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Harrell v. Southern Illinois University

OPINION FILED NOVEMBER 14, 1983.

ROBERT HARRELL, PLAINTIFF-APPELLANT,

v.

SOUTHERN ILLINOIS UNIVERSITY ET AL, DEFENDANTS-APPELLEES — (LISA HAINES, INTERVENING PLAINTIFF-APPELLANT).



Appeal from the Circuit Court of Jackson County; the Hon. David Watt, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Appellants, Robert Harrell, a political candidate, and Lisa Haines, a student, appeal from the judgment of the circuit court of Jackson County denying appellants injunctive relief from enforcement of Southern Illinois University at Carbondale (SIU-C) Housing Procedure 1304, which establishes the period during which political candidates may canvass door-to-door in university housing. Harrell and Haines argue that enforcement of 1304 is an impermissible infringement of their rights of free expression and association guaranteed by the first amendment (U.S. Const., amend. I). In his capacity as county clerk, Harrell appeals from that portion of the judgment which found voter registrars to be exempt from procedure 1304 and enjoined SIU-C from barring their registration efforts in university housing during a period of 60 to 28 days immediately preceding an election. He contends that any university restrictions on solicitation in university housing are in conflict with the State's policy of facilitating voter registration.

Five thousand students live in University Housing at SIU-C. They are grouped according to their marital status. Married students live in apartments with private entrances. They do not have a common dining or recreational facility. Generally, single students live two to a room in residence halls, three of which are high rise buildings containing 1,200 rooms. Rooms in single-student housing are arranged along common hallways, every two rooms sharing a bathroom. In some residences single students share community bathrooms. The main access to high-rise buildings is the front door, which is unlocked from 7 a.m. to 11 p.m. From 3 p.m. until 11 p.m. a desk clerk supervises activities in the common areas and provides information or help to those who request it. After 11 p.m. the door is locked and a guard is on duty. In other residence halls the doors are locked 24 hours a day. All residents of single-student housing have round-the-clock access to their building and rooms by showing proper identification. They are permitted to invite guests to their rooms whenever they wish.

Dining facilities, administrative offices, the mail room, snack bar and recreational facilities are located in buildings adjacent to the dormitories. These buildings are open seven days a week from 8:30 a.m. to 1 a.m. whenever the university is in session. Under the university's general solicitation policy, registrars will be provided tables and chairs in the public areas upon their request. They may register voters during any period when these buildings are open and the Election Code permits registration. In family housing where there are no such common areas, registrars are permitted door-to-door access during reasonable hours. At no time may registrars solicit door-to-door in single-student housing.

In October 1976, SIU-C adopted Housing Procedure 1304 to govern door-to-door canvassing by political candidates of students living in both single-student and married housing. The procedure was amended in 1982, but the provisions at issue here were not substantially changed.

The University described the adoption of procedure 1304 as an effort "to delineate acceptable methods by which * * * contact [between political candidates and students living in university housing] can be made without violating the rights of the student residents to accept or refuse." Those in charge of University Housing were expected to exercise care "to insure that student residents do not become a captive audience for any political group, but have the opportunity to participate in political solicitation if they desire." In addition to protecting student privacy and freedom to participate in political solicitation, the directors of University Housing were to establish rules "to provide fair and equitable political canvassing opportunities for all candidates for public office in any specific election."

The "Implementing Procedures" permitted candidates and their representatives to canvass door-to-door to single-student housing only during "the 30-day period (Monday through Friday, 6:00 p.m. to 10:00 p.m. — Saturday and Sunday excluded) immediately before a primary or regular election." In family housing canvassers could operate in the same periods "during reasonable hours." All candidates were automatically entitled to the required canvassing permit, and their representatives were granted permits upon request. Area student governments were allowed to sponsor meetings with candidates or their representatives at any time. Candidates and representatives could attend such meetings without a canvassing permit. Political advertisements were restricted to "the bulletin boards of the commons building in each of the housing areas desired."

In 1982, Harrell, then seeking re-election to the office of county clerk, was evicted from university housing for canvassing door-to-door in a residence for single students before the 30-day period. At the time he was evicted, Harrell had the required canvassing permit. As the incumbent county clerk, Harrell was also county registrar in "full charge and control of the registration of voters * * *." Ill. Rev. Stat. 1981, ch. 46, par. 4-4.

