RESIDENT PARTICIPATION OF DENVER, INCORPORATED v. Love

• Decision Date: 08 February 1971
• Docket Number: Civ. A. No. C-2548.
• Citation: 322 F. Supp. 1100
• Parties: RESIDENT PARTICIPATION OF DENVER, INCORPORATED, a Colorado non-profit corporation; N.O.D., Incorporated, a Colorado non-profit corporation, Plaintiffs, v. John LOVE, individually and as Governor of the State of Colorado, Duke W. Dunbar, individually and as Attorney General of the State of Colorado, James D. McKevitt, individually and as District Attorney for the City and County of Denver, Colorado, the Denver Publishing Company, a Colorado corporation, the Denver Post, Inc., a Colorado corporation, Defendants.
• Court: U.S. District Court — District of Colorado

322 F. Supp. 1100

RESIDENT PARTICIPATION OF DENVER, INCORPORATED, a Colorado non-profit corporation; N.O.D., Incorporated, a Colorado non-profit corporation, Plaintiffs, v. John LOVE, individually and as Governor of the State of Colorado, Duke W. Dunbar, individually and as Attorney General of the State of Colorado, James D. McKevitt, individually and as District Attorney for the City and County of Denver, Colorado, the Denver Publishing Company, a Colorado corporation, the Denver Post, Inc., a Colorado corporation, Defendants.

Civ. A. No. C-2548.

United States District Court, D. Colorado.

February 8, 1971.

Howard I. Rosenberg, James H. Seckinger, David R. Lass, Allan S. Reiver and Thomas E. Frank, and James E. Rode and Joseph E. Meyer, Denver, Colo., for plaintiffs.

Eugene C. Cavaliere, Asst. Atty. Gen., Denver, Colo., for John A. Love and Duke W. Dunbar.

Thomas P. Casey, Deputy Dist. Atty., Gregory A. Mueller, Asst. Dist. Atty., and Jarvis W. Seccombe, Chief Deputy Dist. Atty., Denver, Colo., for James D. McKevitt.

Winner, Berge, Martin & Clark by Warren O. Martin, Denver, Colo., for The Denver Publishing Co.

Van Cise, Freeman, Tooley & McLearn by Edwin P. Van Cise, Denver, Colo., for The Denver Post, Inc.

Before HILL, Circuit Judge, ARRAJ and DOYLE, District Judges.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

The principal question before us is whether a newspaper's refusal to print an advertisement violates the first amendment to the United States Constitution.

About six months ago plaintiffs began a campaign to prevent construction in Denver of a plant for cutting up the carcasses of animals, an operation which plaintiffs fear would be accompanied by such "stench and filth" as to make living within reach of the plant extremely unpleasant and perhaps hazardous to health. Because 51% of Pepcol, Inc., which planned to build the rendering plant, is owned by Beatrice Foods, Inc., plaintiffs decided to oppose the project by asking Denver residents to boycott Beatrice Foods. To this end they submitted advertisements to the Denver Post and Rocky Mountain News, both newspapers of general circulation in the Denver area. The advertisements described the proposed rendering plant in unsympathetic language and asked readers not to buy products bearing Meadow Gold or Zooper Dooper labels. Both newspapers refused to print the advertisements on the ground, plaintiffs allege, that to do so would violate a Colorado statute making unlawful the printing or circulation of a boycott notice. Colo.Rev.Stat.Ann. § 80-11-12 (1963). In response to these rejections, plaintiffs drew up two more advertisements which did not call for a boycott but did list Beatrice products and asked readers to clip out, sign and mail certain letters to state and city officials. Both newspapers refused to print the revised advertisements.

Plaintiffs next prepared and printed boycott leaflets for distribution in downtown Denver, but, because they were concerned about possible criminal prosecution for violating the Colorado boycott statute, they sought opinions from the Colorado Attorney General and the Denver District Attorney as to whether these officials regarded 80-11-12 as constitutional and would enforce it. Deputy Attorney General John P. Moore replied that the office's statutory authority to render advisory opinions is limited to certain state officials. He added, however, that the office regards itself as bound by the Colorado Supreme Court's statement in People v. Leddy, 53 Colo. 109, 111, 123 P. 824, 825 (1912), that:

As every enrolled bill, signed by the proper officers and lodged with the Secretary of State, however repugnant to the Constitution, has the appearance, semblance, and force of law, the general rule is that public officials shall obey its terms until some one, whose rights it invades, complains, and calls in the aid of the judicial power to pronounce it void as to him, his property, or his rights.

