INTERN. SOC. FOR KRISHNA CONS. v. Baton Rouge

• Decision Date: 20 March 1987
• Docket Number: Civ. A. No. 86-102-A.
• Citation: 668 F. Supp. 527
• Parties: The INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF NEW ORLEANS, INC. v. CITY OF BATON ROUGE and Parish of East Baton Rouge.
• Court: U.S. District Court — Middle District of Louisiana

668 F. Supp. 527

The INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF NEW ORLEANS, INC. v. CITY OF BATON ROUGE and Parish of East Baton Rouge.

Civ. A. No. 86-102-A.

United States District Court, M.D. Louisiana.

March 20, 1987.

J. Arthur Smith, III, Baton Rouge, La., for plaintiff.

W. Michael Stemmans, Asst. Parish Atty., Baton Rouge, La., for defendants.

JOHN V. PARKER, Chief Judge.

An evidentiary hearing has been held upon plaintiff's motion for a preliminary injunction prohibiting defendants, the City of Baton Rouge and the Parish of East Baton Rouge, from enforcing the provisions of Section 96(b) of Title 11 of the Code of Ordinances. Finding that the ordinance is not likely to be determined unconstitutional as applied to the activities of plaintiff's members, the court denies the motion.

The plaintiff Society, a Louisiana corporation, is part of the International Krishna Consciousness movement. The Society and its beliefs originated in India. It is most assuredly a religious movement entitled to the protection of the First Amendment. See e.g., International Society for Krishna Consciousness, Inc. v. City of Houston, 689 F.2d 541 (5th Cir.1982). The adherents of the Society believe that in order to glorify God and to enlighten the public generally, they must practice the ritual of sankritan which requires them to publicly distribute religious literature and to solicit financial contributions to further their cause. In Baton Rouge, members of the sect solicit donations from occupants of motor vehicles which are temporarily stopped at traffic lights. Such donations are solicited only at high traffic times, such as the Christmas season, and at the busiest intersections.

In prior years, members of the plaintiff's organization have been threatened with arrest and actually arrested for violation of a local ordinance. In 1980, plaintiff filed suit in this district against these defendants to enjoin the enforcement of the then provisions of § 98(b) of Title 11 of the Code of Ordinances, and a stipulation was entered in that action that: (1) the ordinance "was declared unconstitutional by the Nineteenth Judicial District Court ... on May 15, 1980" and (2) the parties "agree that the ordinance which was the subject of the afore-described judgment will not be enforced."¹

On November 23, 1983, the City of Baton Rouge and the Parish of East Baton Rouge adopted a revised and amended version of § 96 of Title 11 which prohibits solicitation from "the occupant of any vehicle."

The president of the Society, Mr. Mistretta, determined that the sankritan ritual would be performed in Baton Rouge during the 1986 Christmas season and accordingly several members of the Society were dispatched from New Orleans to Baton Rouge to solicit donations at the busiest intersections. All were dressed in Santa Claus costumes. Mr. Mistretta testified that all members who participated were carefully instructed regarding safety, particularly that they should stay upon the sidewalk or neutral ground if at all possible. Defendants introduced into evidence a copy of a local newspaper dated December 13, 1986, which contains on the front page a photograph depicting a female wearing a Santa Claus costume standing beside a vehicle in a line of vehicles. Both feet are planted firmly in the roadway, not the neutral ground. The individual was identified by Mr. Mistretta as one of his members who did indeed solicit donations in Baton Rouge at that time. Accordingly, it is clear that the solicitors do not always stay upon the sidewalk or neutral ground.

During the 1986 Christmas season, Krishna members who were soliciting donations at intersections were warned by Baton Rouge police officers that their activities violated a local ordinance and that they would be arrested if they persisted. This action in this court was then commenced. No arrests were actually made, possibly because of the pending action.

The plaintiff moved for summary judgment on the basis that the defendants had previously stipulated in the 1980 action that Section 96(b) would not be enforced. That motion was denied because the 1983 Section 96(b), although it covers the same conduct, is not the same ordinance. The 1983 ordinance specifically amended the old ordinance; hence, it cannot be the "same."²

Mr. Mistretta denies that such solicitation is dangerous or that it significantly impedes the flow of traffic. Mr. Webb, the traffic engineer for the City, testified that solicitation of donations from the occupants of motor vehicles which are temporarily stopped at traffic lights distracts the drivers, creates danger to both the solicitors and the solicited, as well as to other traffic, and impedes the orderly flow of traffic. The defense presented evidence that a newspaper vendor, soliciting sales from a sidewalk, was involved in a fatal accident at the intersection of an I-10 exit with Government Street in Baton Rouge. Although no specific date was established, it is apparent that this death occurred before November 23, 1983, because the 1983 ordinance makes reference to that accident.

The preamble to the 1983 ordinance reads as follows:

WHEREAS, a problem has been identified with persons attempting to solicit rides, employment, business, or charitable contributions from the occupants of moving vehicles on certain City streets; and

WHEREAS, this practice has been identified as being unsafe for both the person engaging in the solicitation and for traffic in general; and

WHEREAS, the activity of soliciting rides, business, employment, or charitable contributions from the occupants of vehicles constitutes an impediment to the normal and safe flow of traffic in the City of Baton Rouge; and

WHEREAS, this activity has in the past resulted in accidents one of which resulted in the death of the person engaged in the soliciting activity.

Section 96(b) as amended, reads as follows:

"(b) No person shall be upon or go upon any street or roadway or shall be upon or go upon any shoulder of any street or roadway nor shall any such person be upon or go upon any neutral ground of any street or roadway for the purpose of soliciting employment, business, or charitable contributions of any kind from the occupant of any vehicle."

Plaintiff claims that the threatened enforcement of the ordinance infringes upon the free exercise of religion by its members in violation of the First Amendment, made applicable to the states by the Fourteenth Amendment.

Plaintiff clearly has standing to raise the exercise of religion issues here presented. See ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir.1986). It is clearly established that solicitation of funds is as much a part of the free exercise of religion as is proselyting. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943).

Plaintiff argues that the public streets, sidewalks and neutral grounds constitute "public forums" which may be freely used for purposes of assembly, communication and discussion of public questions. Numerous decisions of the Supreme Court support that general proposition. See, e.g., Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Cantwell v. Connecticut, 310 U.S. 296, 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); Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). Defendants argue that at least the roadways of public streets are intended for movement of traffic and goods, not for discussion of public issues and that access to the property, although publicly owned, may be constitutionally limited, citing United States v. Belsky, 799 F.2d 1485 (11th Cir.1986), where limited access to the public passage ways into a post office was sustained.

It is important to clearly set forth precisely what is at issue here. The only activities in which plaintiff's disciples are engaging and the only...