ACORN v. City of Tulsa, Okl.

• Decision Date: 15 December 1987
• Docket Number: No. 84-2606,84-2606
• Citation: 835 F.2d 735
• Parties: ACORN, et al., Plaintiffs-Appellants, v. CITY OF TULSA, OKLAHOMA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 735

835 F.2d 735

56 USLW 2353

ACORN, et al., Plaintiffs-Appellants, v. CITY OF TULSA, OKLAHOMA, et al., Defendants-Appellees.

No. 84-2606.

United States Court of Appeals, Tenth Circuit.

Dec. 15, 1987.

Steve Bachmann, New Orleans, La., for plaintiffs-appellants.

Imogene Harris, Asst. City Atty. (Neal E. McNeill, City Atty., with her on the brief), Tulsa, Okl., for defendants-appellees.

Before McKAY, SETH and TACHA, Circuit Judges.

TACHA, Circuit Judge.

The City of Tulsa regulates the use of public property through a scheme of municipal ordinances. The Association for Community Reform Now (ACORN) challenges the validity of four of these ordinances before this court. These ordinances provide, inter alia:

Tulsa, Okla., Rev. Ordinances tit. 26, Sec. 2 (1985).

It shall be an offense for any person to perform any of the following acts within any public park or other area under the control of the Park and Recreation Board unless the doing of such act is authorized by the said Board or the Park Superintendent.

(a) To give any theatrical entertainment, moving picture show, parade, procession, public gathering or public meeting of any kind, post or display any sign banner, or advertisement upon any tree, post, building or other structure.

Tulsa, Okla., Rev. Ordinances tit. 27, Sec. 511 (1985).

A. It shall be an offense for any person to do any of the following acts upon any public street, highway, alley, public place or upon or to any other property, real, personal or mixed, belonging to the City of Tulsa, regardless of the purpose for which such property was dedicated, acquired or purchased, without the consent of the Board of Commissioners of the City of Tulsa:

....

2. To take up one's abode upon said property.

3. To build any structure of any kind upon any of said property.

Tulsa, Okla., Rev. Ordinances tit. 27, Sec. 514 (1985).

It shall be an offense for any person to maintain, erect or permit the erection of any building, hut, hotel, shanty, tent or other structure under his control upon any street, sidewalk, alley or other public grounds.

Tulsa, Okla., Rev. Ordinances tit. 26, Sec. 8 (1985).

No person shall camp, erect a tent, build a fire or park an automobile or other vehicle for the purpose of sleeping therein or under cover projecting therefrom, within any park or other area under the jurisdiction of the Park and Recreation Board, except at such place or places as may be designated and set aside for such purposes.

ACORN appeals from a district court decision holding each of the ordinances facially constitutional. We affirm the decision holding sections 514 and 8 facially constitutional but reverse the decision holding sections 2 and 511 constitutional.

ACORN is a non-profit organization that seeks to advance the interests of low- and moderate-income people by engaging in various forms of community organization and activity. In the fall of 1982, ACORN planned a series of activities throughout the country to protest policies implemented by the Reagan Administration. The demonstrations were called "Reagan Ranches" and were reminiscent of "Hoovervilles" of an earlier time. They included public rallies, speeches, assemblies, and the erection of tent cities to protest the Administration's economic policies. The ACORN organization in Oklahoma planned to hold such an event in Tulsa on October 29 through October 31, the weekend before the November election. Plans for the Reagan Ranch in Tulsa included a symbolic burial service for Reaganomics, a Nancy Reagan fashion show, soup kitchens, a tent city, and a foreclosure of the ranch.

ACORN first planned to conduct its activities on Salvation Army property, but the Salvation Army decided against permitting the assemblies. ACORN then arranged to hold the demonstrations on property owned by a local Catholic church. That arrangement fell through on October 25, four days before the Reagan Ranch activities were to begin. ACORN attributes this denial to comments reportedly made by James Inhofe, the Mayor of Tulsa, to the effect that ACORN would not be able to hold its demonstration anywhere in the city.

