Opinion
C.A. No. 99M-01-15-VAB
Submitted: February 7, 2001
Decided: April 27, 2001
Defendants Motion for Summary Judgment. Plaintiffs' Motion to Amend Motions Granted in Part and Denied in Part.
Joseph B. Dale, Pro Se, For Plaintiffs.
Barbara MacDonald, Esquire, and Edward M. McNally, Esquire, Attorneys for Defendants.
OPINION
Plaintiffs filed this action to compel the Town of Elsmere to hold an election for a Charter Commission for the purpose of amending or repealing Elsmere's "Home Rule" status as a municipal corporation. Plaintiffs claim that Defendants wrongly rejected signatures on a petition circulated by Plaintiffs pursuant to the Charter Commission election requirements of 22 Del. C. § 811. Defendants have filed for summary judgment. Plaintiffs have filed an amended complaint for a class action and adding a claim under 42 U.S.C. § 1983. For the reasons that follow, Defendants' motion for summary judgment is granted, and Plaintiffs' motion to file an amended complaint is denied.
I. FACTS
Plaintiffs are residents of the Defendant Town of Elsmere. The remaining Defendants were members of the Elsmere Town Council, excluding Charles Cavanaugh, who was the Mayor of the Town of Elsmere. Defendants held the aforementioned positions until May 13, 1999.
On April 9, 1998, plaintiff Dale presented to the Elsmere Town Council a petition with 504 signatures requesting the election of a Charter Commission for the purpose of proposing the amendment or repeal of Elsmere's charter.
The top portion of each page of the petition reads as follows: We, the undersigned, hereby request a special Charter Commission review for the Town of Elsmere, Delaware. As residents of Elsmere we feel that our current municipal Charter, and Town government does not adequately represent the residents of Elsmere. Based on ethical violations by Town officials and violations of the current charter, we are invoking our power under Title 22 Del. C. § 811 of the Delaware Code, to convene a Charter Commission to review and make recommendations on the amendment or repeal of Elsmere's Home Rule status. Plaintiffs Complaint (attached exhibit).
On April 23, 1998, the Council instructed the Town administration to verify the 504 signatures. On April 29, 1998, the Department of Elections listed 3,294 registered voters in Elsmere.
On June 12, 1998, the Town published an open letter to Elsmere residents informing them of "inconsistencies jeopardizing the authenticity of the petition" and inviting them to withdraw their signatures from the petition by executing a notarized affidavit. Fifty-four signers removed their names from the petition by affidavit.
On July 9, 1998, Town Manager Barkley reported to the Town Council that the petition signatures had been examined and verified. Barkely reported that out of the 510 signers, 107 were unregistered voters, 11 were spouses signing for the other spouse, 9 were duplicate signers, 6 names were illegible and 3 were deceased, leaving 374 qualified signatures. After subtracting 51 more persons who withdrew their signatures by affidavit, the total was 323 qualified signers. This number was six signatures short of the 10% required by 22 Del. C. § 811. On August 13, 1998, the Town Council rejected the petition.
II. STANDARD OF REVIEW
The Court may grant summary judgment if it concludes that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." The moving party bears the initial burden of showing that no material issues of fact are present. Once such a showing is made, the burden shifts to the non-moving party to demonstrate that there are material issues of fact in dispute. In considering a motion for summary judgment, the Court must view the record in a light most favorable to the non-moving party. The Court's decision must be based solely on the record presented and not on all evidence "potentially possible."
Super. Ct. Civ. R. 56(c); Burkhart v. Davies, Del. Supr., 602 A.2d 56, 59 (1991).
Moore v. Sizemore, Del. Supr., 405 A.2d 679, 680 (1979).
Id. at 681.
Burkhart, 602 A.2d at 59.
Rochester v. Katalan, Del. Supr., 320 A.2d 704, 708 (1974) (citing United States v. Article Consisting of 36 Boxes, D. Del., 284 F. Supp. 107 (1968), aff'd, 415 F.2d 369 (3d Cir. 1969))
III. DISCUSSION
Plaintiffs' ultimate goal in circulating the petition was to examine the possibility of amending or abolishing the municipal corporation charter of the Town of Elsmere pursuant to 22 Del. C. § 811, which is the "Amendment of charter" section of the "Home Rule" chapter of Delaware's municipalities law. Under 22 Del. C. § 811, an amendment of a municipal corporation's charter must be proposed:
[E]ither by a resolution of the legislative body of a municipal corporation, three quarters of all members elected thereto concurring or by a charter commission of 7 members elected by the qualified voters of the municipal corporation from their membership at large pursuant to petition for such an election bearing the signatures of at least 10% of the qualified voters of the municipal corporation and filed with the clerk or other chief recording officer of the legislative body of the municipal corporation.
