Smith v. City of Manchester

• Decision Date: 07 April 1978
• Docket Number: No. CIV-4-78-8.,CIV-4-78-8.
• Citation: 460 F. Supp. 30
• Parties: Mary SMITH et al., Plaintiffs, v. CITY OF MANCHESTER et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

460 F. Supp. 30

Mary SMITH et al., Plaintiffs, v. CITY OF MANCHESTER et al., Defendants.

No. CIV-4-78-8.

United States District Court, E. D. Tennessee, Winchester Division.

March 14, 1978.

On Motion for Summary Judgment April 7, 1978.

COPYRIGHT MATERIAL OMITTED

Jerry M. Hood and Gary L. Leech, Winchester, Tenn., for plaintiffs.

Claus E. Thormaehlen and H. Thomas Parsons, Rogers & Parsons, Manchester, Tenn., for defendants.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

The plaintiffs Ms. Mary Smith, Ms. Sharon Levers, and Mr. Michael Lyons, individually, and on behalf of the Holy Spirit Association for the Unification of World Christianity (the Unification Church), applied to this Court without written or oral notice to them or their attorney, for an order restraining temporarily the defendants City of Manchester, Tennessee (Manchester); its mayor Mr. Clyde V. Myers; its aldermen Messrs. Fred Baker, John Bramblett, Loyd McMahon, Jr., and Larry Trimmer; its attorney H. Thomas Parsons, Esq.; its police chief Mr. Jack Robertson; and its recorder Ms. Nina Moffitt, from enforcing against the plaintiffs the Manchester Municipal Code of 1964, §§ 5-301 - 5-305, inclusive, relating to the requirement of permits for charitable solicitations in such municipality. Rule 65(b), Federal Rules of Civil Procedure.

It appears clearly from specific facts shown by the verified complaint herein that immediate and irreparable injury and damage will result to the applicants Ms. Smith, Ms. Levers and Mr. Lyons before the defendants can be heard in opposition to such application, in that the enforcement of such code provisions against such plaintiffs will subject each of them to the deprivation of her or his right to free speech and the freedom of religion, Constitution, First Amendment, and to arrest for violation of such provisions. Ibid., (1). The applicants' attorney verified to this Court by affidavit that he had given notice to the defendant attorney for Manchester of the pendency of such application and the reasons supporting his claim that notice should not be required. Ibid., (2).

The plaintiff Ms. Sharon Levers claims that she applied for the permit required by the aforementioned Code, § 5-301, which was denied; that she then appealed therefor to the governing body of such municipality as allowed by the aforementioned Code, § 5-303, which appeal was disallowed on two occasions; that she was threatened with arrest and removal from the limits of such municipal corporation if she solicited funds and undertook to proselytize persons within such municipality on behalf of the religious establishment of her preference without the required permit, see and cf. the aforementioned Code, §§ 5-304, 5-305. Although the plaintiffs Ms. Smith and Mr. Lyons made no such application or took such appeal, in so far as the record herein now reflects, each of them has standing to sue herein. Freedman v. Maryland (1965), 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649, 6531.

A municipality has the power under our constitutional law to enact regulations in the interest of public convenience, Schneider v. State of New Jersey (1939), 308 U.S. 147, 160, 60 S.Ct. 146, 1502, 84 L.Ed. 155; but it is precluded under the Constitution, First and Fourteenth Amendments, from making any law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, Jones v. City of Opelika (1942), 316 U.S. 584, 597, 62 S.Ct. 1231, 12397, 86 L.Ed. 1691. On its face, the plaintiffs' avowed purpose in soliciting funds and undertaking to proselytize persons upon the streets, sidewalks and other public areas of Manchester appears to be as evangelical as the revival meeting; if so, as a form of the exercise of a form of religious activity, it may be equated under the Constitution, First Amendment, with worship in churches and preaching from pulpits.

The incidental fact that the plaintiffs may solicit contributions for the religious organization in which they are interested, does not remove this form of evangelism from the protection of our Constitution, Murdock v. Commonwealth of Pennsylvania (1943), 319 U.S. 105, 110, 63 S.Ct. 870, 873-8744, 87 L.Ed. 1292, no matter how unorthodox the underlying religious practices of that organization may appear to some to be, Follett v. Town of McCormick, S. C. (1944), 321 U.S. 573, 577, 64 S.Ct. 717, 7195, 88 L.Ed. 938. Neither does the fact that the plaintiffs might express their religious views at some place other than the public streets, sidewalks and other public areas of Manchester have any consequence. Southeastern Promotions, Ltd. v. Conrad (1975), 420 U.S. 546, 556, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448, 4577.