On September 24, 1982, following his expulsion from university housing, Harrell filed his complaint seeking equitable relief from the enforcement of procedure 1304 because it (1) unreasonably restricted the efforts of registrars to register single students as voters and thereby deprived the single students of "their right of free association" and "rights and privileges relating to registration to vote," (2) "[l]imit[ed] the fundamental right to vote of the single student without a showing of a compelling governmental interest," and (3) "[a]rbitrarily denie[d] equal access by deputy registrars to the single student voter in University housing which access is afforded all other persons." Harrell also complained that deputy registrars were improperly prevented from contacting single students because 1304 did not permit access until 30 days before the election and Illinois law prohibited registration within 28 days of an election (Ill. Rev. Stat. 1981, ch. 46, par. 4-6), thus limiting a registrar's effective solicitation of students in university housing to two days. In 1982, one of those two days was Sunday on which no access was permitted, so that registrars had only one day to canvass door-to-door in the dormitories. After argument by attorneys representing SIU-C and Harrell, both as county clerk and political candidate, the court granted a temporary restraining order barring SIU-C from restricting the activity of the registrars in university housing. The court limited the canvassing by registrars to the hours of 10 a.m. to 10 p.m. from September 25, 1982, to October 5. Denying Harrell's request that he, as a candidate, be freed from the constraints of procedure 1304, the court set the matter for a full hearing on October 5, 1982.

On October 4, 1982, Lisa Haines, a student at SIU-C, identifying herself as a potential voter in Jackson County, petitioned to intervene and filed her complaint alleging that application of procedure 1304 to registrars and candidates infringed her right to vote and to associate freely with political representatives. There is no evidence in the record that Haines testified or presented evidence in support of her allegations. Responding to the joint complaint, SIU-C admitted that its policy was to evict candidates violating procedure 1304 but denied all other allegations, specifically denying that 1304 applied to registrars.

On October 26, 1983, the trial court heard argument and received evidence on the issue of whether SIU-C should be permanently enjoined from enforcing procedure 1304 and from barring registrars from door-to-door solicitation in university housing. Samuel Rinella, director of housing at SIU-C, was the only witness at the October 26 hearing. The court denied each side's motion for directed verdict. In its order of November 17, 1982, the court found that 1304 did not apply to registrars and deputy registrars and that allowing them access to students would "not unnecessarily affect or disturb university policy or substantially interfere with the opportunity of other students to obtain an education." The university was therefore ordered to permit registrars access to university housing during the "period from 45 days to 28 days immediately preceding the election." Finding that 1304 restricted the plaintiffs' constitutional rights, the court nevertheless denied their request for a permanent injunction against the enforcement of 1304. Denial was based on the finding that in light of the nature of university housing, procedure 1304 was "a reasonable restraint based on the time, manner and place of the First Amendment activity in question and [was] not a regulation of the content of speech."

On December 16, 1982, the appellants moved the court to reconsider its order of November 17, 1982. Appellants urged the court to recognize that it had erred in proceeding to the issue of the reasonableness of procedure 1304 before the university had carried its burden of providing that the housing regulation was necessary to protect a compelling State interest and was the least restrictive means of protection. The same argument was made in urging the court to reconsider the propriety of its findings "that place any restrictions on registrars or deputy registrars." After reviewing memoranda submitted by counsel and hearing argument, the court denied the motion to reconsider but modified the permanent injunction to require SIU-C to allow registrars to solicit door-to-door during a period 60 days to 28 days before an election.

On February 14, 1983, Harrell and Haines appealed from the trial court's denial of a permanent injunction against the enforcement of procedure 1304 and from the denial of the appellants' motion to reconsider that decision as they pertain to Harrell as a political candidate and to Haines. Harrell, as county clerk, filed a separate notice of appeal on February 17, 1983, in which he sought relief from a permanent injunction giving registrars access to single student housing only during the period between 60 and 28 days prior to an election.

The appeal by Harrell and Haines asks us to decide whether it was error for the trial court to decide that 1304 was a permissible restriction on appellants' rights of free speech and association because it was a reasonable restraint on the time, manner, and place of political ...


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