HOLY SPIRIT ASS. FOR UNIF. OF WORLD CHRIST. v. Hodge

• Decision Date: 08 March 1984
• Docket Number: Civ. A. No. CA-2-78-129.
• Citation: 582 F. Supp. 592
• Parties: HOLY SPIRIT ASSOCIATION FOR the UNIFICATION OF WORLD CHRISTIANITY and Edward O'Grady, et al., Plaintiffs, v. Jerry A. HODGE, Mayor of Amarillo, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

582 F. Supp. 592

HOLY SPIRIT ASSOCIATION FOR the UNIFICATION OF WORLD CHRISTIANITY and Edward O'Grady, et al., Plaintiffs, v. Jerry A. HODGE, Mayor of Amarillo, et al., Defendants.

Civ. A. No. CA-2-78-129.

United States District Court, N.D. Texas, Amarillo Division.

March 8, 1984.

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Barry A. Fisher, Los Angeles, Cal., Thomas Griffith, Lubbock, Tex., for plaintiffs.

Joe Harlan, Gibson, Ochsner & Adkins, Merril Nunn, Amarillo, Tex., for defendants.

MEMORANDUM OPINION

MARY LOU ROBINSON, District Judge.

Plaintiffs are the Holy Spirit Association for the Unification of World Christianity (Unification Church), and Edward O'Grady, a member of the Unification Church, who wish to solicit funds in Amarillo, Texas. The Plaintiffs, by this action under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2101-02, seek to enjoin the enforcement of the Amarillo Code of Ordinances, Article 4, Division 2, §§ 13-66 through 13-79, which regulate the licensing of solicitations. Defendants are officials responsible for the implementation and enforcement of the ordinance. The case is before the Court on Plaintiffs' Motion for Summary Judgment.

The solicitations ordinance at issue is appended to this memorandum.

I. Propriety of Summary Judgment

Summary judgment is appropriate when a law is challenged as facially inconsistent with the First Amendment since "whether an ordinance is void on its face because it impinges upon constitutionally protected activities is a legal, not a factual question...." Holy Spirit Association for the Unification of World Christianity v. Alley, 460 F.Supp. 346, 347 (N.D.Tex. 1978). Plaintiffs have raised no challenges other than their facial ones.

II. Standing

"The essence of the standing inquiry is whether the parties seeking to invoke the Court's jurisdiction have `alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions.'" Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). This requirement of a "personal stake" must consist of "a `distinct and palpable injury ...' to the plaintiff," Duke Power, supra, 438 U.S. at 72, 98 S.Ct. at 2629 quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), and "a `fairly traceable' causal connection between the claimed injury and the challenged conduct," Duke Power, supra, 438 U.S. at 72, 98 S.Ct. at 2629, quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). See Larson v. Valente, 456 U.S. 228, 238-39, 102 S.Ct. 1673, 1680, 72 L.Ed.2d 33 (1982).

A personal stake in the outcome of the controversy has usually been assured in First Amendment cases by the fact that criminal proceedings have been previously instigated against the Plaintiff. See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). Here, Plaintiff O'Grady and other members of the Unification Church have been arrested, charged and convicted of violating the Amarillo ordinance on at least two occasions before this suit was filed. Thus, he has met the standing requirements of Article III. Cf. United States v. Grace, ___ U.S. ___, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (plaintiff had standing to challenge constitutionality of statute forbidding picketing at Supreme Court building after twice being told to cease handing out leaflets on pain of arrest).

The Unification Church has a personal stake in the outcome of this suit because a significant portion of its members' activities consists of door-to-door and public place proselytizing and solicitation of funds, the very acts the ordinance regulates. Since as demonstrated by Plaintiff O'Grady, the Unification Church's members would otherwise have standing to sue in their own right; the solicitation regulated is germane to the church's purpose; and only declaratory and equitable relief which does not require the participation of the church's individual members in the lawsuit is sought, the Unification Church has standing. Hunt v. Washington State Apple Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977).

Even if the Unification Church's own activities fell in an unprotected area, it would still have standing to challenge the ordinance by showing that it substantially abridges the First Amendment rights of other parties not before the Court, e.g., its members. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980). As the Supreme Court explained in Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975):

This "exception to the usual rules governing standing" reflects the transcendent value to all society of constitutionally protected expression. We give a party standing to challenge a statute on grounds that it is facially overbroad, regardless of whether his own conduct could be regulated by a more narrowly drawn statute, because of the "danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application."

Id. at 816, 95 S.Ct. at 2230 (citations omitted). Since O'Grady has met the case or controversy requirement of Article III, the Unification Church has standing under the exception.

III. The Right to Solicit, The Right to Regulate

The Supreme Court has recently succinctly summarized these conflicting rights:

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. Soliciting financial support is undoubtedly subject to reasonable regulation but the latter must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease.

Village of Schaumburg, 444 U.S. at 632, 100 S.Ct. at 833. The first issue before this Court is whether the City of Amarillo has exercised its power to regulate solicitation in such a manner as not unduly to intrude upon the rights of free speech. Id. at 633, 100 S.Ct. at 834.

IV. Procedural Safeguards

Plaintiffs charge that the permit system set up by §§ 13-66 to -79 is unconstitutional because it lacks the procedural safeguards required by the Supreme Court in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). This Court agrees.

In Freedman the Supreme Court held that Maryland's motion picture censorship statute unconstitutionally infringed on the First Amendment rights of exhibitors because it lacked the following procedural safeguards: (1) a requirement that the state initiate judicial action to restrain exhibition of the challenged film and bear the burden of proof in the judicial proceeding; (2) an assurance that the exhibitor will not be delayed from exhibiting the film while the state seeks protracted judicial review; and (3) a requirement that judicial review will be prompt.

While § 13-73 of the Amarillo Ordinance establishes an administrative appeal mechanism, the ordinance does not require: (1) the Solicitations Board to institute prompt judicial proceedings in which it bears the burden of justifying its refusal to issue the requested permit; (2) assurance that any interim restraint imposed pending judicial resolution on the merits will be of brief duration; and (3) a guarantee of swift, final judicial action. The lack of these safeguards in the ordinance renders the City of Amarillo's permit system constitutionally deficient. Cf. Fernandes v. Limmer, 663 F.2d 619, 628 (5th Cir.1981), cert. dismissed, 458 U.S. 1124, 103 S.Ct. 5, 73 L.Ed.2d 1395 (1982).

V. Discretion in the Board

Plaintiffs also allege that the permit system is unconstitutional because it vests discretion in the Solicitations Board to grant, deny or revoke permits without providing the Board with narrow and objective standards for exercising this discretion. The Supreme Court has plainly stated that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 149, 150-51, 89 S.Ct. 935, 938-39, 22 L.Ed.2d 162 (1969). The grounds on which the Board may deny a permit will be analyzed seriatim.

§ 13-69(a). This section authorizes the denial of a permit if "one or more of the statements made in the application are not true." It is constitutional. Fernandes, 663 F.2d at 629.

§ 13-69(b). This section authorizes denial of a permit if one of several grounds is met:

(1) The applicant or person in charge of the charitable solicitation or in the case of soliciting for subscriptions or contracts for advertisements, books, magazines or periodicals, any person connected with such soliciting has been convicted in a court of competent jurisdiction of a crime involving moral turpitude; or

(2) The applicant or such person has made or caused to be made false statements or misrepresentations to any member of the public with regard to the charitable solicitations campaign

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