ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, June 8, 1996 TAG: 9606090041
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
Congressional candidate Jay Rutledge III is asking a federal judge to find Festival in the Park Inc. and a board member in contempt of court after an incident Sunday, the last night of the event.
Rutledge, a Libertarian candidate who won an injunction against the festival last week, said a campaign worker was harassed by festival staff while getting signatures on his petition to get on the November ballot. Rutledge is running for the seat held by Rep. Bob Goodlatte of Roanoke.
Festival attorney Mark Loftis said he doesn't believe the injunction was violated and said it pertained only to Rutledge, not his campaign staff.
U.S. District Judge James Turk ruled on May 30 - the Thursday before the last weekend of events - that Rutledge had a "fundamental right" to exercise his freedom of speech by campaigning in the public park during the festival. Turk issued a temporary injunction preventing festival officials from interfering with Rutledge's campaigning.
The festival argued that would violate its ban on distributing materials.
Two days later - the day before the event ended - the festival board won before an appellate judge, who overturned the part of Turks' injunction that allowed Rutledge to pass out material. The judge upheld the rest of Turk's injunction.
Now Rutledge, of Roanoke, has filed a motion asking Turk to find Festival in the Park board member Stan Marinoff and the festival itself in contempt of court and sanction them.
According to his motion, about a half-hour before the event was scheduled to end, Marinoff told a campaign worker that he had to stop gathering signatures on a Rutledge petition. The dispute ended with five police officers and festival officials gathering around the volunteer, while Rutledge argued that the injunction prohibited them from interfering with his campaign activities. The campaign worker was not distributing material.
Loftis disputed Rutledge's account of events and said the worker was "simply asked not to distribute" anything. He said he had not talked to everyone involved but that he didn't believe there was any violation of the injunction.
In staying Turk's injunction, U.S. Circuit Judge H. Emory Widener Jr. cited a 1995 North Carolina case as precedent. In that case, a local chapter of the United Auto Workers sued the Gaston Festival for denying it booth space at the annual Fish Camp Jam, making an argument similar to Rutledge's. The festival used a public park and was interfering with the UAW's First Amendment rights by denying it space, the union said.
In that case, the appeals court ruled that when a private group takes over a public facility for a function, it does not automatically make that group a "state actor" bound by the Constitution. Only government, or groups acting with some governmental authority, can be found to violate a person's constitutional rights.
Rutledge had argued that there was some state action involved because the festival received a permit from the city and city police provide security during events. Turk agreed.
But in the autoworkers' case, the appeals court said: "The possession of a permit to perform on public property what are ordinarily private functions does not convert the permit holder into a state actor. ... Every picnic, wedding, company outing, meeting, rally, and fair held on public grounds would be subject to constitutional scrutiny merely because the organizer had been granted" a permit to use a public facility.
In a news release last week, Rutledge said: "We have come to the point where the mere handling of paper from one person to another in a park without government permission can be a crime. It is the encroachment of government interest which daily diminishes our liberties."
LENGTH: Medium: 71 lines KEYWORDS: POLITICS CONGRESSby CNB