Tempelman v. Philbrick ( 1994 )

USCA1 Opinion

          December 14, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________


        No. 94-1494 

                                  ANDREW TEMPELMAN,

                                Plaintiff, Appellant,

                                          v.

                                  ROBERT PHILBRICK,

                                 Defendant, Appellee.


                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE


                    [Hon. Paul J. Barbadoro, U.S. District Judge]
___________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
______________

                                 ____________________

            Andrew Tempelman on brief pro se.
________________
            Mark  D.  Wiseman, Cleveland,  Waters  and  Bass, P.A.,  Warren C.
_________________  ___________________________________   _________
        Nighswander, and Sulloway and Hollis on brief for appellee.
___________      ___________________


                                 ____________________


                                 ____________________















                 Per Curiam.  The judgment is affirmed substantially  for
__________

            the reasons recited  by the  district court  in its  decision

            dated  March 28, 1994.   It is worth  emphasizing what is not
___

            presented by the instant appeal.   Plaintiff's constitutional

            argument  rests solely  on the Petition  Clause of  the First

            Amendment; he is not alleging  that New Hampshire law creates

            a  liberty interest entitling him, as  a matter of procedural

            due  process, to have his  petition articles submitted to the

            voters at the school district meeting or  the subsequent town

            meeting.  Cf. Montero  v. Meyer, 13 F.3d 1444,  1446-50 (10th
___ _______     _____

            Cir.)  (finding  no  liberty  interest  conferring  right  to

            participate in drafting of ballot initiative), cert.  denied,
_____________

            115 S.  Ct. 231 (1994).   Nor are  we faced with  a situation

            where  the  moderator  (or  for  that  matter  the  board  of

            selectmen or the  school board) has elected  to withhold such

            articles entirely from the voters.  

                 Instead,  the  moderator in  each  instance  here, after

            ruling that  plaintiff's articles were contrary  to state law

            and thus  would not  be voted  upon,  and after  entertaining

            argument  from  plaintiff,  called  for  a  vote  as  to  the

            propriety of this ruling.  It was the voters themselves--"the

            very  governmental   bodies  to   whom  the   petitions  were

            addressed,"  as  the  district   court  noted--who  made  the

            ultimate  decision not  to consider  the articles  because of

            their perceived  invalidity.   Plaintiff  thus  succeeded  in

            "petitioning" the voters; he simply failed to persuade  them.

            Under  these  circumstances, it  is  apparent  that no  First

            Amendment violation occurred.  See, e.g., Minnesota Board for
___  ____  ___________________


















            Community Colleges v.  Knight, 465 U.S.  271, 288 (1984)  ("A
__________________     ______

            person's  right to  speak  is not  infringed when  government

            simply  ignores  that  person  while  listening  to others.")

            (footnote omitted); San Filippo  v. Bongiovanni, 30 F.3d 424,
___________     ___________

            437 (3d Cir. 1994) ("the petition clause does not require the

            government  to  respond  to   every  communication  that  the

            communicator  may  denominate a  petition");  Cecelia Packing
_______________

            Corp. v. United States Dep't of Agriculture, 10 F.3d 616, 623
_____    __________________________________

            (9th Cir. 1993) ("The First Amendment guarantees the right to

            participate in  the political process; it  does not guarantee

            political success.") (quoting Badham v. Eu, 694 F. Supp. 664,
______    __

            675 (N.D. Cal. 1988), aff'd, 488 U.S. 1024 (1989)).
_____

                 For these  reasons, as well as the  others enumerated by

            the  district  court,  the  judgment  dismissing  plaintiff's

            federal claims on the merits (and dismissing his state claims

            without prejudice) is hereby

                 Affirmed.
_________



















                                         -3-