Lawyer sues malls, cities Right to gather signatures cited

PORTLAND – A Rumford attorney who wants to bring a resort casino to Oxford County has sued three of the state’s busiest shopping malls along with Wal-Mart, Irving Oil and Hannaford Bros. in an attempt to force the owners to allow petition gatherers on their properties.

Seth Carey also sued the cities of Bangor, Augusta, Lewiston and Portland in an effort to keep them from restricting where petitioners can gather signatures.

The defendants will have 20 days to answer the lawsuit after they have been served. As of Wednesday, none had responded to the complaint.

Carey argues in the lawsuit that restrictions on where people can ask citizens to sign petitions violate the free speech clauses of the First Amendment of the U.S. Constitution and Article 1 of the Maine Constitution.

“I’m challenging the notion that these kinds of businesses can be places open to the public and then refuse to allow citizens to express their right to freedom of speech,” Carey said Wednesday. “These companies benefit from the fact that we are living in a free market society, but they curb the freedoms of people who shop there.”

Malls and large retail stores are the modern-day versions of the “town square,” he said in a phone conversation Wednesday, where citizens should be allowed to engage in protected First Amendment activities such as gathering signatures on petitions.

Management at malls in Bangor, South Portland and Auburn refused to allow petitioners to gather signatures, saying that because they are privately owned they don’t have to allow political activists on their properties, the attorney said. Municipalities also have restricted where petitioners can seek signatures, he said.

Carey, who is an owner of Evergreen Mountain Enterprises LLC, the organization that is sponsoring the casino petition drive, filed the lawsuit on Nov. 20 in Oxford County Superior Court. He is seeking an injunction ordering the stores’ owners to allow petitioners to gather signatures on the properties and municipalities not to restrict where petitioners can approach the public for signatures.

Hannaford petitioned Wednesday to move the lawsuit to U.S. District Court in Portland. The defendant in the case is allowed to do that because it is based out-of-state and the lawsuit includes a challenge to the U.S. Constitution.

Carey has asked that the case be dealt with in an expedited manner because the deadline for submitting the 55,000 valid signatures needed to place the question before the voters in November 2008 to the Secretary of State’s Office is Jan. 12.

“Massachusetts allows complete access as long as store entrances are not blocked,” Carey said. “The owners of malls and big-box stores in that state must allow reasonable times, places and manners in which petitioners can gather signatures.”

Carey said that he had asked managers of the state’s largest malls and stores to place “reasonable restrictions” on the times, places and manners in which petitioners could solicit signatures. He said that all refused.

“The cities are really in greater violation than the owners of private property,” he said. “A bedrock of U.S. Supreme Court precedent says that a public entity must comply with the First Amendment. These cities [named in the lawsuit] have violated it by not allowing people to gather petitioners on sidewalks in front of town halls and other public buildings.”

Carey said that a petitioner who was on a public sidewalk in front of a church in Portland was arrested this summer when he refused to stop seeking signatures after the church objected because its members oppose casino gambling. A jury trial in Cumberland County Superior Court in that incident is pending, he said.