Benefit v. City of Cambridge

• Decision Date: 14 May 1997
• Citation: 424 Mass. 918,679 N.E.2d 184
• Parties: Craig BENEFIT v. CITY OF CAMBRIDGE & others. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 184

679 N.E.2d 184

424 Mass. 918

Craig BENEFIT v. CITY OF CAMBRIDGE & others. ¹

Supreme Judicial Court of Massachusetts Middlesex.

Argued April 8, 1997.

Decided May 14, 1997.

Gregory I. Massing, Assistant Attorney General, for the District Attorney for the Northern District.

Sarah R. Wunsch (Jonathan Shapiro, with her), Boston, for plaintiff.

Maria Foscarinis, Catherine Bendor, Carl Nadler and Thomas J. Perrelli, Washington, DC, for National Law Center on Homelessness and Poverty, amicus curiae, submitted a brief.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR, GREANEY, FRIED and MARSHALL, JJ.

GREANEY, Justice.

General Laws c. 272, § 66, provides that "[p]ersons wandering abroad and begging, or who go about from door to door or in public or private ways, areas to which the general public is invited, or in other places for the purpose of begging or to receive alms, and who are not licensed" may be imprisoned for up to six months. The plaintiff, Craig Benefit, filed a complaint on July 9, 1992, in the Superior Court seeking (1) a declaration under G.L. c. 231A, that G.L. c. 272, § 66, is unconstitutional under the First and Fourteenth Amendments to the United States Constitution, and arts. 1 and 16 of the Declaration of Rights of the Massachusetts Constitution; (2) an injunction preventing the defendants from "threatening, intimidating, harassing, arresting and prosecuting" him when he is peacefully begging in public places; and (3) damages and attorney's fees. A judge in the Superior Court considered cross motions for summary judgment and, insofar as relevant to this appeal, ordered that "a declaration enter, declaring that G.L. c. 272, § 66 is an overbroad and unconstitutional regulation of speech protected by the First Amendment to the United States Constitution and violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution," and that the defendants be preliminarily enjoined from enforcing the statute. The district attorney appealed pursuant to G.L. c. 231, § 118, second par., from the preliminary injunction that entered on the judge's orders, and we granted an application for direct appellate review. We are concerned only with the declaration quoted above and the resulting preliminary injunction. ² We conclude that G.L. c. 272, § 66, violates the First Amendment because it bans constitutionally protected speech in traditional public forums. As a consequence, we need not consider the plaintiff's equal protection claim under the Fourteenth Amendment or the State constitutional claims.

The following material facts appear to be undisputed. The plaintiff is thirty-six years old and states that he "resides on the streets of Cambridge." He usually sleeps outside, sometimes using a tent or sleeping bag, and subsists on the money he receives from begging and on a monthly social security disability check ranging between $460 and $489.

The plaintiff frequently sits on sidewalks in Harvard Square, often in front of a CVS store located there, holding various signs that request help and refer to love, peace, food, or other messages about the United States government. ³ At times, he holds a cup into which people may deposit money. The plaintiff talks with people about the messages on his signs, and sometimes, if a passerby is willing, the plaintiff discusses his homelessness, the reasons for it, and the role of the government in dealing with the homeless. The plaintiff's activity is peaceful; he does not approach or threaten anyone either physically or verbally, and he does not block any sidewalk or any store entrance. He uses the money he receives in donations to purchase the basic necessities of life.

On March 17, and June 19, 1992, the defendant Officer Rudy Wolcott of the Cambridge police arrested the plaintiff for violating G.L. c. 272, § 66. On July 9, 1993, another Cambridge police officer arrested the plaintiff for violating G.L. c. 272, § 66, and also charged him with being a disorderly person in violation of G.L. c. 272, § 53. On October 19, 1993, the plaintiff appeared in the Cambridge Division of the District Court Department with counsel, and moved for a continuance without a finding on all four charges. He admitted to sufficient facts on each of the charges and waived his rights to a jury trial and to an appeal. The judge dealing with the charges ordered them continued without a finding until April 22, 1994, when they were dismissed. The declaration and preliminary injunction that are before us were entered on June 18 and 20, 1996.

