Planned Parenthood Ass'n v. Chicago Transit Auth.

Decision Date09 August 1984
Docket NumberNo. 84 C 4976.,84 C 4976.
Citation592 F. Supp. 544
PartiesPLANNED PARENTHOOD ASSOCIATION/CHICAGO AREA, Plaintiff, v. CHICAGO TRANSIT AUTHORITY, et al., Defendants.
CourtU.S. District Court — Northern District of Illinois

COPYRIGHT MATERIAL OMITTED

Alan S. Gilbert, Sheila Hegy Swanson, Sonnenschein, Carlin, Nath & Rosenthal, Chicago, Ill., for plaintiff.

George J. Murtaugh, Jr., Chicago, Ill., for defendant Winston Network, Inc.

Richard W. Burke, Stephen C. Voris, Burke, Griffin, Chomicz & Wienke, P.C., Chicago, Ill., Edward J. Egan, Chicago, Ill., for defendants Chicago Transit Authority.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SHADUR, District Judge.

Planned Parenthood Association/Chicago Area ("PPA") sues the Chicago Transit Authority ("CTA"), its governing body Chicago Transit Board ("Board"),1 its Executive Director Bernard J. Ford ("Ford") and its former Public Affairs Director Michael Horowitz ("Horowitz")2 and Winston Network, Inc. ("Winston") under 42 U.S.C. §§ 1983, 1985(3) and 1986. PPA charges violation of its First and Fourteenth Amendment rights3 by defendants' refusal to accept PPA's advertising for display on CTA buses, trains and facilities. PPA has requested both injunctive relief and damages.

In accordance with Fed.R.Civ.P. 52(a) this Court finds the facts as set forth in the following Findings of Fact ("Findings") and states the following Conclusions of Law ("Conclusions").4 By agreement of the parties, in accordance with Rule 65(a)(2) the trial of this action on the merits has been advanced and consolidated with the hearing of PPA's application for a preliminary injunction, with the issue of damages deferred for a later hearing. Accordingly these Findings and Conclusions serve as this Court's final determination as to injunctive relief.

Findings of Fact
Parties

1. PPA is an Illinois not-for-profit corporation affiliated with Planned Parenthood Federation of America. PPA provides educational, counseling, referral and medical services related to family planning and medically-approved birth control through four clinics in Chicago and one clinic in a Chicago suburb (Tr. 21-22).

2. CTA is a municipal corporation, created by the Illinois General Assembly, which owns and operates a transit system serving the public in metropolitan Chicago (CTA Ans. ¶ 5).

3. Board's Members (see n. 1) are appointed by the Mayor of the City of Chicago and the Governor of Illinois. Board governs and administers CTA through its members and agents (CTA Ans. ¶ 6).

4. Winston, which does business in Illinois and has an office in Chicago, is a private corporation engaged in the transit and outdoor advertising business. It has an exclusive contract with CTA (the "Contract," CTA Ex. 47) to place cards, signs and other forms of advertising in or on buses, rapid transit cars and other CTA property (Winston Ans. ¶ 11).

Sale of CTA Advertising Space

5. Winston, acting under the Contract, sells or leases space in and on CTA buses and transit cars and other CTA property for the display of cards and signs containing messages (Winston Ans. ¶ 12; Tr. 63; CTA Ex. 47). Only Contract ¶ 8 contains any restriction on the type of advertising Winston can accept for placement on CTA property:

All advertising displays ... shall be of reputable character, and if any immoral, vulgar or disreputable advertisements are ... placed ..., Winston shall remove the same immediately ...

6. CTA did not expressly reserve authority in the Contract to review or to approve requests to advertise or the messages themselves before their posting on CTA property. However, it has been the long-standing practice for CTA to review and approve messages submitted by not-for-profit organizations before posting of those messages on CTA property (Tr. 75, 96, 103, 110; CTA Ex. 7). It is not however standard practice for CTA to review or to approve, before their posting on CTA property, commercial or political candidate messages or other message for which full rates are paid. Such messages are routinely approved or disapproved by Winston sales account executives based upon the creditworthiness of the advertiser and the sales account executive's subjective judgment about the contents of the message (Tr. 72-72, 104; Sullivan Dep. 41-42, 46; Dyson Dep. 21-26). On no occasion has CTA reviewed or approved political candidates' messages before their posting on CTA property. In the few instances where Winston has referred commercial messages to CTA for prior review or approval, in Winston's view the messages raised questions of vulgarity, immorality or legality (CTA Exs. 7, 10, 11, 31, 48, 49).

