Paulsen v. Lehman
| Decision Date | 01 December 1993 |
| Docket Number | No. CV 90-2942 (ADS).,CV 90-2942 (ADS). |
| Citation | 839 F. Supp. 147 |
| Parties | Mitch PAULSEN, Plaintiff, v. Orin LEHMAN, In His Official Capacity As Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, And the New York State Office of Parks, Recreation and Historic Preservation, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
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Clifton Budd & Demaria, New York City (Brian J. Clark, of counsel), for plaintiff.
Robert Abrams, Atty. Gen. State of N.Y., New York City (Charles F. Sanders, Ellen J. Fried, of counsel), for defendants.
Say the word "beach" to most Americans and they will conjure images of cool breezes beneath a piercing sun, swimmers diving under breaking waves, ships bobbing on the horizon line, and evening strolls along a boardwalk under an azure sky. "Beaches" have been the subject of plaintive poems, raucous records, and comedic as well as melancholic motion pictures.
So far as the defendants in this case are concerned, it is this visualization of the "beach experience" which lies at the heart of the controversy now before the Court. The plaintiff wishes to distribute his noncommercial religious literature at Jones Beach State Park, perhaps the most utilized beach area on all of Long Island. The defendants contend that the plaintiff's activities should be restricted, to allow the citizens of Long Island to "attend the beach and commune with nature and relieve the stress and concerns of day to day life," without such disruption.
The plaintiff moves for partial summary judgment on his First Amendment claims, and the Court must weigh, among other issues, the competing interests presented by both sides.
The Complaint asserts jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), § 1343(a)(3) and (4) (civil rights), § 2201 (declaratory judgment) and 42 U.S.C. § 1983 ().
The plaintiff Mitch Paulsen is the founder and principal of Mitch Paulsen Outreaches, a Christian Evangelical organization operating in the New York metropolitan area, which lists a Post Office Box in Baldwin, New York as its address.
The defendant Orin Lehman was the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, who is sued in his official capacity. The Commissioner or his designees are authorized to issue permits to the public for special events or activities in state parks.
The defendant New York State Office of Parks, Recreation and Historic Preservation ("State Office of Parks" or "SOP") is a division or department of the Executive Branch of the State of New York, having its principal place of business in Albany, New York, and a regional office at Belmont Lake State Park in Babylon, New York.
This lawsuit has progressed in several stages. The Court has, in fact, rendered two prior decisions, the first in August, 1990, and the second in March, 1991 (see Paulsen v. Lehman, 745 F.Supp. 858 E.D.N.Y.1990; Paulsen v. Lehman, 839 F.Supp. 147 E.D.N.Y.1991). In light of these two previous determinations, familiarity with which is presumed, the Court will recite only those facts essential to the motion for partial summary judgment now before the Court.
The plaintiff filed a Complaint on August 21, 1990, in which he alleged that the defendants violated his right to freedom of expression, free exercise of religion, and equal protection of law, in violation of 42 U.S.C. § 1983. Simultaneous with the filing of the Complaint, the plaintiff also submitted an Order To Show Cause in which the plaintiff sought a preliminary injunction preventing the defendants from refusing to grant him a permit to use the "mosaic" area or any other area at Jones Beach State Park to distribute noncommercial pamphlets containing a religious message on the Labor Day weekend, September 1, 1990, and other holiday weekends until the determination of this action.
Following a hearing on August 24, 1990, the Court issued a Memorandum and Order granting the plaintiff's application for a preliminary injunction, to a limited extent, solely on the basis of his First Amendment claims as alleged in the first cause of action. The Court stated as follows:
In their Answer, the defendants raised two affirmative defenses: (1) that they at no time acted in contravention of the plaintiff's constitutional rights; and (2) the Complaint fails to state a claim upon which relief can be granted.
Subsequently, the defendants filed a motion to dismiss the Complaint under Fed. R.Civ.P. 12(b) on the ground that the plaintiff's claims were moot. The defendants also moved to stay their obligation to respond to the request for production of certain documents pursuant to the provisions of Rule 26. In turn, the plaintiff moved to file a Supplemental Complaint pursuant to Rule 15(d) and to compel the defendants to produce the requested documents under the provisions of Rule 37.
In its March 25, 1991 Memorandum and Order, the Court denied the defendants' motion for judgment on the pleadings, finding that the Complaint alleged specific facts involving the defendants in support of all three causes of action, and therefore stated claims for which relief could be granted under 42 U.S.C. § 1983. The Court also granted the plaintiff leave to file a Supplemental Complaint, holding that (1) the new allegations concerned facts occurring subsequent to the original claim which were sufficiently related to warrant joint consideration and that (2) the defendants had not shown any cognizable prejudice based upon the Supplemental Complaint. The motions for a protective order and to compel the production of documents were referred to a United States Magistrate Judge.
The Supplemental Complaint alleged that subsequent to the Court's entry of a preliminary injunction in August, 1990, the defendants promulgated a new policy with respect to the issuance of permits. The plaintiff also alleged that on December 21, 1990, he wrote to the defendants and asked that he be permitted to continue to "peacefully distribute noncommercial, religious literature whenever and wherever Jones Beach is open to the public without the necessity of having to apply for a permit." The plaintiff characterized this process as "burdensome and unnecessary." He further alleged that the defendants did not respond to this correspondence. The new pleading also contained a "Supplemental Claim for Relief" — entitled "Freedom of Speech and Press."
The plaintiff moves for partial summary judgment, pursuant to Fed.R.Civ.P. 56, granting the following relief: (1) summary judgment on the First Amendment claims as asserted in the first cause of action in the original Complaint as well as in the Supplemental Complaint; (2) the issuance of a permanent injunction against the defendants enjoining them from imposing any unlawful restraints on the exercise of free speech at Jones Beach State Park; and (3) a declaratory judgment that the defendants' scheme for the licensing of speech and press activities constitutes an unconstitutional prior restraint.
During oral argument of this motion, both sides agreed that there were no material issues of fact to be resolved, but rather questions of law to be adjudicated. The defendants also stated in their responding papers that no genuine issue exists as to any material fact (Defendant's Brief in Opposition, at p. 6). The Court now turns to the issues and arguments presented by counsel for both parties.
In his Rule 3(g) statement, the plaintiff asserts that during the Summer of 1989, the practices at Jones Beach were regulated by a document entitled "Policy Regarding Area/Facility Use Permits and Park Facilities." In particular, this policy stated the following:
Subsequently, in December, 1990, a revised policy was implemented. The prior document remained substantially intact, with three exceptions: (1) rather than a complete ban of permits on weekends, the provision was changed to state that the issuance...
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