International Soc. for Krishna Consciousness v. City of Houston, Tex.

• Decision Date: 18 October 1982
• Docket Number: No. 79-3879,79-3879
• Citation: 689 F.2d 541
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF HOUSTON, INC., a Texas nonprofit corporation, and Janardana Dasa, Plaintiffs-Appellees, v. CITY OF HOUSTON, TEXAS, Jim McConn, Mayor, Houston, Texas, Harry Caldwell, Chief of Police, Houston, Texas, Guy R. Griscom, Acting Tax Assessor-Collector, City of Houston, Texas, Defendants-Appellants. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 541

689 F.2d 541

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF HOUSTON INC., a Texas nonprofit corporation, and Janardana Dasa, Plaintiffs-Appellees, v. CITY OF HOUSTON, TEXAS, Jim McConn, Mayor, Houston, Texas Harry Caldwell, Chief of Police, Houston, Texas, Guy R Griscom, Acting Tax Assessor-Collector, City of Houston Texas, Defendants-Appellants.

No. 79-3879.

United States Court of Appeals, Fifth Circuit.

Unit A^*

Oct. 18, 1982.

John E. Fisher, Asst. City Atty., Marsha R. Kaufman, Asst. City Atty., Houston, Tex., for defendants-appellants.

Nick D. Nicholas, Houston, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, POLITZ, and SAM D. JOHNSON, Circuit Judges.

WISDOM, Circuit Judge:

"Public awareness of abuses in the administration of charitable fund raising practices has increased over the past twenty years." ¹ Also during this time, as is reflected in the case law, some Krishna followers and others soliciting funds for charitable purposes, particularly in airports, parks, and public gatherings, have pushed their overzealous solicitation to the point of causing undue annoyance to the public. Many local governmental authorities have reacted by adopting regulations requiring the licensing of solicitors for charitable or religious purposes. These regulations have generated a large body of litigation based on alleged violations of the first and fourteenth amendments. ² It is no easy task to draft a facially neutral and neutral-content ordinance consistent with the first and fourteenth amendments that will protect the public from fraud and harassment in solicitation of funds. "(A) regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement of governmental neutrality if it unduly hinders the free exercise of religion", Wisconsin v. Yoder, 1972, 406 U.S. 205, 220, 92 S.Ct. 1526, 1535, 32 L.Ed.2d 15, or it may "unduly ... intrude upon the rights of free speech", Schaumberg v. Citizens for a Better Environment, 1980, 444 U.S. 620, 632, 100 S.Ct. 826, 833, 63 L.Ed.2d 73, reh. denied, 445 U.S. 972, 100 S.Ct. 1668, 64 L.Ed.2d 250.

Article IV of the Houston Municipal Code, "Solicitation of Funds for Charitable Purposes", §§ 37-41 through 37-53, enacted in 1969, required that all persons who solicit funds for "charitable or welfare" purposes must first obtain a "license" from the city tax assessor-collector. The ordinance conditioned issuance of a license upon the applicant's furnishing extensive information and upon the approval of the assessor-collector who was charged with the duty to "examine the application and to make such investigation as he may deem necessary to ascertain the truth of the facts and information set out therein". The licensor was required to refuse a license where any statement in the application was "false, fraudulent or untrue". On April 2, 1979, the International Society for Krishna Consciousness of Houston, Inc. ("ISKCON" or the "Society") and, its president, Janardana Dasa, an ordained priest of the Society, filed suit against the City of Houston and certain city officials. ³ The action asked for a declaratory judgment that Article IV was unconstitutional and for a permanent injunction against enforcement of the provisions of that article, under 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983. On May 16, 1979, apparently to correct constitutional infirmities highlighted by the complaint, the City completely revised §§ 37-41 through 37-50 of Article IV. In particular, the amended ordinance, Ordinance 78-829, substitutes a "certificate of registration" for a license and, according to the defendants, makes its issuance mandatory. The ordinance, as amended, is quoted in full as an appendix to this opinion. The plaintiffs filed an amended complaint substantially identical with their original complaint, terming the certificate of registration a "permit". The parties stipulated the facts and waived a hearing. The district court, on several grounds, held that the ordinance violated the first and fourteenth amendments and granted the plaintiffs' request for a permanent injunction. 482 F.Supp. 852 (1979). We reverse the judgment of the district court but remand the case for a hearing in the light of this opinion.

