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Riemers v. State of North Dakota for the University of North Dakota

July 9, 2009

ROLAND C. RIEMERS, PLAINTIFF AND APPELLANT
v.
STATE OF NORTH DAKOTA FOR THE UNIVERSITY OF NORTH DAKOTA, DEFENDANT AND APPELLEE



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Debbie Gordon Kleven, Judge.

The opinion of the court was delivered by: Maring, Justice.

AFFIRMED.

[¶1] Roland Riemers appeals a district court's summary judgment in favor of the State of North Dakota for the University of North Dakota. We affirm, concluding the district court did not err in granting summary judgment in favor of the State.

I.

[¶2] Riemers sued the State of North Dakota in September 2006, alleging the University denied him his right to audit law school classes and violated his First Amendment rights by denying his rights to free speech and to collect political signatures on the University campus. The State moved to dismiss, arguing Riemers had not stated a claim upon which relief could be granted. The district court granted the State's motion on January 5, 2007. Riemers appealed. The North Dakota Court of Appeals affirmed the district court's dismissal of Riemers' claim that he had a legal right to audit classes, but reversed the district court's order on Riemers' free speech claim and remanded for the district court to treat the motion as one for summary judgment. Riemers v. State ex rel. University of North Dakota, 2007 ND App 4, ¶ 11, 739 N.W.2d 248. On June 20, 2008, the State moved for summary judgment. Riemers replied in opposition to the State's motion for summary judgment on August 7, 2008. The State replied to Riemers' opposition to the State's motion for summary judgment. The parties submitted a joint stipulation of facts to the district court. The joint stipulation of facts explains the underlying facts that led to Riemers' lawsuit and provides, in relevant part:

7. During August 2006, Roland C. Riemers (Riemers) and a few other individuals were gathering signatures for the Family Law Reform Initiative outside the Memorial Union. To solicit signatures the petitioners set up a small table off the sidewalk outside the Memorial Union entrance. According to Riemers, the petitioners had not requested permission to solicit signatures.

8. Near the end of August 2006, Riemers alleges he received a phone call from an unidentified University employee who informed Riemers that he needed to renew his permission to solicit signatures if the petitioners were going to do more petitioning in September. On September 11, 2006, the University received a request from Riemers to collect signatures. The request stated:

This is to notify you that we would like to have 1 to 5 people collecting signatures at the UND for the month of September. We would like to be inside common areas of buildings, outside sidewalks & lawns, and in housing area. We understand, & agree not to disrupt classes or the normal business operations of the University.

Ex. 5.

9. By memorandum dated September 15, 2006, the University granted Riemers "official permission" to collect signatures "inside common areas of buildings, sidewalks, and lawns at the University of North Dakota campus, during the month of September 2006." Ex. 6. The memorandum informed Riemers that "[p]ermission to collect signatures inside housing areas must be obtained by the Housing Office." Id. The memorandum then quoted the Policy on Petitions from the Code of Student Life. Id.

10. By memorandum dated September 29, 2006, Riemers requested "an extension of the September 15 authorization for the Family Law Reform Initiative to continue collecting petition signatures on the UND Campus through the month of October, under the same previous terms and conditions." Ex. 7.

11. By letter dated October 5, 2006, the University granted Riemers an extension to solicit signatures. Ex. 8. The letter also informed Riemers of two complaints regarding the petitioners, and that if the petitioners violate Section 5-7 of the Code of Student Life, the permission to solicit signatures will be revoked and the petitioners will be asked to leave campus. Id.

12. Richard Riemers was one of the petitioners collecting signatures for the Family Law Reform Initiative. Richard Riemers began soliciting signatures door to door at student apartments. At the second apartment complex, a resident informed Richard Riemers that he needed to get permission from the Housing Office to solicit signatures. The next day Richard Riemers and his father, Roland Riemers, went to the Housing Office and completed an Apartment Solicitation Form. Ex. 9. Approval for Richard Riemers to solicit signatures was granted the next day. Id. After receiving the permission form, Richard Riemers solicited signatures at student apartments without incident.

13. At no time did Richard Riemers attempt to solicit at student dorms. Student dorms are distinguished from student apartments in that student apartment doors are open to the outside, while student dorms require a pass key to get into the building and access the individual dorm rooms.

