CHURCH OF SCIENTOLOGY FLAG SERVICES ORG., INC., Plaintiff,
v.
CITY OF CLEARWATER, et al., Defendants.
No. 84-719-CIV-T-17.
United States District Court,
M.D. Florida,
Tampa Division.
Feb. 4, 1991.
Church of Scientology challenged constitutionality of municipal ordinance
requiring charitable organizations to file registration statement or make
available to their members private disclosure statements. On cross motions for
summary judgment, the District Court, Kovachevich, J., held that: (1) church
had standing to challenge constitutionality of ordinance, and (2) ordinance was
constitutional.
Summary judgment for municipality.
[1] FEDERAL CIVIL PROCEDURE
Determination that litigant has standing to sue is preliminary jurisdictional
matter that should be decided without consideration of likelihood of litigant's
success on underlying merits of case.
[2] CONSTITUTIONAL LAW
To satisfy minimum constitutional requirements for standing, plaintiff must
show that he personally has suffered actual or prospective injury as result of
putatively illegal conduct, that injury is fairly traceable to challenged
action, and that injury is likely to be redressed by favorable court decision.
[3] CONSTITUTIONAL LAW
Prudential issues which court must consider in determining whether plaintiff
has standing to sue are whether plaintiff's complaint falls within zone of
interests protected by statute or constitutional provision at issue, whether
complaint raises abstract questions amounting to generalized grievances that
are more appropriately resolved by legislative branches, and whether plaintiff
is asserting his or her own legal rights and interest rather than legal rights
and interest of third parties.
[4] CONSTITUTIONAL LAW
Determination of whether set of beliefs is religion, entitled to First
Amendment protection, would include consideration, among other things, of
whether ideas or beliefs in question address issues of fundamental or ultimate
concern, whether ideas are combined into comprehensive belief system and
whether there are any formal, external, or surface signs that may be analogous
to accepted religions. U.S.C.A. Const.Amend. 1.
[5] CONSTITUTIONAL LAW
Although American courts have adopted expansive definition of religion, party
claiming First Amendment protections must demonstrate that it is a religion if
challenged. U.S.C.A. Const.Amend. 1.
[6] CONSTITUTIONAL LAW
Church of Scientology would be considered to be a religion, for purpose of
challenging charitable organization registration ordinance on First Amendment
grounds. U.S.C.A. Const.Amend. 1.
[7] CONSTITUTIONAL LAW
Overbreadth doctrine is exception to rule that individuals may not litigate
rights of third parties.
[8] CONSTITUTIONAL LAW
Generally, where parties challenging facial validity of statute are those who
seek to engage in activity that allegedly overbroad statute purports to punish,
courts will not entertain overbreadth challenge. U.S.C.A. Const.Amend. 1.
[9] CONSTITUTIONAL LAW
First Amendment rights and guaranties are fundamental, but they are not
absolute or unrestricted, and are subject to reasonable limitation and
control. U.S.C.A. Const.Amend. 1.
[10] CONSTITUTIONAL LAW
To withstand establishment clause challenge, law must have secular legislative
purpose, principal or primary effect of law must neither advance nor inhibit
religion, and law must not foster excessive government entanglement with
religion. U.S.C.A. Const.Amend. 1.
[11] CONSTITUTIONAL LAW
Freedom to hold religious beliefs and opinions is absolute; government may not
evaluate benefits of religious practice including truth or falsity of
statements about benefits of religious practices under any circumstances.
U.S.C.A. Const.Amend. 1.
[12] CONSTITUTIONAL LAW
While freedom of religious belief is absolute, freedom to act pursuant to one's
religion is not; government had inherent police power to regulate religious
activities in reasonable and nondiscriminatory manner, to protect safety,
peace, order, and comfort of society. U.S.C.A. Const.Amend. 1.
[12] CONSTITUTIONAL LAW
While freedom of religious belief is absolute, freedom to act pursuant to one's
religion is not; government had inherent police power to regulate religious
activities in reasonable and nondiscriminatory manner, to protect safety,
peace, order, and comfort of society. U.S.C.A. Const.Amend. 1.
[13] CONSTITUTIONAL LAW
Although state cannot punish religious views and beliefs, state can punish
external manifestation of those views if resulting conduct is a clear and
present danger to safety, morals, health or general welfare of community and is
violative of laws enacted for their protection. U.S.C.A. Const.Amend. 1.
[13] CONSTITUTIONAL LAW
Although state cannot punish religious views and beliefs, state can punish
external manifestation of those views if resulting conduct is a clear and
present danger to safety, morals, health or general welfare of community and is
violative of laws enacted for their protection. U.S.C.A. Const.Amend. 1.
[14] CONSTITUTIONAL LAW
Ordinance directed at conduct rather than belief, with secular purpose and
effect, and justified by governmental interest in public health and safety does
not violate First Amendment rights. U.S.C.A. Const.Amend. 1.
[14] CONSTITUTIONAL LAW
Ordinance directed at conduct rather than belief, with secular purpose and
effect, and justified by governmental interest in public health and safety does
not violate First Amendment rights. U.S.C.A. Const.Amend. 1.
[15] CONSTITUTIONAL LAW
Right to free exercise does not relieve individual's obligation to comply with
valid and neutral law of general applicability on ground that law proscribes
(or prescribes) conduct that his religion prescribes (or proscribes).
U.S.C.A. Const.Amend. 1.
[16] CONSTITUTIONAL LAW
Ordinance that could constitutionally apply to wide range of conduct other than
conduct of challenging religious group does not violate First Amendment
rights. U.S.C.A. Const.Amend. 1.
[17] CONSTITUTIONAL LAW
Generally applicable administrative and record-keeping regulations may be
imposed on religious organization without violating First Amendment.
U.S.C.A. Const.Amend. 1.
[18] CONSTITUTIONAL LAW
Routine regulatory interaction that involves no inquiry into religious
doctrine, no delegation of state power to religious body, and no detailed
monitoring and close administrative contact between secular and religious
bodies does not violate nonentanglement command. U.S.C.A. Const.Amend. 1.
[19] CONSTITUTIONAL LAW
To pass constitutional challenge alleging infringement of free exercise clause,
law must regulate conduct rather than belief, and must have secular purpose and
effect; if law passes these threshold tests, court balances cost to government
of altering its activity to allow religious practice to continue unimpeded
versus cost to religious interests imposed by government activity. U.S.C.A.
Const.Amend. 1.
[20] CONSTITUTIONAL LAW
Regulation that does not involve any religious test and does not unreasonably
obstruct or delay collection of funds is constitutionally valid, even though
collection is for religious purpose. U.S.C.A. Const.Amend. 1.
[21] CONSTITUTIONAL LAW
State can protect its citizens from fraudulent solicitation and insure that
funds raised actually find their way to organization for which solicitation was
given by requiring stranger in community to establish his identity and his
authority to act for cause he purports to represent before permitting him to
publicly solicit funds for any purpose. U.S.C.A. Const.Amend. 1.
[22] CONSTITUTIONAL LAW
Any regulation of public solicitation must be by least restrictive means
necessary to further state interests, and must not allow administrative and
enforcement officials excessive discretion as to scope or breadth of
regulation. U.S.C.A. Const.Amend. 1.
[23] CONSTITUTIONAL LAW
Freedom of association is not stated directly in Constitution, but is implied
in First Amendment. U.S.C.A. Const.Amend. 1.
[24] CONSTITUTIONAL LAW
Statute is unconstitutionally overbroad if it does not aim specifically at
evils within allowable area of government control, but sweeps within its ambit
other activities that constitute exercise of protected expressive or
associational rights. U.S.C.A. Const.Amend. 1.
[24] CONSTITUTIONAL LAW
Statute is unconstitutionally overbroad if it does not aim specifically at
evils within allowable area of government control, but sweeps within its ambit
other activities that constitute exercise of protected expressive or
associational rights. U.S.C.A. Const.Amend. 1.
[25] CONSTITUTIONAL LAW
Overbreadth doctrine will not apply unless protected acts affected by statute
are substantial when compared with law's legitimate applications to unprotected
acts, even when acts in question are pure speech. U.S.C.A. Const.Amend. 1.
[25] CONSTITUTIONAL LAW
Overbreadth doctrine will not apply unless protected acts affected by statute
are substantial when compared with law's legitimate applications to unprotected
acts, even when acts in question are pure speech. U.S.C.A. Const.Amend. 1.
[26] CHARITIES
Municipal ordinance requiring charitable organizations to file registration
statement was not unconstitutional on ground that it failed to exempt
organizations that solicited only from their members; ordinance also gave such
organizations option of providing private disclosure statements to their
members. U.S.C.A. Const.Amend. 1.
[26] CONSTITUTIONAL LAW
Municipal ordinance requiring charitable organizations to file registration
statement was not unconstitutional on ground that it failed to exempt
organizations that solicited only from their members; ordinance also gave such
organizations option of providing private disclosure statements to their
members. U.S.C.A. Const.Amend. 1.
[27] CHARITIES
Municipal ordinance requiring charitable organizations to file registration
statement was not unconstitutionally overbroad, even if it failed to exempt
solicitations by such organizations of their members on their own premises;
purpose of ordinance was to protect members of organization as well as public
against fraud.
[28] CHARITIES
Although regulation may not constitutionally require that charitable
organization offer refund of solicited funds, regulation can constitutionally
require that written affirmation also be given when voluntary offer of refund
is made at time of solicitation. U.S.C.A. Const.Amend. 1.
[28] CONSTITUTIONAL LAW
Although regulation may not constitutionally require that charitable
organization offer refund of solicited funds, regulation can constitutionally
require that written affirmation also be given when voluntary offer of refund
is made at time of solicitation. U.S.C.A. Const.Amend. 1.
[29] CHARITIES
Municipal ordinance making it unlawful for charitable organization to willfully
fail to honor written request for promised refund of solicited funds within 60
days did not unconstitutionally interfere with intramember relations; city had
interest in protecting against refund fraud. U.S.C.A. Const.Amend. 1.
[29] CONSTITUTIONAL
Municipal ordinance making it unlawful for charitable organization to willfully
fail to honor written request for promised refund of solicited funds within 60
days did not unconstitutionally interfere with intramember relations; city had
interest in protecting against refund fraud. U.S.C.A. Const.Amend. 1.
[30] CONSTITUTIONAL LAW
Although public officials cannot determine veracity or benefits of religious
belief, ordinance authorizing officials to investigate allegations of fraud or
other unlawful conduct did not unconstitutionally interfere with relationship
between churches and their members. U.S.C.A. Const.Amend. 1.
[30] RELIGIOUS SOCIETIES
Although public officials cannot determine veracity or benefits of religious
belief, ordinance authorizing officials to investigate allegations of fraud or
other unlawful conduct did not unconstitutionally interfere with relationship
between churches and their members. U.S.C.A. Const.Amend. 1.
[31] CONSTITUTIONAL LAW
Full disclosure requirement of municipal ordinance regulating charitable
organizations' solicitation of funds did not unconstitutionally interfere with
church's internal affairs; built in safeguards of ordinance, including private
statement, required judicial review, and required application of legal
standards such as basing investigation only on bona fide complaints and finding
of probable cause prior to prosecution, were sufficient to prevent unnecessary
disclosure. U.S.C.A. Const.Amend. 1.
[31] RELIGIOUS SOCIETIES
Full disclosure requirement of municipal ordinance regulating charitable
organizations' solicitation of funds did not unconstitutionally interfere with
church's internal affairs; built in safeguards of ordinance, including private
statement, required judicial review, and required application of legal
standards such as basing investigation only on bona fide complaints and finding
of probable cause prior to prosecution, were sufficient to prevent unnecessary
disclosure. U.S.C.A. Const.Amend. 1.
[32] CONSTITUTIONAL LAW
Day-to-day intrusion and excessive surveillance are necessary before
unconstitutionally excessive regulatory entanglement occurs. U.S.C.A.
Const.Amend. 1.
[33] CONSTITUTIONAL LAW
Record-keeping requirements of municipal ordinance regulating charitable
organizations' solicitation of funds were not so broad and intrusive as to
constitute excessive regulatory entanglement with church's affairs; city would
only become involved if there were ten bona fide complaints, which could give
rise to an investigation.
[33] RELIGIOUS SOCIETIES
Record-keeping requirements of municipal ordinance regulating charitable
organizations' solicitation of funds were not so broad and intrusive as to
constitute excessive regulatory entanglement with church's affairs; city would
only become involved if there were ten bona fide complaints, which could give
rise to an investigation.
[34] MUNICIPAL CORPORATIONS
In order to withstand vagueness challenge, law must be drawn with sufficient
clarity so that people know conduct they must take to avoid sanction of
particular law, and must provide explicit standards for those who apply it to
prevent arbitrary and discriminatory enforcement.
[35] CHARITIES
Municipal ordinance requiring charitable organizations to file registration
statement or make available to its members private disclosure statement was not
unconstitutionally vague, though it vested investigatory and prosecutorial
powers in city officials; ordinance specifically delineated authority of such
officials. U.S.C.A. Const.Amend. 1.
[36] CHARITIES
Municipal ordinance regulating charitable organizations' solicitation of funds
does not violate First Amendment merely because definition of soliciting funds
includes sale of products upon representation, express or implied, that
proceeds will be used for charitable purpose. U.S.C.A. Const.Amend. 1.
[36] CONSTITUTIONAL LAW
Municipal ordinance regulating charitable organizations' solicitation of funds
does not violate First Amendment merely because definition of soliciting funds
includes sale of products upon representation, express or implied, that
proceeds will be used for charitable purpose. U.S.C.A. Const.Amend. 1.
*1501 Paul B. Johnson, Johnson, Paniello & Hayes, Tampa, Fla. (Eric
Lieberman, Katherine Stone, Rabinowitz, Boudin, Standard, Krinsky & Lieberman,
New York City, of counsel) Lawrence E. Heller, Lenske, Lenske & Heller,
Woodland Hills, Cal., for plaintiff.
Lawrence R. Velvel, Nashua, N.H., Alan S. Zimmet, Sargent, Repka and Covert,
M.A. Galbraith, Jr., City Atty., City of Clearwater, Clearwater, Fla., for
defendants.
ORDER ON MOTIONS
KOVACHEVICH, District Judge.
This cause is before the Court on the following:
Dkt. 80 Motion for partial summary judgment on the issue of standing by
Plaintiff and request for oral argument on this motion by Plaintiff, filed July
23, 1987.
Dkt. 81 Memorandum of law in support of motion for partial summary judgment
by Plaintiff, filed July 23, 1987.
Dkt. 82, 83, 84 Affidavits of Professor Lonnie D. Kliever, Frank K. Flinn,
and Reverend James Sydejko, filed July 23, 1987.
Dkt. 105 Motion for partial summary judgment by Plaintiff, filed January 15,
1988.
Dkt. 106 Motion for summary judgment by Defendants Clearwater, Goudeau, and
Galbraith, filed January 15, 1988.
Dkt. 108 Memorandum of law in support of Defendants' motion for summary
judgment with exhibits, filed January 15, 1988.
Dkt. 109 Memorandum of law in support of motion for partial summary judgment
by Plaintiff, filed January 15, 1988.
Dkt. 110 Affidavits/exhibits in support of Plaintiff's motion for partial
summary judgment, filed January 15, 1988.
Dkt. 111 Request for oral argument on the issues of motion for summary
judgment by Defendants, filed February 16, 1988.
