INTERN. SOC. FOR KRISHNA, ETC. v. Kearnes

• Decision Date: 27 April 1978
• Docket Number: Civ. No. S-77-468.
• Citation: 454 F. Supp. 116
• Court: U.S. District Court — Eastern District of California
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF BERKELEY, INC. and Carol Ulery, on behalf of themselves and all International Society for Krishna Consciousness members, Plaintiffs, v. Jack KEARNES, Sacramento Police Chief, James P. Jackson, Sacramento City Attorney, Duane Lowe, Sacramento Sheriff, John M. Price, Sacramento County District Attorney, Individually and in their official capacities, Defendants.

454 F. Supp. 116

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF BERKELEY, INC. and Carol Ulery, on behalf of themselves and all International Society for Krishna Consciousness members, Plaintiffs, v. Jack KEARNES, Sacramento Police Chief, James P. Jackson, Sacramento City Attorney, Duane Lowe, Sacramento Sheriff, John M. Price, Sacramento County District Attorney, Individually and in their official capacities, Defendants.

Civ. No. S-77-468.

United States District Court, E. D. California.

April 27, 1978.

Barry A. Fisher, Beverly Hills, Cal., Michael Rothschild, Blease, Vanderlaan & Rothschild, Sacramento, Cal., for plaintiffs.

Theodore H. Kobey, Jr., Asst. City Atty., Thomas W. Fenner, Deputy City Atty., Sacramento, Cal., for defendants Kearnes and Jackson.

John B. Heinrich, County Counsel, Robert L. Pleines, Deputy County Counsel, County of Sacramento, Sacramento, Cal., for defendants Duane Lowe and John M. Price.

MEMORANDUM AND ORDER

PECKHAM, Chief Judge.

Plaintiff, International Society for Krishna Consciousness of Berkeley, Inc. ("ISKCON"), has brought this action on behalf of itself and its members seeking both a declaration that Sacramento city ordinance No. 2967 and Sacramento county ordinance §§ 5.64.010 et seq. are unconstitutional, and a permanent injunction restraining the enforcement of these laws against it. Essentially, these ordinances require each individual solicitor to obtain a permit from the proper governmental authority before making charitable solicitations within Sacramento city or county. The defendants are the Sacramento Chief of Police, Jack Kearnes, the Sacramento Sheriff, Duane Lowe, and the Sacramento County District Attorney, John V. Price. Jurisdiction is based on 28 U.S.C. §§ 1331, 1343(3) and 1343(4). The case is presently before us on the plaintiff's motion for a preliminary injunction.

In considering plaintiffs' motion for a preliminary injunction, one must review two sets of standards; if either set is satisfied, the injunction may issue. First, we must consider whether (1) the plaintiff will suffer irreparable harm if the relief is not granted, (2) plaintiff is likely to prevail on the merits, (3) defendant will not be harmed more than plaintiff is helped by the issuance of an injunction, and (4) the injunction is in the public interest. The second test is whether serious questions are raised on the merits and the balance of hardships tips sharply in plaintiff's favor. William Inglis and Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86 (9th Cir. 1975). In applying both of these tests, we will first consider the issues raised and the likelihood of success on the merits and then proceed to the remaining factors.

The plaintiffs allege that these ordinances are unconstitutional in that they deprive plaintiffs of rights guaranteed under the First and Fourteenth Amendments. ISKCON is a religious organization whose members, as part of their religion, seek to distribute religious materials and solicit funds in Sacramento. This missionary aspect of the religion, known as Sankirtan, is more fully described in ISKCON v. Conlisk, 374 F.Supp. 1010 (W.D.Ill.1973), ISKCON v. New Orleans, 347 F.Supp. 945 (E.D.La. 1972), ISKCON v. Englehardt, 425 F.Supp. 176 (D.Kan.1977) and ISKCON v. Rochford, 425 F.Supp. 734 (N.D.Ill.1977). There is no question but that the religious ritual of the Sankirtan, the dissemination of religious tracts in combination with a request for donations, is within the protection of the First Amendment. Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Cantwell v. Connecticut, 310 U.S. 296, 304-5, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Martin v. Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 87 L.Ed. 1313 (1943). Similarly, plaintiff may raise the question of the statute's facial constitutionality without having applied for a permit. Lovell v. City of Griffin, 303 U.S. at 452, 60 S.Ct. 146; Schneider v. State, supra; Cantwell v. Connecticut, supra; Murdock v. Pennsylvania, supra; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976).