Plaintiffs, in the instant action, allege that they attempted to initiate the election of the seven charter commission members by presenting a petition containing the signatures of 10% of the qualified voters of Elsmere, in compliance with 22 Del. C. § 811, and that Defendants have improperly rejected the petition as lacking the required number of valid signatures.
Defendants argue in their motion for summary judgment that the Town was authorized to make judgments on the validity of the petition signatures, and that this Court may only review the Town's actions to ensure that such actions were not arbitrary or capricious. The Town further argues that Elsmere citizens who withdrew their signatures from the petition by affidavit have withdrawn their endorsements properly and "before the petition [was] acted upon or relied upon by the Town."
Defendants' Memorandum in Support of Motion for Summary Judgment at 3.
Plaintiffs, in response, argue that the standard of review of the Town's actions is not "arbitrary and capricious"; that Delaware's General Corporation Law applies, under which some of the Elsmere residents improperly withdrew their signatures; and that contrary to Town's interpretation, "spouses could validly sign for spouses" on the petition.
Plaintiffs' Memorandum in Opposition to Motion for Summary Judgment at 4.
Plaintiffs have also filed a motion seeking leave to file an amended complaint that requests class action status and adds claims under 42 U.S.C. § 1983.
A. JUDICIAL REVIEW OF THE TOWN'S ACTIONS
Under basic separation of powers doctrine embodied in our form of democracy, a legislative body must have some measure of discretionary power free and clear from interference and micro-management by the judiciary. This principle is equally true for a municipal corporation — such as the Town of Elsmere — established under Delaware's "Home Rule" statute that has acquired the sovereignty to "possess legislative, administrative and police powers for the general exercise of municipal functions and [to] carry on such functions through a set of elected and other officials."
This concept of autonomy is not to suggest the absence or insignificance of oversight by the courts. Indeed, judicial review of a municipal corporation's referendum or election is codified in 22 Del. C. § 820.
However, as a general rule, Delaware Courts will not encroach upon the sphere of power designated by law to municipal bodies, absent a showing of bad faith or fraud in the conduct of the municipal legislators. This rule is well established in our jurisprudence. 22 Del. C. § 811 states that the petition for a Charter Commission election must bear the signatures of 10% of the qualified voters of the municipal corporation. Therefore, the total number of qualified voters must first be determined in order to ascertain whether such a petition has the required 10% of qualified voter signatures. Here, the Town properly used a Department of Elections list dated April 29, 1998 in order to determine the number of qualified voters in Elsmere.
Keogh v. The Mayor and Council of Wilmington, Del. Ch., 1872 WL 2135, at *6. (1872) ("It will only be necessary on this point to define the limit of judicial interference with the discretionary powers vested by the Legislature in municipal corporations or their officers. The precise limit I take to be this: that the courts may interpose so far as to protect private rights when violated or threatened by the action of these bodies, also to restrain them from the assumption of powers not granted by their charters, and further, to guard the public interests against any corrupt or fraudulent abuse of the powers granted to them. But where no private right is infringed and the City Corporation or its officers are exercising their discretion in good faith, the Court will not revise the grounds of their proceedings nor entertain the suggestion that their action is inexpedient for the public interest. This is a plain rule, easy of application, reasonably state for the public without needlessly trammeling the bodies or officers in whom discretionary powers are vested; and it is also a rule well settled by judicial authority."); Taylor et al. v. Smith et al., Del. Ch., 115 A. 405, 408-409 (Aug 27, 1921) ("jhere is no charge, or even pretense, of fraud or corruption with which the council's approval may be tainted . . . [I]f there is anything well settled it ought to be this, that in matters involving the exercise of discretion, courts have no right to substitute their judgment of what is best for the judgment of the officers upon whom the law casts the responsibility of deciding."); Lynch v. Town Council of Georgetown, et al., Del. Ch., 180 A. 594, 596 (June 29, 1935) ("Now as a general proposition, no court will, in the absence of a showing of bad faith or fraud, assume to invade the field of discretion which the law has assigned to subordinate political or municipal bodies."); Klaw v. Pau-Mar Construction Co., Del. Supr., 135 A.2d 123, 127-128, Wolcott, J. (Oct. 16, 1957) ("Courts inquire into the motives of municipal legislators acting within their powers only when there is a showing of bad faith or fraud.").
