488 F.2d 1353 (2nd Cir. 1973), 238, Citizens for a Better Environment, Inc. v. Nassau County

Docket Nº:238, 73-2019.
Citation:488 F.2d 1353
Party Name:CITIZENS FOR A BETTER ENVIRONMENT, INC., on behalf of itself and its employees, et al., Plaintiffs-Appellants, v. NASSAU COUNTY et al., Defendants-Appellees.
Case Date:November 14, 1973
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1353

488 F.2d 1353 (2nd Cir. 1973)

CITIZENS FOR A BETTER ENVIRONMENT, INC., on behalf of itself and its employees, et al., Plaintiffs-Appellants,


NASSAU COUNTY et al., Defendants-Appellees.

No. 238, 73-2019.

United States Court of Appeals, Second Circuit.

November 14, 1973

Argued Sept. 18, 1973.

Page 1354

Alexander B. Grannis, New York City (Berle, Butzel & Kass, New York City), for plaintiffs-appellants.

Natale C. Tedone, Deputy County Atty. (Joseph Jaspan, County Atty. of Nassau County, Biagio F. Giaquinto, Senior Deputy County Atty., Mineola, N. Y., of counsel), for defendants-appellees Nassau County and others.

John Capilli, Deputy Town Atty. (John F. O'Shaughnessy, Town Atty., Town of Hempstead, Francis T. Purcell, and others, as members of the Town Board and Governing Body of the Town of Hempstead, of counsel), for defendants-appellees Francis T. Purcell, and others.

Kenneth C. Butterfield, Town Atty., Town of Huntington, N. Y., for defendants-appellees Jerome A. Ambro, Thomas

Page 1355

  1. Casey, Joseph A. Clemente, Richard V. Holahan and Leonard L. Horn, as the Members of the Town Board of the Town of Huntington.

    Before SMITH, MULLIGAN and OAKES, Circuit Judges.

    J. JOSEPH SMITH, Circuit Judges:

    This appeal from denial of a motion for preliminary injunction in the United States District Court for the Eastern District of New York, Anthony J. Travia, Judge, involves the narrow issue of whether plaintiffs are entitled to a preliminary injunction to restrain the police departments of two Long Island counties from enforcing local solicitation ordinances against plaintiffs' door-to-door educational and fund-raising campaign. We stress this narrow scope, because while it is true that underlying this case is the always delicate balance between one man's right to express himself and another's right to be left alone, that troublesome issue is not presented in this appeal. Rather we are asked-as was the district court-to determine whether under state and local law the plaintiffs are completely exempt from local solicitation ordinances which even they concede to be fundamentally valid. 1 For a number of reasons, we agree that it would have been improper for the district court to have made that determination on motion for a preliminary injunction based on nothing more than the conflicting declarations of the parties. We affirm the denial of preliminary injunction.

    Citizens for a Better Environment ("CBE") is a non-profit, tax-exempt organization registered as such with the Internal Revenue Service under § 501 of the Internal Revenue Code. 2 CBE

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    is also registered with the New York State Department of Social Services and the state Attorney General's Office pursuant to New York statutes regulating the activities of "charitable" organizations. However, it must be noted at the outset that such registration means only that the registrant holds itself out as a charity, since the broad statutory definition of "charitable organization" includes:

    Any benevolent, philanthropic, patriotic, or eleemosynary person or one purporting to be such.

    New York Social Welfare Law, § 481, subd. 1 (1966) McKinney's Consol.Laws, c. 55 [emphasis added].

    CBE's primary activity is sending its employees-a number of whom are individual plaintiffs in this action-door-to-door to talk with residents about environmental problems, distribute the organization's literature, and solicit contributions for CBE and other environmental groups. Plaintiffs note that in these solicitations, no employee has ever been charged with trespass, disturbing the peace, or a violation of any other law designed to protect life or property. 3

    But between January and May of 1973, at least twenty-six CBE employees were issued appearance tickets for violating local "Hawkers, Peddlers and Solicitors" ordinances in Nassau and Suffolk Counties. 4 Though the details of these ordinances vary slightly, they all require the licensing of those within their ambit and limit somewhat the time and scope of their solicitations. 5 However, the ordinances

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    [Entire Page Contains Footnote]

    Page 1358

    also uniformly exempt "charitable" organizations, and it is, therefore, on the interpretation of such exemptions that this case will ultimately turn.

