Fernandes v. Limmer

• Decision Date: 11 December 1981
• Docket Number: No. 79-3581,79-3581
• Parties: Susan FERNANDES, a/k/a Sanatani, on behalf of herself and all International Society for Krishna Consciousness members, residing in Dallas, Texas, Plaintiff-Appellee, v. Leonard LIMMER, Dallas-Ft. Worth Regional Airport Security Chief, et al., Defendants-Appellants. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 619

663 F.2d 619

Susan FERNANDES, a/k/a Sanatani, on behalf of herself and

all International Society for Krishna

Consciousness members, residing in

Dallas, Texas, Plaintiff-Appellee, v. Leonard LIMMER, Dallas-Ft. Worth Regional Airport Security

Chief, et al., Defendants-Appellants.

No. 79-3581.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Dec. 11, 1981.

Charles C. Wells, C. Merrill Bierfeld, Lee E. Holt, City Atty., Dallas, Tex., Arthur R. Petersen, City Atty., Fort Worth, Tex., for defendants-appellants.

Jordan, Rubin & Pace, John F. Jordan, Dallas, Tex., Barry A. Fisher, David Grosz, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before INGRAHAM, POLITZ and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

This appeal presents yet another skirmish in the ongoing struggle between the followers of the Krishna religion and governmental entities intent on regulating the dissemination of literature and the solicitation of funds in public places. ¹ At issue is the constitutionality of a local ordinance governing literature distribution and fund solicitation in the Dallas-Fort Worth Airport complex. ² Ms. Fernandes, a Krishna devotee suing on behalf of the International Society for Krishna Consciousness (ISKCON) members, ³ brought this suit to enjoin enforcement of the ordinance. The district court determined that the ordinance trenched upon First Amendment rights and issued the requested injunction. We affirm.

I. DESCRIPTION OF THE AIRPORT

The Dallas-Fort Worth Regional Airport (D/FW) has been judicially described before, Continental Bus System, Inc. v. City of Dallas, 386 F.Supp. 359 (N.D.Tex.1974), but this appeal necessitates a brief review of its configuration. The 18,000 acre D/FW complex sprawls across the borders of Grapevine, Euless, and Irving, municipalities lying between the cities of Dallas and Fort Worth, Texas. The airport is a major national air transportation center. It serves as a hub connecting regional air traffic D/FW's four terminal buildings are crescent-shaped structures housing arrival and departure gates, airline ticketing and baggage operations, passenger waiting areas, bars, shops, and restaurants, as well as office facilities for the various airlines. Arrival and departure gates for air passengers radiate from central corridors running the length of each terminal building. The terminal buildings are connected by a light rail shuttle system. Thus, while passengers initiating their flights at D/FW must enter the terminal buildings through exterior doors, it is possible for air travelers making a connecting flight at D/FW ⁴ to deplane and proceed to their departure gate in another terminal building without leaving the confines of the terminal system.

as well as the departure point for air travelers in the Dallas-Fort Worth metropolitan area. The airport complex contains a hotel, a bank, and a variety of other commercial establishments in addition to air terminal facilities.

D/FW is jointly owned by the cities of Dallas and Fort Worth and operated by the Regional Airport Board. The Board, which employs a police force to maintain security in the airport complex, formulated the ordinance at issue in this appeal and is responsible for its administration and enforcement. Violations of the ordinance would be prosecuted through the municipal courts of Grapevine, Texas. Therefore, the plaintiff has selected the airport security chief and Grapevine law enforcement officials, all of whom are D/FW Board members, as named defendants in this declaratory judgment action to invalidate the ordinance. Her selection of defendants is appropriate. See International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 818-19 (5th Cir. 1979) (aspects of ISKCON suit challenging Atlanta airport regulations held justiciable when mounted against officials responsible for airport law enforcement).

This controversy first erupted in late 1974 when ISKCON members were arrested by D/FW police for soliciting funds, selling merchandise, and distributing literature in the terminal buildings without a permit in violation of airport regulations. ISKCON promptly sued to invalidate the regulations and enjoin their enforcement. The district court refused to issue a preliminary injunction, ISKCON v. Dallas-Fort Worth Regional Airport Board, 391 F.Supp. 606 (N.D.Tex.1975), but dismissed the suit before ruling on the merits when the Board modified the regulations by enacting the ordinance at bar.

The Board's adoption of the modified ordinance prompted the filing of this law suit. Ms. Fernandes' complaint rests on the contention that the D/FW terminal buildings are public forums, where governmental restraints on the free exercise of speech and religious liberty must pass constitutional scrutiny. She challenges the ordinance on grounds of unconstitutional vagueness, overbreadth, prior restraint upon free speech, and infringement on free exercise of religious liberty.

