International Soc. for Krishna Consciousness of Atlanta v. Eaves

• Decision Date: 30 August 1979
• Docket Number: No. 77-1284,77-1284
• Citation: 601 F.2d 809
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF ATLANTA et al., Plaintiffs-Appellants, v. Reginald EAVES, Atlanta Police Department Commissioner, individually and in his official capacity, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 809

601 F.2d 809

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF ATLANTA

et al., Plaintiffs-Appellants,

v.

Reginald EAVES, Atlanta Police Department Commissioner,

individually and in his official capacity,

Defendant-Appellee.

No. 77-1284.

United States Court of Appeals, Fifth Circuit.

Aug. 30, 1979.

Barry A. Fisher, Beverly Hills, Cal., for plaintiffs-appellants.

Ferrin Y. Mathews, J. M. Harris, Jr., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GOLDBERG, SIMPSON and CLARK, Circuit Judges.

GOLDBERG, Circuit Judge:

I.

In this case we are asked to decide the constitutionality of a municipal ordinance that regulates the distribution of literature and solicitation of funds at airports owned by the city of Atlanta, Georgia. The International Society for Krishna Consciousness, Inc., (the Society) and William G. Ogle, president of the Society's Atlanta Branch, claim that the ordinance violates their first amendment rights. They sued the Atlanta chief of police for declaratory and injunctive relief; when the United States District Court for the Northern District of Georgia refused to grant a preliminary injunction, ¹ they brought this appeal.

A.

The ordinance is not complex. ² Any person or organization wishing to distribute literature (§§ 1, 3) or to solicit funds (§ 11) at the Atlanta airport must obtain a permit from the Commissioner of Aviation. Appellants originally challenged the detailed provisions governing the grant and denial of permits, but since the appeal was filed Atlanta has amended the ordinance and modified the provisions to which appellants objected. ³ This portion of the appellants' The ordinance then divides the airport into five "areas" and requires that the permit specify the areas within which a permit holder may solicit funds and distribute literature. §§ 7, 8, 15, 16. Certain parts of the airport for example, "(b)eyond the security check points," and "(w)ithin ten (10) feet of any area leased exclusively to a tenant of the Airport," §§ 6(a), (c) and 14(a), (c) are off limits in any event. The appellants do not challenge any of these provisions. But the ordinance goes on to provide that

claim is therefore moot. See, e. g., Kremens v. Bartley, 431 U.S. 119, 129, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977).

The Commissioner may move such permitted activities from one area to another and among the different areas upon reasonable written notice to the applicant when in the judgment of the Commissioner such move or moves are necessary to the efficient and effective operation of the transportation function of the airport.

§ 8. The ordinance also provides that if two or more persons or organizations seek to distribute literature or solicit funds at the same time, "the Commissioner shall apportion the available areas between or among them all on as equitable a basis as possible," §§ 8, 16. Moreover, the ordinance allows no more than three persons to solicit funds or distribute literature in any one "area" at the same time, and

(w)hen the Commissioner receives more applications for permits than he is able to grant by following this rule, then he may impose such reasonable and equitable restrictions as to allowable dates or hours or numbers of participants as may reasonably be required to provide fair and as equal as possible opportunities for all applicants, while insuring the efficient and effective operation of the transportation function of the Airport.

§§ 8, 16. The appellants claim that the vagueness of this language gives the Commissioner unconstitutionally broad discretion to deny and condition permits.

The ordinance also limits the activities of those who hold valid permits. The appellants challenge two of these limits. Section 9(a) specifies that no person may "obstruct, delay or interfere with, or seek to coerce or physically disturb" another person, or "hamper or impede the conduct of any authorized business" at the airport. Appellants charge that this provision is unconstitutionally vague and overbroad. Sections 9(c) and 16 impose a more novel restriction. Permit holders may distribute literature and proselytize throughout the area specified in their permit, but they may not "(r)eceive or accept any donation of money", § 9(c), except at certain " 'Solicitation Booths' which shall be furnished by the Commissioner . . . and . . . shall be located within the permissible areas at such points as may be designated from time to time by the Commissioner" § 16. The appellants say that the first amendment prohibits Atlanta from limiting the transfer of funds to certain locations in this fashion.