In Delaware, registration — such being included on a voter registration list — is a method of proof to ascertain whether a citizen is a qualified voter. See Morford v. Tatnall, Del. Supr., 21 A.2d 185, 189 (1941); 15 Del. C. § 1701.
There are no provisions in 22 Del. C. § 811 that specifically delineate the duties of the clerk or chief recording officer in determining what constitutes a valid signature.
Yet, the task of verifying signatures is a clearly an administrative function to be handled by the Town authorities after such a petition is filed with "the clerk or other chief recording officer of the legislative body of the municipal corporation." The Town disqualified certain signatures on the petition for various reasons, including duplicative signatures, illegible signatures, and spouses signing for other spouses. The total number of valid signatures after review by the Town was determined to be less than the 10% required by law for the establishment of a Charter Commission election.
In the present case, there is no showing, nor any attempt to show, that the actions of the Town in counting the signatures were done fraudulently or in bad faith. Therefore, this Court will not engage in a recount "to determine the validity of the signatures", as Plaintiffs request.
Pls.' Mem. in Opp'n to Mot. for Summ. J. at 2.
Although Plaintiffs argue that "Defendants . . . merely assert, without support, that certain numbers of signatures were on the petition and fell into certain categories", there is ample evidence in the record to sustain the Town's tally of signatures on the petition, with one exception, which will be discussed below in subsection C.
B. APPLICABILITY OF GENERAL CORPORATION LAW
Plaintiffs assert that because "no Delaware court has ever interpreted 22 Del. C. § 811", Delaware's General Corporation Law controls. Plaintiffs then attempt to analogize cases decided under general corporation law to the present controversy involving a municipal corporation.
This line of argument is incorrect. In Delaware, the law of municipal corporations is separate and distinct from General Corporation law, and one does not apply to the other.
Buckingham v. State ex rel Killoran, Del. Supr., 35 A.2d 903, 907 (1944) ("Municipal corporations, under the Constitution, are not embraced within the present General Corporation law but their charters, and amendments thereto, are had by special Act of the Legislature").
C. VALIDITY OF A SPOUSE SIGNING FOR THE OTHER SPOUSE
Plaintiffs assert that in Delaware, spouses may sign for another spouse to legally bind the non-signing spouse's endorsement to a petition. Thus, Plaintiffs argue, the Defendants improperly disqualified 11 spouses' names from the petition in question. These disqualified spouse signatures each comprised a line on the petition separate from that of the other spouse. In other words, the disqualified signatures were not in the form of "Mr. and Mrs. Citizen", for example.
Plaintiffs' reliance on the law of agency and corporate proxy voting to suggest that there exists an implied authority of a spouse to sign for another spouse is misplaced. In Delaware there is no presumption of agency in marital relationships. The party asserting the agency relationship bears the burden of proving its existence. There has been no showing here that the non-signing spouses conferred agency authority upon the double-signing spouse or that the non-signers were unable to affix their own signatures to the petition without the aid of their spouses. Thus, the Town properly exercised its discretion in striking the 11 names of spouses signing for other spouses from the petition.
Re Wilson v. Pepper, Del. Super., C.A. No. 90C-05-016, 1995 WL 562235, at *3, Ridgley, P.J. (Aug. 21, 1995) ( citing Facciolo v. State Division of Revenue, Del. Supr., 358 A.2d 880, 881 (1976)).
Pepper at *3.
However, Defendant notes that:
"[I]n counting total signatures, the staff counted all names on the petition so that the six signers who signed as "Mr. and Mrs." were counted as two . . . [thus] [t]he count errs in favor of plaintiffs by another 6 . . . [because] [t]he 6 "Mr. and Mrs." entries each obviously are only 1 valid signature (if that) but were counted as two."
Defs.' Mem. in Supp. of Mot. for Summ. 1. at fns. 1-2.
