Watchtower Bible et al v. Village of Stratton, OH

• Decision Date: 21 September 2000
• Docket Number: Nos. 99-4087,s. 99-4087
• Citation: 240 F.3d 553
• Parties: (6th Cir. 2001) Watchtower Bible and Tract Society of New York, Inc.; Wellsville, Ohio, Congregation of Jehovah's Witnesses, Inc., Plaintiffs-Appellants (99-4087)/Appellees, v. Village of Stratton, Ohio; John M. Abdalla, Mayor of the Village of Stratton, Ohio, in His Official Capacity, Defendants-Appellees/Appellants (00-3325). ; 00-3325 Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 553

240 F.3d 553 (6th Cir. 2001)

Watchtower Bible and Tract Society of New York, Inc.; Wellsville, Ohio, Congregation of Jehovah's Witnesses, Inc., Plaintiffs-Appellants (99-4087)/Appellees, v. Village of Stratton, Ohio; John M. Abdalla, Mayor of the Village of Stratton, Ohio, in His Official Capacity, Defendants-Appellees/Appellants (00-3325).

Nos. 99-4087; 00-3325

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: September 21, 2000

Decided and Filed: February 20, 2001

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 99-00526, Edmund A. Sargus, Jr., District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Paul D. Polidoro, LAW OFFICE OF PAUL D. POLIDORO, Patterson, New York, Susan B. Gellman, WOLMAN, GENSHAFT & GELLMAN, Columbus, Ohio, Richard D. Moake, ASSOCIATE GENERAL COUNSEL, WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., Patterson, New York, for Plaintiffs.

Abraham Cantor, Concord, Ohio, for Defendants.

Barry M. Byron, Willoughby, Ohio, for Amicus Curiae.

Before: MERRITT, KENNEDY, and GILMAN, Circuit Judges.

KENNEDY, Circuit Judge.

OPINION

This case comes to the court on the consolidated appeals of plaintiffs, Watchtower Bible and Tract Society of New York, Inc. and Wellsville, Ohio, Congregation of Jehovah's Witnesses, Inc.; and of defendants, the Village of Stratton, Ohio, and its Mayor, John M. Abdalla. Plaintiffs appeal the district court's judgment denying portions of their First Amendment challenges to the Village's solicitation and canvass ordinance. On appeal they argue that the ordinance is facially unconstitutional because it is overly broad and vague, and, as applied, the ordinance violates their rights to free speech and free exercise of religion. Defendants appeal the district court's judgment awarding plaintiffs attorneys' fees as a prevailing party in the First Amendment litigation. They argue that the court erred in finding that plaintiffs were entitled to attorneys' fees and in the alternative, if this court determines that plaintiffs were entitled to such fees, the amount the court awarded was unreasonable.

Because the ordinance is neither unconstitutionally overbroad nor vague and it is narrowly tailored to serve significant government interests, we affirm the district court's judgment finding the majority of the ordinance constitutionally permissible. And because the district court did not abuse its discretion in awarding plaintiffs reasonable attorneys' fees, we affirm that judgment as well.

I. FACTS

This dispute centers on the Village of Stratton's ordinance regulating the soliciting and canvassing of private homes in the Village. By its terms, the ordinance applies to "canvassers, solicitors, peddlers, [or] hawkers" that go on a private residence in the Village for the "purposes of advertising, promoting, selling and/or explaining any product, service, organization or cause." Such individuals must first register with the Office of the Mayor by filling out a Registration Form. The Registration Form requires the individuals to furnish information about their cause, why they are canvassing, which residences they intend to canvass, how long they intend to canvass, and any "other information concerning the Registrant[s] and [their] business or purpose as may be reasonably necessary to accurately describe the nature of the privilege desired."¹ Once the individuals have registered, they "shall be furnished a Solicitation Permit" unless the Mayor determines that they (1) failed to complete the Registration Form, (2) provided fraudulent information on the form, (3) made false or fraudulent statements or misrepresentations while canvassing, (4) violated any other local, state, or federal laws, (5) trespassed while canvassing, or (6) ceased to possess the qualifications required to obtain a Solicitation Permit². No fee is required to obtain a permit. Upon obtaining a permit, the canvassers may canvass any private residence in the Village between the hours of 9:00am and 5:00pm, provided the owner of the residence has not filed a No Solicitation Form with the Mayor's Office and has not posted a No Solicitation Sign on his property. Prior to this litigation, a No Solicitation Form contained a list of various organizations next to which the resident could place a checkmark to indicate the organizations the resident wished to be excluded from this general prohibition. While the No Solicitation Form listed several organizations by name, the only religious organization it listed by name was the Church of Jehovah's Witnesses.

