Fernandes v. Limmer, CA3-77-417-F.

Decision Date30 January 1979
Docket NumberNo. CA3-77-417-F.,CA3-77-417-F.
Citation465 F. Supp. 493
PartiesSusan FERNANDES v. Leonard LIMMER et al.
CourtU.S. District Court — Northern District of Texas

COPYRIGHT MATERIAL OMITTED

Barry A. Fisher, Los Angeles, Cal., John F. Jordan, Dallas, Tex., for plaintiff.

Charles C. Wells, C. Merrill Bierfeld, Lee Holt, S. G. Johndroe Jr., Dallas/Fort Worth Airport, Tex., John F. Boyle, Jr., Hutchinson, Price & Boyle, Dallas, Tex., for defendants.

MEMORANDUM OPINION

ROBERT W. PORTER, District Judge.

Plaintiff is a member of the International Society of Krishna Consciousness, a nonprofit religious society, which requires its devotees to perform a religious ritual called Sankirtan, consisting in part of efforts to spread the religion's truths through the dissemination of religious tracts and solicitation of contributions. Defendant James Lilly is the Grapevine Police Chief; Defendant Leonard Limmer is the Dallas-Fort Worth Regional Airport Security Chief; and Defendant John Boyle is the Grapevine City Attorney.

Plaintiff seeks to enjoin Defendants' enforcement of a resolution passed by the Dallas Fort Worth Airport Board, and adopted as an ordinance by the cities of Dallas, Fort Worth, and Grapevine which regulates the solicitation of charitable contributions at the Dallas/Fort Worth Regional Airport (D/FW).1 Plaintiff claims that the ordinance is facially unconstitutional, in violation of the First Amendment.

The parties have submitted this case to the Court on stipulated facts for decision, after the court earlier ruled on the Constitutionality of a similar previous ordinance, see ISKON v. Dallas-Fort Worth Regional Airport Board, 391 F.Supp. 606 (N.D.Tex. 1975), and the Board and cities revised the ordinance discussed in my 1975 decision. I have concluded that a permanent injunction restraining the Defendants from enforcing this ordinance/resolution is proper, for the reasons stated below.

Jurisdiction

An independent ground of jurisdiction is expressly required by statute in petitions seeking declaratory judgment, and the Declaratory Judgment Act was not intended to be used as a contrivance to create jurisdiction which does not otherwise exist. 28 U.S.C. § 2201; Commercial Metals Co. v. Balfour, Guthrie, and Co. Ltd., 577 F.2d 264 (5th Cir. 1978). Jurisdiction, if present, must be based upon 42 U.S.C. § 1983 or 28 U.S.C. § 1331.

Defendants claim that Plaintiff, by suing the persons charged with enforcement of the ordinance, are impermissibly attempting to circumvent federal law which excludes cities and municipalities from suit under 42 U.S.C. § 1983, citing Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). The Supreme Court has held contrary to the Defendants' position in City of Charlotte v. Firefighters, 426 U.S. 283, 96 S.Ct. 2036, 48 L.Ed.2d 636 (1976), permitting respondents in that case to sue individual members of the City Council under 42 U.S.C. § 1983 when it was not proper to sue the City itself. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). Also, the Supreme Court now permits local government bodies to be sued directly under § 1983 for monetary, declaratory or injunctive relief where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). This case falls squarely within the parameters set by the Supreme Court in Monell and jurisdiction would also be proper under that decision.

Another basis for jurisdiction is the reasoning of Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Bivens held that persons whose Fourth Amendment rights had been violated by federal agents may invoke federal question jurisdiction under 28 U.S.C. § 1331(a) and recover damages. It recognized a federal cause of action for constitutional violations in the absence of a federal statutory cause of action.

