Citizens Action Coal. of Ind., Inc. v. Town of Yorktown
| Decision Date | 30 September 2014 |
| Docket Number | No. 1:13–CV–422–RLY–DKL.,1:13–CV–422–RLY–DKL. |
| Citation | 58 F.Supp.3d 899 |
| Parties | CITIZENS ACTION COALITION OF INDIANA, INC., Plaintiff, v. TOWN OF YORKTOWN, INDIANA, Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
Jennifer A. Washburn, Citizens Action Coalition, William R. Groth, Fillenwarth Dennerline Groth & Towe LLP, Gavin Minor Rose, ACLU of Indiana, Indianapolis, IN, for Plaintiff.
Lester H. Cohen, Scott E. Shockley, Defur Voran LLP, Muncie, IN, Robert Scott Daniels, Defur Voran LLP, Fishers, IN, for Defendant.
ENTRY ON CROSS–MOTIONS FOR SUMMARY JUDGMENT
Plaintiff, Citizens Action Coalition of Indiana, Inc. (“CAC”), brings this action against the Town of Yorktown, Indiana, (“Yorktown” or “Town”) challenging the constitutionality of several provisions of Ordinance No. 688, which has subsequently been amended and superseded by Ordinance No. 710 (the “Ordinance”) during the course of this litigation. After this amendment, the only remaining constitutional challenge involves whether the prohibition of door-to-door canvassing and solicitation after the hour of 9:00 p.m. or sunset, whichever is earlier, comports with the First Amendment. Both parties have moved for summary judgment with respect to this issue. The court, having reviewed all briefing and applicable law, now GRANTS CAC's motion for summary judgment and DENIES the Town's motion for summary judgment.
Yorktown is a small, semi-rural residential community located in Delaware County, Indiana, directly contiguous to the City of Muncie. . The Town is inhabited by approximately 14,300 people, living in 3,500 residences. (Id. at 8:4–10, 9:4–19).
The legislative body for the Town is the Yorktown Town Council. (Pete Olson Dep. 11:7–9). Pete Olson serves as the Town Manager. (Id. at 6:5–15). The Yorktown Town Council contains seven (7) elected members whose responsibilities include passing ordinances to govern the Town, such as the Ordinance at issue here. (Id. at 11:7–19).
CAC originally brought this lawsuit in response to Ordinance No. 688, which was passed by the Yorktown Town Council on February 27, 2012, and took effect 30 days later in April of 2012. (Id. at 14:20–15:12). Due to this lawsuit, the Town amended Ordinance 688 and replaced it with Ordinance 710. (Id. at 18:11–18). The new ordinance was passed unanimously by the Yorktown Town Council on June 17, 2013, and took effect immediately. (Id. at 18:19–19:9).
The Ordinance regulates the ability of persons to peddle, solicit, or fundraise door-to-door. (Yorktown Codified Ordinance § 688). The Ordinance sets forth regulations and restrictions for a person classified as a: (1) non-commercial door-to-door advocate, (2) peddler, (3) professional fundraiser, (4) solicitor, or (5) transient merchant. (Yorktown Codified Ordinance § 688.011 ). The Town considers CAC's activities to be those of a non-commercial door-to-door advocate. (See Affidavit of Pete Olson (“Pete Olson Aff.”) ¶ 10). A non-commercial advocate is defined by the Ordinance as follows:
The parties' dispute centers on § 688.09 of the Ordinance, which provides:
It is unlawful for any person to peddle, solicit or fundraise before the hour of 9:00 a.m. of any day or after the hour of 9:00 p.m. (or sunset, whichever is earlier) of any day without the specific prior consent of the prospective buyer.
(Yorktown Codified Ordinance § 688.09 (“Hours Restriction”)). The Hours Restriction applies to everyone under the Ordinance, including non-commercial advocates, whether or not they are required to obtain a license. (Pete Olson Aff. ¶ 11). A person who violates this restriction (Yorktown Codified Ordinance § 10.99).
In practice, the end time of the Hours Restriction is typically guided by the time of sunset. For almost three (3) months of 2013 (the beginning of November through January), sunset occurred before 6:00 p.m. (See Pl.'s Ex. 5, Sunset Tables2 ). Indeed, sunset occurred as early as 5:16 p.m. on December 3, 2013 through December 12, 2013. (Id. ). For almost five (5) months of 2013 (mid-October through early March), sunset occurred before 7:00 p.m., and for over six (6) months of 2013 (mid-September to late March), sunset occurred before 8:00 p.m. (Id. ). On the other hand, sunset occurred after 9:00 p.m. only 63 days in 2013. (Id. ).