*1502 Dkt. 112 Memorandum of law in opposition to Plaintiff's motion for
summary judgment with exhibits 1-4 attached yet filed under separate cover by
Defendants, filed February 16, 1988.
Dkt. 113 Memorandum of law in opposition to Defendants' motion for summary
judgment with Exhibit A attached by Plaintiff, filed February 16, 1988.
Dkt. 116 Reply memorandum in support of its motion for partial summary
judgment by Plaintiff, filed March 15, 1988.
Dkt. 117 Reply memorandum to Plaintiff's memorandum in opposition to
Defendants' motion for summary judgment by Defendants. (Exhibit, Deposition
Excerpts and Case Authorities attached), filed March 16, 1988.
Dkt. 129 Notice of filing documents in support of motion for summary judgment
and in opposition to Plaintiff's motion for summary judgment by Defendants
(Documents filed under separate cover), filed January 20, 1989.
Dkt. 133 Supplemental memorandum of points and authorities in support of
motion for partial summary judgment and in opposition to motion for summary
judgment by Plaintiff, filed July 11, 1989.
Dkt. 137 Motion to strike memorandum of points and authorities in support of
motion for partial summary judgment and in opposition to motion for summary
judgment by Defendants, filed July 26, 1989.
Dkt. 139 Memorandum in response to Defendants' motion to strike Plaintiff's
supplemental memorandum and request to permit the filing and consideration of
supplemental authorities by Plaintiff, filed August 18, 1989.
Dkt. 143 Motion to strike letter of July 16, 1990 and memorandum in support
by Plaintiff, filed August 9, 1990.
Dkt. 144 Response to Plaintiff's motion to strike and Defendants' motion for
leave to file notice of supplemental authorities and memorandum in support by
Defendants, filed August 22, 1990.
The cross motions for summary judgment require this Court to determine whether
Church of Scientology Flag Service Organization, Inc. has standing to sue in
this matter and whether Clearwater Ordinance 3479-84 regulating charitable
contributions is constitutional.
The Court finds that Scientology has standing and that all provisions of
Clearwater Ordinance 3479-84 are constitutional. Therefore, the Court grants
Scientology's motion for partial summary judgment on the issue of standing, but
denies summary judgment on all other issues. The Court denies Defendant
Clearwater's motion for summary judgment on the issue of standing, but grants
summary judgment on all other issues. The Court's reasoning is set out below.
BACKGROUND
Defendant City of Clearwater (Clearwater) is a municipality of the State of
Florida. In 1975, Plaintiff Church of Scientology Flag Services Organization,
Inc. (Scientology) established a major base in Clearwater. Scientology rests
almost entirely upon the writing L. Ron Hubbard. Founding Church of
Scientology of Washington, D.C. v. United States, 409 F.2d 1146, 1153
(D.C.Cir.), cert. denied 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969).
In the early 1950's Hubbard wrote tracts elucidating what he called Dianetics.
Dianetics is a theory of therapeutic mind techniques, based on the idea that
man possesses both a reactive mind and an analytic mind. The analytic mind is
comparable to a superior computer, incapable of error and human misjudgments
that create social problems and individual suffering. The reactive mind is
made up of patterns imprinted on the nervous system in moments of pain, stress
or unconsciousness. These patterns are called engrams. Engrams are triggered
by stimuli associated with the original imprinting, and produce unconscious or
conditioned behavior that is harmful or irrational. The reactive mind makes
the errors and misjudgments that create social problems and individual
suffering. Id.
Supposedly, Dianetics is a practical science that can cure many of man's
problems *1503 by erasing the old imprinted engrams. According to Dianetics
theory, the ordinary person, encumbered by the engrams of his reactive mind, is
a preclear, similar to a computer that contains previously programmed
instructions. Just as computer program instructions can be erased, a person's
imprinted engrams can be erased. Dianetics' goal is to erase the programs and
make persons clear, thus freeing the rational and analytic mind. Id.
The process of working toward clear is described as auditing. An auditor asks
the person being audited a set of structured questions and drills, called
rundowns, leading the subject or preclear along his time track discovering and
exposing engrams along the way. The auditor's goal is to detect the buttons
that indicate a conscious or subconscious response to the rundown and enable
the subject to identify his or her own engrams. Although the auditor works
one-on-one with a preclear, the content of each session is not individually
tailored. The process of auditing allegedly improves the physical as well as
the spiritual condition of the subject. Id.
The E-meter plays an important part in the process of auditing. The E-meter
is a skin galvanometer, similar to those used in lie detector tests. The
subject holds two tin soup cans in his hands. The cans are attached to an
electrical device. A needle on the device registers changes in the electrical
resistance of the subject's skin when the subject answers the auditor's
questions often addressing personal, intimate and confidential subject
matters. Supposedly the auditor, using a set of complex rules and procedures,
can identify the subject's emotional reaction to the questions by the analyzing
the needle movement. Then the auditor uses the analysis to diagnose the mental
and spiritual condition of the subject. Scientology provides doctrinal courses
known as training for becoming an auditor. Like auditing courses, training
courses are provided in sequential levels. Id. Auditors are sometimes
young persons with no training other than having been audited themselves for a
short period of time. (Memorandum of Law in Support of Defendants' Motion for
Summary Judgment [Defendants' Support Memorandum], p. 2 (citing Transcript of
hearings held by Clearwater's City Commission at vol. I, page 50 [hereinafter
"Tr. at vol. pg."] )). Auditors are paid directly by Scientology. Founding
Church of Scientology of Washington, D.C., 409 F.2d 1146.
Scientology receives most of its income from auditing and training,
although it also sells E-Meters, books and tapes. Id. Scientology charges
a fixed donation, also known as a price or a fixed contribution, for auditing
services. Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 109
S.Ct. 2136, 2141, 104 L.Ed.2d 766 (1989) (citing Church of Scientology of
California v. Commissioner of Internal Revenue, 823 F.2d 1310 (9th Cir.1987),
cert. denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988)). The
charges are set out in schedules. In 1972, auditing charges ranged from $625
for a twelve and one half hour session to $4,250 for a one hundred hour
intensive session. Id. The system of mandatory fixed charges is based on
Scientology's doctrine of exchange that requires an even balance between what a
person pays to the organization and what he receives in return. Id.
Scientology promotes auditing sessions through newspaper, magazine and radio
advertisements and also through free lectures, free personality tests and
leaflets. Id. In addition, Scientology encourages prepayment for the
auditing services and allows a five percent discount for advance payment.
Id.
Scientology will refund unused portions of prepaid auditing or training fees,
less an administrative charge if the audited person believes that he or she has
not received religious or spiritual benefit from his participation in the
organization's activities. (Plaintiff's Memorandum in Support of Motion for
Summary Judgment [Plaintiff's 1988 Support Memorandum], p. 5, note 5; Support
Affidavits and Exhibits; Supplemental Sydejko aff., pp. 2-3, pars. 5, 6).
"There is no membership in the Church as such; persons are accepted for
auditing on the basis of their interest in Scientology (and presumably their
ability to pay ...)" Founding Church of Scientology of Washington, *1504
D.C., 409 F.2d 1146. Payments for auditing services are not deductible
charitable contributions under the Internal Revenue Tax laws because
participants receive quid pro quo for their money. Hernandez, 109 S.Ct.
2136.
The Clearwater organization brings people from all over the world to receive
Scientology training. In 1982, Clearwater, on the basis of complaints from the
community about Scientology's activities (Defendants' Support Memorandum, p. 3
(citing Tr. at I 5)), held a series of legislative hearings to determine
whether the municipality should initiate any action on the complaints. (Id.
at I 5). The complaints included allegations of fraud based on the failure of
auditing to provide promised physical, mental and other benefits, (Id. at I
7, 8) and on Scientology's failure to give promised refunds (Id. at III 81)
FACTS
1. On October 6, 1983, Defendant City of Clearwater (Clearwater) enacted
Ordinance No. 3091-83, to become effective January 31, 1984. The purpose of
the ordinance was to regulate charitable solicitations within the city. The
ordinance required charitable organizations that wanted to solicit funds in
Clearwater to register with the City, maintain specified records, disclose the
sources and uses of their contributions, refrain from engaging in fraudulent
solicitation practices and submit to an investigation by the City Attorney if
ten or more individuals complained about the organization's activities.
Clearwater patterned the ordinance after a similar Houston ordinance, upheld as
constitutional by the Fifth Circuit Court of Appeals. See International
Society of Krishna Consciousness of Houston, Inc [ISKCON] v. City of Houston,
689 F.2d 541 (5th Cir.1982) [hereinafter Houston ].
2. On January 20, 1984, Americans United for Separation of Church and
State (Americans United) brought an action in the Federal District Court of the
Middle District of Florida (the Court) to enjoin Clearwater from enforcing the
ordinance. Americans United claimed that the ordinance was unconstitutional.
3. On January 23, Scientology brought a separate action for injunctive relief
on similar constitutional grounds. Both Plaintiffs moved for temporary
restraining orders pursuant to Rule 65(b) of the Federal Rules of Civil
Procedure.
The Court, pursuant to Rule 65(a)(2), F.R.Civ.P., consolidated the parties'
motions for injunctive relief with the trial on the merits, and scheduled a
hearing on the issue of a permanent injunction. At the hearing, the parties
requested the Court to limit the scope of the hearing to the facial validity of
the ordinance. Clearwater stated that it would not challenge Scientology's
standing, except as to the claims alleging that the ordinance violated the
freedom of religion clauses of the first amendment. After argument on the
facial validity of the ordinance, the Court directed counsel to file post-
hearing Memoranda by March 16.
4. On March 15, Clearwater enacted Emergency Ordinance No. 3479-84, as an
amendment to Ordinance No. 3091-83. The amended ordinance also comprehensively
regulated charitable solicitation and effectively repealed Ordinance No. 3091-
83. As an emergency ordinance, No. 3479-84 would automatically expire after
90 days if not passed as a non-emergency ordinance within that time. In
addition, Ordinance 3479-84 explicitly provided for its expiration in 90 days.
Clearwater notified the Court and Plaintiffs of the amended ordinance.
5. On March 28, the Court determined that Ordinance No. 3091-83 was
unconstitutional and permanently enjoined its application and enforcement. The
Court terminated the Americans United case by granting the parties' requested
injunctive relief and dismissing the case. The Court also terminated the
Scientology case, granting the requested relief and dismissing all but one
count of the complaint. The Court retained jurisdiction for the enforcement of
the executory provisions of its order.
6. On April 5, Clearwater appealed the District Court's injunctive orders as
to Clearwater Ordinance 3091-83, pursuant to *1505 28 U.S.C. s
1292(a)(1) (1982). Section 1292 provides that Courts of appeals have
jurisdiction of appeals from interlocutory orders of the District Court's
granting or refusing to grant injunctions.
7. On April 20, Scientology, seeking to enjoin the enforcement of Emergency
Ordinance 3479-84, moved the District Court for leave to amend the remaining
count of its complaint. The proposed amendment set out the same constitutional
challenges that Scientology had raised in opposition to the original
ordinance. At the same time, Scientology moved the Court for a temporary
restraining order prohibiting Clearwater from enforcing Ordinance No. 3479-84.
8. On May 17, Clearwater enacted Ordinance 3479-84 as a permanent ordinance.
9. On May 21, Americans United filed a new action in the District Court
seeking injunctive relief and challenging the constitutionality of Ordinance
No. 3479-84 on the grounds raised in its previous suit. Simultaneously,
Americans United moved for a temporary restraining order, which the Court
granted.
10. On May 24, Scientology filed a new suit, seeking essentially the same
relief as Americans United. Scientology's action asks for declaratory and
injunctive relief. Scientology contends that:
A) The amended ordinance was enacted to single out Scientology for harassment
and persecution in violation of the establishment and free exercise clauses of
the first amendment and the equal protection and due process clauses of the
fourteenth amendment;
B) On its face and as applied to all religious groups, the amended ordinance
violates the first, fourth, fifth and ninth amendments of the United States
Constitution; sections 2, 3, 4, 5, 9, 17, and 23 of
Article I of the Florida Constitution; Florida Statutes s 166.041(3)(a);
and Clearwater City Charter s 2.09. Scientology alleges that the case arises
under 42 U.S.C. ss 1983 and 1988, and 28 U.S.C. ss 2201 and 2202.
11. The two Scientology cases and the American United case challenging the
amended ordinance 3479-84 were not consolidated by the District Court.
12. On July 13, the District Court heard argument of Americans United and
Scientology counsel at a scheduled hearing limited to the question of the
facial constitutionality of Ordinance 3479-84. The Court consolidated
Plaintiffs' applications for preliminary injunctive relief with the trial on
the merits pursuant to Rule 65(a)(2). The Court found that Ordinance 3479-
84 was facially constitutional. However, the Court encouraged an immediate
interlocutory appeal to the Eleventh Circuit Court of Appeals, pursuant to
28 U.S.C. s 1292(b) (1982). The Court also issued a temporary restraining
order enjoining Clearwater from enforcing the ordinance pending the disposition
of any appeals that might be taken. In its written orders, the Court converted
its temporary restraining orders to preliminary injunctions prohibiting
Clearwater from enforcing the portions of the Ordinance 3479-84 that dealt with
a charitable organization's obligation to register with the city and to
maintain certain records.
13. On July 31, Scientology moved the District Court, in both of its cases,
for a temporary restraining order prohibiting Clearwater from enforcing all
provisions of the Ordinance 3479-84. Scientology also moved the Court to
schedule an evidentiary hearing on its pending application for a preliminary
injunction.
14. On August 2, the Court denied Scientology's motion for a temporary
restraining order prohibiting Clearwater from enforcing Ordinance 3479-84 and
denied Scientology's motion for a hearing on its application for a preliminary
injunction.
15. On August 3, Scientology appealed the District Court's July 23 orders
declaring Ordinance 3479-84 constitutional and enjoining the enforcement of
less than all of Ordinance 3479-84. Scientology also appealed the District
Court's August 2 order denying Scientology's motion for a temporary restraining
order and a preliminary injunction.
*1506 16. On November 1, the Eleventh Circuit Court of Appeals:
A) vacated the District Court's order prohibiting Clearwater from enforcing
repealed Ordinance 3091-83 because the controversy was moot; the Eleventh
Circuit remanded the two cases with instructions that they be dismissed without
prejudice;
B) dismissed the section 1292(b) interlocutory appeals from the District
Court's determination that amended Ordinance 3479-84 was facially
constitutional; the Eleventh Circuit vacated the orders that allowed the
appeals to proceed;
C) affirmed the District Court's refusal to grant Scientology's applications
for preliminary injunctions because Scientology failed to establish the
criteria necessary for preliminary injunctive relief. The Eleventh Circuit
also found that the District Court record did not support an adequate basis to
justify a finding of standing.
17. On July 23, 1987, Scientology filed a motion for partial summary judgment
on the issue of standing, and on January 15, 1988, filed a partial summary
judgment on standing and the merits.
18. On January 15, 1988, Clearwater also filed a motion for summary judgment.
CLEARWATER ORDINANCE 3479-84
Clearwater Ordinance 3479-84 applies to charitable organizations that solicit
funds or property within Clearwater and to charitable organizations that offer
within the city to make sales of property including, but not limited to books,
tapes, publications and brochures whose proceeds will be used for charitable
purposes. Section 100.01. The ordinance exempts organizations that annually
collect monies from less than twenty people in Clearwater or that annually
collect less than $10,000 there. Section 100.02.
