West Virginia Citizens Action Group, Inc. v. Daley

• Decision Date: 21 December 1984
• Docket Number: No. 16396,16396
• Citation: 174 W.Va. 299,324 S.E.2d 713
• Court: West Virginia Supreme Court
• Parties: , 53 USLW 2321 WEST VIRGINIA CITIZENS ACTION GROUP, INC., and Scott Walker v. Edwin C. DALEY, City Manager of Fairmont, West Virginia; Wayne Stutler, Chief of Police of Fairmont, West Virginia; and, Gregory T. Hinton, Mayor of Fairmont, West Virginia.

Page 713

324 S.E.2d 713

174 W.Va. 299, 53 USLW 2321

WEST VIRGINIA CITIZENS ACTION GROUP, INC., and Scott Walker v. Edwin C. DALEY, City Manager of Fairmont, West Virginia Wayne Stutler, Chief of Police of Fairmont, West Virginia; and, Gregory T. Hinton, Mayor of Fairmont, West Virginia.

No. 16396.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1984.

Syllabus by the Court

1. "A writ of mandamus will not issue unless three elements coexist--(1) a clear right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

2. To minimize the potential "chilling effect" of regulations governing the exercise of rights guaranteed under constitutional free speech provisions, those regulations must be both narrowly and clearly drawn.

3. A fine line drawn through dusk is too slender a thread upon which to hang the exercise of fundamental free speech rights.

4. Less restrictive alternatives, such as regulation and identification procedures; the enforcement of laws criminalizing fraud, burglary, and trespass; and the enforcement of laws requiring compliance with no solicitation signs and requests not be disturbed, all provide less restrictive means for furthering the legitimate governmental interests in the prevention of crime and the protection of privacy associated with door-to-door canvassing and solicitation.

5. Restrictions on door-to-door canvassing and solicitation which do not permit some evening activity during the week impermissibly impinge upon the free speech rights of groups and individuals who desire to utilize those modes of expression.

6. The failure to define the term "sunset" in an ordinance restricting door-to-door canvassing and solicitation to "between 9:00 a.m. and sunset" renders such ordinance unconstitutionally vague.

Robert M. Bastress, Morgantown, for petitioners.

George R. Higinbotham, City Atty., Fairmont, for respondents.

McGRAW, Justice:

The petitioners in this mandamus proceeding, the West Virginia Citizens Action Group, Inc., a nonprofit corporation dedicated to the advocacy of consumer and citizen issues before various governmental entities, and Scott Walker, its director of canvassing for northern West Virginia, challenge the constitutionality of Fairmont ordinance 711.12, governing the issuance of solicitation permits, which provides, in pertinent part, that "The effective hours of the charitable solicitation permit shall be between 9:00 a.m. and sunset. Solicitations shall be prohibited during other hours," based upon the free speech doctrines of vagueness and overbreadth. Prior to our analysis of this ordinance under these doctrines we will address the appropriateness of mandamus and the constitutional status of the petitioners' activities under the federal and state constitutions.

I

The criteria for the award of extraordinary relief by writ of mandamus are well established in this jurisdiction. "A writ of mandamus will not issue unless three elements coexist--(1) a clear right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969); see also Allen v. Human Rights Commission, 324 S.E.2d 99 at 105 (W.Va.1984), and cases cited therein; Reed v. Hansbarger, 314 S.E.2d 616, 619-20 (W.Va.1984), and cases cited therein.

The respondents in the instant proceeding, Fairmont city manager, Edwin C. Daley; Fairmont police chief, Wayne Stutler; and Fairmont mayor, Gregory T. Hinton, pose a curious challenge to the fulfillment of the first two elements of the mandamus formula. They contend that the ordinance in question is only "hortatory" or "advisory;" that it merely "admonishes citizens not to solicit after dark;" and that it "neither penalizes the petitioners nor denies them their right to solicit in hours deemed inappropriate." Although the respondents recognize the petitioners' constitutional right to canvass or solicit after "sunset," they maintain that they "have no duty to petitioners to sanction their activities in hours they deem inappropriate." As evidence of this lack of impingement upon the exercise of the petitioners' free speech rights, the respondents note that the petitioners' application for a charitable solicitation permit was approved despite the notation upon such application that, "We will canvass during the hours of 4 to 9 p.m." Apparently, the respondents contend that this constitutes a waiver of any sanctions for violations of the ordinance by the petitioners.