    CBE contends that its non-profit nature, together with its registration under the state solicitation statutes, demonstrates conclusively that it is so exempt. The county officials counter that the state registration proves only that CBE has declared itself a "charitable organization" to state authorities who, while registering CBE, have carefully declined to put their imprimatur on it as a true "charity." 6 The officials further argue that the fact that CBE raises funds for other environmental groups makes it a "professional fund raiser," and not a charity, under the same state law: 7

    Professional fund raiser. Any person who for compensation or other consideration plans, conducts, manages, or carries on any drive or campaign in this state for the purpose of soliciting contributions for or on behalf of any charitable organization or any other person, or who engages in the business of, or holds himself out to persons in this state as independently engaged in the business of soliciting contributions for such purpose. A bona fide officer or employee of a charitable organization shall not be deemed a professional fund raiser.

    New York Social Welfare Law § 482-e (1), McKinney's Consol.Laws c. 55.

    Finally, they argue that the fact that CBE allows its employees to keep twenty-five percent of all they solicit, makes the individual plaintiff-employees "solicitors" who must also register with the state: 8


    Any person who is employed or retained for compensation by a professional fund raiser to solicit contributions for charitable purposes from persons in this state.

    New York Social Welfare Law § 482-e (2); see § 482-h, McKinney's Consol. Laws c. 55.

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    Following the ticketing of its employees, CBE and the ticketed individuals instituted this action under the Civil Rights Act, 42 U.S.C. § 1983, claiming the deprivation of various constitutional rights and asking for both damages and injunctive relief from the alleged campaign of police harassment. 9 On June 22, 1973, the district court heard plaintiffs' motion for a preliminary injunction. Unfortunately, neither side was prepared to present any evidence to support their conflicting affidavits concerning CBE's activities and status. After hearing argument, the district judge denied the motion, stating that the papers and affidavits convinced him that there were serious questions concerning CBE's status that should be resolved initially in the state courts. However, the district court retained jurisdiction over all other elements of the case. Appellants are, therefore, appealing only the denial of the preliminary injunction.

    I. The Denial of Relief for the Individual Plaintiffs

    The initial contention of the county officials that the anti-injunction provision in 28 U.S.C. § 2283 operates as a complete bar to any injunctive relief in this case is clearly incorrect. 10 In Mitchum v. Foster, 407 U.S. 225, 242-243 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), the Supreme Court clearly held that the Civil Rights Act is within the "expressly authorized by Act of Congress" exception to § 2283, and that, therefore, in such cases injunctive relief may be granted even to the extent of enjoining state court proceedings. But as the Mitchum Court immediately cautioned, this is not to say that a § 1983 action is in any sense exempt from the normal rules of federal abstention and deference to the state courts:

    [W]e do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. These principles, in the context of state criminal prosecutions, were canvassed at length last Term in Younger v. Harris, 401 U.S. 37 [91 S.Ct. 746, 27 L.Ed.2d 669], and its companion cases. They are principles that have been emphasized by this Court many times in the past. Fenner v. Boykin, 271 U.S. 240 [46 S.Ct. 492, 70 L.Ed. 927]; Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 [55 S.Ct. 678, 79 L.Ed. 1322]; Beal v. Missouri Pac. R. Co., 312 U.S. 45 [61 S.Ct. 418, 85 L.Ed. 577]; Watson v. Buck, 313 U.S. 387 [61 S.Ct. 962, 85 L.Ed. 1416]; Williams v. Miller, 317 U.S. 599 [63 S.Ct. 258, 87 L.Ed. 489]; Douglas v. City of Jeannette, 319 U.S. 157 [63 S.Ct. 877, 87 L.Ed. 1324]; Stefanelli v. Minard, 342 U.S. 117 [72 S.Ct. 118, 96 L.Ed. 138]; Cameron v. Johnson, 390 U.S. 611 [88 S.Ct. 1335, 20 L.Ed.2d 182].

    Id. at 243, 92 S.Ct. at 2162. See also, 407 U.S. 243-244, 92 S.Ct. 2151 (Burger, C. J., concurring).

    Thus, to the extent the individual plaintiffs are seeking to enjoin the criminal actions pending against them, Younger must control. There, the Court reviewed a number of its prior decisions in holding that where a federal court is asked to enjoin state criminal proceedings, "even irreparable injury is insufficient unless it is both 'great and immediate."' 401 U.S. 37, 46, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971).

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    Appellants seek to avoid Younger and its companion cases, 11 by comparing this case to Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), the most notable exception to the Younger philosophy of federal restraint. But as summarized in Younger, Dombrowski involved an extraordinary set of circumstances:

    The appellants in Dombrowski had offered to prove that their offices had been raided and all their files and records seized pursuant to search and arrest warrants that were later summarily vacated by a state judge for...

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