Swearson v. Meyers
| Decision Date | 14 April 1978 |
| Docket Number | Civ. A. No. 78-2034. |
| Citation | 455 F. Supp. 88 |
| Parties | Carl W. SWEARSON, James L. Stevens and Raymond Sabo, Plaintiff, v. A. P. MEYERS, Kansas City Police Chief, Donald Martin, City Attorney of Kansas City, Individually and in their official capacities, Mayor John E. Reardon, Patrick G. Hanlon and Thomas F. Lally, City Commissioners, Individually and in their official capacities, Defendants. |
| Court | U.S. District Court — District of Kansas |
Barry A. Fisher, Robert C. Moest, Beverly Hills, Cal., Michael Lerner, of Barnett & Lerner, Kansas City, Kan., for plaintiff.
Richard E. Keithley, Asst. City Atty., Kansas City, Kan., for defendant United States.
Plaintiffs bring this action under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-02, and seek to have the Kansas City, Kansas solicitation licensing law, Kansas City Code § 41-32 et seq., declared unconstitutional and its enforcement enjoined. Plaintiffs are members of The Holy Spirit Association for the Unification of World Christianity ("Unification Church"). The defendants are officials of the city of Kansas City, Kansas.
The ordinance being challenged (a complete copy of which is attached as Appendix "A" to this opinion) establishes a Charitable Solicitations Committee, which is given the duty of investigating applicants for permits for charitable or religious solicitations, and recommending the issuance or denial of such permits. The Board of City Commissioners receives the recommendation of the Charitable Solicitations Committee, and is empowered to grant, deny, or revoke permits. (§§ 41-50, 41-54). Solicitations without a permit are forbidden. (§ 41-48).
The Unification Church, according to plaintiffs, emphasizes, inter alia, "public-place proselytizing and solicitation of funds to support the church." Plaintiffs desire to distribute literature and solicit contributions in city parks and on public sidewalks. Without question, this activity is controlled by the solicitation licensing law. If plaintiffs attempt to engage in such activity without a permit, they will be subjecting themselves to possible arrest and prosecution.1 On behalf of the Unification Church, plaintiffs applied for a religious solicitation permit in November of 1977. On November 23, 1977, the Charitable Solicitations Committee recommended that the permit application be denied. (See Appendix "B" attached to this opinion). On December 13, 1977, the Board of City Commissioners followed the recommendation of the Charitable Solicitations Committee and denied the permit application. The ordinance provides no further remedy when an application has been turned down by the Board of City Commissioners. Thus, it appears that plaintiffs have exhausted all available administrative remedies prior to bringing this action, even though exhaustion of such remedies is not a prerequisite to the filing of a civil rights suit under Section 1983. Gibson v. Berryhill, 411 U.S. 564, 573, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
Plaintiffs set forth three arguments in support of their contention that the solicitation licensing law is unconstitutional:
1. The ordinance is unconstitutionally vague in that it does not provide narrow, definite, and objective standards for determining whether the permits are to be granted or denied, and effectively vests discretion in city officials to grant or deny licenses for the exercise of First Amendment rights;
2. The ordinance lacks adequate due process safeguards for individuals whose applications are denied. See e.g., Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965);
3. The ordinance is constitutionally invalid because of overbreadth.
This case is before the court upon plaintiffs' motion for a preliminary injunction. Plaintiffs have submitted affidavits and exhibits in support of their motion, and defendants have filed an opposing affidavit. A hearing was held on April 5, 1978, at which time the parties were given the opportunity to present further evidence; both sides declined to do so and agreed to submit the matter on the materials already filed, together with supporting memoranda.
A party seeking a preliminary injunction must demonstrate a reasonable probability of ultimate success on the merits, and that he will be irreparably injured if preliminary injunctive relief is not granted. Penn v. San Juan Hospital, Inc., 528 F.2d 1181 (10th Cir. 1975); Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780 (10th Cir. 1964); Chris-Craft Industries, Inc. v. Bangor Punta Corp., 426 F.2d 569 (2nd Cir. 1970); Dole v. Carter, 444 F.Supp. 1065 (D.Kan.1977).2 We do not hesitate to conclude that plaintiffs adequately meet the irreparable injury requirement. The loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).
We must now turn to plaintiffs' substantive arguments and test for probability of success on the merits. We begin by rejecting defendants' contention that plaintiffs' desired activities are not worthy of First Amendment protection. It is well-settled law that distribution of literature and solicitation of funds to support a religious organization are well within the protection of the First Amendment. Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); ISKCON v. Engelhardt, 425 F.Supp. 176 (W.D.Mo.1977). Other basic principles which are fundamental to our discussion are that areas protected by the First Amendment may be regulated "only with narrow specificity," NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); and that laws restricting the exercise of First Amendment activities are inherently suspect and bear a heavy presumption against their constitutional validity. Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). The general test of vagueness applies with particular force in review of laws dealing with First Amendment rights. "Stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser." Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1976); quoting Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).
Plaintiffs' argument that the ordinance is constitutionally invalid because it lacks definite standards and vests discretion in city officials is supported by a long line of Supreme Court cases invalidating state or local licensing laws. See Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Shuttlesworth v. Birmingham, supra; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Hynes v. Mayor of Oradell, supra. The common thread running through these opinions is that licensing laws governing conduct protected by the First Amendment are invalid unless they include precise, narrow, definite, and objective standards from which the appropriate official must make his decision to grant or deny the license application. The cases cited above seem to deal exclusively with licensing laws held invalid, and except in a negative fashion do little in teaching what "standards" would be constitutionally adequate. It is clear, however, that the standards must be more than mere criteria or guidelines; they must be complete in and of themselves, and leave no factors to be assessed, judgments to be made, or discretion to be exercised by the appropriate licensing official. In other words, the decision to grant or deny the license application must be virtually a ministerial one. Speaking for a unanimous court in Cantwell, supra, Justice Roberts said:
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