Covered organizations must file a registration statement with the City Clerk.
Section 100.03. The statement requires the organization to provide information
about the collection and disbursement of funds, including names, addresses, and
phone numbers of the soliciting organization, the person in charge of
soliciting funds in Clearwater, and the person authorized to disburse those
funds; a description of the soliciting organization, the methods of
solicitation and the use to be made of the funds; the time period of the
solicitation; and estimate of salaries, fees and costs to be incurred in
soliciting; the names of organization officials or solicitors who have been
convicted of serious crimes in the last five years; the names of other Florida
cities in which the organization has solicited; and a statement that the
organization maintains records or documents necessary to file the registration
statement. The registration is a public document.
An organization that files similar information elsewhere may submit that
filing in lieu of the registration statement. An organization that solicits
only from members may provide the information to its members in a private
statement, available only to members, in lieu of the registration statement.
The organization must prepare the statement at least annually, must maintain
the underlying records for three years from the date of each statement, and
must make the records and statement reasonably available for inspection by each
member of the charitable organization. Section 100.02(3).
After an organization files its registration statement, the City Clerk
must either issue a Certificate of Registration within ten working days or tell
the organization what required information is missing from the statement.
Section 100.03(2). If the Clerk does not issue a Certificate of
Registration, the organization can continue to solicit in Clearwater without
the statement until the Clerk's decision is upheld by a court. Section
100.03(3). The City bears the burden of initiating court proceedings, which it
must do within ten working days of the refusal of a permit. Id. In such
proceedings, the organization can show that the missing information should not
be required because furnishing it would impose a special hardship on the
organization. Section 100.03(4).
The registration statement is effective for one year. Sixty days after the
year is *1507 over, the organization must file a statement containing
information as to the amount of funds and property collected in Clearwater
during the year; the costs incurred for wages, fees, advertising, and other
expenses; and the utilization of the proceeds in approximate amounts.
Section 100.03(8).
Under the ordinance, certain acts are unlawful. These include willful failure
to file required statements or knowingly filing false statements, fraud or
misrepresentation to obtain money or property; promising any person that the
proceeds of a solicitation of funds will be refunded upon request, and
thereafter willfully failing to make a written refund request within 60 days;
promising any person that he or she will receive a refund upon request without
providing a written statement of the refund terms and conditions; knowing
misrepresentation that a donor will obtain a federal tax deduction, willful use
of solicited funds to commit a crime, and willful failure to maintain required
records. Section 100.05.
The City Attorney is empowered to investigate alleged violations of the
ordinance, but only if he has received ten bona fide, sworn complaints setting
forth facts showing a violation and harm. Section 100.06(1). In an
investigation, the city attorney can subpoena persons and records, Section
100.06(2), but he has no power to enforce his subpoenas and must go to court
for enforcement. If an investigation shows probable cause to believe a
violation exists, the City Attorney can prosecute. Section 100.06(3).
Finally, the statute contains an explicit severability clause. Section 10.
STANDARD FOR SUMMARY JUDGMENT
This circuit clearly holds that summary judgment should only be entered when
the moving party has sustained its burden of showing the absence of a genuine
issue as to any material fact when all the evidence is viewed in the light most
favorable to the nonmoving party. Sweat v. Miller Brewing Co., 708 F.2d
655 (11th Cir.1983) All doubt as to the existence of a genuine issue of
material fact must be resolved against the moving party. Hayden v. First
National Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir.1979), (quoting
Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969)). Factual
disputes preclude summary judgment.
The Supreme Court of the United States held, in Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986):
In our view the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party
who fails to establish the existence of an element essential to that party's
case, and on which that party will bear the burden at trial.
Id. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273.
The Court also said, "Rule 56(e) therefore, requires that the moving party go
beyond the pleadings and by her own affidavits, or by the depositions, answers
to interrogatories, and admissions on file, 'designate' specific facts showing
there is a genuine issue for trial." Celotex, supra at 324, 106 S.Ct. at
2553, 91 L.Ed.2d at 274. This Court is satisfied that no factual disputes
remain which preclude summary judgment.
A. WHETHER SCIENTOLOGY HAS STANDING TO SUE.
[1] Standing to sue is an aspect of Article III that limits federal judicial
power to the resolution of cases and controversies. "A threshold question in
every federal case is whether the Plaintiff has made out a justiciable case or
controversy within the meaning of Article III." Church of Scientology Flag
Service Organization v. City of Clearwater, 777 F.2d 598, 606 (11th Cir.1985)
cert. denied, 476 U.S. 1116, 106 S.Ct. 1973, 90 L.Ed.2d 656 (1986) (citing
Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343
(1975)). Determination that a litigant has standing to sue is a preliminary
jurisdictional matter that should be decided "without consideration of the
likelihood of the litigant's success on the underlying merits of the case."
Saladin v. City of Milledgeville, 812 F.2d 687, *1508 690 n. 4 (11th
Cir.1987). The essence of the inquiry is ...
whether the parties seeking to invoke the court's jurisdiction have alleged
such a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional
questions.
Larson v. Valente, 456 U.S. 228, 238-39, 102 S.Ct. 1673, 1680, 72 L.Ed.2d
33 (1982) (citations omitted).
[2] Standing includes constitutional and prudential requirements. To
satisfy the minimum constitutional requirements, a plaintiff must show a) that
he personally has suffered an actual or prospective injury as a result of the
putatively illegal conduct; b) that the injury is fairly traceable to the
challenged action; and c) that the injury is likely to be redressed by a
favorable court decision. See, e.g., Larson, 456 U.S. at 239, 102 S.Ct. at
1680; Valley Forge Christian College v. American United for Separation of
Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700
(1982); see also Church of Scientology Flag Service Organization, 777 F.2d
at 606.
Constitutional Issues
Actual or Threatened Injury. In some circumstances, a charitable solicitation
registration requirement will confer standing on a litigant to contest the
law. Larson v. Valente, 456 U.S. 228, 241, 102 S.Ct. 1673, 1681, 72 L.Ed.2d
33 (1982). Scientology claims that the Clearwater ordinance does so.
Scientology claims that it meets the injury test because it maintains and
operates a facility exclusively for training and auditing in the City of
Clearwater. (Hugh Wilhere aff., par. 4) and directs its Clearwater activities
toward those who come to its facility to avail themselves of the facility's
services. Scientology solicits money in Clearwater, and does so almost
exclusively in the course of offering participation in the services of auditing
and training. (Id; Sydejko aff., par. 18). Scientology also advertises
and sells religious books to the general public, as well as to those involved
with the Scientology organization in Clearwater. (Wilhere aff. par. 4;
Sudejko aff. par. 19).
Scientology further alleges that it will suffer injury if Ordinance
3479-84 is enforced because Scientology is a charitable organization as defined
by the ordinance: an organization "which is or holds itself out to be a
religious" organization. Section 100.01(1). Scientology also engages in
"solicitation of funds" as that term is defined in the statute since it
requests money for the organization in the course of offering literature and
participation in services and training.
The ordinance requires that charitable organizations soliciting funds in
Clearwater file registration and disclosure statements with the city.
Organizations and individuals may at some time be subject to penalties under
the ordinance. Therefore, Scientology claims that it meets the injury in fact
prong of the constitutional test.
Traceable Connection to the Challenged Action.
Scientology claims that it meets this prong of the constitutional requirements
test because the reporting and registration requirements directly impact the
organization's solicitation in Clearwater and the ordinance guidelines
concerning refunds impact the organization's policies concerning refunds.
Redress By a Favorable Decision. Scientology claims that its injuries are
likely to be redressed by a favorable decision. Scientology is seeking a
declaration that the ordinance is unconstitutional on its face and as applied
to religions and other charitable organizations, and in particular,
Scientology, and is seeking a permanent injunction against enforcement of the
ordinance. (See Complaint, Prayer for Relief, pars. A-D). Such a ruling would
redress almost all of the organizations' injuries.
In addition, Scientology seeks to enjoin enforcement of the ordinance
provisions that require disclosure of solicitations from members, or on their
own premises, and the provisions that set out guidelines for refund policies.
A favorable decision on *1509 these issues would redress Scientology's
alleged injuries in these areas.
Prudential Issues
[3] In addition to the essential constitutional requirements a court must
consider the case in light of three principles that might counsel judicial
restraint, referred to as prudential considerations. See Valley Forge
Christian College, 454 U.S. at 471, 474, 102 S.Ct. at 757, 759. While not
jurisdictional, they are invoked to "limit the role of the courts in resolving
public disputes." Warth, 422 U.S. at 500, 95 S.Ct. at 2206. These
considerations are (1) whether the plaintiff's complaint falls within the zone
of interests protected by the statute or constitutional provision at issue;
(2) whether the complaint raises abstract questions amounting to generalized
grievances that are more appropriately resolved by the legislative branches;
and (3) whether the plaintiff is asserting his or her own legal rights and
interests rather than the legal rights and interest of third parties; Allen
v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).
Zone of Interest. Scientology contends that it meets the first prong of the
prudential requirements test because the Clearwater ordinance arguably
infringes on the zones of interest protected by the first amendment's
associational, speech and religious guarantees. Association of Data
Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25
L.Ed.2d 184 (1970) (emphasis added). Scientology claims that because the
ordinance fails to exclude, from the reporting requirement, charitable
contributions from its members, or on its premises, the ordinance violates the
organization's first amendment rights.
Scientology further contends that the registration and reporting
requirements and enforcement provisions infringe on associational and religious
rights by permitting surveillance into Scientology's affairs and by pressuring
Scientology to adopt certain policies and practices. In addition, Scientology
claims that the ordinance provisions requiring the licensing of public
solicitation and sale of literature infringe on first amendment rights of free
expression and free exercise of religions.
Distinct Concrete Injury. Scientology claims that it meets the second element
of the prudential requirements test because the ordinance inflicts a distinct,
concrete injury on a limited set of charitable organizations, which
specifically includes the Scientology organization. In addition, Scientology
alleges that the legislative history of the ordinance shows that the ordinance
is aimed at Scientology. (Wilhere aff., par. 7 & 8).
Legal Claims Raised. Scientology claims that it meets the third element of
the prudential requirements test because it can invoke the constitutional
protection afforded all organizations for associational and expressive
activities, whether they are religious or not. See Roberts v. United States
Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Further,
Scientology claims that it has standing to raise the legal claims because it is
a religion, or because the overbreadth doctrine would give it standing. In
reality, almost all of Scientology's arguments are premised on its claim to be
a religious organization.
Scientology's Standing To Raise Legal Claims As a Religion
[4] American courts have adopted an expansive definition of religion.
Seeger v. United States, 380 U.S. 163, 174, 180, 85 S.Ct. 850, 858, 861, 13
L.Ed.2d 733 (1965). Determining whether a set of beliefs is a religion under a
modern definition of religion would include consideration, among other things,
of whether the ideas or beliefs in question address issues of fundamental or
ultimate concern, whether the ideas are combined into a comprehensive belief-
system and whether there are any formal, external, or surface signs that may be
analogous to accepted religions. Such signs might include formal services,
ceremonial functions, clergy, and efforts at propagation. Malnak v. Yogi,
592 F.2d 197 (3d Cir.1979) (Adams, J., concurring).
*1510 The affidavits submitted by Scientology indicate that Scientology
meets some of the modern definitional elements of religion. (See Reverend
Sydejko aff., par. 4, 9, 10, 11, 12, 13; Dr. Frank Flinn aff., par.s 9, 10,
12, 13, 14; Kliever aff., par.s 6, 7-12, 13, 16, 17). Scientology is
incorporated as a church and it has ministers with the legal authority to marry
and to bury. The fundamental writings of the church contain a general account
of man and his nature comparable in scope to that of some recognized
religions. Founding Church of Scientology of Washington, D.C., 409 F.2d at
1154. Scientology is propagated by a mother church in California and by
numerous branch churches around the world. The mother church instructs laity,
trains and ordains ministers, and creates new congregations. Branches, known
as franchises or missions, provide Scientology services at the local level.
Id. The affidavits address only the religiosity of Scientology's beliefs;
they do not address the religiosity of Scientology's activities.
[5] Although American courts have adopted an expansive definition of
religion, a party must demonstrate that it is a religion if challenged. See
Larson, 456 U.S. at 255-256, n. 30, 102 S.Ct. at 1689, n. 30 ("[N]othing in
our opinion suggests that appellants could not attempt to compel the
Unification Church to register under the Act as a charitable organization not
entitled to the religious-organization exemption, and put the Church to the
proof of its bona fides as a religious organization."); International
Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 438 (2d
Cir.1981) (It must be "determin[ed] whether the Krishna beliefs, credos, and
philosophy, as well as the particular practice of sankirtan, are sufficiently
'religious' in nature to warrant the protection of the free exercise
guarantee."); Jones v. Bradley, 590 F.2d 294, 295 (9th Cir.1979) ("There is
no prohibition ... against ruling whether or not a set of beliefs constitutes a
religion when deciding if First Amendment protection apply.").
Clearwater claims Scientology has not proven that it is a religion, but
"[e]ven if Scientology is a religion, the actions at issue here are commercial,
and sometimes criminal, in character." (Defendants' Support Memorandum, p.
13). Defendants point out specific passages 1982 municipal hearing transcripts
that illustrate illicit acts and practices allegedly carried on by
Scientologists (Defendants' Support Memorandum, pp. 4-10):
Burglaries of the offices of doctors, lawyers, and government officials to
obtain documents and information for use against critics or opponents (Tr. at I
89, 179, 232, 242; IV 156, 162, 260, 262, 290, 291, 292, 293, 302, 303);
electronic bugging of medical offices and government offices to obtain
information for use against critics or opponents (Tr. at I 121, 152; III 338-
339; IV 9, 20-21, 134, 156, 321, 326, 334); "framing" opponents by
manufacturing and planting false evidence (Tr. at I 40, 101, 102, 212; Iv 137,
326, 334); use of highly confidential information, which was obtained through
"auditing" and was supposed to remain confidential, to blackmail persons who
leave the organization (Tr. at I 75, 98, 204-205; II 24, 26-27, 61-62, 200;
III 20; Iv 10, 26, 37, 61-62, 81, 116-117, 155, 173, 183, 185, 192-193, 214,
240-242, 270, 364-365); beating, kidnapping, and imprisoning persons who
wished to leave the organization (Tr. at I 84-85, 99, 122-123, 242; II 24, 37,
132, 135, 183-184, 214; III 103, 271; IV 50-51, 57-58, 245-246, 287, 417-
418); fraudulently inducing individuals to pay large sums of money for
Scientology "training" by falsely claiming that Scientology can cure mental and
physical ailments and will enable a person to achieve great success; by
falsely stating that L. Ron Hubbard was a war hero, had healed himself of
terrible wounds, is a nuclear physicist, and is an eminent and accomplished
research scientist; and by false promises of refunds (Tr. I 73, 113-114, 124,
264-265, 269, 282, 287-288; II 104; III 81, 281; IV (, 22-23, 25, 72-73, 75-
76, 108-110, 152-153, 285, 286); maintaining poor living conditions for low
level Scientologists who work at church bases (Tr. at I 59-60, II 166, 249,
250-251; III 10, 11, 98, 149, 157, 188, *1511 268, 269, 270; IV 16, 53,
98, 119-120, 228, 245-246).
