Conlon v. City of North Kansas City, Mo.

• Citation: 530 F. Supp. 985
• Decision Date: 09 December 1981
• Docket Number: No. 80-0518-CV-W-5.,80-0518-CV-W-5.
• Parties: Jeffrey R. CONLON, Plaintiff, v. CITY OF NORTH KANSAS CITY, MISSOURI, Defendant.
• Court: U.S. District Court — Western District of Missouri

530 F. Supp. 985

Jeffrey R. CONLON, Plaintiff, v. CITY OF NORTH KANSAS CITY, MISSOURI, Defendant.

No. 80-0518-CV-W-5.

United States District Court, W. D. Missouri, W. D.

December 9, 1981.

Mark W. Bennett, Allen, Babich & Bennett, Des Moines, Iowa, David W. Russell, Kansas City, Mo., for plaintiff.

S. Preston Williams, North Kansas City, Mo., for defendant.

ORDER

SCOTT O. WRIGHT, District Judge.

This is a civil rights suit for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201 and 2202. The suit is brought by one individual member of The Holy Spirit Association for the Unification of World Christianity (hereinafter "Unification Church"), and the Unification Church, on behalf of itself and all of its members, to enjoin the enforcement of and to declare unconstitutional Chapter 24 of the North Kansas City Code which prohibits any person from soliciting contributions for any charitable or religious purpose within the city without a permit or a certificate of registration from the city clerk authorizing such solicitation. North Kansas City, Missouri Code §§ 24-5 and 24-22.

The plaintiffs assert that Chapter 24 is unconstitutional because first, it vests discretion in city officials to grant or deny certificates for the exercise of First Amendment rights without narrow, precise, and objective standards to govern such discretion. Second, it lacks due process procedural safeguards respecting denials, revocations and appeals of certificates of registration. Third, it includes unconstitutional restrictions on First Amendment freedoms of association, speech, assembly, and free exercise of religious beliefs. Fourth, it applies unequally to the plaintiffs and, fifth, it creates impermissible violations of the establishment clause of the First Amendment. Defendant argues that the ordinance is constitutional because it provides a non-discretionary framework for the issuance of solicitation permits and certificates to both charitable and religious organizations desiring to solicit funds in the city. Furthermore, defendant argues that any restrictions the ordinance places on First Amendment rights are justified because of the city's inherent interest in protecting its citizens from fraud, harassment, and deceptive practices.

The case has been submitted by the parties to the Court on cross-motions for summary judgment with a stipulation of facts. After reviewing the cited authority and the stipulation of facts, this Court concludes that Chapter 24 of the North Kansas City, Missouri Code is unconstitutional because it impermissibly restricts plaintiffs' First Amendment rights, and the city of North Kansas City, Missouri is enjoined from enforcing this ordinance.

Plaintiff, Jeffrey R. Conlon, is a full-time member of the Unification Church. He presently resides at a church center of the Unification Church in Leawood, Kansas. Plaintiff, Unification Church, is a California non-profit religious corporation holding, inter alia, Federal and Missouri tax exemptions as a religious non-profit organization. The Unification Church was founded in 1954 by the Reverend Sun Myung Moon in Seoul, South Korea. The Church teaches fundamental religious beliefs, and emphasizes prayer, evangelical missionary engagements, religious rallies, workshops, retreats, and lectures. In furtherance of its beliefs, the Church's activities include public-place and door-to-door proselytizing of its tenets and principles, and the distribution of religious literature, frequently accompanied by the solicitation of funds from the public for the support of the Church. In the latter connection, plaintiffs seek to engage in door-to-door and public-place proselytizing and solicitation of funds within the City of North Kansas City, Missouri.

Chapter 24 is subdivided into three sections —Article I containing general provisions, Article II containing provisions governing charitable solicitations, and Article III containing provisions governing religious solicitations. Although the Unification Church is a religious group, and only Article III should be applicable, plaintiffs challenge Chapter 24 in its entirety. For purposes of clarity, the provisions applying to religious solicitations and the provisions applying to charitable solicitations will be discussed separately.

A. Religious Solicitations.

Section 24-22 of Chapter 24 of the North Kansas City, Missouri Code prohibits solicitation for religious purposes unless a certificate of registration is issued by the city clerk.¹ Anyone soliciting without such a certificate is subject to arrest.² On four occasions, members of the Unification Church have been arrested for soliciting without a certificate and have been found guilty in Municipal Court. Subsequent to these arrests, the City Council of North Kansas City denied the application for a solicitation certificate filed by Mary Louise Bliss on behalf of the Unification Church. On September 2, 1980, the City Council of North Kansas City denied the application for a solicitation certificate filed by Jeffrey R. Conlon on behalf of the Unification Church. In both instances, the applications were denied because of incomplete or inadequate information.

Section 24-22 of Chapter 24 requires an applicant for a solicitation certificate to submit an application providing the following information, inter alia: the purpose of the solicitation, the amount of funds to be raised, and the intended disposition of those funds; a specific statement showing the need for the contributions; an outline of the method used in conducting the proposed solicitation; the times when the solicitation is to be made; the estimated cost of the solicitation; a financial statement for the past preceding fiscal year of any funds collected for religious purposes by the applicant; a full statement of the character and extent of the religious work being done by the applicant within the city; and any other information as may be submitted to the City Council in order for it to determine the kind and character of the proposed solicitation.³ In lieu of this information, the ordinance requires a statement of the reasons why such information cannot be furnished.

Neither Mr. Conlon nor Ms. Bliss submitted a financial statement for the preceding year or a statement of reasons why it could not be furnished. The City Council also denied Mr. Conlon's application because some of his answers on the application were either inadequate or incomplete. The application of Ms. Bliss was also denied on the ground that the prior violations of Chapter 24 by other members of the Church raised a doubt that the solicitation would be under the control and supervision of responsible and reliable persons.

Areas protected by the First Amendment may be regulated "only with narrow specificity," NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Laws restricting the exercise of First Amendment activities are inherently suspect and bear a heavy presumption against their constitutional validity. Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). It is well settled law that distribution of literature and solicitation of funds to support a religious or charitable organization are well within the protection of the First Amendment. Village of Schaumburg v. Citizens For A Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

Plaintiff's first argument is that the ordinance is unconstitutionally vague because it vests discretion in city officials to grant or deny the applications for solicitation certificates without narrow, precise, and objective standards to govern such discretion. Plaintiff's argument is supported by a long line of Supreme Court decisions invalidating state or local licensing laws. See Village of Schaumberg v. Citizens For A Better Environment, supra; Hynes v. Mayor of Oradell supra; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Shuttlesworth v. City of Birmingham, Ala., supra; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943); Cantwell v. Connecticut, supra; Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Hague v. Committee For Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).

Although it is not clear from these cases what standards would be constitutionally adequate, it is clear that

the standards must be more than mere criteria or guidelines; they must be complete in and of themselves, and leave no factors to be assessed, judgments to be made, or discretion to be exercised by the appropriate licensing official. In other words, the decision to grant or deny the license application must be virtually a ministerial one.

Swearson v. Meyers, 455 F.Supp. 88, 91 (D.Kan.1978) (emphasis in original).

The main thrust of defendant's argument is that the ordinance is constitutional because it sets forth specific standards which are neither vague nor unreasonable. According to the defendant's interpretation of the ordinance, a religious organization seeking to solicit funds in the city must simply provide the requested information. If it cannot provide the information, it must simply state the reasons why it cannot do so. Once this is done, a certificate must be issued, and the city officials have no discretion as to granting or denying the certificate. The process is supposed to be ministerial only. The defendant contends that the ordinance is reasonable and...