1. The district attorney points out that the criminal charges against the plaintiff under G.L. c. 272, § 66, were disposed of during the pendency of this civil action by the plaintiff's admissions that amounted to the functional equivalent of guilty pleas, and that the plaintiff did not challenge the constitutionality of the statute during the prosecutions. Because the criminal cases are over, the district attorney argues that no actual controversy exists, and that the plaintiff lacks standing to seek declaratory relief. We do not agree.

To obtain declaratory relief, there must be a " 'real dispute' caused by the assertion by one party of a duty, right, or other legal relation in which he has a 'definite interest,' in circumstances indicating that failure to resolve the conflict will almost inevitably lead to litigation." District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 659, 411 N.E.2d 1274 (1980), quoting Bunker Hill Distrib., Inc. v. District Attorney for the Suffolk County, 376 Mass. 142, 144, 379 N.E.2d 1095 (1978). A party has the "definite interest" necessary to confer standing to challenge the constitutionality of a statute if he has suffered, or is in danger of suffering, legal harm. Pratt v. Boston, 396 Mass. 37, 42, 483 N.E.2d 812 (1985). Furthermore, the plaintiff's constitutional challenge is based on an assertion of his First Amendment rights. The United States Supreme Court has said that "[b]ecause of the sensitive nature of constitutionally protected expression, [the Court has] not required that all those subject to overbroad regulations risk prosecution to test their rights. For free expression--of transcendent value to all society, and not merely to those exercising their rights--might be the loser." Osborne v. Ohio, 495 U.S. 103, 115 n. 12, 110 S.Ct. 1691, 1699 n. 12, 109 L.Ed.2d 98 (1990), quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120-1121, 14 L.Ed.2d 22 (1965).

The judge stated the following with respect to the plaintiff's standing:

"It is undisputed that plaintiff has been arrested at least three times under the statute. He has been handcuffed, jailed, bailed, arraigned, and brought to court. In addition, plaintiff has been threatened with arrest numerous times and ordered to leave Harvard Square--all on the basis of [G.L. c. 272, § 66]. There is no dispute that the Middlesex District Attorney's Office pursued prosecutions of plaintiff on charges of violating the statute.

"Defendants present no evidence that they will refrain from enforcing the statute against plaintiff or other peaceful beggars should the Court deny plaintiff standing. Indeed, [the] First Assistant District Attorney of Middlesex County ... has attested to the importance of enforcement of the 'vagrancy statute' as a 'tool' in crime prevention and for protection of its 'citizens from being accosted, intimidated, or harassed' " (footnote omitted).

We agree with the judge that a real dispute exists and that the plaintiff has a sufficient personal interest in the rights and relief at stake to meet standing requirements. The district attorney has not indicated that he will refrain from enforcing G.L. c. 272, § 66, against the plaintiff. The other defendants, who are not parties to this appeal, have not agreed to stop arresting the plaintiff. There exists a continuing threat, indeed a likelihood, of continued prosecution under G.L. c. 272, § 66. Further, judicial efficiency would not be promoted by declining to act on this case, only to face the same issue again when the plaintiff is rearrested. No argument put forth by the district attorney persuades us that the plaintiff lacks standing or that the case is otherwise inappropriate for the declaratory and injunctive relief that was sought.

2. We conclude that (a) the peaceful begging engaged in by the plaintiff involves communicative activity protected by the First Amendment; (b) the criminal sanction, imposed on that activity by G.L. c. 272, § 66, is content- and viewpoint-based and bans the activity in traditional public forums; and (c) as a result, the statute is subject to strict scrutiny, a test which it cannot pass.

(a) It is beyond question that soliciting contributions is expressive activity that is protected by the First Amendment. In Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), the United States Supreme Court struck down an ordinance prohibiting solicitations by charitable organizations that did not use at least seventy-five per cent of their revenues for charitable purposes. The Court held that "charitable appeals for funds, on the street or door to door, involve a variety of speech interests--communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes--that are within the protection of the First Amendment.... [S]olicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on ... social issues, and ... without solicitation the flow of such information and advocacy would likely cease." Schaumburg, supra at 632, 100 S.Ct. at 833-834. See United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 3118-3119, 111 L.Ed.2d 571 (1990); Riley v. National Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 788, 108 S.Ct. 2667, 2673, 101...