The Yorktown Town Council passed the Ordinance for two primary reasons: (1) privacy interests of its residents, and (2) safety concerns voiced by its residents. (Pete Olson Dep. 31:23–32:11). Residents stated that they were apprehensive about canvassers approaching their homes after dark. (Id. at 32:12–33:11). Most of their fears stemmed from the fact that many of the Town's subdivisions were built far apart, lack sidewalks, and, contain few streetlights. (Id. at 36:7–37:17). Although new subdivisions in the Town now must go through a zoning process that requires sidewalks and streetlights, only three to five subdivisions of the approximately twenty-five (25) subdivisions meet those requirements. (Id. at 40:4–24). Residents also noted that they value their privacy, and prefer not being interrupted during the evening hours. According to the Town Manager, these concerns stem from the fact that the Town's residents are “coming home from the grind, trying to take care of the kids, [and] putting them to bed....” (Id. at 37:25–38:17). That said, the Town did not have any complaints or concerns involving fraud or any other illegal activities by persons going door-to-door. (Id. at 43:2–7, 44:14–16).
CAC is an Indiana non-profit organization dedicated to promoting and preserving the rights of Indiana citizens on issues such as utility rate-making and regulations, health care, environmental well-being, and political participation. (Affidavit of Kerwin Olson ( ) ¶ 3; Affidavit of Laura Sucec (“Sucec Aff.”) ¶ 3). CAC has operated continuously in Indiana since 1974 and currently has approximately 40,000 members. (K. Olson Aff. ¶ 3). Currently, CAC's only office is located in Indianapolis, Indiana. (Id. at ¶ 4; Sucec Aff. ¶ 4).
CAC's funding stream is severely limited, so it relies on contributions from supporters to advance its mission. (K. Olson Aff. ¶ 4; Sucec Aff. ¶ 4). In particular, CAC engages in “canvassing” operations, which involves making direct contact with potential supporters. (K. Olson Aff. ¶ 5; Sucec Aff. ¶ 5). This is done in two ways: (1) “field canvassing,” which involves canvassers going door-to-door in Indiana's cities and towns to engage willing listeners, and (2) “phone canvassing,” in which canvassers call persons on the telephone. (K. Olson Aff. ¶ 5; Sucec Aff. ¶ 5). CAC has conducted field canvassing in Indiana since 1980 and phone canvassing since 1982. (K. Olson Aff. ¶ 5; Sucec Aff. ¶ 5).
During CAC's field canvassing, its employees go door-to-door in residential neighborhoods to speak to citizens about issues of public and political importance. (K. Olson Aff. ¶ 6). During this time, CAC will distribute informational literature, ask residents to sign a petition, and solicit monetary contributions to CAC. (Id. ). CAC does not sell or offer for sale any goods, merchandise, or services. (Sucec Aff. ¶ 7). These conversations typically last 10 to 15 minutes but may last as long as 30 to 45 minutes. (Id. at ¶ 8). Through these actions, CAC spreads its message while obtaining financial support to continue its operations. (K. Olson Aff. ¶ 6).
CAC generates approximately 25% of its annual revenues from field canvassing and an additional 30–35% through phone canvassing. (K. Olson Aff. ¶ 8). Despite more money raised through phone canvassing, CAC believes field canvassing is far more successful and vital to its operations. (Id. at ¶ 7). Advantages include: (1) the natural back-and-forth discussion that occurs during a face-to-face interaction; (2) the ability to distribute literature and obtain signatures on petitions; and (3) the chance to identify supporters and likely supporters who may then be contacted through phone canvassing. (Id.; Sucec Aff. ¶ 10).
CAC engages in field canvassing in each respective municipality approximately once every twelve (12) or eighteen (18) months. (Sucec Aff. ¶ 13). It will continue canvassing the municipality until it has visited the majority of a particular city or town. (Id. ). But for municipalities that are located outside the immediate vicinity of Indianapolis, CAC generally does not canvass those areas on consecutive days, so that its employees can be relieved from lengthy travel. (Id. ). Instead, CAC will visit the municipality once or twice a week until it has completed canvassing there. (Id. ).
CAC typically conducts its field canvassing activities between 4:00 p.m. and 9:00 p.m. on weekdays year-round. (Id. at ¶ 14). CAC will occasionally canvass...
To continue reading
Request your trial