Anderson v. Moses

• Decision Date: 20 July 1960
• Citation: 185 F. Supp. 727
• Parties: Jane ANDERSON, Douglas Gordon, Bella Halebsky, Phillip Halpern, A. A. Heller, Ted Jacobs, Esther Perry, Kate Pollack, Jennie Ratner; Lillian E. Reiner, Helen Sobell, Rose Sobell and Judy Swetzky, individually on their own behalf; on behalf of all others similarly situated as members of the Committee to Secure Justice for Morton Sobell; and on behalf of such Committee; and Jennie Ratner, as Treasurer of such Committee, on behalf of such Committee and its members, Plaintiffs, v. Robert MOSES, Commissioner of Parks of the City of New York, Arthur Schleifer, Julius H. Berman, and Tavern-on-the-Green, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

185 F. Supp. 727

Jane ANDERSON, Douglas Gordon, Bella Halebsky, Phillip Halpern, A. A. Heller, Ted Jacobs, Esther Perry, Kate Pollack, Jennie Ratner; Lillian E. Reiner, Helen Sobell, Rose Sobell and Judy Swetzky, individually on their own behalf; on behalf of all others similarly situated as members of the Committee to Secure Justice for Morton Sobell; and on behalf of such Committee; and Jennie Ratner, as Treasurer of such Committee, on behalf of such Committee and its members, Plaintiffs, v. Robert MOSES, Commissioner of Parks of the City of New York, Arthur Schleifer, Julius H. Berman, and Tavern-on-the-Green, Inc., Defendants.

United States District Court S. D. New York.

July 20, 1960.

Nanette Dembitz, Mercedes Hoffmann, New York City, for plaintiffs.

Charles H. Tenney, Corporation Counsel, New York City, for defendant Robert Moses, Commissioner of Parks, etc.

Schwartz & Nathanson, New York City, George H. Schwartz, Paul E. Gelbard, New York City, of counsel, for defendants Arthur Schleifer, Julius H. Berman, and Tavern-on-the-Green, Inc.

FREDERICK van PELT BRYAN, District Judge.

This is an action under the Federal Civil Rights Act of 1871, 42 U.S.C.A. § 1983,¹ for alleged deprivation of rights protected by the Fourteenth Amendment. Defendants have moved for judgment on the pleadings pursuant to Rule 12(a), F.R.C.P. 28 U.S.C., and for summary judgment pursuant to Rule 56, F.R.C.P. Plaintiffs have cross-moved for summary judgment pursuant to Rule 56. These motions are before me for decision.

Plaintiffs are officers and members of the "Committee to Secure Justice for Morton Sobell", a voluntary unincorporated association with its principal place of business in the City and County of New York. In 1951 Morton Sobell was convicted in this court, with Julius and Ethel Rosenberg, of conspiracy to transmit information relating to the national defense to the Soviet Union. See United States v. Rosenberg, 2 Cir., 195 F.2d 583, certiorari denied 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687. The Rosenbergs were sentenced to death and Sobell was sentenced to imprisonment for a term of thirty years. The Committee to Secure Justice for Morton Sobell (The Committee) was organized in 1954 for the purpose of securing Sobell's release from imprisonment. In pursuance of its purposes The Committee has circulated petitions and appeals and held various public meetings to gain support for the release of Sobell, and has also financed various legal proceedings on his behalf.

Defendant Tavern-on-the-Green, Inc. (Tavern) is a New York corporation which operates a public restaurant (The Tavern-on-the-Green) in and on public park property of the City of New York in Central Park under license from the New York City Commissioner of Parks. Defendants Schleifer and Berman are respectively President and Secretary-Treasurer of Tavern and are alleged to control and conduct its operations. Defendant Moses was the Commissioner of Parks of the City of New York who granted the license to Tavern for the restaurant concession in the Park and who was in office at the time the events with which we are concerned here took place.

The present controversy arises out of the cancellation of a dinner sponsored by The Committee which was scheduled for April 21, 1958 at the Tavern-on-the-Green. It appears from the pleadings and from the affidavits submitted on these motions that the dinner was to be held to obtain public support for the appeal for clemency for Sobell, with a speaking program directed to that end. Arrangements had been made between representatives of Tavern, who were fully aware of the purposes of the occasion, and representatives of The Committee for the dinner to be served on that date, which was a Monday, a day on which the Tavern was closed to the general public. The Committee had guaranteed an attendance of 400 and paid $500 to Tavern on account. Invitations had been sent by The Committee announcing the dinner and its purposes and soliciting reservations.