Finally, any person convicted of violating these or other prohibitions contained in the ordinance loses his or her permit and right to distribute literature or to solicit funds in the Atlanta airport, and cannot receive another permit for twelve months. § 18(a), (c). Moreover, if persons "representing" a single organization, § 18(b), violate the ordinance a total of three times within six months, that organization loses any permit it holds and cannot reapply for twelve months. § 18(b), (c). The appellants challenge these penalty provisions as well.

In summary, then, the appellants raise five challenges: to the alleged vagueness of the rules permitting the Commissioner to move permit holders from one area to another; to the alleged vagueness of the criteria the Commissioner is to apply when allocating space among competing applicants; to the alleged vagueness and overbreadth of the provision prohibiting obstructing, interfering, and the like; to the requirement

that money be transferred only at specified solicitation booths; and to the penalty provisions.

B.

The district court found that the Society is a religious group within the meaning of the first amendment, and that the religion "imposes on its members the duty to perform a religious ritual known as Sankirtan, which consists of soliciting and accepting donations and contributions while disseminating religious literature and information, all in public places." R. at 149. Neither of these findings is questioned by the appellee. Members of the Society have apparently obtained permits to distribute literature and to solicit funds in the Atlanta airport and are currently doing so. Apparently they are complying with all the provisions of the ordinance. Moreover, so far as we can tell from this record, no one has ever been charged with violating the ordinance, and it has never been applied or interpreted by any state court. Appellants' challenge to the various provisions of the Atlanta ordinance is, therefore, anticipatory in two senses; none of the provisions has actually been enforced against them, and they do not allege that they have yet engaged in any conduct punished or otherwise proscribed by the ordinance. Like most anticipatory challenges, appellants' suit raises serious questions of justiciability, and we must first decide which of their claims is justiciable.

II.

Justiciability is a notably amorphous notion, "a concept of uncertain meaning and scope." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). It has at least two distinct components. One is jurisdictional, the Article III requirement that federal courts decide only "cases" and "controversies." The other consists of "policy considerations," Id. at 97, 88 S.Ct. 1942, not specified in the Constitution but bearing on whether it is appropriate to permit a particular case to be litigated in a federal court at a particular time. See generally Socialist Labor Party v. Gilligan, 406 U.S. 583, 588-89, 92 S.Ct. 1716, 32 L.Ed.2d 317 (1972). This component is "not always clearly distinguished from the constitutional limitation." See Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953).

The constitutional requirement of a case or controversy is rooted in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). It is an especially crucial limit on the power of a federal court faced with an anticipatory challenge like appellants'. "The power and duty of the judiciary is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for decision . . . . Marbury v. Madison . . . . But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws . . . ." Younger v. Harris, 401 U.S. 37, 52, 91 S.Ct. 746, 754, 27 L.Ed.2d 669 (1971); See Broadrick v. Oklahoma, 413 U.S. 601, 610-11, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L.Ed. 60 (1803). In other words, a plaintiff must not be allowed to enlist the aid of a federal court in a general effort to purge unconstitutional measures from the body of the law. See, e. g., United States v. Richardson, 418 U.S. 166, 173, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Boyle v. Landry, 401 U.S. 77, 81, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971). To say this is not by any means to suggest that we should be hostile to anticipatory challenges; they play a most vital role in modern efforts to enforce constitutional rights. "It is not necessary that (a party) first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974). But the premise of Marbury v. Madison requires us to insist that an anticipatory challenge to statute's constitutionality grow out of a "real, substantial controversy between parties . . . a dispute definite and concrete." Babbitt v. UFW In deciding whether such a dispute exists, courts have traditionally focused on each of the parties in turn. They have asked whether the plaintiff is seriously interested in disobeying, and the defendant seriously intent on enforcing, the...