INTERN. SOC. FOR KRISHNA CONSCIOUS. v. Engelhardt

• Decision Date: 17 January 1977
• Docket Number: No. 76 CV 436-W-4.,76 CV 436-W-4.
• Citation: 425 F. Supp. 176
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC. and Madhavananda, Plaintiffs, v. Alvan ENGELHARDT and Lou Beneke, Defendants.
• Court: U.S. District Court — Western District of Missouri

425 F. Supp. 176

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC. and Madhavananda, Plaintiffs, v. Alvan ENGELHARDT and Lou Beneke, Defendants.

No. 76 CV 436-W-4.

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

January 17, 1977.

COPYRIGHT MATERIAL OMITTED

Barry A. Fisher, Beverly Hills, Cal., David Russell, Gladstone, Mo., for plaintiffs.

Dan G. Jackson, III, Asst. City Atty., Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

ELMO B. HUNTER, District Judge.

Plaintiffs move this Court for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-02. Specifically, plaintiffs seek an Order enjoining defendants from enforcing Article I, § 3.4 of the Code of General Ordinances of Kansas City, Missouri, respecting plaintiffs' proselytizing, selling religious literature, or soliciting donations in any portion of the Kansas City International Airport which is open to the general public.¹

An evidentiary hearing was held in this cause on July 26, 1976, at which time the parties reached the following oral stipulation of facts:

I

Plaintiff International Society for Krishna Consciousness, Inc. (ISKCON) is an international religious society which espouses the religious and missionary views of Krishna Consciousness. It is duly organized as a non-profit religious corporation under the laws of the State of Missouri and maintains temples and schools in cities throughout the United States and the world. Plaintiff Madhavananda, whose legal name is Michael Secrest, is a Hare Krishna priest and missionary, and President of the Detroit Temple of ISKCON. Defendant Engelhardt is the duly appointed Airport Safety Manager for the Kansas City Airports, charged with the implementation and enforcement of § 3.4 of the General Ordinances of Kansas City, which may include arrest and subsequent prosecution. Defendant Benecke is the City Prosecutor of Kansas City, Missouri, charged with enforcing the laws and ordinances of that city. The Kansas City International Airport is owned and operated by the City of Kansas City, Missouri.

The literature which plaintiffs desire to distribute and sell at the Kansas City International Airport is of a religious nature.² Plaintiffs seek to distribute and sell their literature, and to solicit contributions, only in those parts of the Kansas City International Airport which are open to the general public without restriction. Plaintiffs do not seek to dance, chant, or to engage in any similar conduct.

Plaintiffs have sought to proselytize at the Kansas City International Airport in the past, on several occasions, but have been told that they may not proselytize on the airport premises unless permission has been granted by the Airport Director pursuant to the Code of General Ordinances of Kansas City, Missouri, Article I, § 3.4.³ Plaintiffs have complied with these warnings and no arrests have been made. No devotee of ISKCON has ever been arrested for failure to have a license at the Kansas City Airport. Devotees of ISKCON have never sought the written permission of the Airport Director in order to perform Sankirtan at the airport.

The city ordinance here in question, § 3.4, remains in effect. It has been uniformly enforced against all groups, including plaintiffs as well as such other organizations as the Girl Scouts and the Boy Scouts. Although the Airport Director has permitted pickets against the airlines to use the sidewalks outside the terminal buildings, no personal solicitation for any reason by any other group has been allowed inside the terminal buildings or on the sidewalk outside the terminals since the construction of the Kansas City International Airport in 1972. Nor has any such solicitation been permitted at the older Kansas City Municipal Airport since 1964.

II

Plaintiffs contend that § 3.4 on its face and as applied prohibits the distribution and sale of religious literature by members of a religious organization without a permit, and that the ordinance sets forth no narrow or definite standards by which a permit may be obtained. Thus plaintiffs urge that the absence of specific standards abridges the exercise of freedoms of speech and press, capriciously denies 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.

Defendants contend that standards for the operation of the ordinance have been established by practice, because since 1964 no permits for solicitations have been granted.⁴ Defendants further assert that the public investment of over $250 million in the Kansas City International Airport for the purpose of providing efficient air transportation, the isolated location of the airport, and the physical environs of the terminal complex justify the prohibition against personal solicitation or sale of commodities on airport premises. Defendants assert, in addition, that the Kansas City International Airport is not a "First Amendment forum" so as to vest in plaintiffs the right to exercise their freedoms of religion, speech, or press.

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 have applied for a permit. Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); ISKCON v. Lamb (D.Nev.1975). In the area of First Amendment rights, it is well established that one need not have applied for a permit in order to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative officer. Standing is recognized in such cases 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." Freedman v. Maryland, supra at 56, 85 S.Ct. at 738, citing NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

Just as clearly, plaintiffs' desired conduct falls within and is protected by the First Amendment. Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Counsel, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); ISKCON v. Conlisk, 374 F.Supp. 1010, 1015 (N.D.Ill.1973). Despite the fact that Kansas City International Airport is held by the city in a proprietary capacity, those portions of the airport which are open to the general public do constitute a protected First Amendment forum. Kuszynski v. City of Oakland, 479 F.2d 1130 (9th Cir. 1973); Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (7th Cir. 1974); ISKCON v. Lamb (D. Nev.1975); ISKCON v. Wetzel (D.Ariz. 1975).⁵ Moreover, the city ordinance here at issue, rather than being strictly prohibitory, does permit conduct such as that plaintiffs desire to perform upon the issuance of written permission by the Airport Director. Thus the ordinance, in essence, opens the forum so that ascertainable and reasonable standards for granting of permits must be applied evenly to all. See Dulaney v. Municipal Court, 11 Cal.3d 77, 112 Cal.Rptr. 777, 420 P.2d 1 (1974); Hull v. Petrillo, 439 F.2d 1184, 1185, 1186 (2d Cir. 1971).

On its face, the city ordinance here in issue contains no standards whatsoever to guide the Airport Director's discretion in permitting solicitations on airport premises. Because the city has opened this forum, and because plaintiffs' desired conduct is protected by the First Amendment, the right to carry out that conduct cannot constitutionally be left to the unbridled discretion of the licensor. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1 (1940); Southeastern Promotions v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). While the right to engage in such conduct is not absolute,⁶ an ordinance which operates to restrain the exercise of First Amendment freedoms must have narrow, objective and definite standards to guide the licensing authority. Cantwell v. Connecticut, supra; Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969)....