I.

The ordinance in question makes it unlawful to solicit funds for charitable purposes without complying with certain registration, identification, and financial disclosure requirements. The person or organization desiring to solicit funds must file a registration statement with the tax assessor-collector of Houston (§§ 37-42(a), 43, 50) giving extremely detailed information. See particularly § 37-43. Within ten days after the filing, the tax assessor-collector must approve the application or explain why the statement does not provide the requisite information (§ 37-45). If the application is approved, the tax assessor-collector issues a certificate of registration (§ 37-45) and a solicitor's identification card to the applicant (§ 37-47). All solicitors must visibly display identification cards (§§ 37-42(c), 47). The certificate of registration is valid until the termination of the solicitation or for one year, whichever is less (§ 37-48). A new statement must be filed and approved to obtain a new certificate. Within 30 days after the solicitation, the registrant must file a financial statement showing the costs, amount of contributions, disbursements relating to the solicitation, and the purposes for which the funds were disbursed (§§ 37-43(j), 48). The registration fee is $5 "to compensate the City for the cost of administration" (§ 37-44). Ten identification cards are issued without a charge; additional cards may be purchased for their "actual cost" (§ 37-47). Any person who solicits funds without being duly licensed is subject to a fine of not less than $5 nor more than $200, and each act of solicitation constitutes a separate offense (§ 37-52). A fine of $25 to $200 is imposed for misrepresenting the issuance of a license to solicit as an endorsement or approval by the City (§ 37-52). The ordinance exempts solicitations by an organization from its members and solicitations on premises owned or controlled by the soliciting organization or with permission of the person who owns or controls the premises (§ 37-50). The ordinance contains a conventional savings clause (§ 12).

The parties stipulated that members of the society have not applied for a certificate of registration to solicit contributions and that some members have been prosecuted and fined for failing to obtain a permit before soliciting contributions. The parties agree that unless enjoined the City of Houston will continue to enforce the ordinance. The district court summarized its holding in the following language:

This court holds that Article IV of the Code of Ordinances violates the first and fourteenth amendments to the United States Constitution. The registration and exceptions sections contain various terms and provisions which are vague. The registration and final reporting provisions unnecessarily burden the plaintiffs' exercise of their first amendment rights. The registration, identification and reporting provisions are overbroad, and inhibit the freedom of association. The court grants plaintiffs' request for declaratory and injunctive relief, and authorizes plaintiffs to receive attorney fees and court costs.

482 F.Supp. at 857.

II.

The parties stipulated that ISKCON "is a Texas non-profit corporation and a bona-fide religious organization". The stipulation describes the Society's ritual of Sankirtan as follows:

A fundamental religious obligation of the Society's members is to engage in the religious ritual of Sankirtan. A missionary religious practice, Sankirtan consists of speaking to members of the public about the Society's religious beliefs, disseminating religious publications by gift and sale and the soliciting of contributions from the public. The purpose of Sankirtan is three-fold: (i) to spread the Society's religious beliefs in order to save fallen souls; (ii) to financially support the Society's religious activities; and (iii) to attract new members. The funds generated by the practice of Sankirtan are used for the support of the Society.

Sankirtan involves, therefore, three elements: (1) distribution of religious publications by gift and sale, (2) proselyting by speaking to members of the public about the Society's religious beliefs, and (3) solicitation of funds to support the Society's activities. The ordinance does not affect the first two elements. Krishna devotees have complete freedom to exercise their religion by distributing their literature and otherwise spreading the society's religious beliefs. They also have complete freedom of speech to express their views and to proselyte by persuasion. The third element, solicitation of funds, is a different matter; it is circumscribed by the requirements of the ordinance.

Solicitation of contributions is a form of communication. The Supreme Court has said: "Prior authorities, therefore, clearly establish that 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". Schaumberg, 444 U.S. at 632, 100 S.Ct. at 833. Some of the authorities the Supreme Court referred to in that decision are Hynes v. Mayor of Oradell, 1976, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243; Thomas v. Collins, 1945, 32 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Murdock v. Pennsylvania, 1943, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; and Cantwell v. Connecticut, 1940, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.2d 1213. Continuing, the Supreme Court observed, "soliciting financial support is undoubtedly subject to reasonable regulation"....