It was apparently the general practice of the Tavern-on-the-Green to serve dinners for organizations devoted to a variety of causes, some charitable, some fraternal and some political, and some espousing various causes at which speeches on topics appropriate to the occasion or cause were customarily made.

On April 10, 1958 a New York City newspaper carried a news story which was highly critical of the Sobell Committee and of permitting a dinner for its purposes to be held on City property. Thereafter Tavern states that it received numerous protests against holding the dinner from patrons, from the public generally, and from its own employees and threats of picketing, loss of patronage and possible violence. Tavern says that many of its employees who were necessary to prepare and serve the dinner refused to do so and that it became unable to supply the necessary service. The Tavern officers were concerned that if the dinner were held "picketing would occur, violence and riot might well occur and that people would be hurt and property damaged". On April 13, 1958 Tavern determined to cancel the dinner. After The Committee had refused to cancel voluntarily it notified The Committee by telegram that the dinner was cancelled.

On April 14, after cancellation had been effected, Commissioner Moses, without knowledge that this had been done, wrote to Tavern concerning the dinner as follows:

"While we cannot order you to cancel this affair we recommend that you do so. This dinner meeting is, in effect, an attack on our courts and system of justice and will be offensive to many citizens, and is not, in our opinion, a proper use of the facilities of the Tavern-on-the Green.

"An outdoor meeting sponsored by this Committee at one of our designated forum areas such as Union Square, will, of course, be permitted under the head of free speech but the Tavern is no place for rallies of this sort."

The dinner was not held and The Committee has been unable to reschedule it for a future date.

The complaint contains two counts. In the first plaintiffs allege in substance that the cancellation of the dinner was brought about by the acts of the various defendants acting in concert, or at least in accord, solely because of the unpopularity of the views held by The Committee and its members respecting the conviction and sentence of Sobell. It is asserted that these actions were in essence on behalf of the Municipal Government of the City of New York under color of State and City law. Since the Tavern was customarily used by other organizations concerned with public, social or political issues for the expression of their views, plaintiffs assert that The Committee and its members have been deprived of rights of freedom of speech and freedom of assembly and equal protection of the laws guaranteed to them by the Fourteenth Amendment and in violation of the Federal Civil Rights Act of 1871, 42 U.S.C.A. § 1983.²

Plaintiffs seek judgment under the Civil Rights Act and under the Declaratory Judgments Act, 28 U.S.C. § 2201, declaring that defendants have a duty and obligation under the Fourteenth Amendment to permit The Committee and its members to use the Tavern-on-the-Green "without discrimination against the Committee because of its views and their unpopularity", directing the defendants Tavern, Schleifer and Berman to negotiate in good faith with The Committee for a dinner meeting at the Tavern-on-the-Green without such discrimination, and requiring defendant Park Commissioner to direct them to do so. Jurisdiction on the first count is alleged to lie under 28 U.S.C. § 1343(3).³

The second count is against defendant Tavern for alleged breach of its agreement with The Committee for the dinner meeting of April 21, 1958, and seeks money damages for such breach. Jurisdiction over the second count is alleged to be incidental and pendant to jurisdiction over the first count under the Civil Rights Act. See Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L.Ed. 939 (dissenting opinion).

Defendants answered denying in substance that the cancellation of the dinner deprived The Committee and its members of any constitutional rights or that the cancellation was made with any such intent or purpose, and alleging by way of separate defenses lack of jurisdiction of this court over the claims set forth in either of the counts of the complaint.

In view of the rather extensive affidavits which have been submitted by both sides I will consider only the question of whether either party is entitled to summary judgment.

Defendants take the position that the Tavern-on-the-Green is a private enterprise conducting a private business and that its cancellation of the dinner was not action by the State or municipality nor was it done under color of State or City law. They assert that therefore plaintiffs have no claim for violation of the Civil Rights Act and are not entitled to relief from this court. Defendants say further that in any event the dinner was not cancelled because of the unpopularity of the views of The Committee with respect to the conviction and imprisonment of Sobell but for sound and prudent business reasons to protect Tavern's business interests and avoid loss of patronage and damage to its property. Defendants assert that the second count for breach of contract necessarily falls with the first count since the jurisdiction of this court over it is claimed to be pendant only. They urge that there are no issues of fact which require a trial and that they are therefore entitled to summary judgment in their favor.

Plaintiffs, on the other hand, maintain that the undisputed facts show that The Committee and its members were deprived of their constitutional rights of freedom of speech and freedom of assembly and have been denied equal protection of the laws by action taken by governmental authority under the color of State law and that they are entitled to...