INTERNATIONAL SOC., KRISHNA v. Dallas-Ft. W. Reg. Air. B., Civ. A. No. 3-75-0039-F.

• Decision Date: 21 March 1975
• Docket Number: Civ. A. No. 3-75-0039-F.
• Citation: 391 F. Supp. 606
• Parties: INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS SCHOOL FOR the ADVANCEMENT OF VEDIC ARTS AND SCIENCES FOR YOUTH IN AMERICA-GURUKULA (KSAVASYA-GURUKULA) et al. v. DALLAS-FORT WORTH REGIONAL AIRPORT BOARD et al.
• Court: U.S. District Court — Northern District of Texas

391 F. Supp. 606

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS SCHOOL FOR the ADVANCEMENT OF VEDIC ARTS AND SCIENCES FOR YOUTH IN AMERICA-GURUKULA (KSAVASYA-GURUKULA) et al. v. DALLAS-FORT WORTH REGIONAL AIRPORT BOARD et al.

Civ. A. No. 3-75-0039-F.

United States District Court, N. D. Texas, Dallas Division.

March 21, 1975.

Gordon V. Lewis, Dallas, Tex., for plaintiffs.

S. G. Johndroe, Jr., City Atty., William W. Wood, Asst. City Atty., Fort Worth, Tex., Joseph Werner, Asst. City Atty., Dallas, Tex., John F. Boyle, Jr., City Atty., Irving, Tex., Charles C. Wells, C. Merrill Bierfeld, Dallas, Tex., for defendants.

MEMORANDUM OPINION

ROBERT W. PORTER, District Judge.

This is primarily a first amendment case, involving the free exercise of religion and freedom of speech. The Plaintiffs claim their constitutional rights are chilled impermissibly by the Defendants'¹ practice of having devotees of the Society of Krishna Consciousness arrested and jailed when they offer their literature and solicit donations at the Dallas-Fort Worth Regional Airport.

The individual Plaintiffs and the Plaintiff society have asked this Court to enjoin the Defendants from (a) proceeding further in the criminal charges now pending in the Municipal Court of Grapevine, Texas, (b) continuing or resuming the practice of arresting, detaining, searching and prosecuting Plaintiffs and other Krishna society members for their purportedly religious practices, (c) interfering with the Plaintiffs by preventing them from disseminating their literature and religious items and receiving donations at the airport, and (d) enforcing the ordinance under which Plaintiffs have been charged in the municipal court. In addition, Plaintiffs seek money damages and a declaratory judgment that the Defendants' acts and the ordinance are unconstitutional and that Plaintiffs' practices at the airport are constitutionally protected under the first amendment.

This Court's jurisdiction is claimed under 28 U.S.C. §§ 1331 and 1343 as well as §§ 2201 and 2202. I find that the Court has jurisdiction to proceed.

The case is before the Court on a motion for preliminary injunction. Based upon the evidence received at a hearing and the briefs and argument of counsel this Court is unable to pronounce the ordinance in question free of constitutional defects. At the same time, however, I have concluded that an injunction would be improper for the reasons detailed below.

THE FACTS

Commendably, the attorneys have simplified the Court's task somewhat by stipulating to a number of important facts, which will be paraphrased here for brevity. The Plaintiff International Society for Krishna Consciousness is a Texas nonprofit corporation and is a religious society espousing the religious and missionary views of Krishna Consciousness. Its members have a duty under their vows to distribute religious literature, for which they seek and may accept contributions.

On December 5, 6, 12, 19 and 20, 1974, at least one of the individual Plaintiffs was arrested while distributing Krishna literature and accepting donations at the Dallas-Fort Worth Regional Airport (hereafter, D/FW). One individual Plaintiff was arrested on three different occasions; two were arrested twice each and the fourth was arrested once. The charges are identical: violating City of Grapevine, Texas, Ordinance No. 72-40, which adopts in toto the Code of Rules and Regulations of the Dallas-Fort Worth Regional Airport Board, which is the governing administrative body of the airport. (All airport terminal buildings are located in the Grapevine city limits.)