There are several obvious flaws in the respondents' argument that no impairment of the petitioners' activities results from this ordinance. First, the language of the ordinance is not "hortatory," but is clearly mandatory. Second, under section 5 of the ordinance, "if any permit holder ... has violated any of the terms of the permit or has otherwise violated the provisions of this ordinance, then it shall be the duty of the City Clerk to revoke the permit...." Third, section 101.99 of the Fairmont City Code, a "general penalty" provision, states that, "Whenever ... in any ordinance ... any act is prohibited ... where no specific penalty is otherwise provided, whoever violates any such provision shall be fined not more than five hundred dollars ($500.00) or imprisoned not more than thirty days, or both." Finally, the petitioners state that the respondents and their agents have indicated that the city and its police force intend to fully enforce this ordinance, contrary to what the respondents now maintain. Therefore, particularly given the inherent chilling effect of the Fairmont ordinance, we reject the respondents' contention that the absence of attempted enforcement precludes our examination of the issue of constitutionality.

The petitioners also contend that adequate alternative remedies exist which preclude the award of extraordinary relief; namely, appeal from any criminal conviction for violation of the ordinance or injunctive relief in circuit court. As this Court stated, however, in Syllabus Point 5 of Hardin v. Foglesong, 117 W.Va. 544, 186 S.E. 308 (1936), "Mandamus will not be denied on the ground that there is another remedy unless such other remedy is equally convenient, beneficial, and effective." See also Allen v. Human Rights Commission, supra at 106, and cases cited therein. Similarly, in Walls v. Miller, 162 W.Va. 563, 566, 251 S.E.2d 491, 495 (1978), this Court stated, "The trend in this Court has been to enlarge the scope of mandamus, State ex rel. Smoleski v. County Court of Hancock County, 153 W.Va. 307, 168 S.E.2d 521 (1969), especially where there is an urgent question of public policy or where there is no reason for delaying adjudication of the issue by the highest court of the State." (Footnote omitted). This Court has consistently held that mandamus may be used to attack the constitutionality or validity of a statute or ordinance. See, e.g., Daily Gazette Co. v. Committee on Legal Ethics, 326 S.E.2d 705 at 707 - 708 n. 2 (W.Va. 1984); Bailey v. Truby, 321 S.E.2d 302, 307 (W.Va.1984); Myers v. Barte, 279 S.E.2d 406, 408-09 (W.Va.1981); State ex rel. McCamic v. McCoy, 276 S.E.2d 534, 535, 539 n. 6 (W.Va.1981); State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 638, 171 S.E.2d 545, 547 (1969); State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W.Va. 479, 481, 153 S.E.2d 284, 285 (1967); State ex rel. Sheldon v. City of Wheeling, 146 W.Va. 691, 695, 122 S.E.2d 427, 429 (1961); see also State ex rel. Ammerman v. City of Philippi, 136 W.Va. 120, 65 S.E.2d 713 (1951); State ex rel. Tucker v. City of Wheeling, 128 W.Va. 47, 35 S.E.2d 681 (1945); Austin v. Thomas, 96 W.Va. 628, 123 S.E. 590 (1924). Therefore, we reject the respondent's contention that mandamus is precluded in the instant proceeding by the existence of adequate alternative remedies.

II

Following a line of cases beginning with the United States Supreme Court's seminal decision in Schneider v. State, 308 U.S. 147, 165, 60 S.Ct. 146, 152, 84 L.Ed. 155, 167 (1939), reversing the conviction of a Jehovah's Witness who was convicted for violating an ordinance which required canvassers and solicitors to obtain a written permit from the chief of police who possessed practically unbridled discretion in awarding such permits, and ending with the Court's most recent decision in Secretary of State v. Joseph H. Munson Co., 467 U.S. ----, ----, 104 S.Ct. 2839, 2854, 81 L.Ed.2d 786, 804 (1984), invalidating a Maryland statute prohibiting the solicitation of contributions by charitable organizations whose expenses exceeded 25 percent of the amount received through such fund-raising activities, substantial first amendment protection has been granted door-to-door canvassing and soliciting activities. See also Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984); Village of Shaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944); Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

In Schneider, 308 U.S. at 164, 60...