Although Clearwater alleges that Scientologists commit the acts set out
above, it states, "For purposes of the summary judgment motions, Defendants
shall not assert that the beliefs of Scientology are not religious in
character." (Defendants' Memorandum in Opposition to Plaintiff's Motion for
Summary Judgment [hereinafter Defendants' Opposition Memorandum], p. 3).
Clearwater further states, "[S]cientology may have religious beliefs ..."
(Id. at 5).
Scientology's beliefs developed from Hubbard's writings:
L. Ron Hubbard, writing in a science fiction magazine in the 1940's, first
advanced the extravagant false claims that various physical and mental
illnesses could be cured by auditing. He played a major part in developing
Scientology. Thereafter, commencing in the early 1950's numerous Scientology
books and pamphlets were written explaining how various illnesses can be and
had been cured through auditing. These materials were widely distributed ...
Hubbard and his fellow Scientologists developed the notion of using a E-meter
to aid auditing. Substantial fees were charged for the meter and for auditing
sessions using the meter. Auditing was guaranteed to be successful ...
Unfortunately, the Government did not move to stop the practice of Scientology
and a related "science" known as Dianetics when these activities first appeared
and were gaining public acceptance.... The government did not sue to condemn
the E-meter until the early 1960's, by which time a religious cult known as the
Founding Church of Scientology had appeared. This religion, formally organized
in 1955, existed side-by-side with the secular practice of Scientology. Its
adherents embrace many of Hubbard's teachings and widely disseminate his
writings. The church purports to believe that many illnesses may be cured
through E-meter auditing by its trained ministers through an appeal to the
spirit or soul of a man. As a matter of formal doctrine, the Church professes
to have abandoned any contention that there is a scientific basis for claiming
cures resulting from E-meter use.
United States v. Article or Device, 333 F.Supp. 357 (D.D.C.1971).
[6] Based on the Article or Device court's analysis and the affidavits
cited above, this Court finds that Scientology fulfills the elements of the
modern definition of religion; for purposes of considering the motions for
summary judgment, the Court will consider Scientology to be a religion.
Scientology's Claim To Raise Legal Claims Under the Overbreadth Doctrine
[7] The overbreadth doctrine is an exception to the rule that individuals
may not litigate the rights of third parties. See Barrows v. Jackson, 346
U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953). "[A]n individual
whose own speech or expressive conduct may validly be prohibited or sanctioned
is permitted to challenge a statute on its face because it also threatens
others not before the court--those who desire to engage in legally protected
expression but who may refrain from doing so rather than risk prosecution or
undertake to have the law declared partially invalid." Brockett v. Spokane
Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985).
[8] Generally, where the parties challenging the facial validity of a
statute are those who seek to engage in the activity that the overbroad statute
purports to punish, courts will not entertain an overbreadth challenge.
City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104
S.Ct. 2118, 80 L.Ed.2d 772 (1984). In some cases, the overbreadth doctrine may
be employed only if the contested regulation violates the rights of those not
before the Court. Id. Resorting to the overbreadth doctrine in this case
is not necessary since this Court has found that Scientology meets the
definition of a religion for purposes of the summary judgment motions.
Consequently, the Court *1512 finds that Scientology has standing and grants
Scientology's motion for summary judgement on this issue.
FIRST AMENDMENT GUARANTEES
[9] "Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or of the right of the people peaceably to assemble, and to
petition the government for a redress of grievances." U.S. Const.Amend. I.
First amendment rights and guaranties are fundamental, but they are not
absolute or unrestricted, and they are subject to reasonable limitation and
control.
Freedom of Religion
The guarantee of freedom of religion was adopted to curtail Congress' power to
interfere with the individual's freedom to believe, to worship, and to express
the dictates of his conscience. Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct.
2479, 86 L.Ed.2d 29 (1985) (silent prayer law unconstitutional). Both the
anti-establishment clause and the free exercise clause are applied to the
states through incorporation into the fourteenth amendment due process
guarantee of liberty. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct.
504, 91 L.Ed. 711 (1947) (anti-establishment); Cantwell v. Connecticut, 310
U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (free exercise). The two clauses
often appear to conflict, and reconciling these potentially conflicting
constitutional demands is a continuing problem. The basic role of the
government has been to maintain a position of neutrality. While the Court has
not directly defined religion, it has indicated that non-theistic beliefs can
qualify for constitutional protection. Seeger, 380 U.S. 163, 85 S.Ct. 850.
The Establishment Clause. States may not make laws respecting the
establishment of religion. Courts interpret this clause broadly to prohibit
laws that aid one religion, aid all religions, or prefer one religion over
another. Everson, 330 U.S. 1, 67 S.Ct. 504.
[10] In most cases, a law must satisfy each part of a three-part test to
withstand an Establishment Clause challenge: (1) the law must have a secular
legislative purpose; (2) the principal or primary effect of the law must
neither advance nor inhibit religion; and (3) the law must not foster "an
excessive government entanglement with religion." Lemon v. Kurtzman, 403
U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
Improper administrative entanglement may arise when religious and public
employees must work closely together to carry out a legislative plan. See
Aguilar v. Felton, 473 U.S. 402, 414, 105 S.Ct. 3232, 3238, 87 L.Ed.2d 290
(1985) (citing Walz v. Tax Commissioner, 397 U.S. 664, 674, 90 S.Ct. 1409,
1414, 25 L.Ed.2d 697 (1970)). Administrative entanglement claims commonly
arise in suits to strike down government benefits to religion; e.g., when
government aid is followed by government investigators who must make on-site
inspection to ensure that aid moneys are expended only for secular purposes.
See Aguilar, 473 U.S. at 412, 105 S.Ct. at 3237. Day-to-day intrusion into
the operation of a religious institution is entanglement. Impermissible
entanglement occurs if a law allows the state to investigate the financial
affairs of religious organization when the goal of the investigation is to
determine whether regulation is necessary. Surinach v. Pesquera de
Busquets, 604 F.2d 73 (1st Cir.1979).
Regulatory entanglement claims arise when parties seek to show that
enforcement of a law would create excessive entanglement. Tony and Susan
Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 105 S.Ct. 1953, 85
L.Ed.2d 278 (1985). Potentially, regulatory entanglement claims permit
religious bodies to use the establishment clause, like the free exercise
clause, as a shield from government intrusion. See e.g., McClure v.
Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied 409 U.S. 896, 93 S.Ct.
132, 34 L.Ed.2d 153 (1972) (religious organization exempt from some sex
discrimination suits under Title VII); Madsen v. Erwin, 395 Mass. 715, 481
N.E.2d 1160 (1985) (Christian Science Monitor, *1513 as religious
organization, immune from some employment discrimination suits).
The Court has specifically criticized the three-part Lemon test and often
departs from the test in making decisions. See Marsh v. Chambers, 463 U.S.
783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (Court upheld prayers opening
legislative session, emphasizing the prayer's historical acceptance making it
a "part of the fabric of our society."). The Court has criticized the
entanglement prong of the test because the supervision necessary to ensure that
there is no entanglement becomes entanglement. See, e.g., Aguilar, 473 U.S.
at 429, 105 S.Ct. at 3246 (O'Connor, J., dissenting); Wallace, 472 U.S. at
109-110, 105 S.Ct. at 2517-2518 (Rehnquist, J., dissenting); Lynch v.
Donnelly 465 U.S. 668, 689, 104 S.Ct. 1355, 1367, 79 L.Ed.2d 604
(1984) (O'Connor, J., concurring); Lemon, 403 U.S. at 666-668, 91 S.Ct. at
2137-2139 (White, J., concurring and dissenting). However, the three-part
Lemon test remains the basic standard of judicial review in Establishment
Clause cases.
[11] Free Exercise of Religion. States may not make laws that inhibit the
free exercise of religion. "The freedom to hold religious beliefs and opinions
is absolute." Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d
563 (1961). (See West Virginia State Board of Education v. Barnette, 319
U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)) (law requiring Jehovah's Witness
to salute the flag struck down because government cannot prescribe what is
orthodox in politics, nationalism, religion, or other matters of opinion). The
government may not evaluate the benefits of religious practice including the
truth or falsity of statements about the benefits of religious practices under
any circumstances. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88
L.Ed. 1148 (1944); Founding Church of Scientology of Washington D.C., 409
F.2d 1146.
[12][13] While freedom to believe is absolute, freedom to act pursuant to
one's religion cannot be. "Conduct remains subject to regulations for the
protection of society." Cantwell, 310 U.S. at 303-304, 60 S.Ct. at 903-
904. The government has the inherent police power to regulate religious
activities in a reasonable and nondiscriminatory manner, to protect the safety,
peace, order, and comfort of society. Id. Although the state cannot punish
religious views and beliefs, the state can punish the external manifestation of
those views if the resulting conduct is a clear and present danger to the
safety, morals, health or general welfare of the community and is violative of
laws enacted for their protection. Portland v. Thornton, 174 Or. 508, 149
P.2d 972 cert. denied 323 U.S. 770, 65 S.Ct. 123, 89 L.Ed. 616 (1944).
[14][15][16] An ordinance directed at conduct rather than belief,
with a secular purpose and effect, and justified by governmental interest in
public health and safety does not violate first amendment rights. Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 723 F.Supp. 1467
(S.D.Fla.1989). The right to free exercise does not relieve an individual's
obligation to comply with a "valid and neutral law of general applicability on
the ground that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes)." Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876
(1990), citing United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051,
1058 n. 3, 71 L.Ed.2d 127 (1982) and Prince v. Massachusetts, 321 U.S. 158,
64 S.Ct. 438, 88 L.Ed. 645 (1944). An ordinance that could constitutionally
apply to a wide range of conduct other than the conduct of the challenging
religious group does not violate first amendment rights. Lukumi, 723
F.Supp. 1467 (municipal ordinances regulating ritual sacrifice of animals not
unconstitutional).
When community problems exist, a city ordinance triggered by the conduct of a
particular group is constitutionally valid if the purpose of the ordinance is
to address the community problem. Id. The first amendment does not require
strict religious neutrality. See Wallace, 472 U.S. at 82-83, 105 S.Ct. at
2503-2504 (O'Connor, J., concurring); McDaniel v. Paty, 435 U.S. 618,
*1514 639, 98 S.Ct. 1322, 1334, 55 L.Ed.2d 593 (1978) (Brennan, J.,
concurring) (noting that "government [may] take religion into account when
necessary to further secular purposes"). Courts may uphold laws explicitly
mentioning religious conduct so long as the laws serve a secular purpose. See
e.g., Jones v. Butz, 374 F.Supp. 1284, 1292-93 (S.D.N.Y.1974).
Although laws cannot establish religion or prohibit its free exercise, laws
can control criminal acts connected with religion. Criminal acts are not "any
less odious" because they are sanctioned by a particular sect as religion.
Davis v. Beason, 133 U.S. 333, 345, 10 S.Ct. 299, 301, 33 L.Ed. 637
(1890). "However free the exercise of religion may be, it must be subordinate
to the criminal laws of the country ..." Id. at 342-343, 10 S.Ct. at 300-
01. Otherwise, "the professed doctrines of religious belief [would be]
superior to the law of the land," and the result would be "to permit every
citizen to become a law unto himself. Government could exist only in name
under such circumstances." Reynolds v. United States, 98 U.S. 145, 167, 25
L.Ed. 244 (1878) (quoted in Davis, 133 U.S. at 344, 10 S.Ct. at 301).
That the government can regulate religiously based activities in the exercise
of its power to promote the health, safety and general welfare, Wisconsin,
406 U.S. at 220, 92 S.Ct. at 1535; see also Bob Jones University v. United
States, 461 U.S. 574, 603, 103 S.Ct. 2017, 2034, 76 L.Ed.2d 157 (1983), is
illustrated by the numerous statutes courts have upheld precluding or impairing
religious actions that violate civil or criminal laws. Thus, polygamy can be
banned. Reynolds, 98 U.S. 145; Davis, 133 U.S. 333, 10 S.Ct. 299.
Child labor can be barred. Prince, 321 U.S. 158, 64 S.Ct. 438. Parents can
be punished for failing to provide children with medical attention.
Hermanson v. State, 570 So.2d 322 (Fla. 2d DCA 1990). The use of poisonous
snakes in religious services can be forbidden. Harden v. State, 188 Tenn.
17, 216 S.W.2d 708 (1948). The use of marijuana, LSD and peyote can be
punished. Employment Division, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d
876. Leary v. United States, 383 F.2d 851 (5th Cir.1967), rev'd on other
grounds, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); State v.
Bullard, 267 N.C. 599, 148 S.E.2d 565 (1966), cert. denied, 386 U.S. 917, 87
S.Ct. 876, 17 L.Ed.2d 789 (1967). Violation of zoning laws can be
prohibited. Grosz v. City of Miami, 721 F.2d 729 (11th Cir.1983), cert.
denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984).
[17][18] Even neutral laws of general application that significantly
burden religious liberty may be constitutional. Lee, 455 U.S. 252, 102
S.Ct. 1051 (mandatory and continuous participation in the social security
system vital to integrity of the system); Tony & Susan Alamo Foundation,
471 U.S. 290, 105 S.Ct. 1953. However, the government must avoid
administrative entanglement with religious institutions. Walz v. Tax
Commission of the City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d
697 (1970); Lemon, 403 U.S. 602, 91 S.Ct. 2105. Generally applicable
administrative and recordkeeping regulations may be imposed on religious
organizations without violating the first amendment. Routine regulatory
interaction that involves no inquiry into religious doctrine, no delegation of
state power to a religious body, and no detailed monitoring and close
administrative contact between secular and religious bodies does not violate
the non-entanglement command. Jimmy Swaggart Ministries v. Board of
Equalization of California, 493 U.S. 378, 110 S.Ct. 688, 107 L.Ed.2d 796
(1990) (citing Hernandez, 109 S.Ct. 2136).
Until recently, government actions that burdened religious free exercise had
to be justified by showing that the government had a compelling purpose and no
less burdensome means of achieving the purpose of the regulation. Sherbert
v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963). See
also Wisconsin, 406 U.S. at 215, 92 S.Ct. at 1533 (purpose must be of
highest order). But cf. Employment Division, 494 U.S. 872, 110 S.Ct. 1595,
108 L.Ed.2d 876. However, after Employment Division, Department of Human
Resources of Oregon v. Smith, *1515 the compelling government interest test
is no longer required when the government action involves a religion-neutral
criminal law. The Employment Division court stated:
[g]enerally applicable, religion-neutral criminal laws that have the effect
of burdening a particular religious practice need not be justified, under the
free exercise of religion clause ... by a compelling governmental interest
because (1) if the general laws were to be subjected to a "religious practice"
exemption, both the importance of the law at issue and the centrality of the
practice at issue would reasonably have to be considered, (2) it is
inappropriate for judges to determine the "centrality" of a belief to an
individual's religion, (3) thus, if the "compelling interest" test were to be
applied at all, it would have to be applied across the board, to all actions
thought to be religiously commanded, (4) such a rule would open the prospect of
constitutionally required religious exemptions from civic obligations of almost
every conceivable kind, a result that is not required by the First amendment's
protection of religious liberty, and (5) the nation cannot afford the luxury of
deeming presumptively invalid, as applied to the religious objector, every
regulation of conduct that does not protect an interest of the highest order;
although it may be that leaving accommodation of religious practices to the
judicial process will place at a relative disadvantage those religious
practices that are not widely engaged in, such an unavoidable consequence of
democratic government must be preferred to a system in which each conscience is
a law unto itself or in which judges weight the social importance of all laws
against the centrality of all religious beliefs.