Because it is a violation of the Grapevine ordinance to violate the airport board's regulations, it is important in this case to note that the regulations make criminal a number of acts, including: (a) soliciting funds for any purpose at D/FW without a permit from the board,² (b) selling or offering to sell any article or merchandise at D/FW without a permit, concession or franchise from the board,³ and (c) assembling, or distributing pamphlets or other materials at D/FW without a permit from the board.⁴ In the case of (c), in order to obtain a permit, the applicant must—at least three days in advance— notify the board of: (a) the full name and mailing address of the person or organization sponsoring, conducting or promoting the activity; (b) the purpose or subject thereof; (c) the date, hours and exact airport location for which the request is made, and (d) the approximate number of participants.⁵

It is also stipulated that D/FW is owned jointly by the cities of Dallas and Fort Worth. Its roadways, sidewalks, etc., have not been dedicated to public use, and a toll is charged for access to the airport, which is totally fenced to control entry.

More detailed information about the history and physical facilities of D/FW may be found in this Court's opinion in Continental Bus System, Inc. v. The City of Dallas and the City of Fort Worth, 386 F.Supp. 359 (N.D.Tex. 1974). That case involved a challenge to another provision of the board's rules and regulations. This Court upheld the regulations in that case, holding that the board legally could exclude common carriers from D/FW while permitting a bus line jointly owned by the two cities to operate there. This holding should not comfort the Cities or the Board in the case at bar, however, because as Mr. Justice Frankfurter noted almost thirty years ago: "It does not seem to me to further constitutional analysis to seek help for the solution of the delicate problems arising under the First Amendment from the very different order of problems which the Commerce Clause presents." Marsh v. Alabama, 326 U.S. 501, 511, 66 S.Ct. 276, 281, 90 L.Ed. 265 (1946) (concurring opinion). In short, what is private property for purposes of the commerce clause is not necessarily private property for purposes of the exercise of First Amendment rights.

THE YOUNGER DOCTRINE

The Defendants would have this Court abstain from proceeding with this case and defer to the Municipal Court of Grapevine under the doctrine of the Younger sextet: Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Bryne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971). The Younger teaching is perhaps best summed up in the concurring opinion of Mr. Justice Stewart:

The Court confines itself to deciding the policy considerations that in our federal system must prevail when federal courts are asked to interfere with pending state prosecutions. Within this area, we hold that a federal court must not, save in exceptional and extremely limited circumstances, intervene by way of either injunction or declaration in an existing state criminal prosecution. Such circumstances exist only when there is a threat of irreparable injury "both great and immediate." A threat of this nature might be shown if the state criminal statute in question were patently and flagrantly unconstitutional on its face . . ., or if there has been bad faith and harassment—official lawlessness —in a statute's enforcement . . .. In such circumstances the reasons of policy for deferring to state adjudication are outweighed by the injury flowing from the very bringing of the state proceedings, by the perversion of the very process that is supposed to provide vindication, and by the need for speedy and effective action to protect federal rights.

Younger v. Harris, supra, 401 U.S. at 56, 91 S.Ct. at 757 (Stewart and Harlan, JJ., concurring.) (Footnote omitted.)

I have considered several facts in deciding not to abstain. For one thing, as noted previously, this case, unlike Younger, does not concern a single pending state prosecution; the Plaintiff Gregory R. Stein has been charged three times with violating the Grapevine ordinance, and the Plaintiffs Jean C. Guiffre and Roberta F. Mendelson each have been charged twice. Only the Plaintiff Robert E. Eichelberger faces a single charge.

Additionally, the Plaintiff society has no prosecution pending against it, although it definitely has an interest in the case. Accordingly, declaratory relief on the merits would be proper if grounds for same be proved. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). In Salem Inn v. Frank, 501 F.2d 18 (2d Cir. 1974), the Plaintiffs were three taverns suing to challenge the constitutionality of a local ordinance prohibiting "topless" dancing. Although state criminal charges were brought against one of the Plaintiffs one day after the federal suit was filed —and not the other Plaintiffs—the Second Circuit held that it was proper for the federal district court to proceed on the request for preliminary injunction as to all three Plaintiffs.

Finally, while this Court is extremely reluctant to raise the specter of bad faith and harassment, neither can I rule out the possibility. To illustrate, I need only compare one facet of the fact situation in this case with the parallel situation in another airport literature distribution case, Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (7th Cir., 1975), hereafter abbreviated CAMP.

In CAMP, several members of the Plaintiff organization began distributing free copies of their newsletter in terminal buildings at O'Hare Airport in Chicago. They left the airport after a plainclothes policeman and a uniformed officer informed them leafletting was not permitted and they would be arrested if they persisted. CAMP, supra, at 923.

In sharp contrast, the Plaintiff Jean Guiffre testified at the hearing on the motion for preliminary injunction about one of her two arrests at D/FW. She testified that she was seated, talking to a boy who had accepted one...