Thus, in tallying the signatures, the Town differentiated between spouses signing for another spouse on a separate line of the petition (disqualified) and spouses signing for another spouse as "Mr. and Mrs." on the same line of the petition (not disqualified).
Such a distinction is illusory, illogical, and ill-conceived. Therefore, for purposes of consistency and fairness, the Court finds that each of the six "Mr. and Mrs." entries shall be counted as only one valid signature and not two, further reducing the total number of valid signatures from 323 to 317.
D. LEGALITY OF WITHDRAWING SIGNATURES FROM PETITION
Defendant raises the issue of the whether or not 51 persons should have been allowed to withdraw their signatures from the petition. These persons executed notarized affidavits in June and July of 1998 revoking their endorsements to the petition.
Delaware Courts have not fully considered this issue. Other jurisdictions have reached divergent results on the question of if and when persons may withdraw their signatures from a petition. A minority of courts hold that the right to withdraw expires at the date of the filing of the petition, or after the appropriate authority determines the sufficiency of the instrument. A majority of jurisdictions allow the retraction of signatures from a petition up until final action is taken on the petition, even though the result renders the petition ineffective for lack of the required number of signatures. A proper consideration of the right to withdraw must also take into account the nature of the proceeding and the provisions of law under which it is instituted.
See Maryland and Olive Avenues Neighborhood Ass'n. v. Mayor. et al., Del. Super., C.A. No. 94-10-001, 1995 WL 654082, *2, Graves, J. (Oct. 18, 1995) (noting without discussion that "[t]he withdrawal of thirty-one (31) other signatures left the [referendum] petition approximately sixty-one (61) short of the required 361 signatures."); Council 81 v. Whiteley, Del. Ch., C.A. No. 5300, 1977 WL 5203, *2, Hartnett, V.C. (July 21, 1977) (noting but not ruling on Plaintiff's claim that "an employee may withdraw his signature from a petition" demanding an election for a employee union bargaining representative).
See generally 27 A.L.R.2d 604 (1953) (numerous annotations and decisions).
See City of Roanoke v. County of Roanoke, Va. Supr., 198 S.E.2d 780, 785 (1973) (Determination whether a petition in an annexation proceeding contains the required number of signatures is to be made as of the date of the filing); Uhl v. Collins, Cal. Supr., 17 P.2d 99, 99-100 (1932) (Restricting the right of withdrawal to the period before the filing of the petition with the officer or body authorized to receive it); Sim v. Rosholt, N.D. Supr., 112 N.W. 50, 51 (1907) (Denying withdrawal of signatures from a petition to establish a drain because "the board passed upon the sufficiency of the petition and ordered the same received and filed . . . [and] its jurisdiction to take all subsequent steps . . . thereby attached."); State ex rel. De Concini v. City of Phoenix, Ariz. Supr., 243 P.2d 766, 768 (1952) (Denying withdraws in a petition for annexation because "affirmative legislative action has commenced . . . [and] jurisdiction attaches").
See Idol v. Hanes, N.C. Supr., 14 S.E.2d 801, 802 (1941) (In allowing the withdrawal of petition signatures prior to a public hearing on the creation of a sanitation district, the Court said "It is supposed that second thoughts are apt to be sounder, and this conviction has led courts to consider the right of withdrawal favorably, both as a matter of justice to the individual, who is entitled to apply his best judgment to the matter in hand, and as sound policy in community and public affairs, where the establishment of governmental institutions should rest upon mature consideration rather than be mere unnecessary excrescences upon the body politic, raised by the whim and fancy of a few men."); Conover v. Newton, N.C. Supr., 256 S.E.2d 216, 223 (1979) (Regarding a voluntary annexation petition, the court said "[W]e think the considerations articulated in Idol support the right of individual petitioners to reconsider their initial decision and withdraw from the petition at any time before final action thereupon."); Town of Blooming Grove v, Madison, Wis. Supr., 33 N.W.2d 312, 316 (1948) ("It is concluded that where no rights of others are established until final action is taken on the petition a person signing the petition may withdraw his name at any time prior to such final action.") But cf. Gonzalesv. Wyatt, Va. Supr., 117 S.E.2d 669, 673-74 (1961) (Notingthe divergent decisions and denying withdrawal where "other action had been taken and additional circumstances of moment [were] involved" before signers sought to remove their names from the petition).
Gonzales, 117 S.E.2d at 672-73 (citations omitted).