[19] To pass a constitutional challenge against infringement of the
free exercise clause, a law must regulate conduct rather than belief, and the
law must have a secular purpose and effect. If the law passes these threshold
tests, the court balances the cost to the government of altering its activity
to allow the religious practice to continue unimpeded versus the cost to the
religious interest imposed by the government activity. Grosz, 721 F.2d at
734.
Solicitation and the First Amendment
[20] Public solicitation is protected under the first amendment because
solicitation is a form of communication. Village of Schaumburg v. Citizens
for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 833, 63 L.Ed.2d 73
(1980); Cantwell, 310 U.S. 296, 60 S.Ct. 900; Fernandes v. Limmer, 663
F.2d 619 (5th Cir.1981). However, solicitation is subject to reasonable
regulation. The state has an important interest in regulating solicitation
activities to avoid disturbances of the peace and to insure public safety.
Cantwell, 310 U.S. 296, 60 S.Ct. 900. A regulation that does not involve
any religious test and does not unreasonably obstruct or delay the collection
of funds is constitutionally valid, even though the collection is for a
religious purpose. Id.
[21] A state or municipality also has an interest in prohibiting fraud in
solicitation. "Public awareness of abuses in the administration of charitable
fund raising practices has increased over the past twenty years." Houston,
689 F.2d at 541. The state can protect its citizens from fraudulent
solicitation and insure that funds raised actually find their way to the
organization for which the solicitation was given by requiring a stranger in
the community to establish his identity and his authority to act for the cause
he purports to represent before permitting him to publicly solicit funds for
any purpose. Cantwell, 310 U.S. at 306. Disclosure is a less intrusive
means for protecting citizens than prohibiting solicitation entirely.
Schaumburg, 444 U.S. 620, 100 S.Ct. 826.
However, a solicitation regulation must bear a "reasonable relationship to the
achievement of the governmental purpose asserted as its justification."
Branzburg v. Hayes, 408 U.S. 665, 700, 92 S.Ct. 2646, 2666, 33 L.Ed.2d 626
(1972). For example, the state can require solicitors to disclose that they
are professional solicitors at the time of solicitation, and can require a
subsequent *1516 written affirmation of the disclosure. Indiana
Voluntary Firemen's Association, Inc. v. Pearson, 700 F.Supp. 421
(S.D.Ind.1988). However, the state cannot compel disclosure about the
solicitors' contract with the charitable organization or other details that
solicitors would not voluntarily disclose. Id. Neither can the state
regulate the percentage of contributions a charitable organization expends for
services of professional solicitors. Shannon v. Telco Communications, Inc.,
824 F.2d 150 (1st Cir.1987); Secretary of State v. Joseph H. Munson
Company, 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984); Schaumburg,
444 U.S. 620, 100 S.Ct. 826; Riley v. National Federation of the Blind of
North Carolina, Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988).
The regulatory authority may not attempt to regulate the content of the
representations made to induce contributions on the basis that the
representations falsely state spiritual, emotional or other benefits that may
accrue to the contributor in this world or the next. United States v.
Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944).
[22] Any regulation of public solicitation must be by the least
restrictive means necessary to further the state interests. Fernandes, 663
F.2d 619. A regulation must not allow administrative and enforcement officials
excessive discretion as to the scope or breath of the regulation. Hynes v.
Mayor and Council of the Borough of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48
L.Ed.2d 243 (1976); Schaumburg, 444 U.S. 620, 100 S.Ct. 826.
An ordinance imposing a flat license tax for the privilege of canvassing or
soliciting within a municipality is unconstitutional when the tax is applied to
the dissemination of religious beliefs through the sale of religious books and
pamphlets by solicitation from house to house. Murdock v. Pennsylvania, 319
U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1954).
Summary Judgment Contentions
Scientology alleges that: a) it meets the constitutional and prudential
requirements necessary to establish standing; b) the Clearwater ordinance is
unconstitutionally overbroad and violates Plaintiff's first amendment rights
because the ordinance regulates fundraising by churches from their own members
and on their own premises; attempts to regulate matters of internal
ecclesiastical rule, custom, discipline and procedure; and regulates and
requires broad financial disclosure of church fundraising for general church
purposes; c) the Clearwater ordinance unconstitutionally vests excessive and
vaguely defined discretion on city enforcement officials; d) the Clearwater
ordinance unconstitutionally seeks to regulate and license the sale of books
and literature in violation of the first and fourteenth amendments.
[Throughout its motion, Scientology relies on the Houston ordinance to
support its arguments].
Clearwater refutes Scientology's claims, argues that Clearwater Ordinance
3479-84 is constitutional on its face and that, because there are no genuine
issues of material fact needing to be resolved, Clearwater is entitled to
summary judgment in its favor.
B. WHETHER THE CLEARWATER ORDINANCE IS OVERBROAD AND THUS INTERFERES WITH
FREEDOM OF ASSOCIATION.
Freedom of Association
[23] Freedom of association is not stated directly in the constitution but
is implied in the first amendment. See Tashjian v. Republication Party of
Connecticut, 479 U.S. 208, 214, 107 S.Ct. 544, 548, 93 L.Ed.2d 514
(1986) (citing NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 460, 78
S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958)) (freedom of association protected by
first and fourteenth amendments includes partisan political organization).
The Supreme Court identified two types of associations in Roberts, 468 U.S.
609, 104 S.Ct. 3244. The first type is the intimate human relationship
exemplified by relationships involving the creation and sustenance of a family,
including marriage, childbirth, raising and educating children, and
cohabitation with one's relatives. Id. at 619, 104 S.Ct. at 3250 (citations
omitted). Intimate relationships, which demand the *1517 fullest
protection, are characterized by small numbers, a high degree of selectivity,
and seclusion from others. Id. at 620, 104 S.Ct. at 3250. "As a general
matter, only relationships with these sorts of qualities are likely to reflect
the consideration that have led to an understanding of freedom of association
as a intrinsic element of personal liberty." Id.
The second type of identified association, apposite to an intimate
association, is an express association, exemplified by large business
associations. Id. A large business association lacking the qualities of
the intimate association "seems remote from the concerns giving rise to ...
constitutional protection." Id. "Between the poles lies a broad range of
human relationships that may make greater or lesser claims to constitutional
protection from particular incursions by the State." Id. Some general
principles of group protection have emerged.
Generally, laws that directly punish group membership or association are
invalid See Noto v. United, 367 U.S. 290, 297-98, 81 S.Ct. 1517, 1520-21, 6
L.Ed.2d 836 (1961); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16
L.Ed.2d 321 (1966) as are laws that regulate internal activities such as whom
to include as members and which non-members to invite to take part in the group
processes. See March Fong Eu, Secretary of State of California v. San
Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013,
103 L.Ed.2d 271 (1989) (statute restricting organization and composition of
official governing bodies of political parties and terms of office of state
central committee invalid).
Laws that withhold a privilege or benefit from the members of a group or
association and laws that compel disclosure of a group's membership or an
individual's associations, where anonymity is likely to be important to the
continued viability of associational ties, are also invalid. See Gibson v.
Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9
L.Ed.2d 929 (1963); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3
L.Ed.2d 1377 (1959); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 463-
65, 78 S.Ct. 1163, 1172-73, 2 L.Ed.2d 1488 (1958).
Laws that interfere in hierarchial religious associations' decisions regarding
control of church real property, appointments to church positions and
discipline are generally invalid. See Serbian Eastern Orthodox Diocese v.
Milivojevich, 426 U.S. 696, 710, 96 S.Ct. 2372, 2381, 49 L.Ed.2d 151
(1976) (attempt to control defrocking procedures in a religious organization
invalid; courts must accept such decisions of the highest ecclesiastical
tribunal as final and binding) (citing Watson v. Jones, 80 U.S. (13 Wall.)
679, 727, 20 L.Ed. 666 (1872)); Paul v. Watchtower Bible Tract Society of
New York, 819 F.2d 875 (9th Cir.1987) (religious practice of shunning is
affirmative defense to suit for defamation and intentional infliction of
emotional distress by church member against Jehovah's Witness organization).
However, charitable and religious groups are subject to law and courts have
sustained the power of enforcement officials to investigate infractions by
obtaining documents and information pursuant to subpoenas and production
orders. See e.g., United States v. Coates, 692 F.2d 629 (9th Cir.1982);
United States v. Dykema, 666 F.2d 1096 (7th Cir.1981), cert. denied, 456
U.S. 983, 102 S.Ct. 2257, 72 L.Ed.2d 861 (1982); United States v. The
Freedom Church, 613 F.2d 316 (1st Cir.1979); In re Rabbinical Seminary
Netzach Israel Ramailis, 450 F.Supp. 1078 (E.D.N.Y.1978); see Church of
Scientology of California v. Commissioner, 83 T.C. 381, 463-464, aff'd 823
F.2d 1310 (9th Cir.1987).
Overbreadth
[24] Overbreadth is concerned with the precision of a law. A statute
is void on its face if it "does not aim specifically at evils within the
allowable area of [government] control, but ... sweeps within its ambit other
activities that constitute an exercise" of protected expressive or
associational rights. Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736,
741, 84 L.Ed. 1093 (1940) (statute prohibiting all picketing void *1518 on
its face since it bans peaceful picketing protected by first amendment).
The question of how overbroad a statute must be before it is subject to facial
invalidation is difficult. The Supreme Court has "never held that a statute
should be held invalid on its face merely because it is possible to conceive of
a single impermissible application." City of Houston v. Hill, 482 U.S. 451,
107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (quoting Broadrick v. Oklahoma, 413
U.S. 601, 630, 93 S.Ct. 2908, 2925, 37 L.Ed.2d 830 (1973) (Brennan, J.,
dissenting)).
Testing the constitutionality of a statute on its face is to some degree
"fundamentally at odds with the function of the federal courts" to resolve
concrete cases and controversies. Younger v. Harris, 401 U.S. 37, 52, 91
S.Ct. 746, 754, 27 L.Ed.2d 669 (1971). Application of the overbreadth doctrine
to facially invalidate a statute is "manifestly, strong medicine," and the
Court is reluctant to resort to the doctrine. Broadrick, 413 U.S. at 630,
93 S.Ct. at 2925.
[25] The overbreadth doctrine will not apply unless the protected acts
affected by the statute are substantial when compared with the law's legitimate
applications to unprotected acts, even when the acts in question are pure
speech. See New York v. Ferber, 458 U.S. 747, 770-71, 102 S.Ct. 3348, 3361-
62, 73 L.Ed.2d 1113 (1982). " '[S]ubstantial overbreadth' is essentially a
case-by-case analysis under which the court scrutinizes the statute's apparent
overbreadth, judges it 'in relation to the statute's plainly legitimate
sweep,' Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917, and ascertains
whether, in relation to that 'legitimate sweep,' the statute's overbreadth is
'substantial' or 'marginal.' " Indiana Voluntary Firemen's Association, 700
F.Supp. 421. The overbreadth doctrine does not apply at all to commercial
speech. Friedman v. Rogers, 440 U.S. 1, 10-11 n. 9, 99 S.Ct. 887, 894-895,
n. 9, 59 L.Ed.2d 100 (1979). Closely related to the overbreadth doctrine is
the less restrictive means test which requires that the means used to pursue a
legitimate and substantial governmental purpose must be the least restrictive
means possible. Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5
L.Ed.2d 231 (1960).
A. Whether the Clearwater Ordinance Affects Organization-Member Relationships
Ordinance 3479-84 requires organizations to file a registration statement or
make available to its members a private disclosure statement. Scientology
claims that the Clearwater ordinance is unconstitutionally overbroad because it
does not exempt solicitations by charitable organizations of their own members
on their own premises. Scientology claims that while Clearwater may be able to
require disclosure of contributions from the public, Clearwater cannot require
disclosure of contributions from members, or on the organization's premises
without violating the overbreadth doctrine because freedom of association is
protected by the first amendment and freedom of association prevents
interference with the internal affairs of an organization.
Clearwater contends that the City can require Scientology and other
organizations to disclose information because the City has a compelling
government interest in preventing fraud, criminal and antisocial action and
disclosure to members and the public will expose and thus prevent fraud.
Clearwater argues that regulation of charitable disclosures is the least
intrusive means of accomplishing the City's purpose of preventing fraud.
Clearwater argues that while the Supreme Court has ruled that disclosure laws
and penal laws are both less intrusive alternatives than prohibition of
solicitation, disclosure laws are even less intrusive than criminal ones.
Clearwater points out that government can obtain and at trial make public the
very same types of information required to be provided under a disclosure law
when investigating and prosecuting crimes such as fraud under a criminal
statute. But the penalty imposed at the conclusion of a criminal prosecution
is jail or a fine. The only penalty imposed for accurate *1519 revelation
of information pursuant to a disclosure law is that a potential contributor,
upon learning of the information, may decide not to contribute. Clearwater
contends that the penalty of noncontribution is less intrusive than the penalty
of jail or a fine. As the Fifth Circuit states, "It is difficult to see what
less intrusive alternative there could be to a disclosure law." Houston,
689 F.2d at 550.
Clearwater claims that hierarchial religious organizations would become a law
unto themselves if they were immune from laws such as Clearwater's charitable
solicitation ordinance. Clearwater further contends that the private statement
provision of the Clearwater ordinance provides for the exemption of
organizations that solicit only from members or on their own premises, and that
if an organization requires a hierarchial tenet of secrecy, then members can
simply ignore the private statement. Section 100.02(3) of Ordinance 3479-84
reads as follows:
Section 100.02 Exemptions.
(3) If a charitable organization does not want to disclose publicly the
information required by the statements described in Section 100.03 regarding
the solicitation of funds from members of the charitable organization, it may
exclude this information from the statements required by Section 100.03 if:
(a) it indicates on the statement required by Section 100.03 that
information about solicitation of funds from members of the charitable
organization has been excluded, and
(b) it prepares a private statement at least annually that contains all of
the information required by the statements described in Section 100.03 for
the solicitation of funds from members of the charitable organization that is
not reported in the statements required by Section 100.03, which is signed
under oath by the individual described in subparagraph 1(c) of Section
100.03, and
(c) it maintains the records and documents that are necessary to complete
this private statement for a period of three years from the date of each
statement, and together with the private statement, makes them reasonably
available for inspection by every member of the charitable organization.
The Court examined the history of Clearwater Ordinance 3479-84 to
determine the origin of the private statement provision. The Court found that
Ordinance No. 3091-83, the predecessor of Ordinance 3479-84, exempted
solicitation from members and on organization premises. The applicable
provision of the original ordinance read:
Section 100.02 Exemptions.
(1) Notwithstanding the foregoing, a charitable organization shall be exempt
from the provision of this chapter (a) if it does not receive contributions
from more than 20 persons; or (b) all of its functions, including fund raising
activities, are carried on by persons who are unpaid for their services; or if
no part of the organizations assets or income inure to the benefit of or is
paid to any officer or member; or if the solicitation is in the form of a
donation or collection that occurred within the membership of the charitable
organization; or if the charitable organization does not raise or receive
contributions from the public ...
Section 100.01 Definitions.
(5) The term "member" shall mean any person regularly attending or
participating in a charitable organization.