7. By the literal terms of the Contract, CTA, Board and all other CTA-affiliated defendants delegated to Winston the authority to accept or reject requests for CTA display space without any review by CTA or any objective guidelines for such acceptance or rejection (Tr. 70-71, 80-81; CTA Ex. 47). At least in those instances where Winston obtains CTA review for an advertising request, Winston acts as CTA's agent (Tr. 24, 63-65, 70-72, 75-81, 106).5

8. CTA has displayed cards and signs (PPA Group Exs. 1 and 2) advertising, and communicating with the public as to:

(a) a wide variety of products and services, including health care, cigarettes, liquor, and lawyers' and doctors' services;
(b) political candidates;
(c) gun registration;
(d) draft registration;
(e) arms control;
(f) prevention and cure of disease (including AIDS);
(g) labor unions for county and city workers;
(h) religious organizations;
(i) non-discrimination in employment;
(j) tenants' rights;
(k) military service;
(l) sexually suggestive calendars and magazines;
(m) public figures;6 and
(n) fortune telling.
PPA's Requests for CTA Advertising Space

9. Since early 1983 PPA has sought to advertise its services7 by purchasing or leasing display space on CTA property designated for public messages, including but not limited to the interior of CTA buses and transit cars (Tr. 24, 31-32, 47-50, 54-60; PPA Exs. 7, 8). In January 1983 Barbara Shaw ("Shaw"), PPA's Public Information Coordinator, called CTA to request information about how to purchase message space on CTA (Tr. 21, 24-25). CTA referred Shaw to Winston (Tr. 24). Shaw phoned Winston and spoke with Jay Dyson ("Dyson"), a Winston sales account executive (Tr. 25, 63-64). Shaw told Dyson PPA wanted to lease message space from CTA. Dyson suggested to Shaw that PPA could obtain message space at a reduced rate because it was a not-for-profit organization and told Shaw to submit a sample of the copy of the message PPA wanted to place (Tr. 25-26, 67; Dyson Dep. 13).

10. As requested, Shaw submitted the text of PPA's proposed message to Dyson, who forwarded it to Jack Sullivan ("Sullivan"), Winston's liaison with CTA (Tr. 27, 67, 75; PPA Ex. 6). Dyson routinely submits to Sullivan proposals for messages from not-for-profit organizations entitled to reduced rates (Tr. 65; Dyson Dep. 15, 26).

11. Sullivan told Dyson he would have to get approval from CTA for the PPA message (Tr. 68; Dyson Dep. 33; Sullivan Dep. 17). Sullivan routinely submits public service or not-for-profit messages to CTA for approval when Sullivan feels those messages may be "controversial" or "not liked" by CTA. Sullivan does not submit messages for approval that he thinks are "non-controversial" or are of a type previously approved by CTA. Sullivan bases these determinations upon his "own feelings" and his experience with CTA (Tr. 75-76, 80-81; Sullivan Dep. 13-15, 38-39, 44).

12. In late January 1983 Sullivan told Dyson Horowitz had rejected PPA's request to advertise (Tr. 69-70). Dyson in turn informed Shaw and PPA's Acting Director of Community Affairs Michael Seiler ("Seiler") of CTA's rejection. Dyson told Seiler to communicate with Horowitz if he wished to pursue the matter further (Tr. 47, 70; Dyson Dep. 36-37). Between February and July 1983 Seiler unsuccessfully attempted to reach Horowitz, who never returned Seiler's numerous calls (Tr. 48-50).

13. On March 14, 1983 PPA Executive Director Norman Levine ("Levine") wrote Horowitz a letter repeating PPA's request to obtain message space, attaching a copy of the same proposed text that Shaw sent Winston. Levine never received a response to that request (Tr. 52-53; PPA Exs. 6, 7).

14. In the late summer or early fall of 1983 Horowitz went to Ford to discuss with him PPA's desire to advertise on CTA (Tr. 126). Horowitz told Ford he was going to reject the message, and Ford concurred that the message should be rejected (Tr. 126). Ford then told Cardilli of the conversation with Horowitz and of Horowitz's intention to reject the message (Tr. 126).

15. On November 29, 1983 PPA's Director of Community Services Brenda Hansen ("Hansen") wrote Winston, again requesting space for PPA's message and attaching a copy of the proposed advertisement (Tr. 56-57; PPA Exs. 8-9). Sullivan received Hansen's letter and proposed advertisement and forwarded them to CTA (Tr. 106). William Baxa ("Baxa"), Horowitz's replacement as CTA Public Affairs Director, received Hansen's letter and proposed advertisement and referred them to Ford (Tr. 115) with a memo seeking Ford's advice on whether to accept or reject PPA's message (Tr. 115; PPA Ex. 15). On December 7, 1983 Ford instructed Baxa to reject PPA's message (PPA Ex. 15; Tr. 130-31).

16. Later in December 1983 Cardilli wrote a memorandum to Board's members, informing them of PPA's continuing request to purchase or lease message space. Cardilli also told them of CTA's then-current practice of declining messages that advocated either pro- or anti-abortion positions and asked for their review and thoughts on the issue. Cardilli attached to his memorandum copies of Hansen's November 29, 1983 letter and the proposed advertisement (PPA Ex. 16). On January 4, 1984 Board discussed PPA's request. Board members Cardilli, Ruggierio, Medley, Hoellen and Hillman and seven CTA staff members, including R.F. Bartkowicz, J.O. Demaret...

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