The two ordinances in question are identical in all relevant respects. Adopted in response to legislative findings that frauds were being perpetrated on the Sacramento citizenry by persons presenting themselves as soliciting for charities, the ordinances establish a permit system to regulate such solicitations. A Charitable Solicitations Committee is established with the power to issue permits for all charitable solicitations. It is unlawful to solicit without a permit. Any person seeking to solicit for any charitable purpose, except where the solicitation occurs solely among the members of the soliciting organization, is conducted by an employer among his employees, or takes place at an assembly or service, is required to submit a permit application to the committee containing certain specified information. The committee is then required to review the application and either deny or issue a permit for solicitation. In passing upon the application the committee is instructed by the ordinances to consider ten criteria, most of which are designed to reveal possible fraudulent intent. If any of the criteria are found to be unsatisfied, the permit must be denied. This aspect of the permit procedure is discussed at length below. If the committee issues a permit, its duration may not exceed 90 days. The permit may be renewed at the end of the period, and it can be revoked at any earlier time.

The ordinances do not attempt to regulate the time, manner and place of the exercise of First Amendment rights in order to accommodate both the rights of those seeking to solicit and collateral state interests such as traffic control. The ordinances do not require that an individual obtain a permit in order to control the times during which solicitations are made or the locations at which solicitations are made. Permits are not required to control the number of persons soliciting in a given area. On the contrary, the purpose of the permit system is to regulate the content of speech, denying permits to solicit to those "likely" to perpetrate frauds and making solicitation without a permit illegal. The legislative intent unequivocally demonstrates that the purpose of the ordinances is to restrain those persons who are "likely" to commit frauds from soliciting. The critical index in ascertaining who is to be granted a permit and who is to be denied is the type of speech in which one will "probably" engage. Permits are issued only to those persons who, based on the criteria in the ordinances as applied by the committee, will not engage in fraudulent activity. If the committee finds that a permit should not be issued, then the applicant cannot solicit without violating the law, regardless of whether his solicitation is in fact fraudulent. An individual is totally restrained from solicitation if he does not have a permit. On the basis of these facts, we conclude that the ordinances operate as a prior restraint on the exercise of speech, restraining its exercise in advance of its invocation based upon the finding that the speech to be engaged in will be fraudulent.

As a general rule, a statute which seeks to restrain speech requires that there be a "clear and present danger" that a substantial evil will result, American Communications Association v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950), or more precisely, "the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger," Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 868, 95 L.Ed. 1137 (1950). In addition, such statutes are constitutionally permissible only if there exists no less drastic means of protecting the interest of the state. Carrol v. Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960).

The central concern underlying the doctrine of prior restraint is censorship. Prior restraint of speech based upon a belief as to its probable content involves a determination by the state of what is proper speech, and courts have jealously protected the First Amendment against such intrusion by the state except in very limited circumstances. The First Amendment was adopted in large part to avoid such restraint and the attendant evil of censorship, Lovell v. City of Griffin, 303 U.S. at 451-52, 60 S.Ct. 146, and as such any system of prior restraint bears "a heavy presumption against its constitutional validity," Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963).

To sustain an attack against its constitutionality, a statute which constitutes a prior restraint must seek to restrain only speech which is unprotected, and must be designed in such a fashion as to filter out those who will engage in protected speech from those who will engage in unprotected speech, restraining only the latter. The margin of error permissible in this filtering process is directly related to the severity of the harm sought to be avoided. If the restraint operates through a permit system or other form of state permission, as in the present case, the criteria for obtaining a permit must be strictly limited in order to protect against administrative officials arbitrarily denying permits to those who would engage in protected speech. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Shuttleworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); Staub v. City of Baxley, supra; Kunz v. New York...