Yenofsky v. Silk

• Citation: 305 F. Supp. 991
• Decision Date: 14 November 1969
• Docket Number: Civ. A. No. 69-1194.
• Parties: Paul YENOFSKY, a minor, by his mother, Adele Yenofsky, as next friend, Plaintiff, v. Norman B. SILK, George F. Cullen, Joseph J. Semensi, Patrick T. McDonnell, John R. O'Riley, as Selectmen of the Town of Randolph, Massachusetts, Defendants.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

305 F. Supp. 991

Paul YENOFSKY, a minor, by his mother, Adele Yenofsky, as next friend, Plaintiff, v. Norman B. SILK, George F. Cullen, Joseph J. Semensi, Patrick T. McDonnell, John R. O'Riley, as Selectmen of the Town of Randolph, Massachusetts, Defendants.

Civ. A. No. 69-1194.

United States District Court D. Massachusetts.

November 14, 1969.

Daniel Levenson, Civil Liberties Union of Mass., Haskell Kassler, Boston, Mass., for plaintiff.

William Carr, Boston, Mass., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW RELATING TO PRELIMINARY INJUNCTION

GARRITY, District Judge.

On November 12, 1969, plaintiff filed a complaint under 42 U.S.C. § 1983 against five defendants named as Selectmen of the Town of Randolph, Massachusetts, asking that they be enjoined from refusing to issue to him a permit for a parade and public meeting in the town of Randolph on November 14 between the hours of 7:00 P.M. and midnight. According to the verified complaint, plaintiff is the coordinator in Randolph for the Massachusetts Peace Action Committee and on November 10 at a meeting of the defendant Selectmen was denied an application for the parade and public meeting requested. The application for the permit was addressed to the defendant Selectmen, was dated November 6, 1969, was signed by the plaintiff and two others and read as follows:

"We, the undersigned, submit this request for a parade permit. Said parade to be participated by approximately two hundred people. It will be executed in the form of a candle light procession beginning at 7 P.M. on November 12, 1969 from the parking lot of the former A & P Store and proceeding southerly on route 28 to the front of Town Hall. At this point the names of the dead from the Vietnam War will be read.

The procession shall be monitored and policed by our own people in attendance and conducted in a quiet, orderly fashion with due respect to town traffic.

We would appreciate your immediate approval of this request for the permit."

Some time after November 6 and before the meeting on November 10, the application was amended by the addition of a note reading as follows:

"If for any reason Wednesday November 12, 1969 is unacceptable to the Board of Selectmen we are perfectly willing to accept Friday, November 14, 1969 at 7 P.M. Procedures would be as outlined above."

According to the complaint, the selectmen's denial of the application for a parade permit followed statements by them such as that the plaintiff and members of his group should demonstrate where it will do the most good—Hanoi, Russia, and China; that there was a fear that something would happen to the marchers because the young fellows in town would want to back the boys in Vietnam; that while people have a right to express themselves, they cannot destroy society while doing it; and that plaintiff's request was like appeasement of Hitler and peace at any price.

An affidavit by plaintiff's counsel annexed to the complaint stated that he telephoned each of the defendants on November 11 and informed them of the allegations of the complaint, and advised them of plaintiff's intention to file the complaint.

The court scheduled a hearing at November 13, 1969 at 3:00 P.M. on plaintiff's request for a preliminary injunction and ordered that the parties file briefs and affidavits at the commencement of the hearing. Defendants were represented at the hearing by William J. Carr, Esquire, who is a member of the bar of this court and also town counsel for the Town of Randolph. Briefs were filed by both parties, and defendants filed two affidavits in opposition. Statements of counsel were received by the court regarding testimony which persons present in the courtroom were prepared to give on the witness stand.

On the basis of the verified complaint and the affidavits and counsels' representations at the hearing, the court makes the following findings of fact and rulings of law.

Findings of Fact

1. Plaintiff, 20 years old, has resided in Randolph for ten years and is a student at Emerson College. He is the coordinator in the town for the Massachusetts Peace Action Committee, which opposes United States participation in the conflict in Vietnam. On November 6 plaintiff filed an application with the defendant selectmen for a permit commencing at 7:00 P.M. on November 12 for a parade and a public meeting; thereafter he amended the requested date to November 14. Plaintiff and members of his group plan a candlelight procession in orderly fashion, with due respect to town traffic, of no more than 200 persons, some of whom will be carrying placards displaying slogans calling generally for an end to the war in Vietnam. The application, which is set forth verbatim above, also requests permission to assemble in front of the town hall and there to read from a list of American soldiers killed in Vietnam. At the hearing, the application for the permit was modified to conform to prayer (b) of the complaint so that the reading of the names of deceased soldiers would terminate at midnight.

2. The selectmen held a hearing on November 10 and heard plaintiff speak in support of the application and heard various townspeople express their views. After the debate Chairman Silk called for a show of hands and 74 citizens present were opposed to the parade and 13 in favor. The selectmen voted unanimously to deny the plaintiff's application and castigated the plaintiff for planning the parade. They did not in any way disavow their authority to issue a permit for a parade and public meeting, such as by referring plaintiff to the Chief of Police. They did not voice objections to the time, place, date or route of the march; nor did they suggest any alternative route. At the hearing in this Court, defense counsel stated that the selectmen meet on Monday nights and they would be happy to consider possible alternatives at their meeting on November 17.¹

3. The only ordinance or regulation of the town of Randolph relating to parades appears in Article V, Section 1, of the Town's Traffic Rules and Orders, at p. 17, which reads as follows:

Article V

Parades and Processions

Section 1. Parades and Processions. No funeral procession or parade containing two hundred (200) or more persons of fifty (50) or more vehicles, excepting the forces of the United States Army or Navy, the military forces of the Commonwealth of Massachusetts, and the forces of the police and fire departments shall occupy, march or proceed along any way except in accordance with a permit issued by the Chief of Police, and such other regulations as are set forth herein which may apply.

4. The usual holiday parades have been conducted from time to time in Randolph, though none of them along the entire route of approximately three miles proposed in plaintiff's application. Most of the proposed route is on a state highway. Only the last few hundred yards are on a town street.

5. The application requested that the paraders march from the parking lot of a former A & P supermarket at the northern end of North Main Street. During the hearing, however, the plaintiff amended his application so that the procession would form on Bossi Avenue, which is a public, lighted, residential street running easterly off North Main Street in the vicinity of a baseball field used for Little...