If individuals covered by the ordinance fail to comply with these requirements, they could be charged with a misdemeanor of the fourth degree.

Plaintiffs challenged the ordinance in district court seeking a declaratory judgment that the ordinance is unconstitutional on its face and as applied to them and seeking a permanent injunction prohibiting the Village from enforcing the ordinance against them. After conducting a bench trial on the matter, the district court found that the ordinance applied to plaintiffs as they were "canvassers" seeking to explain their "cause." Moving to the constitutionality of the ordinance, the court rejected most of plaintiffs' arguments as without merit. The court did, however, find three provisions of the ordinance and one provision of an administrative form--some of which plaintiffs did not specifically challenge in their complaint--potentially constitutionally troubling, and therefore, took action to address those concerns. First, the court found that the 5:00pm time restraint contained in the ordinance was an unreasonable restriction on time and ordered the Village to change the time restraint to allow for canvassing during all daylight hours. Second, it found that the section of the No Solicitation Form which singled out Jehovah's Witnesses was unconstitutional and ordered the Village to delete any reference to Jehovah's Witnesses from the No Solicitation Form. Third, it found that in order for the ordinance's "additional information" requirement to be constitutional, Jehovah's Witnesses need only "note on the application that [they] seek[] to canvass as part of the Jehovah's Witness." Accordingly, the court construed the provision to require only that. Finally, it found that requiring plaintiffs to list on the Registration Form each residence they intended to visit was "an onerous regulation that could potentially violate the exercise of constitutional rights"; however, this problem was cured by the "Village allowing a Registrant to attach to the Registration Form a list of willing Village residents which is provided by the Mayor's office." It appears from the record that this was a voluntary measure taken by the Village prior to the lawsuit.

Unsatisfied with the scope of this relief, plaintiffs filed a timely notice of appeal from the court's judgment. The notice reads, "Plaintiffs . . . hereby appeal . . . those parts of the [district court's] Order . . . which uphold the constitutionality[--]facially and as applied to the Plaintiffs"--of the ordinance³.

In addition to filing an appeal, plaintiffs, based upon the judgment on the merits, filed a motion for attorneys' fees pursuant to 42 U.S.C. § 1988. The district court determined that plaintiffs were a prevailing party and therefore entitled to attorneys' fees. After reducing the requested award, the court awarded plaintiffs $58,892.41 in attorneys' fees and costs. Defendants filed a timely notice of appeal from that judgment.

The appeals are now consolidated and before us.

II. CONSTITUTIONALITY OF THE ORDINANCE

The First Amendment to the United States Constitution provides, "Congress shall make no law . . . prohibiting the free exercise [of religion]; or abridging the freedom of speech, or of the press." U.S. Const. amend. I. The Supreme Court has made the First Amendment's prohibitions applicable to the states through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Because state action includes municipal ordinances adopted under state authority, see Lovell v. City of Griffin, 303 U.S. 444, 450 (1938), the prohibitions extend to ordinances such as the one promulgated by Stratton. And because Stratton's ordinance requires canvassers to register prior to canvassing, it "carries with it (unless properly constrained) the power directly and substantially to affect speech" and must therefore undergo Free Speech Clause analysis. Riley v. National Fed'n of the Blind, 487 U.S. 781, 801 (1988). And for similar reasons, it must also undergo Free Exercise Clause analysis.

A. Free Speech Challenges

Plaintiffs contend that the ordinance's requirement that canvassers register prior to canvassing fails the Free Speech Clause analysis both facially and as applied to them. Predictably, much of their argument is dedicated to attempting to convince us that the ordinance is subject to strict scrutiny. And as equally predictable, the Village dedicates a large portion of its brief to arguing that the ordinance is subject to some lower level of scrutiny.

1. Level of Judicial Scrutiny

As an initial matter, we note that the Supreme Court has not set forth a framework for determining what level of scrutiny to apply to laws that require an individual to obtain a permit prior to going door-to-door. It has, however, established a framework for answering the question in the context of laws requiring an individual to obtain a permit prior to engaging in speech in a public forum. See Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). We conclude that the analytical framework set forth there applies to this ordinance as well. We reach this conclusion because, in discussing what standard applied to the County's ordinance, the Court characterized its analysis as one of whether the law's restrictions on speech were reasonable in the...