
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          December 14, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