Then District Attorney James D. McKevitt responded by stating that the district attorney is duty bound to enforce the laws of the state.

Rather than risk criminal prosecution for distributing leaflets, plaintiffs brought this action seeking a declaratory judgment and temporary and permanent injunction against enforcement of the statute on the grounds that the statute abridges first amendment freedom of speech, is unconstitutionally vague and is preempted by federal labor law. Plaintiffs seek the same relief, on first amendment grounds, from the newspapers' refusal to publish plaintiffs' advertisements. District Judge Alfred A. Arraj, to whom the case was first assigned, granted a temporary order restraining defendant law enforcement officials from enforcing the boycott statute, pending determination of plaintiffs' request for a temporary injunction. Judge Arraj declined to order defendant newspapers to print plaintiffs' advertisements. A three-judge court was convened pursuant to 28 U.S.C. §§ 2281, -84 (1964) and thereafter defendants filed motions to dismiss which are the subject of this opinion. Defendant newspapers both maintain that the complaint fails to state a cause of action against them because the first and fourteenth amendments prohibit only official abridgements of free speech, not merely private ones. Defendants attorney general and district attorney contend that the court lacks jurisdiction of the subject matter of this action because there is no case or controversy within the meaning of Article III of the Constitution and because plaintiffs have failed to join an indispensable party. For the reasons set forth below, we have concluded that the motions of defendant newspapers should be granted and the motions of defendant law enforcement officials denied.

I.

The first amendment prohibits Congress from making any law which abridges freedom of speech or of the press, and these limitations upon the reach of the federal government have been made applicable to the states through the fourteenth amendment. Plaintiffs concede, therefore, that to uphold this cause of action as to defendant newspapers we must find that their refusals to print plaintiffs' advertisements can be considered a kind of official behavior. The Supreme Court has held that state action may include not only government conduct but also private conduct "so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action." Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1965). Plaintiffs argue that state action is present in this case because defendant newspapers enjoy a special relationship with the State of Colorado and City of Denver which involves those governments in the newspaper business and because the papers "enjoy monopoly control in an area of vital public concern."

Plaintiffs gather support for their theory that the state and city are involved in the newspaper business from those sections of the Colorado Revised Statutes which require that legal notices be published in newspapers of general circulation, Colo.Rev.Stat.Ann. §§ 49-10-3, -8-1, -22-5, -22-11 (1963) and which exempt editors and reporters from jury service, id. § 78-1-3, and those sections of the Denver Municipal Code which permit newspapers to place vending machines on public property, including sidewalks. Denver Rev. Municipal Code §§ 339G, 334.1-2. We doubt that these statutes and regulations can be read as putting the city and state into the newspaper business. Clearly the purpose of requiring that legal notices be published in newspapers of general circulation is not to benefit the papers but to insure that the public is aware of matters of legal importance. The numerous exemptions from jury service provided in 78-1-3 apparently express the Colorado legislature's judgment concerning the public importance of certain occupations and the hardship which jury service might cause to certain classes of persons. Thus, in addition to editors and reporters, the statute exempts state and county officers, judges and clerks of court, justices of the peace, constables, attorneys, officers of railroad, telephone and telegraph companies and persons sixty years of age or older. The purpose of exempting persons in these occupations is surely not to benefit either government or business but to benefit the public which relies upon their services. The only exemption clearly intended to benefit those relieved from jury duty is the exemption for persons sixty or older, and it would be somewhat farfetched to argue that this benefit establishes a special relationship between the State of Colorado and these citizens such that the conduct of the latter could be considered state action. While it is no doubt true that the Denver ordinance permitting newspapers to place vending machines on public property is a benefit, we doubt that such was the city's intention. The most plausible purpose of the ordinance, we think, is to serve the public's interest in obtaining newspapers. Cf. Chicago Joint Board, Amalgamated Clothing Workers of America, A.F.L.-C.I.O. v. Chicago Tribune Company, 435 F.2d 470 (7th Cir. 1970). In any event, we would find it difficult to conclude that the right of the Ridgefield Press, a Connecticut weekly newspaper, to place vending machines on the sidewalks of Denver converts the conduct of that faraway journal into Colorado state action.

Even granting that the above-mentioned measures show a degree of official involvement in newspapering, neither the cases plaintiffs have cited, Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Marjorie Webster Junior College, Inc. v. Middle States Association of Colleges and Secondary Schools, Inc., 302 F.Supp. 459 (D.D.C. 1969), nor any we have discovered remotely suggests that these measures are sufficient to justify labeling the newspapers' conduct as state action. In Burton, for...