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[NOT FOR PUBLICATION]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.,
_________________ ___________________________________
Nighswander, and Sulloway and Hollis on brief for appellee.
___________
___________________

Warren
______

____________________
____________________

Per Curiam.
__________

The judgment is affirmed substantially

the reasons recited

dated

by the

March 28, 1994.

district court

It is worth

presented by the instant appeal.

argument

rests solely

Plaintiff's constitutional

process, to have his

Clause of

a matter of procedural

petition articles submitted to the

voters at the school district meeting or

meeting.
Cir.)

Cf. Montero
___ _______

(finding

no

the First

that New Hampshire law creates

liberty interest entitling him, as

due

decision

emphasizing what is not

___

on the Petition

Amendment; he is not alleging

in its

for

the subsequent town

v. Meyer, 13 F.3d 1444,

_____
liberty

interest

1446-50 (10th

conferring

participate in drafting of ballot initiative), cert.

right

to

denied,

_____________
115 S.
where

Ct. 231 (1994).

the

moderator

selectmen or the

Nor are
(or

for

we faced with
that

matter

school board) has elected

a situation

the

board

of

to withhold such

articles entirely from the voters.

Instead,
ruling that

the

moderator in

would not

argument

from

be voted

plaintiff,

propriety of this ruling.

governmental

addressed,"
ultimate

instance

here, after

plaintiff's articles were contrary

and thus

very

each

as

decision not

their perceived

called

and after
for

entertaining

vote

as

to

the

It was the voters themselves--"the

bodies

the

upon,

to state law

to

district

whom
court

to consider

invalidity.

the

petitions

noted--who

the articles

Plaintiff

thus

were

made

the

because of

succeeded

in

"petitioning" the voters; he simply failed to persuade

them.

Under

First

these

circumstances, it

Amendment violation occurred.

is

apparent

that no

See, e.g., Minnesota Board for

___ ____ ___________________

Community Colleges v.
__________________
person's
simply

right to
ignores

Knight, 465 U.S.

______

speak

that

is not

person

infringed when

while

(footnote omitted); San Filippo

___________

271, 288 (1984)

listening

("A

government
to others.")

v. Bongiovanni, 30 F.3d 424,

___________

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

to

communicator

respond
may

to

every

denominate a

communication

petition");

that

the

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
the

district

reasons, as well as the

court,

the

judgment

others enumerated by

dismissing

plaintiff's

federal claims on the merits (and dismissing his state claims

without prejudice) is hereby
Affirmed.
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