The case was tried in the district court on testimony, stipulated facts, trial briefs, and documentary exhibits. In a memorandum opinion, 465 F.Supp. 493 (N.D.Tex.1979), the trial judge found for the plaintiff, invalidating the ordinance and enjoining its enforcement. The court further determined that under 42 U.S.C. § 1988 the plaintiff was entitled to attorneys' fees incurred in the successful litigation of this matter. Applying the Johnson v. Georgia Highway Express, Inc. ⁵ criteria, the court awarded attorneys' fees against the defendants in their official capacities. On appeal, the D/FW officials dispute the trial court's determinations on: (1) the status of the terminal buildings as public forums; (2) the merits of ISKCON's challenge to the facial constitutionality of the ordinance; (3) the necessity

of joining the airport's lessees as indispensable parties; and (4) the attorneys' fees award. We review these arguments individually.

II. JUSTICIABILITY AND STANDING

Before proceeding to the defendants' argument over the characterization of the airport as a public forum and to ISKCON's constitutional challenge on the merits, we are obliged to identify the justiciable issues presented in this case. Our task is complicated by the anticipatory nature of this action for declaratory relief; no ISKCON permit application has been denied under the terms of the ordinance.

In ISKCON v. Eaves, 601 F.2d at 817-19, our Court gave detailed consideration as to whether there was an Article III controversy in a similar facial challenge to the Atlanta airport ordinance regulating ISKCON's activities. Noting the widespread judicial acceptance of anticipatory suits by active members of organizations with "goals apart from the extirpation of unconstitutional measures," id. at 819, Judge Goldberg, for the panel, determined that the Atlanta plaintiffs demonstrated the requisite concrete and definite interest in challenging the ordinance through threatened disobedience. Ms. Fernandes demonstrates that same degree of concrete adversity here.

Ms. Fernandes first challenges § 4A(c) of the ordinance which states the conditions under which a solicitation permit may be denied. Specifically, she alleges that this section constitutes a prior restraint upon First Amendment freedoms because of its lack of Freedman ⁶ procedural safeguards as well as its broad grant of discretion to the Executive Director in granting or denying a permit. Defendants argue that because plaintiff has neither applied for nor been refused a permit, she lacks standing to challenge this provision.

Defendants' objection to standing is not supported in the law. It is clear that a party may challenge a licensing statute regardless of whether he or she was denied a permit, or whether one has ever been sought. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969); ISKCON v. Eaves, 601 F.2d at 823. See also Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976). A court may invalidate an excessively broad grant of discretion on its face, without regard to the particular facts of the plaintiff's case, because the very existence of the discretion lodged in the public official is constitutionally unacceptable. ISKCON v. Eaves, 601 F.2d at 823.

Plaintiff has standing to support other challenges as well. She may assert an overbreadth challenge to § 4A(h)(1), which regulates the location in which solicitation is permitted, notwithstanding the fact she has not violated that section. Broadrick v. Oklahoma, 413 U.S. 601, 612-13, 93 S.Ct. 2908, 2915-2917, 37 L.Ed.2d 830 (1973). Likewise, plaintiff's grievance against the restraint on religious freedom imposed by the fee requirement in § 4A(f) is also justiciable although the case is in an anticipatory posture. See Flast v. Cohen, 392 U.S. 83, 104 n.25, 88 S.Ct. 1942, 1954 n.25, 20 L.Ed.2d 947 (1968). Plaintiff also has standing to mount vagueness challenges to §§ 4A(h)(4)(hh) and (ii) relating to obstructing entrances, stairways, and baggage areas, because she is entitled to fair warning as to what conduct the ordinance seeks to prohibit. ISKCON v. Eaves, 601 F.2d at 820-23.

Plaintiff's challenge to § 4A(h)(4)(gg), which governs the cancellation or reassignment of a permit already granted, evokes a different conclusion. In ISKCON v. Eaves, we held that a challenge to a similar provision was inappropriate because the possibility that the defects allegedly contained therein would affect an applicant who did not yet have a permit was merely contingent. 601 F.2d at 825. This contingency, coupled with the anticipatory posture of the entire proceeding, compels us to conclude that ISKCON's challenge to § 4A(h)(gg) is not at this time justiciable.

Counsel for the defendants asked at oral argument for detailed guidance in drafting constitutionally sound regulations in this delicate area. We appreciate...