14. Roland Riemers never tried to solicit signatures at student apartments or student dorms.

15. Salvecion Hufnagel (Hufnagel) was another petitioner collecting signatures for the Family Law Reform Initiative. Riemers asked Hufnagel to solicit signatures in the Memorial Union. When Hufnagel was in the entryway of the Memorial Union, a student manager told Ms. Hufnagel that she was not supposed to be there. Because she did not have permission to solicit in the Memorial Union, Hufnagel left the Memorial Union without further discussion. The Memorial Union employee did not threaten Hufnagel in anyway.

16. After Roland Riemers obtained general permission to solicit signatures on the UND campus, Hufnagel went into the Memorial Union and began soliciting signatures. Hufnagel did not have permission from the Memorial Union to solicit signatures in the Memorial Union. Furthermore, Hufnagel was not behind a table when attempting to solicit signatures at the Memorial Union. A Memorial Union employee approached Hufnagel and told her she was not supposed to be there. Hufnagel informed the Memorial Union employee that she had permission papers. The Memorial Union employee asked to see the permission papers. Rather than show the Memorial Union employee the permission papers, Hufnagel left the Memorial Union without further discussion. The Memorial Union employee did not threaten Hufnagel in anyway.

17. After Hufnagel left the Memorial Union, Riemers went into the Memorial Union and talked to a student manager.... Riemers and the University disagree regarding the substance of the communications between Riemers and the student manager. According to Riemers, the student manager told Riemers that petitioners could not collect signatures inside the Memorial Union because the Memorial Union had received two complaints. Contrary to Riemers' recollection, the student manager reports that he explained to and showed to Riemers the solicitation policy, and that he explained to Riemers that solicitors could not approach individuals in the traffic areas but needed to stay behind the tables. The student manager reports he told Riemers that solicitors could not solicit signatures in the Memorial Union if they were not willing to stay behind the tables. According to the student manager, at no time did he tell Riemers that Riemers or other petitioners had to leave the Memorial Union. Riemers continued to gather signatures on UND campus after his conversation with the student manager.

18. At no time did Riemers, Richard Riemers, or Hufnagel use the appeal procedure in subsection 5-3 of the Code of Student Life. Ex. 1, at p. 29.

[¶3] The parties waived a hearing on the summary judgment motion. The district court concluded, as a matter of law, that the University's policies were constitutional and did not violate Riemers' right to free speech; Riemers did not exhaust his administrative remedies; and Riemers' request for injunctive relief was moot. The district court granted the State's motion for summary judgment.

[¶4] Riemers appeals, arguing the University's Apartment Solicitation Policy is facially unconstitutional, the University's campus policy on petitioning is unconstitutional because petitioners must first register a special events form, the University's Memorial Union policy is facially unconstitutional, the district court erred in concluding Riemers did not first exhaust his administrative remedies before suing the University, and the district court erred in concluding Riemers' request for injunctive relief was moot.

II.

[¶5] Summary judgment is a procedural device that promptly and expeditiously disposes of an action without a trial "if either litigant is entitled to judgment as a matter of law and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes will not alter the result." Alerus Financial v. Western State Bank, 2008 ND 104, ¶ 16, 750 N.W.2d 412. "Whether the district court properly granted a summary judgment motion is a question of law that we review de novo on the record." Id.

[¶6] Riemers argues the district court erred in granting summary judgment in favor of the State on his free speech claims because the University's policies on solicitation and petitioning are unconstitutional in three respects: (1) the University improperly required him to complete an event form before gathering signatures on the University's campus; (2) the University improperly required Riemers to complete an Apartment Solicitation Form before being allowed to solicit signatures at student apartments; and (3) the University's Memorial Union policies improperly required petitioners to sit at a table and wait for students to come over. Furthermore, in regard to the University's Memorial Union policies, Riemers argues the district court erred in concluding he had to exhaust his administrative remedies and his request for injunctive relief was moot.

III.

[ΒΆ7] Riemers argues the University's policy requiring he complete a special events form before gathering signatures on the University's campus is unconstitutional. More specifically, he contends he should not be required to register and ...


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