The policies considerations of the majority, as reflected in Idol — justice to the individual and the establishment of government institutions only upon mature deliberation hold equal force in this case, where a citizen petition ultimately seeks the amendment or abrogation of a municipal charter?
Conover, 256 S.E.2d at 223.
In weighing the different approaches to the issue of the withdrawal of petition signatures, and in the absence of legislative authority on the subject, this Court believes that in this case, the majority viewpoint is the most fair and reasonable: persons may withdraw their signatures up until the governing municipal body has taken final action on the petition by taking affirmative steps to hold the charter commission election referenced in the petition.
Conover at 224.
Such a rule is "much more likely to get at the real and mature judgment of the voters, and it is calculated to discourage a hasty presentation of a petition for signatures without full disclosure of the real merits in question."
Conover at 221 ( citing County Court of DeKalb County v. Pogue, Ill. App.2d, Gen. No. 4330, 1904 WL 1886, *4 (1904), affd Kinsloe v. Pogue, Ill. Supr., 72 N.E. 906 (1904)).
This issue boils down to a balancing of rights: the right to withdraw a signature from a petition versus the future right to vote in a charter commission election pursuant to that petition. However, no right to vote has been acquired by anyone here where no final action has been taken on the petition in the form of affirmative steps to conduct a charter commission election. Therefore, in this particular case, the right to withdraw one's signature is paramount to the future right to vote.
To some it may seem unjust that a few persons may withdraw their signatures and thereby frustrate the convictions of those who fully endorse the petition. However, a locus poenitentiae — an opportunity for changing one's mind — is usually afforded in most matters where it can be indulged without injury to another's right; and as a corollary, we must remember that "the defeat of an aspiration is not the destruction of a right."
Idol 14 S.E.2d at 802-803.
E. MOTION TO AMEND COMPLAINT
Finally, plaintiff seeks to amend his complaint by transforming this case into a class action and adding claims under 42 U.S.C. § 1983. Defendants oppose the motion to amend, arguing that it is futile and untimely. Either reason would be sufficient for a denial of Plaintiffs' motion; the presence of both mandates such a result.
MOTION IS FUTILE
Superior Court Rule 23(a) requires the following findings for certification of a class action: (I) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. The failure to meet each prerequisite will require a denial of class certification. Defendants challenge the requirements of Rule 23(a)(2),(3), and (4).
Horton v. Goose Creek Ind. School Dist., 5th Cir., 690 F.2d 470, 490, cert. denied, 463 U.S. 1207 (1982); Superior Court Civil Rule 23(a).
Plaintiffs bring their class aciton on behalf of "all . . . residents of the Town of Elsmere." Defendants' argue that the commonality requirement of Rule 23(a)(2) is not satisfied because not all residents have standing to sue.
Pls.' Am. Compl. at 2.
Defendants are correct. Only those persons who signed the petition can have standing to sue for alleged violations of their rights by the Town's rejection of the petition. All of the Town residents did not sign the petition. Therefore, the proposed class of all Town residents is too broad, as it includes persons who are without individual standing to sue on their own behalf an din their own right.
"The definition of a class cannot be so broad as to include individuals who are without standing to maintain the action on their own behalf. Each class member must have standing to bring suit in his own right." McElhaney v. Eli Lilly Co., D.S.D., 93 F.R.D. 875, 787 (1982) ( citing Kister v. Ohio Brd. of Regents, S.D. Ohio, 365 F. Supp. 27 (1973), aff'd, 414 U.S. 1117 (1974)).
Plaintiffs name K. Kay Shearin, along with Joseph Dale, as class representatives. Defendants' argue that the typicality requirement of Rule 23(a)(3) is not satisfied because Ms. Shearin did not sign the petition.
Defendants are correct. It is elementary that Ms. Shearin, the alleged representative party, does not have claims typical to a class of petition signers if she herself did not sign the petition in question.
Defendants also challenge Ms. Shearin's and Mr. Dale's ability to fairly and adequately represent the class as required by Rule 23(a)(4). Adequate representation depends on two factors: (a) the plaintiffs attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class.
Scott v. University of Delaware, D. Del, 601 F.2d 76, 84-85 (1979) ("Adequate representation, in addition to being required by Rule 23, is constitutionally mandated if absent class members are to be bound by the judgment concerning the class claims."), cert. denied, 444 U.S. 931 (1979).
