Templeman v . Philbrick CV-92-409-B 03/28/94 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Andrew Tempelman

v. Civil N o . 92-409-B Robert Philbrick

O R D E R

In this action, Andrew Tempelman alleges that Robert

Philbrick, the Milford Town Moderator, illegally interfered with

Tempelman's attempt to obtain secret ballot votes on several

warrant articles at Milford's annual school district and town

meetings. Tempelman has brought federal claims alleging

violations of

,

and 2 4 2 , and

. Tempelman has also invoked the court's

supplemental jurisdiction in an effort to raise several state law

claims. Philbrick now moves for summary judgment pursuant to

Fed. R. Civ. P. 56(a). For the following reasons, I grant

Philbrick's motion.

I . FACTS

In February 1992, Tempelman submitted three articles for

insertion into the Milford School District Warrant. The first

and second articles exempted "seniors" and "non-users" from having to pay the school portion of the local property tax. The

third article sought to allow any Milford landowner to avoid

having to pay taxes for any line item in the school budget by

voting against that line item at the School District Meeting.

The record shows that Tempelman complied with the timing and

signature requirements of N.H. Rev. Stat. Ann. 197:6.

On February 1 0 , 1992, Damon Russell, Superintendent of the

Milford School District, requested advice from Barbara Reid,

Assistant Commissioner for the Department of Revenue

Administration, regarding the legality of Tempelman's proposed

warrant articles. Reid advised Russell that the proposed

articles were inconsistent with New Hampshire law and, therefore,

could not be implemented by a local school district in the

absence of legislative authority. Nevertheless, Reid advised

Russell that the school board "must" include the articles in the school district warrant if it found that Tempelman had complied

with the petition requirements of R.S.A. 197:6. As a result, the

proposed articles were included in the school district warrant.

Prior to the school district meeting on March 7 , 1992,

Philbrick was notified of the inclusion of Tempelman's three

additional articles in the warrant. Philbrick was also apprised

of the advice given by Assistant Commissioner Reid to

2 Superintendent Russell. In addition, Philbrick sought the advice

of William Drescher, Town Counsel, who agreed that the articles

were illegal. At the meeting, Philbrick informed the assembly of

voters of this information and he then declared the articles to

be illegal. Philbrick then called for a vote on his ruling. He

explained to the assembly that if it upheld his ruling, the

meeting would take no further action on the three warrant

articles; and that if the assembly overruled his decision, the

meeting would address each of the three articles in turn. The

ballot was taken and the assembly upheld Philbrick's ruling by a

vote of 596 to 9 1 .

Tempelman also submitted two articles for inclusion in the

Annual Town Meeting Warrant. The first article would have

allowed Milford landowners to avoid having to pay taxes for any

line item in the Town's budget by voting against that line item. The second article sought to limit the legal fees of Town Counsel

to $10,000 per year. The articles complied with N.H. Rev. Stat.

Ann. 39:3 and, therefore, were included in the warrant.

On February 1 2 , 1992, Lee Mayhew, the Town Administrator,

requested Attorney Drescher's opinion as to the legality of the

two warrant articles. Drescher advised Mayhew that the first

article was illegal and beyond the authority of a town meeting to

3 enact. With respect to the second article, Drescher informed

Mayhew that it was the proper subject for a town meeting vote.

Prior to the March 1 0 , 1992 town meeting, Philbrick was

informed of Tempelman's two warrant articles. He was also

advised of Drescher's opinion that the first article was illegal

and beyond the town meeting's authority. At the town meeting,

Philbrick informed the assembly of this information and ruled

that the first article was off the warrant. Philbrick then

stated that because Tempelman had lawfully petitioned for a

secret ballot on the article, Tempelman would either have to

withdraw his petition, or a vote would have to be taken on

Philbrick's ruling. Initially, Tempelman refused to withdraw the

article, but ultimately he agreed to withdraw it based on

Philbrick's ruling. Nevertheless, Philbrick called for a vote on

his ruling. The vote was taken and the assembly upheld the ruling by a tally of 378 to eight. As a result, Philbrick

declared the article off the warrant and proceeded on to other

matters.

When Philbrick presented the second article, he told the

assembly that the petition had the requisite number of signatures

to require the town to vote by ballot on the article. The

moderator requested that one of the petitioners withdraw their

4 signature so that a ballot would not have to be taken. Sharon

Holcombe agreed to withdraw her signature. The article was then

put to a voice vote and unanimously defeated.

I I . DISCUSSION

A. Arguments

Tempelman raises four federal claims. His first claim is

that he is entitled to damages pursuant to

because Philbrick's rulings on the warrant articles violated his

First Amendment right to petition government for redress of

grievances. Tempelman's second and third claims allege a

conspiracy to deprive him of his civil rights and an actual

deprivation of those rights under color of law, in violation of

and 242. Tempelman's final argument is that Philbrick violated provisions of the Racketeer Influenced and

Corrupt Organization Act (RICO),

, by engaging in

a pattern of racketeering activity.