On Wednesday, October 27, the organizing director for ACORN in Oklahoma, Jeff Murray, met with the Assistant Park Director of Tulsa, Max Wiens, to request permission to erect a Reagan Ranch in Springdale Park from October 28 to October 30. Wiens checked with the Park Board's legal department and showed Murray city ordinances prohibiting the erection of a dwelling or building on public property without the permission of the Tulsa Board of Commissioners and prohibiting the erection of a tent for the purpose of sleeping therein on public property. Wiens suggested that since he could not give ACORN permission to erect tents on public property, Murray should attend an informal Park Board meeting the following day.

At the Thursday meeting, the Park Board informed Murray that only the Tulsa Board of Commissioners had authority to allow ACORN to pitch tents. The Park Board also told Murray that he needed no permit to hold a demonstration if no tents were erected and if park curfews were obeyed. ACORN, however, was told that it was prohibited from posting any banners in the park. Murray asked Hugh McKnight, the Director of Parks and Recreation and a member of the Tulsa Board of Commissioners, to grant ACORN a permit. McKnight said he did not have the authority to grant a permit. The Board of Commissioners met the next day, but ACORN made no request for a permit, apparently because Murray did not know the Board was meeting that day. ACORN erected its Reagan Ranch facilities on private property on Friday evening.

In 1983, ACORN sued the city, McKnight, and Inhofe for injunctive relief and damages, challenging the constitutionality of the four Tulsa ordinances. The district court dismissed the action against McKnight and Inhofe on the merits. The court then declined to consider ACORN's arguments that the ordinances were unconstitutional as applied because ACORN had never asked the Board of Commissioners to grant a permit. The court held that the Tulsa ordinances are facially constitutional under the first and fourteenth amendments.

On appeal, ACORN alleges that the district court erred in holding the ordinances facially constitutional and in refusing to consider the constitutionality of the ordinances as applied. ACORN argues that each of the ordinances 1) vests undue discretion in city officials, 2) is unconstitutionally vague, 3) unduly interferes with protected constitutional activity, and 4) is unconstitutional as applied.

I.

We first consider the threshhold questions raised by the city: whether ACORN has standing to challenge the Tulsa ordinances and whether the challenge is ripe for decision. "Standing doctrine is designed to determine who may institute the asserted claim for relief. Ripeness doctrine addresses a timing question: when in time is it appropriate for a court to take up the asserted claim." Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 (D.C.Cir.1986) (emphasis original).

"The term 'standing' subsumes a blend of constitutional requirements and prudential considerations...." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). The constitutional dimension of standing derives from article III, which limits the judicial power of the United States to "cases" and "controversies." In order to satisfy the article III restrictions on standing, a party must show at least that he or she has suffered an actual or threatened injury caused by the defendant and that a favorable judicial decision is likely to redress the injury. Id. at 472, 102 S.Ct. at 758; see also Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 297-98, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979).

The prudential limitations on standing have been developed to focus the questions presented for decision in the federal courts. See, e.g., Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984); Valley Forge Christian College, 454 U.S. at 474-75, 102 S.Ct. at 759-60. But "[w]ithin the context of the First Amendment, the Court has enunciated other concerns that justify a lessening of prudential limitations on standing." Munson, 467 U.S. at 956, 104 S.Ct. at 2846. Thus, there are circumstances in which parties who have not actually engaged in protected activity are allowed to challenge a statute that inhibits others from engaging in protected speech or expression. Id. at 956-57, 104 S.Ct. at 2846-47.

In Association of Community Organizations for Reform Now v. Municipality of Golden, Colo., 744 F.2d 739, 745 n. 3 (10th Cir.1984), this court held that the same appellant who is before us in this case had standing to challenge a municipal ordinance prohibiting uninvited door-to-door peddling, soliciting, and poll taking. ACORN had suffered an actual injury when its representatives were cited for violating the ordinance, and it suffered a threatened injury because the city stood ready to enforce the ordinance again. No prudential considerations justified not affording ACORN standing to challenge the Golden ordinance.

We hold that ACORN has satisfied the constitutional requirements for standing in this case as well. ACORN suffered actual injury as a result of section two when it was denied permission to post banners in the park. ACORN has not suffered actual injury as a result of the other ordinances, for ACORN never formally requested a permit for its proposed activities as required by section 511, nor did ACORN engage in any activities barred on city property by sections 514 and 8. However, ACORN has suffered a threatened injury from each of the ordinances. It has shown an unmistakable intention to engage in activities that are prohibited by each of the challenged ordinances. The city has demonstrated its...