When this Court, in its order of March 28, 1984, found that Ordinance 3091-83
was unconstitutional, the Court addressed the membership exemption:
Clearwater Ordinance 3091-83 exempts those churches which limit their
solicitations to those who regularly attend or participate in religious
services (Section 100.01(5)). Churches which obtain contributions from
members who participate in church services on a non-regular or episodic basis,
as well as churches which do not offer, encourage, or require regular
attendance or regular participation of their members are not exempt. Thus a
stable church membership requiring regular attendance need not be affected by
this ordinance; however, a church whose membership is *1520 growing and
actively engaged in proselytizing and fund raising falls under the regulatory
scheme of this ordinance.
How can a church whose congregation or group of members is growing, ever, at
any given time, indicate to civil authority the number of "members" it has in
regular attendance or as participants in the organization?
If a drunk were to stagger into a church and "be saved" and then indicate an
intention to dedicate his life to its purposes through regular attendance at
that church, would he be a "member"?
There is absolutely no showing of any compelling state interest being
furthered by the parameters of the limited membership exemption of this
ordinance. This ordinance not only implies a religious preference, its mere
presence could foster a stagnation of religious practice in Clearwater by
impacting on growing congregations and forestalling larger, more organized
churches from continuing to seek new members as well.
Clearwater amended its ordinance to include organizations that solicited from
members and only on their premises, but provided a private statement provision
to allow organizations that solicited only from members or only their premises
to opt out of the disclosure requirement.
The comparable membership exemption provision in the Houston ordinance
cited by Scientology throughout its memorandum was also found unconstitutional
by the trial court judge, but for another reason. Houston, 689 F.2d at
553. The Houston judge ruled that the phrase "exempting organization or
associations" if they solicit from their own "members" was constitutionally
infirm because the terms were not defined. The judge pointed out that the
"concept of membership in a religion eludes objective definition."
After the trial judge ruled the Houston exemption clause unconstitutional
because it was vague, Houston did not amend its ordinance as Clearwater did.
Instead, Houston appealed the trial court's decision and the appellate judge
reversed, pointing out that the term "organization and member" are commonly
understood and that the phrase was not vague. Therefore, the Houston ordinance
contains an exemption provision for organizations that solicit from members
only while the Clearwater ordinance contains an optional private statement
provision that accomplishes the same purpose. Neither ordinance contains a
provision exempting religious organizations.
In its brief to the Eleventh Circuit, Clearwater claims that Scientology
actively participated in the early drafting of the ordinance and "when an
earlier draft of the ordinance exempted solicitations by a religious
organization from its own members, they [Scientology] said this discriminated
against groups which solicited from the public. When the membership exemption
was removed to accommodate their view, they said now the ordinance intruded on
religion because it regulated the relationships between a religious
organization and its members, and the only permissible regulation was of
relations between a religious organization and the public." Brief for
Appellees at 24, Church of Scientology Flag Service Organization v. City of
Clearwater, 777 F.2d 598, 606 (11th Cir.1985) (Nos. 84-3574, et al.).
[26] Even though the availability of the private statement option appears to
refute Scientology's argument that the Clearwater ordinance is unconstitutional
because it fails to exempt organizations that solicit only from their members,
the Court will address Scientology's other contentions, and will assume,
arguendo, that the private statement option is not available.
Scientology cites no case law that directly supports its position that failure
to exempt solicitations by charitable organizations of their own members on
their own premises invalidates the ordinance. Scientology claims that
Houston, 689 F.2d at 553, supports its view and claims that the Houston
Court upheld the Houston ordinance because it exempted both solicitation by
organizations of their members and solicitation on the organizations's own
premises. Id. at 556. The Court disagrees with Scientology's reading of
Houston: the Houston Court upheld the Houston ordinance *1521 over
ISKCON's objection that the ordinance was unconstitutional because it exempted
members on their premises, thereby favoring institutionalized religions (which
had members and premises on which to solicit) over uninstitutionalized
religions. Houston did not imply that a statute requiring registration by
organizations that solicited only from members would be unconstitutional.
Scientology's reliance on the Houston ordinance does not support its argument
on this issue.
Scientology also cites National Foundation v. City of Fort Worth,
415 F.2d 41 (5th Cir.1969) as support for its position. Again, the Court finds
that Scientology's reliance is misplaced. The Fort Worth Court upheld an
ordinance that exempted organizations soliciting only from members as
constitutional; Fort Worth did not imply that an ordinance that did not
exempt such organizations would be unconstitutional.
Scientology's reliance on Watson, 80 U.S. (13 Wall.) 679 is not clear.
Under Watson, courts will not interfere in ecclesiastical disputes. The
present situation does not involve an ecclesiastical dispute. Therefore, the
Court finds that neither National foundation nor Watson support
Scientology's claim for invalidation of the ordinance.
The circumstances under which the Houston and the Clearwater ordinance were
enacted differ greatly. The purpose of the Houston ordinance was to protect
the public. Judge Wisdom stated, "During this time [the past twenty years] as
is reflected in the case law, some Krishna followers and others soliciting
funds for charitable purposes, particularly in airports, parks, and public
gatherings, have pursued their overzealous solicitation to the point of causing
undue annoyance of the public. Many local governmental authorities have
reacted by adopting regulations requiring the licensing of solicitors for
charitable or religious purposes." That the Houston ordinance "exempt[ed] from
disclosure requirements the internal communications between members of an
organization or association" is not surprising. Houston, 689 F.2d at 553.
"Such communications are not related to the governmental purposes of the
ordinance," protecting the public. Id.
This Court cited Houston for that proposition in Church of Scientology
v. City of Clearwater, Civ. No. 84-96 (Slip Opinion 3/28/84, p. 6). The Court
pointed out that regulations such as those in the Houston ordinance should be
limited to solicitation of the public in public places because activity on the
organization's premises could not disturb the public and because there would
not be a danger of misrepresentation by the organization when it solicited from
its own members.
Many charitable solicitation cases involve ordinances designed to protect the
public, and not members of the organization, against fraudulent solicitation.
See, e.g., Schaumburg, 444 U.S. 620, 100 S.Ct. 826. In Schaumburg the
Court said, The Village's interests "in protecting the public from fraud, crime
and undue annoyance" are "indeed substantial ... Efforts to promote disclosure
of the finances of charitable organizations also may assist in preventing fraud
by informing the public." Id. at 636-8, 100 S.Ct. at 836. That such
ordinances exempt charitable organizations' solicitation from members or on
their premises is logical.
[27] However, when the purpose of an ordinance is to protect the members of
the organization as well as the public against fraud, exempting solicitation
from members and on the organization's premises would thwart the purpose of the
statute. The purpose of the Clearwater ordinance is to prevent fraud against
the members as well as the public. Therefore, the ordinance logically includes
disclosure from organizations soliciting only from members, although the
Clearwater ordinance provides an option by private statement to exclude such
organizations. Scientology claims that an ordinance that requires disclosure
but fails to exempt organization that solicit only from members is
unconstitutional on its face, even when the ordinance provides an alternative
private statement that allows the organization to opt out of the disclosure
requirements, because the ordinance impacts its freedom of association *1522
by interfering with intra-member relations.
This Court has evaluated Scientology's claim that the ordinance
violates associational freedom and finds that Scientology's claim is without
merit. First, the ordinance does not directly punish group membership or
association, See Noto v. United, 367 U.S. 290, 297-98, 81 S.Ct. 1517, 1520-
21, 6 L.Ed.2d 836 (1961); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238,
16 L.Ed.2d 321 (1966), nor does the ordinance regulate internal activities such
as whom to include as members and which nonmembers to invite to take part in
the group processes. See March Fong Eu, Secretary of State of California v.
San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct.
1013, 103 L.Ed.2d 271 (1989).
Nor does the ordinance withhold a privilege or benefit from the members of a
group or association or compel disclosure of a group's membership or an
individual's associations. See Gibson v. Florida Legislative Investigation
Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); Greene v.
McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 463-65, 78 S.Ct. 1163, 1172-73, 2
L.Ed.2d 1488 (1958).
Since there is no ecclesiastical dispute in this situation, the ordinance
cannot interfere in a hierarchial religious decision regarding such things as
control of church property, appointments to church positions and discipline.
See Serbian Eastern Orthodox Diocese, 426 U.S. at 710, 96 S.Ct. at 2381
(citing Watson, 80 U.S. (13 Wall.) at 727); Paul, 819 F.2d 875.
The Court also examined the applicability of the overbreadth doctrine to the
present situation. The overbreadth doctrine will not apply unless the
protected acts affected by the statute are substantial when compared with the
law's legitimate applications to unprotected acts, even when the acts in
question are pure speech. See Ferber, 458 U.S. at 770-71, 102 S.Ct. at
3361-62.
The Court finds that the ordinance is not overbroad when analyzed in light of
first amendment freedom of association caselaw. Consequently, the Court finds
that Scientology's overbreadth claim is without merit and denies Scientology's
motion for summary judgement on this issue.
Refund Provisions
Scientology also alleges that the refund provisions found in section
100.05(1)(f) and (g) of Ordinance 3479-84 interfere with intra-member
relations. Sections 100.05(1)(f) and (g) read as follows:
Section 100.05 Prohibited Acts.
No charitable organization subject to the provisions of this chapter, or no
agent, employee or officer of any such organization, shall engage in any of the
following prohibited acts:
(f) promising any person that the proceeds of a solicitation of funds will be
refunded upon request, and thereafter willfully failing within 60 days to make
a refund that has been requested in writing;
(g) promising any person that refunds of the proceeds of any solicitation of
funds will be made upon request without providing such person, at the time such
representation is made, with a written statement of the terms and conditions
upon which refunds are made; provided, however, that any statement made in
good faith at the time is not prohibited by this section.
Scientology contends that the provisions unconstitutionally interfere with
their exchange doctrine relating to payment for auditing and training
sessions. However, Scientology's concern is moot since payments for auditing
and training are no longer tax deductible charitable contributions under
Internal Revenue Code s 170. Hernandez, 109 S.Ct. 2136. The
Hernandez court found that payments for auditing are part of
a quintessential quid pro quo exchange; in exchange for their money,
those being audited receive an identifiable service, namely auditing and
training sessions. Id. "Scientology establishes fixed price schedules for
auditing and training sessions in each branch church; it calibrates particular
prices to auditing or training *1523 sessions of particular lengths and
levels of sophistication; it returns a refund if auditing and training
services go unperformed [less an administrative discount]; it distributes
account cards on which persons who have paid money to Scientology can monitor
prepaid services they have not yet used; and it categorically bars provision
of auditing or training sessions for free." Id. at 2145. Scientology
promotes auditing through newspaper, magazine, and radio advertisements, free
lectures, free personality tests and leaflets. Id. at 2141. Scientology
encourages prepayment and awards prepayment with a 5% discount. Id. A
Scientology direction states: "Price cuts are forbidden under any guise ... 1.
PROCESSING MAY NEVER BE GIVEN AWAY BY AN ORG. processing is too expensive to
deliver ... 9. ONLY FULLY CONTRACTED STAFF IS AWARDED FREE SERVICE, AND THIS IS
DONE BY INVOICE AND LEGAL NOTE WHICH BECOMES DUE AND PAYABLE IF THE CONTRACT IS
BROKEN." Id. at 2145 n. 9 (citing Graham v. Commissioner, 83 T.C. at
577-578, n. 5).
Because payments for auditing and training are no longer tax deductible
charitable contributions, these payments are no longer covered by the
Clearwater ordinance. Therefore, Scientology's arguments about this issue are
not applicable.
[28] The Court recognizes that Scientology and other organizations may offer
refunds unrelated to an organizational doctrine such as the doctrine of
exchange. No regulation could require that an organization offer a refund.
However, when a voluntary offer of a refund is made at the time of
solicitation, a regulation can constitutionally require that a written
affirmation also be given. See Indiana Voluntary Firemen's Association, 700
F.Supp. at 442, 447 (citing Riley v. National Federation of The Blind of
North Carolina, Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988))
(ordinance requiring written affirmation of disclosure statements made at the
time of solicitation upheld, even when the disclosure was a compelled statement
regarding the solicitor's professional status). By analogy, Section
100.05(1)(g) of Clearwater Ordinance 3479-84 is constitutional. Section
100.05(1)(g) requires written affirmation only if a promise of a refund is
voluntarily made.
[29] Likewise, Section 100.05(1)(f), making it unlawful to willfully fail
to honor a written request for a promised refund within sixty days is
constitutional. A municipality has an interest in protecting against refund
fraud similar to the interest a city has in insuring that funds raised actually
find their way to the organization for which the solicitation was given.
Cantwell, 310 U.S. at 306, 60 S.Ct. at 904. Regulating to protect against
the latter is constitutional. Analogously, regulating to protect against the
former should also be constitutional.
Sections 100.05(1)(f) and (g) do not mandate excessive
entanglement. They do not require surveillance or inspection. Clearwater
would have no involvement with these provisions unless ten bona fide sworn
complaints were filed with the City Attorney regarding the organization's
policy and an investigation ensued. The ordinance does not require regulatory
interaction that inquires into religious doctrine, nor delegation of state
power to a religious body, nor detailed monitoring and close administrative
contact between secular and religious bodies. Hernandez, 109 S.Ct. at 2147
(citations omitted). See Tony and Susan Alamo Foundation, 471 U.S. 290, 105
S.Ct. 1953. A situation similar to on-site continuing inspection of day-to-day
operations is necessary before entanglement occurs. Swaggart, 110 S.Ct.
688.
This Court finds that Scientology's arguments regarding the invalidity of
Sections 100.05(1)(f) and (g), the "refund provisions" are not persuasive
and denies summary judgement to Scientology on this issue.
Prohibiting the Use of a Scheme or Artifice To Defraud
Scientology also alleges that the City Attorney's power to investigate and
prosecute under Section 100.05(1)(c) of Ordinance 3479-84 is an
unconstitutional infringement of the relationship between churches and
*1524 their members. Section 100.05(1)(c) prohibits the "use of any
scheme or artifice to defraud or obtain property by means of any false
statement or representation" Scientology further claims that civil authorities
cannot "delve into the details of religious practice for the purpose of judging
its veracity or belief."
Clearwater contends that charitable and religious groups are subject to law,
and that enforcement officials have the power to investigate infractions by
obtaining documents and information pursuant to subpoenas and production
orders. Clearwater further alleges that law enforcement officials have both
the power and the responsibility of investigating fraud complaints.
[30] While this Court agrees with Scientology's claim that officials cannot
determine the veracity or benefits of a religious belief, the Court does not
agree with Scientology's claim that officials cannot investigate allegations of
fraud or other unlawful conduct because the investigation would
unconstitutionally interfere with the relationship between churches and their
members. The United States Supreme Court, in Employment Division held that
religious organizations are not exempt from civil and criminal laws and pointed
out that "the nation cannot afford the luxury of deeming presumptively invalid,
as applied to the religious objector, every regulation of conduct that does not
protect an interest of the highest order." Courts have sustained the power of
officials to investigate whether religious organization have violated the law,
See Coates, 692 F.2d 629; Dykema, 666 F.2d 1096; United States v.
Rasheed, 663 F.2d 843 (9th Cir.1981), cert. denied 454 U.S. 1157, 102 S.Ct.
1031, 71 L.Ed.2d 315 (1982). The Court finds Scientology's arguments
unconvincing and denies summary judgment to Scientology on this issue.
Full Disclosure Requirement
[31] Scientology alleges the full disclosure requirement allows
Clearwater to dictate a particular form of organizational government because
hierarchically organized groups do not permit all members to know such matters
as the salaries of officials or the aggregate assets of the organization, and
the members would acquire such knowledge under the disclosure requirement.
