Weissman v. City of Alamogordo, NM
| Decision Date | 21 June 1979 |
| Docket Number | No. 79-117,79-118 and 79-119.,79-117 |
| Citation | 472 F. Supp. 425 |
| Parties | Faye WEISSMAN and Jack Hagel, Individually and on behalf of all others similarly situated, Plaintiffs, v. CITY OF ALAMOGORDO, NEW MEXICO, City of Grants, New Mexico, and County of Los Alamos, New Mexico, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Mark W. Bennett, Allen, Babich & Bennett, Des Moines, Iowa, Michael L. Rosenfield, Reiselt & Rosenfield, Albuquerque, N. M., for plaintiffs.
Steven Sanders, Alamogordo, N. M., for Alamogordo.
Ray Villani, Grants, N. M., for Grants.
Douglas Fraser, Los Alamos, N. M., for Los Alamos.
THIS MATTER comes before the Court upon plaintiffs' motion for summary judgment.1 For the reasons stated below the motion will be granted in part and denied in part.
This action arose after cases 79-117, 79-118 and 79-119 were consolidated by order of this Court. Each case was an action for declaratory and injunctive relief, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202, brought by two members2 of the Holy Spirit Association for the Unification of World Christianity (hereinafter, the Unification Church) to enjoin the enforcement of, and declare unconstitutional, certain Green River type ordinances of the New Mexico municipalities of Alamogordo and Grants, and the County of Los Alamos.
By their complaint plaintiffs allege the following: that they are members of the Unification Church, a California non-profit corporation holding federal and state tax exemptions as a religious, non-profit organization; that the Unification Church was founded in 1954 in Seoul, Korea, and since that time has established itself in over eleven countries and around the world with functioning church centers in over one-hundred and twenty cities throughout the United States; that the Church emphasizes evangelical missionary engagements including proselytizing and solicitation of funds door to door to support the Church's many activities; that the defendants are municipal corporations, duly created and authorized pursuant to the laws of the State of New Mexico; that the individual plaintiffs and the Unification Church are preparing an itinerary for traveling evangelical teams to visit the State of New Mexico, specifically the defendant municipalities; and that presently, plaintiffs have no adequate means of access to the residents of the defendant municipalities for the purpose of religious proselytizing and solicitation of funds, without jeopardizing and exposing themselves to imminent and immediate arrest and prosecution or threat of arrest and prosecution by the defendant municipalities under their respective Green River type ordinances.
Plaintiffs further contend that they are entitled to declaratory and injunctive relief because the Green River type ordinances are unconstitutional on their face, and as construed and applied to plaintiffs' proselytizing and solicitation of funds from the public, in that the ordinances abridge their freedom of association, speech, assembly and free exercise of religious beliefs and deny Due Process and Equal Protection of the law, as guaranteed by the First and Fourteenth Amendments of the Constitution.
Defendants have denied that their respective ordinances are constitutionally invalid on their face. They further contend that the ordinances are not invalid as applied to plaintiffs and that, specifically, plaintiffs' proposed actions are commercial, rather than religious, activity properly regulated by the ordinances in question.
The sole issue on this motion for summary judgment, however, is whether the ordinances are constitutionally invalid on their face. Accordingly, the Court makes no finding regarding the political, religious or commercial nature of plaintiffs' activities or whether the ordinances are invalid as applied to plaintiffs.
The Los Alamos ordinance is similar to the Grants ordinance in all material respects. Accordingly, only Grants City Ordinance No. 150 will be set out below. It is a typical Green River Ordinance and states in material part as follows:
The practice of going in and upon private residences in the Town of Grants, New Mexico, by solicitors, peddlers, hawkers, itinerant merchants and transient vendors of merchandise, not having been requested or invited to do so by the owner or owners, occupant or occupants, of said private residence or residences, for the purpose of soliciting or hawking the same, is hereby declared to be a nuisance, and punishable as such nuisance as a misdemeanor.