Manchester holds its streets, sidewalks and other public areas in trust for the use of the public, and their use for communicating thoughts between and among citizens is a part of the privileges, immunities, rights and liberties of all citizens of the United States. Hague v. Committee for Industrial Organization (1939), 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423, 1436-1437 (headnotes 7, 8). It is not a valid exercise of Manchester's police power to abridge those rights. Idem.

The prior restraint on the freedom of expression of the plaintiffs from the application of the permit-requirement of Manchester's code against them bears a heavy presumption against its constitutional validity; freedom of speech and of religious expression is the rule, and there must be a justification for making an exception to that rule. Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 557-558, 95 S.Ct. at 1245-1246, 43 L.Ed.2d at 458-45910, 45912. The code provisions, by which the plaintiffs' freedoms are suppressed constitute an overly-broad licensing device administered discretionarily through Manchester's recorder, who, evidently, is an administrative officer. Where, as here, there is danger that freedom of expression will be abridged by a sweeping and improper administrative application of a penal governmental regulation it cannot be tolerated by a liberty-loving people. Freedman v. Maryland, supra, 380 U.S. at 56, 85 S.Ct. at 737, 13 L.Ed.2d at 6531.

Inter alia, those provisions invoke preference for localized forms of religion over nonlocalized forms. Manchester cannot regulate preferences for one form of religion over another or others. Abingdon School District v. Schempp (1963), 374 U.S. 203, 216, 83 S.Ct. 1560, 1568, 10 L.Ed.2d 844, 854-855 (headnote 4).

Therefore, the requested temporary restraining order, as it applies to the individual plaintiffs, will be granted without notice, it appearing from the foregoing that the named defendants are subjecting those plaintiffs, by application to them of the aforementioned provisions of the Manchester code, to the deprivation of their guarantees of freedom of speech and to exercise freely an established religion; as the plaintiffs are on notice that they will be subject to arrest for violation of those provisions, chilling their exercise of such guaranteed rights, their injury therefrom will be immediate and irreparable unless this Court exercises its duty and intervenes.

Before the issuance of the requested order of restraint, the plaintiffs will give security in the sum of $250, which the Court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party found to have been restrained wrongfully. Rule 65(c), Federal Rules of Civil Procedure.

ORDER OF RESTRAINT

Accordingly, it hereby is

ORDERED that the defendants City of Manchester, Tennessee; its mayor Mr. Clyde V. Myers; its aldermen Messrs. Fred Baker, John Bramblett, Loyd McMahon, Jr., and Larry Trimmer; its recorder Ms. Nina Moffitt, and its police chief Mr. Jack Robertson, and each of its and their officers, agents, servants, employees and attorneys and all other persons in active concert or participation with it or them, are RESTRAINED temporarily from directly or indirectly enforcing the City of Manchester, Tennessee Municipal Code of 1964, §§ 5-301-5-305, inclusive, against the plaintiffs Ms. Mary Smith, Ms. Sharon Levers, and Mr. Michael Lyons.

It hereby is ORDERED further that the plaintiffs' application for a preliminary injunction will be assigned by the clerk of this Court for hearing in this Court at Greeneville, Tennessee on Good Friday, March 24, 1978, at 10:00 o'clock in the forenoon, or as soon thereafter as this matter may be reached on the Court's calendar.

It hereby is ORDERED further that the above and foregoing order of temporary restraint shall expire at midnight, March 24, 1978, unless it is dissolved theretofore or extended further by order of this Court.

ON APPLICATION FOR PRELIMINARY INJUNCTION

The Court restrained the defendants, who are officials of the City of Manchester, Tennessee, temporarily from enforcing against the individual plaintiffs the provisions of its Municipal Code, §§ 5-301 - 5-305, inclusive. This relief was granted on the basis of sworn allegations that such enforcement subjected the plaintiffs to the deprivation of her or his federal rights of free speech and the free exercise of religion, Constitution, First Amendment, it being averred in a verified manner that the plaintiffs would be subjected to arrest for violating such provisions. After an evidentiary hearing in Greeneville, Tennessee on Good Friday, 1978, the Court granted the plaintiffs a preliminary injunction, prohibiting the same acts on the part of the restrained defendants, solely for the purpose of maintaining the status quo of this litigation pending further consideration. Blaylock v. Checker Oil Co., C.A. 6th (1976), 547 F.2d 962, 9652.

The factual situation developed upon the hearing herein was not precisely as represented to the Court in the verified complaint of the plaintiffs. It now appears that their main object is the solicitation of funds for religious purposes. Absolute prohibition...