Association of Community Organizations for Reform Now, (Acorn) v. Municipality of Golden, Colo.

• Decision Date: 24 September 1984
• Docket Number: No. 82-1310,82-1310
• Citation: 744 F.2d 739
• Parties: ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, ("ACORN") Kurt Roscow, Melissa Neumiller, Charles Murawski, and Sally Worland, Plaintiffs-Appellants, v. MUNICIPALITY OF GOLDEN, COLORADO, and Golden Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 739

744 F.2d 739

ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW ("ACORN") Kurt Roscow, Melissa Neumiller, Charles Murawski, and Sally Worland, Plaintiffs-Appellants, v. MUNICIPALITY OF GOLDEN, COLORADO, and Golden Police Department, Defendants-Appellees.

No. 82-1310.

United States Court of Appeals Tenth Circuit.

Sept. 24, 1984.

Stephen Bachmann, New Orleans, La. (Philip Green, Denver, Colo., was also on brief), for plaintiffs-appellants.

Russell J. Sindt, Golden, Colo., for defendants-appellees.

Before HOLLOWAY, McWILLIAMS and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

The Association of Community Organizations for Reform Now (ACORN) brought this action under 42 U.S.C. Secs. 1983, 1988 and the First and Fourteenth Amendments against the City of Golden, Colorado. ACORN sought an injunction against enforcement of the City of Golden's ordinance which prohibited door-to-door canvassing without first obtaining an exemption. The district court entered judgment in favor of the City of Golden. Plaintiff appeals.

I The Factual Background

ACORN is a non-profit corporation organized under Arkansas law, and registered to do business in Colorado. ACORN's stated purpose is to assist low and moderate income people to organize their neighborhoods and petition for redress on issues of concern to them.

ACORN's canvassing staff goes door-to-door through neighborhoods informing people about its work, encouraging people to sign a petition and participate directly, and seeking donations. II R. 10, 15. ACORN desired to canvass the City of Golden because it wanted to solicit support for its opposition to the Public Service Company's rate increases and wintertime disconnection policies. See II R. 10-11, 25. Before canvassing an area, ACORN has a "standard procedure" of contacting municipalities and providing the municipality with basic information about ACORN, which includes the names of the canvassers, a sample identification card, and a copy of the petition. II R. 12-13.

ACORN was aware that the City of Golden had an ordinance prohibiting uninvited door-to-door peddling, soliciting and poll taking, unless the city manager issues an exemption. Under the ordinance, the city manager "shall issue" an exemption after the city council "determin[es]" that the solicitation, peddling or poll taking is for a "charitable, religious, patriotic or philanthropic purpose or otherwise provides a service or product so necessary for the general welfare of the residents of the city that such activity does not constitute a nuisance." Golden, Colo., Business Regulations and Licenses ch. 4.44 Sec. 4.44.020 (1975). To apply for an exemption, an applicant must provide the city council with a sworn written application containing general information such as the names and addresses of its officers, the purpose for which the exemption is sought, the anticipated use of the proceeds, the time period the applicant intends to canvas, and whether canvassers are compensated. Id. Sec. 4.44.030. ¹

ACORN decided not to apply for an exemption after consulting with its attorneys, taking the position that the information sought was outside that which could be required under the First Amendment, and that ACORN's activities were not truly philanthropic, charitable or religious and therefore its activities were not within the definitions for the exemption. II R. 14. Instead of applying an exemption ACORN wrote the City of Golden a letter explaining that it intended to canvas on November 5. The letter outlined ACORN's program, provided the City with a list of canvassers, and a certificate of registration from the State of Colorado, and listed the dates on which ACORN intended to canvass the City of Golden. II R. 13-14. The letter also requested the City of Golden to contact ACORN if anything "appeared out of line." II R. 14-15. The City of Golden never contacted ACORN.

On November 5, 1980 ACORN representatives began canvassing door-to-door in the City of Golden. II R. 25. The canvassers explained ACORN's opposition to the Public Service Company's proposed rate increase, and asked people to sign a petition, and donate what they could. The canvassers met with a positive reception within the community. II R. 25-26, 31. The following day the City of Golden's police told the canvassers to cease and desist. Some canvassers were cited for violating the ordinance, and canvassing stopped. ² The City of Golden confirmed by statement of counsel that it "is prepared to enforce this ordinance," and that if ACORN representatives were again to canvass in Golden, the ordinance would be enforced against them. II R. 32-33.

