Wisconsin Action Coalition v. City of Kenosha

• Decision Date: 19 July 1985
• Docket Number: No. 84-2006,84-2006
• Citation: 767 F.2d 1248
• Parties: WISCONSIN ACTION COALITION, a charitable non-profit Wisconsin corporation, and Charles Chapman, Plaintiffs-Appellees, v. CITY OF KENOSHA, a municipal corporation of the State of Wisconsin; and Joseph H. Trotta, Chief of Police of the City of Kenosha; and their agents, employees, assistants, successors, and all others acting in concert with them or under their control, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1248

767 F.2d 1248

WISCONSIN ACTION COALITION, a charitable non-profit Wisconsin corporation, and Charles Chapman Plaintiffs-Appellees, v. CITY OF KENOSHA, a municipal corporation of the State of Wisconsin; and Joseph H. Trotta, Chief of Police of the City of Kenosha; and their agents, employees, assistants successors, and all others acting in concert with them or under their control, Defendants-Appellants.

No. 84-2006.

United States Court of Appeals Seventh Circuit.

Argued Jan. 14, 1985.

Decided July 19, 1985.

James W. Conway, City Atty., Kenosha, Wis., for plaintiffs-appellees.

Thomas Asher, Shellow, Shellow & Glynn, Milwaukee, Wis., for defendants-appellants.

Before BAUER, CUDAHY and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

We are faced in this appeal with the question whether an anti-solicitation ordinance as applied to door-to-door canvassing for charitable and political causes in residential areas between 8:00 p.m. and 9:00 p.m. violates the First Amendment. The district court granted a preliminary injunction preventing enforcement between 8:00 p.m. and 9:00 p.m., and then granted summary judgment for plaintiffs, issuing a permanent injunction invalidating the ordinance between those hours. The municipality appeals, but we affirm the actions of the district court.

I.

Plaintiff Wisconsin Action Coalition (the "Coalition") is a charitable non-profit Wisconsin corporation. It is a coalition of some 155 union organizations, elderly-rights organizations, religious committees and organizations, community service groups and farmer associations throughout the State of Wisconsin. The Coalition's primary purpose is to serve as a statewide advocate of consumer rights and other public causes. In addition, the Coalition provides support for political candidates who have supported or will support strong consumer rights legislation. Plaintiff Charles Chapman is employed as Canvass Director for the Coalition, and had worked for a similar Iowa organization before becoming associated with the Coalition. Chapman supervises the canvassing of others and also canvasses himself. The Coalition employs canvassers who go door-to-door in a given community from 4:00 p.m. to 9:00 p.m., Monday through Friday, for the purpose of gaining political and financial support. Among the activities engaged in by the canvassers are speaking to residents on issues of concern to the Coalition, gathering signatures on petitions, soliciting membership dues and contributions and distributing literature.

On or about March 8, 1984, Coalition canvassers started going door-to-door in residential areas of Kenosha, Wisconsin (the "City" or "Kenosha"), to discuss consumer rights issues with residents and to explain the Coalition's position on these issues and their relationship to the then-upcoming mayoral election. Coalition canvassers wanted to canvass between 8:00 p.m. and 9:00 p.m., but were prohibited from doing so by a then-recently-enacted City ordinance. Section 13.025 of the Code of General Ordinances of the City of Kenosha (the "Ordinance") provides as follows:

CHARITABLE, RELIGIOUS AND POLITICAL SOLICITATIONS. It shall be unlawful for any person, firm or corporation to solicit or cause to be solicited contributions of money, goods or services to be utilized for a charitable, religious or political purpose in a residentially zoned area without a prearranged appointment during the hours of 8:00 P.M. to 8:00 A.M..

After the defendants indicated that they intended to enforce the Ordinance, the plaintiffs filed a civil action on March 12, 1984, in the district court. The complaint challenged the constitutionality of the Ordinance on First and Fourteenth Amendment grounds as applied to, and enforced during, the hour from 8:00 p.m. to 9:00 p.m. Plaintiffs sought a restraining order, preliminary and permanent injunctions and a declaratory judgment. Jurisdiction was invoked pursuant to 28 U.S.C. Sec. 1343; relief was claimed under 42 U.S.C. Sec. 1983, 28 U.S.C. Secs. 2201 & 2202 and the First and Fourteenth Amendments.

On March 23, 1984, the district court issued a preliminary injunction against enforcement of the Ordinance between 8:00 p.m. and 9:00 p.m. Both sides moved for summary judgment soon thereafter.

In support of their motion for summary judgment, the defendants submitted the affidavit of James W. Conway, the City Attorney. According to this affidavit, there is no written legislative history for the Ordinance, but the purpose of the Ordinance is

solely to protect the privacy of persons residing in residentially zoned areas of the City and to secure for said persons the peaceful enjoyment of their homes. Said Ordinance was not enacted as a crime prevention or control measure.