Scientology also contends that by allowing the City Attorney to investigate on
the basis of ten bona fide sworn complaints, the ordinance allows dissident
members or factions of the church the power of the state to compel church
leaders to govern their churches in accordance with civil authority's
standards. Scientology asserts that because the City Attorney can subpoena the
private records and statements, Scientology is forced to maintain records, even
if it chooses to provide a private statement. Ultimately these records could
become public under the investigatory powers of the City Attorney.
Clearwater contends that organizations requiring secrecy because of hierarchal
organization can use the private statement option; the ordinance does not
require that members read the private statement or the supporting records. In
addition, Clearwater points out that organizations are protected against
disclosure because they can claim hardship rather than disclose the information
on their registration statements. If a Certificate is denied, organizations
can continue to solicit. Clearwater must initiate a court proceeding within 10
days to determine whether or not the Certificate was validly denied.
Clearwater emphasizes that Section 100.03(4) states:
In such judicial proceedings, a charitable organization may also raise the
question to the court that furnishing a specific item or items of information
or explanations under this chapter constitutes a special or unique hardship to
the charitable organization, and the court shall have jurisdiction in such
review process, upon concluding that disclosure constitutes a unique or special
hardship, to dispense with the furnishing of that information or explanation,
so that a Certificate of Registration can be issued.
The Court, not the City Clerk or other official determines whether the
disclosure constitutes a unique or special hardship. Therefore, no City
official has discretion as *1525 to the hardship standard. As
Scientology points out, if the city official determines whether the hardship
standard applies, the hardship standard is vague. (Plaintiff's 1988 Support
Memorandum, p. 45) (citing Munson, 467 U.S. 947, 104 S.Ct. 2839).
Clearwater contends that because the judicial review process built into
Ordinance 3479-84 mandates that a Court determine whether information is
required or not, organizations are protected from unconstitutional disclosure
of harmful information. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct.
734, 13 L.Ed.2d 649 (1965); Southeastern Promotions Ltd. v. Conrad, 420
U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975).
Further, Clearwater points out that the City Attorney, as a member of the
legal profession, is competent to distinguish between bona fide and frivolous
complaints and is ethically required to uphold the standards of the legal
profession. Clearwater contends that because ten complainants must prove harm
before the City Attorney instigates an investigation, dissident members could
not impact the organization. However, Clearwater also points out that if ten
people have valid complaints, whether they are dissidents or not, they deserve
the protection of the legal system.
Clearwater further argues that an ordinance can constitutionally
require organizations to maintain records. See Tony and Susan Alamo, 471
U.S. 290, 105 S.Ct. 1953 (religious organizations not exempt from secular
governmental activity such as fire inspections, building and zoning
regulations, or the recordkeeping requirements of the Fair Labor Standards
Act). See also Swaggart, 110 S.Ct. 688. However, Clearwater points out
that records may never become public even if ten bona fide sworn complaints are
filed, the complainants prove harm, and the city attorney instigates an
investigation. The City Attorney's subpoena power under the ordinance,
Section 100.06, can only be enforced through the courts, and would be
subject to self-incrimination limitations. Granting Subpoena Power to
Community Relations Board, 075-11 Annual Report of the Att'y Gen., 16, 17
(1975).
Clearwater also contends that Scientology has not changed the structure of the
organization despite disclosure resulting from various lawsuits and that
Scientology remains a flourishing organization with a large income and
extensive assets despite disclosure. See Church of Scientology of
California v. Commissioner, 823 F.2d 1310 (initial 1975 tax case, decided in
1984 involved year long audit, three or four full-time agents; review of
approximately two million items including financial records, policy issues,
membership fees and descriptions, contracts for services and employment,
organizational charts, newsletters and disseminations pieces, and similar
records illustrating organizational activities and financial practices, a
fifty-one day trial spread out over a year covering Scientology's corporate and
management structure, financial activities, banking practices, dissemination
practices, techniques, beliefs and relationship to an alleged trust). Id at
26, 50.
The Court finds that Scientology's arguments are not convincing. The
Clearwater ordinance has built in safeguards to prevent unnecessary
disclosure: the private statement, required judicial review, and the required
application of legal standards such as basing an investigation only on bona
fide complaints and finding probable cause prior to prosecution, Therefore, the
Court denies summary judgment to Scientology on this issue.
WHETHER THE RECORDKEEPING REQUIREMENTS OF THE CLEARWATER ORDINANCE VIOLATE THE
ESTABLISHMENT CLAUSE.
States may not make laws that aid one religion, aid all religions, or prefer
one religion over another. Everson, 330 U.S. 1, 67 S.Ct. 504. In most
cases, a law must satisfy each part of a three-part test to withstand an
Establishment Clause challenge: (1) the law must have a secular legislative
purpose; (2) the principal or primary effect of the law must neither advance
nor inhibit religion; and (3) the law must not foster "an excessive government
*1526 entanglement with religion." Lemon, 403 U.S. 602, 91 S.Ct. 2105.
[32] Regulatory entanglement claims arise when parties seek to show that
enforcement of a law would create excessive entanglement. Tony and Susan
Alamo Foundation, 471 U.S. 290, 105 S.Ct. 1953. Day-to-day intrusion and
excessive surveillance are necessary before excessive regulatory entanglement
occurs. On-site inspections of appellant's evangelistic crusades, lengthy on-
site audits, examination of appellant's books and records, and threats of
criminal prosecution, administrative and judicial proceedings are not excessive
entanglement. Swaggart, 110 S.Ct. 688.
Scientology claims that the recordkeeping requirements of Ordinance
3479-84 are broad and intrusive and would result in excessive regulatory
entanglement with Scientology's affairs. Scientology further claims that
Clearwater has the burden of showing that implementation of the ordinance will
not infringe on and entangle it in Scientology's affairs. Acorn v. City of
Frontenac, 714 F.2d 813, 817 (8th Cir.1973) and Braintree Baptist Temple v.
Holbrook Public Schools, 616 F.Supp. 81, 90 (D.C.Mass.1984).
Scientology further claims that the under the ordinance, Clearwater would have
to "engage in 'comprehensive, discriminating and continuing ... surveillance' "
of the organization. It further claims that mere information gathering has the
potential for substantially infringing the exercise of first amendment rights
and cites NLRB v. Catholic Bishop, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d
533 (1979) for this proposition.
Scientology also contends that courts in Sylte v. The Metropolitan
Government of Nashville and Davidson County, 493 F.Supp. 313 (M.D.Tenn.1980)
and Taylor v. City of Knoxville, 566 F.Supp. 925 (E.D.Tenn.1983) struck down
ordinances containing recordkeeping and disclosure provisions virtually
identical to those in the Clearwater Ordinance because they resulted in
impermissible entanglement with church affairs. According to Scientology, just
the requirement of disclosure amounts to entanglement. (Plaintiff's 1988
Support Memorandum, p. 38).
Clearwater contends that the informational requirements of the Clearwater
ordinance do not place an undue burden on any charitable or religious
organization. As evidence, Clearwater cites examples of organizations that
complied with the previous ordinance (Defendants' Support Memorandum, pp. 28-30
and Exhibits), the opinion of John O'Connor, legal counsel for March of Dimes
(Id. at 30 and exhibits), sample charitable organization disclosure reports,
and certified copies of organizations' registration statements filed in other
jurisdictions. (Id. at 30-35 and Exhibits). Clearwater also cites to
National Attorneys General, State Regulation of Charitable Trusts and
Solicitations (1977), the Internal Revenue Code, and statistics regarding other
municipalities that have adopted charitable regulation ordinances to support
its contention. (Defendants' Support Memorandum, pp. 36-40 and Exhibits 18 and
25).
Further, according to Clearwater, there is no ongoing surveillance that
produces excessive entanglement because the city only becomes involved if there
are ten bona fide complaints and an investigation ensues. The City has no day-
to-day or on-site involvement with the charitable organization. See Tony &
Susan Alamo Foundation, 471 U.S. 290, 105 S.Ct. 1953; Swaggart, 110 S.Ct.
688.
[33] The Court analyzed the cases cited by Scientology to support its
contention that the Clearwater ordinance would create entanglement if
enforced. The Court does not find the cases persuasive. First, while
Scientology claims that NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99
S.Ct. 1313, 59 L.Ed.2d 533 (1979) held that mere information-gathering sought
by government officials is impermissible in the religious context, this Court
reads the case to stand for the proposition that the National Labor Relations
Act did not confer jurisdiction for the NLRB to certify unions as bargaining
agents for lay teachers in church-operated schools. The NLRB Court pointed
out the chilling effect that the requirement *1527 of bargaining would
impose on the exercise of the bishops' control over the religious mission of
the schools.
The Court also considered Sylte v. Metropolitan Government of
Nashville and Davidson County, 493 F.Supp. 313 and distinguishes the case on
the facts. The Sylte Court struck down the Nashville ordinance because a
Nashville solicitation Board could investigate the affairs of any person
soliciting. The Board had the power to "have access to and inspect books,
records, papers, and facilities of applicants or of anyone making solicitation
in the area of Metropolitan Government." The Board could also delegate their
power to any person approved by the Board. In its investigation, the Board
could hold hearings and at the hearing inquire into the need to further the
religious beliefs, and ask for information "as the Board might reasonably
require to determine whether the solicitation is in the interest and not
inimical to the public welfare." The ordinance set out no standards by which
the Board was to make determinations. The Board could investigate "where
questions arose," and no provision was made for a judicial hearing. The Board
had "unfettered power to obstruct the collection of funds for religious
purposes." Id. at 319. Sylte is not relative to the present case
because the Clearwater ordinance provides for a judicial hearing prior to
denial of a Certificate of Registration; there is no board with unlimited
discretion to investigate anyone soliciting "when questions arise"; and the
City Attorney's investigatory power cannot be delegated. Therefore Sylte
does not support Scientology's contention that excessive entanglement would
follow the enforcement of the Clearwater ordinance.
The facts in Taylor v. City of Knoxville, 566 F.Supp. 925 also distinguish
that case from the present controversy. The Taylor Court addressed issues
similar to those addressed in Sylte. In Taylor, a Board had authority:
to investigate the affairs of any person soliciting for religious purposes
under a certificate ... and to make public their findings in order that the
public may be fully informed as to the affairs of any said person. Said person
shall make available to the Board ... or any person designated by the Board ...
all books, records, or other information ...
Unlike the Clearwater ordinance, the Taylor ordinance set up no pre-
investigation prerequisites such as ten bona fide complaints, and the ordinance
provided no procedural safeguards such as requiring judicial process for
enforcement of subpoenas. Taylor does not support Scientology's contention
that excessive entanglement would follow the enforcement of the Clearwater
ordinance.
This Court studied Scientology's interpretation of deposition testimony
offered in support of its contention that the Clearwater ordinance creates
excessive entanglement. (Plaintiff's 1988 Support Memorandum, p. 38). The
Court does not find Scientology's interpretation persuasive. For example,
Scientology claims that, "according to the City Clerk [Mrs. Williams], she
might refuse to grant a solicitation certificate altogether unless, in her
view, the intended use of the funds furthers a legitimate charitable purpose of
the church." (William's Deposition 74-76). The Court disagrees with
Scientology's interpretation of Mrs. Williams' statements and their effect on
the certification granting process.
Scientology appears to assert that because the Clearwater ordinance
requires disclosure, entanglement will occur. The Court does not find this
argument persuasive. Entanglement requires specific actions such as on-going
surveillance and day-to-day on site inspection. Therefore, the Court denies
summary judgment to Scientology on this issue.
C. WHETHER THE CLEARWATER ORDINANCE IS VAGUE AND CONFERS EXCESSIVE DISCRETION
ON OFFICIALS FOR ENFORCEMENT
[34] Vagueness is concerned with the clarity of a law. A law must be drawn
with sufficient clarity so that people know the conduct they must take to avoid
the sanction of the particular law. "[A]ny law is unconstitutionally vague if
'people of *1528 common intelligence must necessarily guess at its meaning
and differ as to its application.' " Connally v. General Construction Co.,
269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Under procedural
due process, a statute is not constitutionally fair if it fails to give enough
information so that people can avoid unlawful conduct. "The applicable
standard, however, is not one of wholly consistent academic definitions of
abstract terms. It is, rather, the practical criterion of fair notice to those
to whom the statute is directed. The particular context is all important."
American Communications Association v. Douds, 339 U.S. 382, 412, 70 S.Ct.
674, 691, 94 L.Ed. 925 (1950).
In addition, a law must provide explicit standards for those who apply it to
prevent arbitrary and discriminatory enforcement. Grayned v. City of
Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222
(1972). "A vague law impermissibly delegates basic policy matters to
policemen, judges and juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory application."
Id. However, "[T]he very nature of due process negates any concept of
inflexible procedures universally applicable to every imaginable situation."
Liberman v. Schesventer, 447 F.Supp. 1355 (M.D.Fla.1978) (citing
Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6
L.Ed.2d 1230 (1961)). Judicial review before action is taken meets the
requirements of procedural due process. Freedman, 380 U.S. 51, 85 S.Ct.
734; Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239,
43 L.Ed.2d 448 (1975).
[35] Scientology alleges that Ordinance 3479-84 is unconstitutionally vague
and that it vests excessively broad and undefined discretion in its enforcing
officials. Scientology provides no facts or argument to support its assertion
that the ordinance fails to provide persons a reasonable opportunity to know
what is prohibited.
To support its argument of broad and undefined discretion, Scientology once
again uses the Houston ordinance as a yardstick for measuring the
constitutionality of the Clearwater ordinance. Scientology claims that the
Houston ordinance does not confer excessive discretion on city officials, but
claims that Sections 100.03(2) and (3) and 100.05(1)(b) of the Clearwater
ordinance do. Scientology claims that the Clearwater "issuing official has
broad authority to engage in selective and discriminatory enforcement and to
interfere with protected activities in several significant respects."
Scientology claims that the Clearwater provisions give the Clearwater City
Clerk and City Attorney authority to "determine the sufficiency of registration
statements, and in the case of the City Attorney, the truth or falsity of
information contained there." The Clearwater provisions read as follows:
Section 100.03. Registration with City Clerk.
(2) After a review of the registration statement to determine its compliance
with this section, and within ten (10) working days of the receipt of the
registration statement, the City Clerk shall either issue a Certificate of
Registration, as provided in this section, or notify the person registering
that the registration statement does not comply with the requirements of this
section and specifically point out what information or explanation has not been
furnished that is required before a Certificate of Registration will be issued.
(3) If for any reason the City Clerk refuses to issue a Certificate of
Registration to any charitable organization that has filed a registration
statement and the charitable organization disagrees with this decision, the
City of Clearwater shall bear the burden of initiating, within ten working days
of the denial, a judicial proceeding in the form of a declaratory judgment
action pursuant to Chapter 86, Florida Statutes, to review the City Clerk's
refusal to grant a registration certificate. In such proceeding, the
charitable organization seeking the Certificate of Registration shall be
considered a party in interest. Unless or until the circuit court rules that
the City Clerk has properly refused to issue a Certificate of
*1529 Registration, the charitable organization may solicit funds without
compliance with the registration provisions of this chapter.
100.05. Prohibited Acts.
No charitable organization subject to the provisions of this chapter, or no
agent, employee, or officer of any such organization, shall engage in any of
the following prohibited acts:
1. (b) wilful failure to file any statement required by this chapter or
knowingly making false statements or providing false information in these
statements.