Thus, the Grants and Los Alamos ordinances flatly prohibit door to door solicitation without distinguishing between commercial and non-commercial endeavors. This distinction is crucial, however, because the Supreme Court has repeatedly held that Green River Ordinances cannot constitutionally prohibit religious or non-commercial door to door solicitation. Cantwell v. Connecticut, 310 U.S. 296, 306, 60 S.Ct. 900, 84 L.Ed. 1213 (1939); Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943).
This principle was recently illustrated in the case of Love v. Mayor, City of Cheyenne, Wyoming, 448 F.Supp. 128 (D.Wyo. 1978). In a factual setting remarkably similar to those alleged in the instant case, the Unification Church sought to engage in a campaign of "literature evangelism" in which members of the church were to go from door to door speaking with local residents about religious matters, distributing church literature, and soliciting donations. They were informed, however, that a Cheyenne City ordinance—identical with the ordinances in the instant case—prohibited their activities. The church members thereupon sought injunctive and declaratory relief, and Judge Brimmer held that the solicitation activities of the Unification Church were non-commercial in nature; that the ordinance was being applied without distinguishing between commercial and non-commercial activity; and that the ordinance as applied to the Unification Church was therefore constitutionally invalid.
Thus, as applied to religious solicitation, the Grants and Los Alamos Ordinances are constitutionally invalid. As applied to commercial solicitation, however, the ordinances are valid. In Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1950) the Supreme Court held that a Green River Ordinance similar in all material respects to those in the instant case, was constitutionally valid when applied to prohibit commercial door to door solicitation. Likewise, in Green River v. Fuller Brush, 65 F.2d 112 (10th Cir. 1933) the Tenth Circuit upheld a similar ordinance under similar circumstances.
In summary, then, the Los Alamos and Grants ordinances are invalid as applied to religious solicitation but valid as applied to commercial solicitation. And if the issue before this Court on this present motion for summary judgment were whether the ordinances are valid as applied to plaintiffs' proposed activities, the remaining question would be whether plaintiffs' proposed activities were commercial or non-commercial according to the test set out in Murdock v. Pennsylvania, 319 U.S. 105, 110, 63 S.Ct. 870, 87 L.Ed. 1292 (1943) and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Counsel, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). See also Love v. Mayor of Cheyenne, supra. Such is not the issue, however. Presently this Court may only determine whether the ordinances are invalid on their face. But since they are valid as applied to some situations and invalid as applied to others, it cannot be said that the ordinances are invalid on their face.
Defendant County of Los Alamos argues, in a separately filed motion to dismiss, that the action should be dismissed because the Los Alamos ordinance does not apply to religious solicitation, and never has been applied to religious solicitation. See, Tate v. Akers, 409 F.Supp. 978 (D.Wyo.1976) affd., 565 F.2d 1166 (10th Cir. 1977).
The argument misses the mark. If Los Alamos does not intend to apply its ordinance against religious solicitation, then this Court is left to wonder why Los Alamos objects to a judicial decree by this Court to that very effect. More importantly, however, plaintiffs cannot be required to guess at the meaning and application of the Los Alamos and Grants ordinances, Hynes v. Mayor of Oradell, 425 U.S. 610, 620-621, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976), and their standing to obtain a judicial determination of their First Amendment rights under the ordinances is unquestioned. Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1964); Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1968).
Defendant City of Grants' argument that the action should be dismissed because the Grants Ordinance only prohibits door to door solicitation by those who have not been invited by homeowners, is frivolous and was refuted forty years ago by well established Supreme Court authority. E.g. Martin v. Struthers, 319 U.S. 141, 145-149, 63 S.Ct. 862, 87 L.Ed. 1313 (1942); Schneider v. State, 308 U.S. 147, 163-165, 60 S.Ct. 146, 84 L.Ed. 155 (1939).
Pertinent sections of the Alamogordo City Ordinance read as follows:
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