The affidavit further stated that the Ordinance does not

prevent social contacts without a prearranged appointment with persons living in residentially zoned areas of the City of Kenosha, even if the social call is made by a stranger and even if the purpose of the social call is to discuss matters such as politics or religion.

Finally, the affidavit stated that the City intended to prosecute violations of the Ordinance absent an injunction prohibiting its enforcement. This affidavit is the only evidence presented by the defendants in support of the Ordinance. As will become apparent, the City's failure to present any evidence other than this affidavit in support of the Ordinance severely impairs its position. Perhaps a stronger offer of evidence by the City would have produced a different result.

The plaintiffs submitted an affidavit by Mr. Chapman in support of their motion for summary judgment. Their affidavit stated that the Coalition usually sends out eight canvassers from 4:00 p.m. to 9:00 p.m., Monday through Friday; that many more people are at home from 6:00 p.m. to 9:00 p.m. than before 6:00 p.m.; and that Coalition canvassers receive about one-fourth of their total contributions between 8:00 p.m. and 9:00 p.m. See City Br. at ix.

The district court relied on the admitted allegations of the complaint and (apparently) on the affidavits. Neither party contends that there are any disputed issues of material fact. ¹ City Br. at xi; Coalition Br. at 1, 4. Nor does either party contest the propriety of summary judgment. Rather, the defendants contest the principles of law applied by the district court, and, of course, that court's conclusion.

In its Decision and Order of June 5, 1984, the district court stated that it was undisputed that the plaintiffs' canvassing and soliciting activities were protected by the First Amendment, and that the Ordinance impaired the First Amendment rights of the plaintiffs who would otherwise be free to canvass until 9:00 p.m. It then applied the following standard:

When First Amendment interests are affected, an ordinance must be drawn with "narrow specificity." [Village of] Schaumburg [v. Citizens for a Better Environment, 444 U.S. 620] at 627 [100 S.Ct. 826 at 831, 63 L.Ed.2d 73] [1980]. Defendants must show that the ordinance relates with specificity to one or more legitimate governmental interests and does not intrude upon the rights of free speech. Citizens For A Better Environment v. The Village of Olympia, 511 F.Supp. 104 (N.D.Ill.1980).

Dist.Ct.Opin. at 2-3. The district court found that the restriction on canvassing after 8:00 p.m. was not sufficiently narrowly drawn,

not because 9:00 p.m. is a magically constitutional hour at which to prohibit soliciting, but because the defendants have failed to convince me that an 8:00 p.m. cutoff on solicitations is required to protect privacy and the peaceful enjoyment of the home.

Dist.Ct.Opin. at 3. The district court granted summary judgment for the plaintiffs, and issued a permanent injunction "invalidating the ordinance between 8:00 p.m. and 9:00 p.m." Dist.Ct.Opin. at 4.

II.

In a line of cases running over some twenty-five years, the Supreme Court has granted substantial First Amendment protection to door-to-door canvassing and soliciting activities. E.g., Secretary of State v. Joseph H. Munson Co., --- U.S. ----, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) ("Munson"); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) ("Schaumburg"); Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). It is beyond dispute that solicitation is a form of speech protected by the First Amendment. Munson, 104 S.Ct. at 2849; Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981); Schaumburg, 444 U.S. at 632, 100 S.Ct. at 833; National Anti-Drug Coalition, Inc. v. Bolger, 737 F.2d 717, 720 (7th Cir.1984). Although the Court has at times criticized door-to-door solicitation, see Hynes, 425 U.S. at 619, 96 S.Ct. at 1760; Breard v. Alexandria, 341 U.S. 622, 639 & n. 27, 71 S.Ct. 920, 931 & n. 27, 95 L.Ed. 1233 (1951), it may be the case that door-to-door canvassing, distribution of literature and solicitation are entitled to special solicitude because they are less expensive means of communicating ideas than feasible alternatives and therefore important alternatives for many groups in our society. Association of Community Organizations for Reform Now v. Municipality of Golden, Colorado, 744 F.2d 739, 746 (10th Cir.1984); Pennsylvania Alliance for Jobs and Energy v. Council of Munhall, 743 F.2d 182, 194 (3d Cir.1984) (Becker, J., dissenting). See Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 2133 n. 30, 80 L.Ed.2d 772 (1984) (citing Martin v. Struthers, 319 U.S. 141, 146, 63 S.Ct. 862, 865, 87 L.Ed. 1313 (1943)). See also Clark v. Community for Creative Non-Violence, --- U.S. ----, 104 S.Ct. 3065, 3079 n. 14, 82 L.Ed.2d 221 (Marshall, J....