Scott 601 F.2d at 84 n. 17 ( citing Wetzel v. Liberty Mut. Ins. Co., 3d Cir., 508 F.2d 239, 247 (1975), cert. denied, 421 U.S. 1011 (1975)).
The proposed class action names Ms. Shearin as "lead plaintiff for purposes of interacting with the Court" and Mr. Dale as "attorney-in-fact for all purposes related to this litigation." Ms. Shearin is currently a suspended Delaware attorney. Further, in a letter dated September 29. 2000, Ms. Shearin's wrote to this Court that "I am not a party to this lawsuit but have an interest in it, being a citizen of Elsmere who signed the petition calling for a charter-review commission." This statement is troubling because not only does Ms. Shearin acknowledge that she is not a party to this suit, but Ms. Shearin' s name is not on the list of petition signers. A plaintiffs credibility is always at issue and is always of paramount concern to the Court in reaching every decision, such as fitness to serve as a class representative. Mr. Dale is not a licensed attorney. As such, Ms. Shearin and Mr. Dale are not adequate class representatives, as neither is fully competent to handle this litigation and act as fiduciaries for absent class members.
Pls.' Am. Compl. at 2.
In re Fuciua Industries. Inc. Shareholder Litigation, Del. Ch., 752 A.2d 126, 134, C.A. No. 11974, Chandler, C. (Dec 2, 1999).
Greenfield v. U.S. Healtheare. Inc., E.D. Pa., 146 F.R.D. 118, 125 (1993) ( citing Scott 601 F.2d 76).
Because Plaintiffs have failed to establish the prerequisites for a class action under Superior Court Civil Rule 23(a), the alleged class cannot be certified in the amended complaint. Where a complaint as amended would not withstand a motion to dismiss, the motion to amend should be denied as futile.
DeNardo v. Rodriguez, Del. Super., C.A. No. 92C-02-026, 1993 WL 81319, *4, Ridgely. P.J. (Feb. 12, 1993); Guy v. Judicial Nominating Comm'n, Del. Super., 659 A.2d 777, 786 (1995); Hess v. Carmine, Del. Super., 396 A.2d 173, 177 (1978) (Leave to amend should be freely given unless there is evidence of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies, prejudice, futility, or the like).
Plaintiffs also seek to add claims under 42 U.S.C. § 1983, alleging that by refusing to accept the petition, Defendants have deprived them of their constitutional "right to petition for a Charter Commission Election . . . [and the] right to petition for redress and of access to the Courts."
Pls.' Am. Compl. at 4.
The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances. The government may not infringe upon these rights either by a general prohibition against all petitions or by imposing sanctions for the circulation of petitions.
Smith v. Arkansas State Highway Employees, 441 U.S. 463, 464 (1979).
Id. at 464.
However, the First Amendment right to petition and advocate provides no guarantee that a petition will persuade or that advocacy will be effective. Nothing in the First Amendment or related case law interpreting it suggests that the right to petition requires government officials to listen or respond to communications of members of the public on public issues. As Justice Holmes suggested many years ago, disagreement with public policy and disapproval of officials' responsiveness is to be registered principally at the polls.
Id. at 464-465.
Minnesota State Bd. for Community Colleges v. Knight 465 U.S. 271, 285 (1984).
Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915); Knight, 465 U.S. at 285.
Plaintiffs' constitutional petition rights have not been infringed by Defendants' denial of the petition in question. Plaintiffs submitted a petition which was properly subjected to official verification for statutory compliance, and subsequently denied as lacking the required signatures. Plaintiffs have not been restrained or barred from submitting further petitions. Plaintiffs are free to re-submit a petition on the same or any other issues of concern. There are no facts alleging a denial of access to the Courts.
Under such circumstances, Plaintiffs motion to add claims under 42 U.S.C. § 1983 must be denied as futile.
MOTION IS UNTIMELY
On October 12, 1999, Judge Vincent A. Bifferato entered a case scheduling order where all motions to amend would need to be filed by February 4, 2000. Plaintiffs' motion to amend was filed on August 14, 2000, more than six months after the deadline. The amended complaint deals with exactly the same facts and circumstances as the original complaint. Therefore, the motion is denied as untimely.
IV. CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED, and Plaintiffs' Motion to Amend the Complaint is DENIED.