Intern. Soc. for Krishna Consc. v. Wolke

• Decision Date: 19 July 1978
• Docket Number: Civ. A. No. 76-C-293.
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., and Gopa Bhatta, on behalf of themselves and all International Society for Krishna Consciousness members, Plaintiffs, v. Michael W. WOLKE, Milwaukee County Sheriff, E. Michael McCann, Milwaukee District Attorney, Individually and in their official capacities, and Milwaukee County, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

453 F. Supp. 869

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., and Gopa Bhatta, on behalf of themselves and all International Society for Krishna Consciousness members, Plaintiffs, v. Michael W. WOLKE, Milwaukee County Sheriff, E. Michael McCann, Milwaukee District Attorney, Individually and in their official capacities, and Milwaukee County, Defendants.

Civ. A. No. 76-C-293.

United States District Court, E. D. Wisconsin.

July 19, 1978.

COPYRIGHT MATERIAL OMITTED

Barry A. Fisher, Beverly Hills, Cal., Stephen N. Glynn, Milwaukee, Wis., for plaintiffs.

Robert P. Russell, Corp. Counsel, James J. O'Donnell, Asst. Corp. Counsel, Milwaukee, Wis., for defendants.

DECISION AND ORDER

REYNOLDS, Chief Judge.

In this civil rights action, plaintiffs seek declaratory and injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-2202. Jurisdiction of this court is founded on 28 U.S.C. § 1331 (federal question) and § 1343(3) (civil rights). The plaintiffs, International Society for Krishna Consciousness, Inc. (hereinafter "ISKCON") and Gopa Bhatta (also known as Gregory K. Stein), attack Milwaukee County Ordinance § 4.02 as unconstitutional, both on its face and as applied to them. Section 4.02 requires persons seeking to sell or distribute printed or written matter or to engage in any form of solicitation on the premises of the county's airports to first secure written permission from the airport director. Plaintiffs allege that the ordinance is a standardless licensing law in violation of the First and Fourteenth Amendments to the United States Constitution because it fails to provide narrow and objective standards to govern the issuance of the required permits.

In May of 1976, a preliminary injunction was entered restraining defendants from arresting plaintiffs, or their membership, for violation of the ordinance where they are soliciting donations or sales of literature or disseminating literature or information in those areas of General Mitchell Field (hereinafter "GMF") generally open to the public.

The case is presently before the court on plaintiffs' motion for summary judgment. The plaintiffs' motion will be granted for the reasons stated herein.

I.

ISKCON is an international organization espousing the tenets of the Hare Krishna religion. It is duly organized under the laws of the State of New York as a nonprofit religious corporation and operates throughout the world. Among the rituals imposed by the Hare Krishna religion on its members is "Sankirtan," which consists of proselytizing, soliciting donations, and distributing Krishna literature in public places. This practice has the threefold purpose of spreading religious truth as known to the Hare Krishna religion, attracting new members, and generating funds for support of the religious movement.

Plaintiff Gopa Bhatta, whose legal name is Gregory K. Stein, is Sankirtan leader of the Chicago temple of ISKCON.

Defendant Michael S. Wolke is the sheriff of Milwaukee County and is charged with implementation and enforcement of Milwaukee County ordinances, including § 4.02.

Defendant E. Michael McCann is District Attorney of Milwaukee County and is charged, inter alia, with the prosecution of violators of § 4.02.

Defendant Milwaukee County owns and operates General Mitchell Field.

In April of 1976 and before, plaintiff Gopa Bhatta and other Krishna devotees attempted to proselytize in public areas of GMF, including solicitation of book sales and donations. Officers of the sheriff's department told Bhatta and the others that they could not continue unless they obtained the permission of the airport director pursuant to § 4.02. Plaintiffs complied and no arrests were made.

II.

Section 4.02 provides, inter alia, that:

"No person shall use the County's airports or any portions thereof for the conduct of a commercial enterprise, or other form of revenue producing activity, without first obtaining authorization therefor from the proper authorities of Milwaukee County by means of a written agreement, lease, license, or permit and paying the rentals, fees and charges as established therefor."

The ordinance further provides that:

"No person or organization of any nature shall post, distribute or display, including without restriction because of enumeration, signs, advertisements, literature, circulars, pictures, sketches, drawings or other forms of printed or written matter or engage in any form of solicitation upon the premises of the County's airports without prior written permission secured from or through the Airport Director, as may be required."

Plaintiffs allege that because the permit system established under the ordinance vests discretion in the airport director to grant or deny licenses for the exercise of First Amendment rights without definite, narrow, and objective standards, it "substantively and procedurally abridges the exercise of freedoms of speech and press, arbitrarily deprives persons of their liberty and property without due process of law, capriciously denies the equal protection of the laws, and is vague, ambiguous and overbroad, all in violation of the First and Fourteenth Amendments to the United States Constitution." (Plaintiffs' memorandum in support of motions for temporary and preliminary injunction, filed April 30, 1976.)

Defendants contend that the passageways and corridors of the terminal building at General Mitchell Field are "so narrow and overcrowded as to not constitute an appropriate forum for the exercise of First Amendment rights" and that "based on said facts * * * plaintiffs have no basic absolute constitutional right to solicit in the terminal building of GMF or to exchange literature or other items for charitable donations." (Defendants' memorandum in opposition to plaintiffs' motion for summary judgment, filed Nov. 10, 1977, at 2-3.) Defendants urge that the question of whether the airport terminal building is a "public forum" is one to be developed at the time of trial and not at the summary judgment stage.

III.

Plaintiffs have standing to maintain this action whether or not their conduct could be proscribed by a properly drawn ordinance and whether or not they ever applied for a permit. Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); International Society for Krishna Consciousness, Inc. v. Engelhardt, 425 F.Supp. 176, 179 (W.D.Mo.1977).

It is also clear that the conduct plaintiffs seek to perform is within the scope of the First Amendment's protection. The First Amendment, made binding on the states by the Fourteenth Amendment, declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press * * *." This protection of religious expression is not removed by the incidental solicitation of donations or sales. Murdock v. Pennsylvania (City of Jeannette), 319 U.S. 105, 112, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); International Society for Krishna Consciousness, Inc. v. Conlisk, 374 F.Supp. 1010, 1015 (N.D.Ill.1973).

IV.

Defendants contend that even if the activities of the plaintiffs are protected First Amendment acts, a material question of fact existed as to whether GMF is a public forum for First Amendment purposes.

A motion for summary judgment can be granted only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure.

Based on the undisputed evidence in this case and numerous cases in point, this Court is prepared to hold as a matter of law that those areas of the terminal building at General Mitchell Field which are generally open to the public constitute a public forum.

To begin, the airport terminal is a publicly owned facility. Defendants urge that the mere fact of public ownership does not by itself require that a building be available as a public forum. This Court does not deny this general proposition. Prisons, hospitals, office buildings, and other public facilities frequently require regulations to ensure that free speech activities do not unreasonably interfere with their functions. In Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), for example, the Supreme Court upheld the application of a Florida trespass statute to bar a student demonstration on the premises of a jail. There the Court noted that jails are built for security reasons, and that the state has the power to preserve the property under its control for the use to which it is lawfully dedicated.

But the conclusion that a building owned by the public is unavailable as a public forum cannot be hastily drawn. Indeed, no restriction of free expression in public places can be made without "weighty reasons." Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), the Court found First Amendment protection to attach on a privately owned shopping center that was generally open to the public. The Court, in the case just cited, reviewed the forum issue under the First Amendment, stating at 315, 88 S.Ct. at 1607:

"* * * Streets,

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