ACORN brought suit. The district court denied ACORN's motion for a preliminary injunction, concluding that ACORN had not shown a sufficient probability of success on the merits. II R. 69. The parties jointly moved for a bifurcated trial, reserving the issues of damages and attorneys' fees. In the pre-trial order the parties agreed to submit the issue of liability to the court on the record of the preliminary injunction, supplemented with stipulated facts and exhibits. I R. 16.

The trial judge entered judgment for Golden. He found it important that applications for exemptions were rarely refused, and that ACORN had refused to apply for one. Trial Court op. at 3, 4. The court distinguished Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), in which the Supreme Court struck down as overbroad an ordinance prohibiting issuance of a solicitation permit to charitable organizations that do not use at least 75 percent of their receipts for charitable purposes. The court deemed Schaumburg "inapposite" because in the City of Golden's ordinance "there is no ... effort to intrude into the functioning of soliciting organizations." Trial Court op. at 4. The court also noted that although Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976), struck down as unduly vague an antisolicitation ordinance which applied to political organizations, the Supreme Court did recognize that reasonable regulations in this area are permissible if drawn with "narrow specificity." Trial Court Op. at 4.

Although the trial court believed that the definition of the kinds of organizations which the city council may determine to be exempt from the Golden ordinance's prohibition is "certainly not specific," and that "the words 'charitable, religious, patriotic, or philanthropic' may be considered vague and indefinite and the catch-all clause, 'or otherwise provides a service or product so necessary to the general welfare' as not to constitute a nuisance is uncertain of meaning," the ordinance was not unconstitutional. Id. at 4-5 (quoting Golden ordinance). The court apparently reasoned that the ordinance would "clearly be unconstitutional" if police were charged with determining which groups were entitled to an exemption; however, the court concluded that because the city council, not the police, makes this determination, the ordinance is constitutional. Id. at 5.

Although the court recognized that it is possible that the "city council may abuse the rights of some persons in denying exemptions or grant them on an unlawfully discriminatory basis," it was appropriate to assume an exemption would be granted if submitted by ACORN; that Golden's City Attorney has said he would recommend an exemption for ACORN; and that the granting of it would be consistent with exemptions given to other groups, including the Golden Citizen's Action Association. Id. at 5. The court believed that the "narrow question presented by the attack on the facial validity" of the ordinance is whether it is constitutional to require an application for an exemption. The court answered this question in the affirmative. Because the trial judge believed that "nothing more is presented in this case," he entered judgment dismissing the action. Id. at 5-6.

On appeal, ACORN argues for reversal because the ordinance: (1) permits content review; (2) constitutes a prior restraint; (3) is unconstitutionally vague; (4) unconstitutionally delegates discretion to the city council; (5) unduly burdens the First Amendment right to privacy; and (6) is unconstitutional as applied. The City of Golden does not respond directly to these separate arguments. Rather, Golden argues generally that the ordinance is constitutional as a reasonable time, place or manner regulation. Without reaching all the contentions of ACORN, we are convinced that we must hold the ordinance invalid because it vests unguided discretion in municipal officials to control protected activities within the ambit of the First and Fourteenth Amendments, and is not content neutral.

II Analysis

A. Failure to apply for an exemption

The City of Golden argues that "ACORN has sought to challenge the solicitation ordinance without filing for an exemption thereto. The exemption process required by the City of Golden is reasonable and valid, and ACORN has created an unnecessary controversy by refusing to file for the same." Brief of Defendants-Appellees 6. Furthermore, the City Attorney for the Golden believes that a basis for exempting ACORN exists although the final decision rests with the city council. Id. at 7. As we understand Golden's argument, it takes the position that ACORN should be required to apply for and be denied an exemption before bringing a facial challenge to the ordinance. We cannot agree.

Applying for and being denied a license or an exemption is not a condition precedent to bringing a facial challenge to an unconstitutional law. One faced with an unconstitutional law requiring him to obtain a license or exemption before engaging in First Amendment activity "may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license." See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct....