New Jersey Citizen Action v. Edison Tp.

• Decision Date: 25 September 1986
• Docket Number: No. 85-5321,85-5321
• Citation: 797 F.2d 1250
• Parties: NEW JERSEY CITIZEN ACTION and the New Jersey League of Conservation Voters, Appellants, v. EDISON TOWNSHIP, Glen Ridge Township, Harrington Park Borough, North Arlington Borough, Town of Nutley, Paramus Borough, Piscataway Township, Roseland Borough, Woodbridge Township and Woodcliff Lake Borough. PARAMUS CITIZENS FOR A NUCLEAR WEAPONS FREEZE, Plaintiff Intervenor, v. PARAMUS BOROUGH, Defendant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1250

797 F.2d 1250

55 USLW 2093

NEW JERSEY CITIZEN ACTION and the New Jersey League of

Conservation Voters, Appellants, v. EDISON TOWNSHIP, Glen Ridge Township, Harrington Park

Borough, North Arlington Borough, Town of Nutley, Paramus

Borough, Piscataway Township, Roseland Borough, Woodbridge

Township and Woodcliff Lake Borough.

PARAMUS CITIZENS FOR A NUCLEAR WEAPONS FREEZE, Plaintiff Intervenor, v. PARAMUS BOROUGH, Defendant.

No. 85-5321.

United States Court of Appeals Third Circuit.

Argued Feb. 18, 1986.

Decided Aug. 5, 1986.

Rehearing and Rehearing In Banc Denied Sept. 25, 1986.

Frank Askin (argued), Eric Neisser, Constitutional Litigation Clinic, Rutgers Law School, Newark, N.J., for New Jersey Citizen Action and Paramus Citizens for a Nuclear Weapons Freeze, on behalf of the American Civil Liberties Union.

Timothy Haley, Gordon & Gordon, West Orange, N.J., for League of Conservation Voters; Thomas Asher, Washington, D.C., of counsel.

Phillip Lewis Paley (argued), Lionel J. Frank, Kirsten, Friedman & Cherin, P.C., Newark, N.J., for Tp. of Piscataway.

Lawrence P. Pollex, Edison, N.J., for Edison Tp.

James Randall Stevens, Westwood, N.J., for Woodcliff Lake.

Daniel P. Mecca, Paramus, N.J., for Borough of Paramus.

Arthur W. Burgess, Woodbridge, N.J., for Woodbridge Tp.

Edwin C. Eastwood, Jr., North Bergen, N.J., for Borough of North Arlington.

David Kairys, Kairys & Rudovsky, Philadelphia, Pa., for amici curiae--Pennsylvania Public Interest Coalition, Republican City Committee of Philadelphia, Americans for Democratic Action and Friends of Bob Edgar--for appellants.

Before WEIS and SLOVITER, Circuit Judges, and POLLACK, District Judge ^*.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This appeal arises out of a suit brought under 42 U.S.C. Sec. 1983 by three political action groups against ten New Jersey municipalities, alleging that the municipalities' ordinances regulating door-to-door canvassing and solicitation violated rights protected by the federal and New Jersey constitutions. The district court upheld the challenged provisions against the federal constitutional challenge and dismissed the pendent state claim.

I. FACTUAL BACKGROUND

Appellants are New Jersey Citizen Action (NJCA), the League of Conservation Voters (Conservation League), and Paramus Citizens for a Nuclear Weapons Freeze (Paramus Freeze) (hereafter collectively referred to as "citizens groups"). NJCA, a political action federation of individuals and organizations, including trade unions, church groups, and senior citizen associations, engages in educational, research, canvassing, and citizen lobbying activities to find legislative and political solutions for problems of public concern in New Jersey, such as energy costs, taxes, toxic waste and unemployment. Conservation League, a national political action committee which maintains an office in New Jersey, educates the public and lobbies legislative bodies about environmental issues. Paramus Freeze is an unincorporated association working to increase public support for a nuclear weapons freeze; its activities are limited to Paramus.

All of these organizations use door-to-door canvassers to present their programs to citizens, to receive citizens' viewpoints, and to raise funds. The district court found that NJCA and Conservation League raise over 80% of their funds through canvassing. These organizations hire as canvassers mostly young people who are paid a salary, which is conditioned on their meeting a preset fundraising goal. Paramus Freeze has mostly older canvassers who are all volunteers. The NJCA and Conservation League canvassers canvass only from 4 p.m. to 9 p.m.

The citizens groups ¹ originally filed suit against ten New Jersey municipalities, ² alleging that the sections of the municipal ordinances that regulate door-to-door solicitation and canvassing violate plaintiffs' rights under the First and Fourteenth Amendments to the United States Constitution and similar guarantees of the New Jersey constitution. Although temporary restraining orders were issued against two towns, the district court ultimately merged the citizens groups' request for a preliminary injunction against all defendants with a trial on the merits, limited to the claim for injunctive relief. It reserved the issues raised by plaintiffs' claims for money damages.

At trial, the citizens groups challenged only those sections of the ordinances that prohibited noncommercial door-to-door canvassing and solicitation during evening hours, generally after 5 p.m. or 6 p.m. or sunset, and that required prospective solicitors to be fingerprinted. They do not challenge the municipalities' right to bar canvassing after 9 p.m. ³

After hearing extensive testimony from both sides, the district court issued an opinion containing detailed findings of fact and conclusions of law in which it found that "the preponderance of evidence indicates that the time restrictions on canvassing do not deter or prevent crime in these municipalities as a matter of fact," App. at 32, and that the "preponderance of the evidence ... indicates that these plaintiffs do not have meaningful alternatives to evening canvassing ... [because] plaintiffs c[an] not survive economically if the restrictions at issue remain in place." App. at 33.

The court thus found that "the preponderance of the evidence ... weighs rather heavily in the direction of the plaintiffs...." App. at 32. However, the court felt "constrained" to hold that the prohibition of evening canvassing was constitutional because of this court's decision in Pennsylvania Alliance for Jobs & Energy v. Council of the Borough of Munhall (PAJE), 743 F.2d 182 (3d Cir.1984), which the district court read as holding that "restrictions on door-to-door canvassing which prohibit such activity after dark or after 5:00 p.m. are per se facially reasonable." App. at 30.

Turning to the fingerprinting requirements, the district court found that "there is no evidence on this record that canvassers have been involved in criminal activity...." App. at 35-36. Again, however, the court found itself circumscribed by prior decisions of this court to uphold the regulation if it was "reasonably related" to a valid state interest. Therefore, the court rejected plaintiffs' challenges to these regulations as well.

The court refused the citizens groups' request to retain jurisdiction over their claims that other provisions of the ordinances are also unconstitutional, holding that the issues had not been preserved. ⁴ Finally, the court declined to exercise pendent jurisdiction over the state constitutional claim. Plaintiffs do not challenge these rulings on appeal.

The citizens groups appeal, ⁵ claiming first that the district court misconstrued the law in this circuit, and that the district court's factual findings required it to hold the hours restrictions unconstitutional. Second, plaintiffs contend that the fingerprinting requirement is not governed by a reasonable relation test, and that, under the proper, more stringent analysis, the fingerprinting requirement is unconstitutional. On appeal, this court granted the

                motion of the Pennsylvania Public Interest Coalition, Republican City Committee of Philadelphia, Americans for Democratic Action of Southeastern Pennsylvania, and Friends of Bob Edgar [the Democratic Party's candidate in Pennsylvania for the United States Senate] to file an amici curiae brief.  The amici urge reversal, arguing in their joint brief that "their ability to function--for some perhaps even their survival--is at issue."    Brief of Amici at 1
                

II. THE ORDINANCES

A brief description of the challenged ordinances, which include a potpourri of exclusions, may be helpful to an understanding of the relevant legal issues. Each limits the hours during which door-to-door soliciting and canvassing can occur, but there are some variations. North Arlington prohibits canvassing between 5 p.m. and 9 a.m. and on legal holidays, Sundays and during the month of December. Woodbridge prohibits canvassing during these same hours, but without any daily or monthly restrictions. However, "[c]ertain charitable, religious, and historical societies," defined by reference to state law, are exempted from some aspects of the ordinance. Woodcliff Lake's ordinance likewise restricts canvassing to between 9 a.m. and 5 p.m. and prohibits canvassing altogether on Sundays. The ordinance contains an exception for "[a]ny person soliciting votes for a bona fide candidate for public office." In addition, the ordinance vests in the Mayor and Council of the town the power to suspend the provisions of the ordinance with respect to nonprofit organizations. Harrington Park's ordinance as attached to the complaint also prohibits canvassing after 5 p.m. and on Sundays and holidays, although the district court found that the curfew was sunset. The ordinance excludes from its licensing provision "nonprofit, religious, charitable, civic, or veterans' organizations" if those organizations file an application and are found to be "bona fide" by the Borough's police department.

When this suit was filed, Paramus permitted canvassing only on weekdays from 9 a.m. to 6 p.m., but the district court noted that it has since amended its ordinance to allow canvassing on Saturdays. See App. at 34 n. 21. The Paramus ordinance contains an exception for "peddlers of food" who are allowed to operate from 9 a.m. to 9 p.m., seven days a week.

Piscataway prohibits solicitation and canvassing after sunset. Although Piscataway's hours limitation appears to apply only to "hawkers and peddlers," and not to "solicitors, canvassers, and itinerant vendors," the district court did not distinguish between Piscataway's ordinance and the others.

Five of the municipal ordinances submitted to this court require solicitors and canvassers to be fingerprinted as a condition for obtaining a license to operate. Woodcliff Lake's ordinance gives...