Although the Supreme Court has not yet decided whether Bivens can be extended to actions against municipalities, Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 571, 50 L.Ed.2d 471 (1977), the Fifth Circuit has extended Bivens to fourteenth amendment actions against municipalities. Reeves v. City of Jackson, Miss., 532 F.2d 491 (5th Cir. 1976); Stapp v. Avoyelles Parish School Board, 545 F.2d 527, 531 (5th Cir. 1977); United Farmworkers of Florida Housing Project Inc. v. City of Delray Beach Florida, 493 F.2d 799, 811 (5th Cir. 1974); Traylor v. City of Amarillo, Texas, 492 F.2d 1156, 1157 n. 2 (5th Cir. 1974); Roane v. Callisburg Independent School District, 511 F.2d 633, 635 n. 1 (5th Cir. 1975). Other circuits have also approved this extension: Owen v. City of Independence, Missouri, 560 F.2d 925 (8th Cir. 1977); Amen v. City of Dearborn, 532 F.2d 554 (6th Cir. 1976); Brault v. Town of Milton, 527 F.2d 730 (2nd Cir. 1975) rev'd on other grounds, id. at 736 (2nd Cir. 1975) (en banc); Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975); Hostrop v. Board of Junior College District No. 515, 523 F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976); Construction Industry Association v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 342 (1976). A suit against the airport would be in the nature of a suit against a municipality, and a suit against city and airport personnel might be construed as actually a suit against the municipality.

The Fifth Circuit has held repeatedly that a direct constitutional cause of action may be asserted under 28 U.S.C. § 1331 to vindicate First and Fourteenth Amendment rights. Goss v. San Jacinto Junior College, 588 F.2d 96 (5th Cir. 1979); Stapp v. Avoyelles Parish School Board, 545 F.2d 527, 531 n. 7 (5th Cir. 1977); Reeves v. City of Jackson, Miss., 532 F.2d 491, 495 (5th Cir. 1976); Hander v. San Jacinto Junior College, 522 F.2d 204, 205 (5th Cir. 1975); Roane v. Callisburg Independent, 511 F.2d 633, 635 n. 1 (5th Cir. 1975).

The Municipal Airports Act, V.A.C.S. art. 46d-1 et seq. confers sovereign immunity upon municipalities with respect to the operation of municipal airports by expressly declaring them to be public and governmental functions. See V.A.C.S. art. 46d-15 and Tompkins v. City of El Paso, 449 F.2d 842 (5th Cir. 1971). This immunity does not apply in a Bivens context because: (1) the Supremacy Clause (Article VI cl. 2) of the U. S. Constitution mandates that no local immunity can shield a municipality for liability for Constitutional violations, Owen v. City of Independence, Missouri, 560 F.2d 925 (8th Cir. 1977); Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938 (1973), cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973) (federal, not state, law determines defense of immunity); Williams v. Brown, 398 F.Supp. 155 (N.D.Ill.1975); Sanabria v. Village of Monticello, 424 F.Supp. 402 (S.D.N.Y.1976), and (2) if federal law on immunity is to be extrapolated from 42 U.S.C. § 1983, then municipalities are not immune from suit. Monell v. City of New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). I therefore conclude that jurisdiction in this case is also proper under a Bivens action involving alleged violations of the First and Fourteenth Amendments.2

Standing

Defendants contend that plaintiff has no standing to challenge the DFW ordinance raising the issue of literature distribution because that distribution is usually done in the course of soliciting a contribution, and also because Plaintiff alleges only the threat of harassment and intimidation, rather than a specific illegal act committed by the Defendants.

The Supreme Court has held that solicitation of donations and contributions incidental to the main objective of preaching and propagating the doctrines of a religion is a constitutionally protected activity, Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); see ISKON v. Collins, 452 F.Supp. 1007 (S.D.Tex.1977). In Murdock, the Supreme Court emphasized that the First Amendment protection is in no way diluted by the "commercial" aspects of the solicitation:

"The mere fact that the religious literature is `sold' by itinerant preachers rather than `donated' does not transform evangelism into a commercial enterprise. If it did, then the passing of a collection plate in church would make the church service a commercial project . . . It should be remembered that the pamphlets of Thomas Paine were not distributed free of charge. It is plain that religious organizations need funds to remain a going concern . . . Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way." 319 U.S. at 111, 63 S.Ct. at 874.

There is no evidence in this record which suggests that Plaintiff's dominant purpose is the solicitation of funds; therefore, I reject Defendants' argument that soliciting contributions jurisdictionally taints the concurrent exercise of free speech rights.

The Supreme Court has also held that federal injunctive relief may be proper if there exists the threat of arrest which would be processed through the State courts, and no criminal proceedings are in fact pending in state court. Doran v. Salem Inn, 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) precludes federal suit when a state criminal action based upon the same nucleus of...

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