectivewere not tried. Unlike the ordinance upheld in Grayned, the school district'spolicy applies throughout theday, irrespective of whether or not classes are in session, and reaches all solicitors,irrespectiveofwhether ornot 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 fearof 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 ishereby declared tob

We concur:

Chief Justice

JusticesMr. 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 conclusionwas reached. However, I disagreewith 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 toby allparties states inpertinentpart: "21. Exercising the right tovote 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 

### - and solicitors have occurred, sometimes precipated 

## 2 voters 

### - and sometimesprecipitated solicitors. Noise 

### -- in the hallways distracts 

### - the students, impairs their concentration. lowers their level of functionina.

d. 

## and classroom disciplineand teachin effectiveness. Under present ~chx 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 factsestablish something significantly greater than an "undifferentiated fear of disruption." In view of these stipulated and agreed facts, it is reasonable to concludethat the schooldistrictproperly could apply its policies to thoseperiods of timewhen classes are in session and studentswould be adversely affected. Iwould thereforeapprove 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 ordiversion 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 schoolboard. Simply stated,the present policy is toobroad. My purpose is to emphasize that a policy of this type may be adopted if it is properly limited in the manner described in themajority opinion.

Mr. Chief JusticeFrank I. Haswell: Iconcur in the foregoing separate opinion ofMr. Justice Fred J. Weber.