B. Standard of Review

The standard for granting summary judgment is well settled.

Under Federal Rule of Civil Procedure 56(c), summary judgment is

rendered if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

5 affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." By its very terms, this standard provides

that the mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no

genuine issue of material fact. Oliver v . Digital Equipment

Corp.,

(1st Cir. 1988) (quoting Anderson v .

Liberty Lobby, Inc.,

4 2 ,

(1986)).

The First Circuit has defined "genuine issue of material fact" as

that which "might affect the outcome of the suit under the

governing law." Rossy v . Roche Products, Inc.,

2 1 , 624

(1st Cir. 1989) (citations omitted). The party who moves for

summary judgment bears the burden of showing that there is no

genuine dispute concerning facts which are material to the issues raised in the pleadings. General Office Products Corp. v . A.M.

Capen's Sons, Inc.,

(1st Cir. 1986). The

opposing party cannot defeat summary judgment by mere allegations

but must produce "sufficient evidence supporting the claimed

factual dispute . . . to require a jury or judge to resolve the

parties differing versions of the truth at trial."

(quoting

Hahn v . Sargent,

6 1 , 464 (1st Cir. 1975), cert. denied,

6

(citation omitted).

C. Section 1983 Claims

It is beyond question that "the right of the people . . . to

petition the government for a redress of grievances" is a vital

aspect of our constitutional democracy. See generally, McDonald

v . Smith,

8 2 , 483 (1985). Nevertheless, this important

right has never been construed to include a corresponding duty on

the part of the government to act on a petition once it is

received. Minnesota State Board for Community Colleges v .

Knight,

(1984) ("A person's right to speak is not

infringed when government simply ignores that person while

listening to others."). See also, Stengel v . Columbus,

(S.D. Ohio 1988); Gordon v . Heimann,

(N.D. G a . 1980).

In this case, Tempelman sought to petition both the school district meeting and the town meeting. In both cases, his

petitions were considered by the very governmental bodies to whom

the petitions were addressed. He has no right under the First

Amendment's petition clause to compel a governmental body to act

on a request which that body determines is unlawful. Nor does

the First Amendment guarantee a citizen an opportunity to have

his or her petition acted on either by a secret ballot or without

7 the benefit of advice from other persons concerning the legality

of the matters addressed in the petition. If Tempelman has a

basis for relief in this case, it exists as a matter of state

law.

D. Section 241 and 242 Claims

and 242 are criminal statutes that make no

provision for private causes of action. As a result, Tempelman's

reliance on those provisions is misplaced. See, Aldabe v .

Aldabe,

(9th Cir. 1980); Powers v Karen,

(E.D.N.Y. 1991); Lovelace v . Whitney,

(N.D. Ill. 1988); Christian Populist Party v .

Secretary of State,

(E.D. Ark. 1987);

Fiorino v . Turner,

6 2 , 963 (D. Mass. 1979).

Accordingly, these claims must be dismissed.

E. RICO Claim Tempelman bases his civil RICO claim on the contention that

Philbrick engaged in a pattern of malicious, dictatorial and

vengeful activity in order to publicly humiliate him and deter

him from suggesting better ways to raise public revenues. After

reviewing the record in a light most favorable to Tempelman, I

find that he has failed to demonstrate that he has a triable RICO

claim.

8 The First Circuit Court of Appeals has stated that

"particular care is required [in considering civil RICO claims]

to balance the liberality of the Civil Rules with the necessity

of preventing abusive or vexatious treatment of defendants."

Miranda v . Ponce Federal Bank,

1 , 44 (1st Cir. 1991).

Accordingly, a civil RICO plaintiff must demonstrate, in response

to a properly supported motion for summary judgment, that a

triable issue exists as to whether the defendant participated in

"specific instances of racketeering activity within the realm of

the RICO statute." See

(discussing standards for pleading a

civil RICO claim). The term "racketeering activity" encompasses

a variety of specific types of criminal activity. See

(1). However, the record is devoid of any evidence

suggesting that Philbrick committed any crimes qualifying under

this definition. F. Pendent State Claims

Having disposed of Tempelman's federal claims, I decline to

exercise my discretion to retain supplemental jurisdiction over

the remaining state claims.

(C)(3); Blake v .

Dickason,

(10th Cir. 1993). Accordingly, these

claims are dismissed without prejudice.

9 CONCLUSION

Based on the foregoing, Robert Philbrick's motion for

summary judgment (document n o . 41) is granted insofar as the

motion applies to Tempelman's federal claims. Tempelman's

pendent state claims are dismissed without prejudice.

The clerk is instructed to issue judgment for the defendant

in accordance with this order.

SO ORDERED.

Paul Barbadoro United States District Judge

March 2 8 , 1994

cc: Andrew Tempelman Mark D. Wiseman, Esq. Warren C . Nighswander, Esq.

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