The comparable provision in the Houston Ordinance, which Scientology claims
does not confer excessive discretion is Section 37-45.
Houston City Ordinance
Section 37-45. Issuance of Certificate of Registration.
After a review of the registration statement to determine its compliance with
Section 37-43 above, and within ten (10) working days of the receipt of the
registration statement, the City Tax Assessor and Collector shall either issue
a Certificate of Registration, as provided in Section 37-47, or notify the
person registering that the registration statement does not comply with the
requirements of Section 37-43 above and specifically point out what information
or explanation has not been furnished that is required before a Certificate of
Registration can be issued.
The Court compared the provisions and found no significant differences between
the discretion the city officials have to approve a Certificate of Registration
under either ordinance. The Clearwater ordinance appears to offer more
protection to an individual applying for a Certificate of Registration because
under Section 100.03(3) only a court can deny a Certificate of Registration.
In addition, Scientology alleges that the Houston ordinance was upheld partly
because of the removal, by amendment, of the investigatory and prosecutorial
powers of the city officials. Scientology states: "It was the removal, by
amendment, of the investigatory and prosecutorial powers of the Houston
Ordinance ..." that was critical to the Court's holding the ordinance
constitutional. (Plaintiff's 1988 Supporting Memorandum, p. 40). Scientology
claims that the removal of the following language removed investigatory and
prosecutorial power: [The city tax assessor and collector shall] "examine the
application and to make such investigation as he may deem necessary to
ascertain the truth and the facts and information set out therein."
Houston, 689 F.2d at 543.
This Court does not find any prosecutorial powers inherent in this
statement, or that the Houston ordinance contained any prosecutorial powers at
any time. Prosecutorial or enforcement powers were not part of the Houston
ordinance because Houston has a separate enforcement provision for city
ordinances. (Statement of City Attorney's Office, Houston).
However, some solicitation ordinances do contain enforcement provisions. For
example, the Court in Indiana Voluntary Firemen's Association, 700 F.Supp.
at 425 upheld the following enforcement provisions in a solicitation regulation
ordinance:
First, the attorney general may bring an action to enjoin a violation of the
statute--and to receive such injunctive relief, the state 'is not required to
establish irreparable harm but only a violation of a statue or that the
requested order promotes the public interest.' Ind.Code s 23-7-8(c).
Second, for each violation of the Statute, the state may be awarded civil
penalties of up to five hundred dollars ($500). Id. Third, and most
significantly, any person who 'knowingly or intentionally' fails to make the
disclosures prescribed in section 23-7-8-6 thereby commits a Class A
infraction, subjecting that person to a possible adverse judgment of up to ten
thousand dollars ($10,000) plus costs. Ind.Code s 23-7-8-8(d).
Scientology also contends that Section 100.06 of the Clearwater ordinance
gives the City Attorney extraordinarily broad *1530 powers to investigate
and prosecute violations of the ordinance, including use of subpoenas to compel
the production of persons or documents, and the institution of legal
proceedings. Section 100.06 reads:
Section 100.06. Power of the City Attorney to Investigate and Prosecute
Prohibited Acts of Charitable Organizations.
1. The City Attorney shall investigate alleged violations of this chapter
only after ten individuals file separate bona fide complaints in writing, sworn
to or affirmed, with the City Attorney, setting forth facts demonstrating that
one or more of the prohibited acts set forth in Section 100.05 have been
engaged in by the charitable organization and that the complaining party has
been injured by each act or acts.
2. The City Attorney, when conducting an investigation pursuant to
subparagraph 1 shall have the power to subpoena any person, require the
production of the records or documents described in Section 100.04 and the
private statement and records or documents described in Section 100.01(3),
and administer oaths.
3. If the investigation conducted under subparagraph 1 demonstrates that
probable cause exists to believe that a violation or violations under
Section 100.05 exist, then the City Attorney shall institute an action to
prosecute such violation or violations.
Clearwater argues that Scientology's objection to the investigatory power of
the City Attorney is frivolous because the City's law enforcement officer
always determines whether to investigate suspected violations of law and how
extensive an investigation should be. Clearwater claims that the ordinance
actually diminishes the City Attorney's power to investigate since the City
Attorney cannot investigate alleged violations of the ordinance unless ten
individuals file separate bona fide complaints setting forth facts showing that
unlawful acts have been committed. The ten complaints must be sworn to or
affirmed. A prosecution can be brought only after an investigation subsequent
to the complaints demonstrates probable cause to believe there were
violations. Subpoenas issued by the City Attorney during an investigation are
not self-executing. The City Attorney must go to court to enforce them.
Therefore, an organization can refuse to obey the subpoena unless ordered to
comply by a neutral and detached court, and in court the organization can put
forth any and all of its statutory and constitutional arguments to attempt to
dissuade the tribunal from enforcing the subpoena.
Clearwater points out that in defining action that constitutes a
violation of the ordinance, the ordinance explicitly states, in almost all
instances that the violative act must be willful or knowing. In the other
instances violations are acts that are inherently willful or knowing (such as
using a scheme or artifice to defraud by means of false representations).
Section 100.05(1)(c).
Clearwater points out that the Supreme Court has held that government " 'has
broad discretion' as to whom to prosecute." Wayte v. United States, 470
U.S. 598, 105 S.Ct. 1524, 1530-31, 84 L.Ed.2d 547 (1985). See also Newman
v. United States, 382 F.2d 479, 480 (D.C.Cir.1967). " '[S]o long as the
prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute ... generally
rests entirely in his discretion.' " Wayte, 105 S.Ct. at 1531 (quoting
Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d
604 (1978)).
Clearwater further alleges that charitable and religious organizations cannot
validly claim that their first amendment rights of speech or religions are a
bar to laws requiring them to keep information and to disclose it to the public
and to government investigators acting pursuant to subpoena. Clearwater
contends that if the first amendment did bar such information and disclosure
requirements, charities and religions would be above the law and would be able
to commit violations with impunity from detection, punishment and deterrence.
Government, as the Supreme Court has said, would, "exist only in name."
Reynolds, 98 U.S. 145.
*1531 The Court finds Clearwater's arguments persuasive. Therefore, the
Court denies summary judgment to Scientology on this issue.
D. WHETHER THE CLEARWATER ORDINANCE VIOLATES FIRST AMENDMENT GUARANTEES
BECAUSE THE DEFINITION OF SOLICITING FUNDS INCLUDES THE SALE OF PRODUCTS UPON
THE REPRESENTATION, EXPRESS OR IMPLIED, THAT THE PROCEEDS WILL BE USED FOR A
CHARITABLE PURPOSE.
[36] Clearwater Ordinance 3479-84 Section 100.01(2) reads:
(2) The term "solicit funds" or "solicitation of funds" shall mean any
request, within the City of Clearwater for the donation of money, property, or
anything of value, or the pledge of a future donation of money, property, or
anything of value; or the selling or offering for sale of any property, real
or person, tangible or intangible, whether of value or not, including, but not
limited to, goods, books, pamphlets, tickets, publications or subscriptions to
publications, or brochures, upon the representation, express or implied, that
the proceeds of such sale will be used for a charitable purpose as such term is
herein defined. Expressly excluded from the meaning of "solicit funds" or
"solicitation of funds" is any offer of membership in any charitable
organization. A solicitation of funds is complete when the solicitation is
communicated to any individual then located within the corporate limits of the
city.
Scientology alleges that under this provision, "a charitable organization,
such as a church, a social club, or a university book store may not sell a
pamphlet, a book, a ticket to a theatrical production, or a magazine without
obtaining a license in the form of a Certificate of Registration."
(Plaintiff's 1988 Support Memorandum, p. 47). Scientology also alleges that
M.A. Galbraith, Clearwater City Attorney, in a deposition, indicated that "the
requirement that a charitable organization register and obtain a certificate
before selling a book or magazine applies whether or not the organization makes
representations as to the use of the proceeds of the sale." (Id.)
Clearwater points out that the plain language of the provision refutes
Scientology's statements. Further, Clearwater contends that Scientology
misrepresents the Galbraith deposition testimony (Galbraith dep., pp. 88-92) as
to the sale of literature.
Clearwater also contends that the provision does not censor content of the
literature and is not a prior restraint. Clearwater also reiterates the
protection built in to the ordinance itself: the ordinance provides an
exemption from the financial reporting requirement if the charitable
organization collected $10,000 or less from no more than twenty people during
the preceding twelve months; the ordinance provides judicial review of any
denial of a Certificate of Registrations; and the ordinance provides that
organizations can continue soliciting until a court denies a Certificate of
Registration.
The Court examined the Galbraith deposition and finds that the deposition
testimony does not support Scientology's claim. (Galbraith dep., pp. 88-92).
The Court also compared the definition of "soliciting funds" in the Clearwater
ordinance with a similar provision in the Houston ordinance. Houston ordinance
Section 37-41 reads:
(a) The term "solicit funds" or "solicitation of funds" shall mean any
request for the donation of money, property, or any thing of value, or the
pledge of a future donation of money, property, or anything of value; or the
selling or offering for sale of any property, real or person, tangible or
intangible whether of value or not, including, but not limited to, goods,
books, pamphlets, tickets, publications, or brochures, upon the representation,
express or implied, that the proceeds of such sale will be used for a
charitable purpose as such term is herein defined. Expressly excluded from the
meaning of "solicit funds" or "solicitation of funds" is any offer of
membership in any organization. A solicitation of funds is complete when the
solicitation *1532 is communicated to any individual located within the
corporate limits of the city.
The Fifth Circuit Court of Appeals found that the Houston ordinance, including
this provision was constitutional. This Court does not find that the
Clearwater provision differs significantly from the Houston provision.
Throughout all its Memoranda, Scientology has relied on the Houston ordinance.
The Court relies on the Houston ordinance in this instance. The Court finds
Scientology's arguments unconvincing and denies summary judgment to Scientology
on this issue. Accordingly, it is
ORDERED that Plaintiff CHURCH OF SCIENTOLOGY FLAG SERVICE ORG. INC.'s motion
for partial summary judgment against Defendants, CITY OF CLEARWATER, et al. on
the issue of standing is granted; it is further
ORDERED that Plaintiff CHURCH OF SCIENTOLOGY FLAG SERVICE ORG. INC.'s motion
for partial summary judgment against Defendants, CITY OF CLEARWATER, et al. on
all issues other than standing is denied. It is further
ORDERED that Defendants, CITY OF CLEARWATER, et al.'s motion for partial
summary judgment against Plaintiff CHURCH OF SCIENTOLOGY FLAG SERVICE ORG. INC.
on the issue of standing is denied;
ORDERED that Defendants, CITY OF CLEARWATER, et al.'s motion for
partial summary judgment against Plaintiff CHURCH OF SCIENTOLOGY FLAG SERVICE
ORG. INC. on all issues other than standing is granted;
ORDERED that all other pending motions before the Court in this case, as
listed above, are denied as moot.
DONE AND ORDERED.
PROLOGUE
In 1984, when this Court ruled that Ordinance 3479-84 was facially
constitutional, the Court was accepting a burden that would save the parties
time and effort by allowing the parties to appeal the Court's ruling
immediately. The Court recognized that it was dealing with the concerns of a
municipality as expressed through its legislative body, and that the concerns
required swift, expeditious attention. This Court's role is merely to
interpret the laws made by the elected representatives of the people, who, in
making the laws, provide contemporary expression of the public's will and
public policy. An immediate appeal in this case provided the vehicle for an
expeditious clarification and resolution of the issues raised by an expression
of the people's will as manifested in a city ordinance.
The Court also deferred to the fundamental precept that a statute, when
possible, should be upheld as constitutional. The Texas cases of
International Society of Krishna Consciousness of Houston, Inc. v. City of
Houston, Texas, 689 F.2d 541 (5th Cir.1982) and Poe v. City of Humble,
Texas, 554 F.Supp. 233 (1983) also influenced the Court's ruling that the
Clearwater ordinance was constitutional. The Houston ordinance was initially
passed in 1969. The ordinance expressed the will of the people regarding
financial disclosure in charitable solicitation situations. It was tested by
the Plaintiff in 1979 and the Fifth Circuit upheld the ordinance and the will
of the people. The ordinance was again upheld when Poe, a member of a
religious society, brought an action challenging the constitutionality of a
religious solicitation ordinance in Humble, Texas. The Federal District Judge
upheld the constitutionality of the ordinance citing Houston. Likewise,
this Court upheld the will of the people in upholding the constitutionality of
the Clearwater ordinance.
Since 1984, several important decisions have supported the Clearwater
citizens' viewpoint. See Employment Division, Department of Human Resources
of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990);
Riley v. National Federation of The Blind of North Carolina, Inc., 487 U.S.
781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988); Hernandez v. Commissioner of
Internal Revenue, 490 U.S. 680, 109 S.Ct. 2136, 2141, 104 L.Ed.2d 766 (1989);
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 723 F.Supp. 1467
(S.D.Fla.1989).
*1533 Chief Justice Rehnquist and Justice O'Connor also support, in their
dissent from the Court's majority opinion in Riley, 487 U.S. 781, 108 S.Ct.
2667, the Clearwater viewpoint that not all solicitation is protected first
amendment conduct. The Chief Justice said, about charitable contribution first
amendment protection:
The Court's opinion in Village of Schaumburg relied on the seminal
cases of Lovell v. Griffin, 303 U.S. 444 [58 S.Ct. 666, 82 L.Ed. 949]
(1938), Schneider v. State, 308 U.S. 147 [60 S.Ct. 146, 84 L.Ed. 155]
(1939), and Martin v. Struthers, 319 U.S. 141 [63 S.Ct. 862, 87 L.Ed. 1313]
(1943), as establishing the right of charitable solicitors under the First
Amendment to be free from burdensome governmental regulation. It is
interesting to compare the activities of the three "solicitors" in those cases
with the activities of professional fundraisers in cases like the present one.
In Lovell, for example, appellant was convicted for distributing a religious
pamphlet and a magazine called the "Golden Age" without a permit. 303 U.S.
at 450 [58 S.Ct. at 668]. In Schneider, the evidence showed that one of the
petitioners was a "Jehovah's Witness" who canvassed house-to-house seeking to
leave behind some literature and to obtain contributions to defray the cost of
printing additional literature for others. 308 U.S. at 158 [60 S.Ct. at
149]. In Martin, the appellant was also a Jehovah's Witness, who went door-
to-door distributing to residents of homes leaflets advertising a religious
meeting. 319 U.S. at 142 [63 S.Ct. at 863].
These activities are a far cry indeed from the activities of professional
solicitors such as those involved in Munson and the present case. In
Munson, the plaintiff, an Indiana corporation, was "a professional for-
profit fundraiser in the business of promoting fundraising events and giving
advise to customers on how those events should be conducted. Its Maryland
customers include[d] various chapters of the Fraternal Order of Police."
467 U.S. at 950 [104 S.Ct. at 2843]. The professional fundraisers in the
present case presumably operate in the same manner. Yet the Court obdurately
refuses to allow the various States which have legislated in this area to
distinguish between the sort of incidental fundraising involved in Lovell,
Schneider, and Martin on the one hand, and the entirely commercial
activities of people whose job is, simply put, figuring out how to raise money
for charities.
The Court has recognized that the commercial aspects of newsgathering and
publishing are different from the editorial function, and has upheld regulation
of the former against claims based on the First Amendment....