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EVANS v. FULLARD

January 19, 1978

STEVEN LAWRENCE EVANS, MARC W.A. LEE and RONALD J. TROYER, Individually and on behalf of the HOLY SPIRIT ASSOCIATION FOR THE UNIFICATION OF WORLD CHRISTIANITY, Plaintiffs
v.
THOMAS J. FULLARD, Mayor; THOMAS HANNA, Police Chief; JOANN WINTERS, City Clerk; and THE CITY OF McKEESPORT, Defendants



The opinion of the court was delivered by: SNYDER

 I.

 Under Ordinance No. 1833, it is unlawful for "any solicitor or canvasser" to engage in business without first obtaining a permit and license. A canvasser or solicitor is defined as "any individual, whether a resident of the City of McKeesport, or not, traveling either by foot, wagon, automobile, motor truck, or any other type of conveyance, from place to place, from house to house, or from street to street, taking or attempting to take orders for sale of goods, wares and merchandise, personal property of any nature whatsoever for future delivery, or for services to be furnished or performed in the future, whether or not such individual has, carries, or exposes for sale a sample of the subject for such sale or whether he is collecting advance payments on such sales or not". The Ordinance requires sworn applications containing detailed information as to, inter alia, the description of goods to be sold. The Police Chief is to make an investigation of the applicant's moral character and his employer's business character "as he deems necessary for the protection of the public good." No license can issue without the Chief's approval and it must show a photograph of the licensee, the class of license issued, the kind of goods to be sold thereunder, and an identifying description of any vehicle to be used in the soliciting or canvassing. There is a license fee of $5 per day, $20 per week, $50 per month, or $100 per year; each helper or assistant has to pay one-half of those fees and procure a permit or license. Every non-resident is required to post a surety bond in the amount of $1,000 as part of the licensing process, conditioned on compliance with the ordinances of the City of McKeesport and the statutes of the Commonwealth of Pennsylvania. A license can be revoked by the Mayor for fraud, misrepresentation, false statements, violations of the ordinance, or conviction of any crime or misdemeanor involving moral turpitude. There is a right of appeal to the City Council from a denial of a permit or license, and the decision and order of the Council is final and conclusive.

 By agreement of counsel, an amended complaint was then filed adding Ordinance No. 1833, which was relied upon by the Defendants in their answer, and Plaintiffs reiterated that the application of the Ordinance to them failed to meet the procedural safeguard respecting licensing contained in Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965), asserting that the Ordinance "attempts to tax by a daily fee the exercise of the plaintiffs freedom of religion and other First Amendment rights and is unconstitutionally vague."

 During the two years prior to our first hearing, representatives of the Unification Church had made numerous unsuccessful attempts to register with the police for the purpose of collecting donations in the City of McKeesport. In mid-August of 1976, when Church representatives were pressing Police Chief Hanna for permission, he responded with derogatory comments directed at the founder of the Unification Church and refused them a permit.

 On September 7, 1976, seven Church members planned a campaign of solicitation of funds in the business area of McKeesport and by early afternoon police officers had arrested all seven of them, although some were still in the travelling van; only Ronald Troyer and Susan Palencia had begun soliciting at that time. On September 15, 1976, the charges were dismissed against the five non-solicitors but were upheld against Troyer and Palencia. The Church was then in the midst of preparations for a mass religious rally scheduled to be held in Washington, D.C. on September 18, 1977. The fines in the McKeesport matter were paid and no appeal was taken.

 On March 10, 1977, Ronald Troyer contacted the McKeesport City Solicitor in order to obtain a permit and was referred to Police Chief Hanna who stated he would not grant the permit, and indicated he would have to be taken to court in order to force a change in his position. After further meeting, Chief Hanna did change his position somewhat to grant permission for solicitation in the business center of McKeesport, but stated that no door-to-door solicitation would be allowed in residential areas. It is the contention of the Plaintiffs however that the "very nature of an educational/witnessing campaign necessitates meeting residents in their own homes. Members of my church have refrained from the residential visitations for fear of arrest and prosecution and also for jeopardizing an already unstable permit."

 II.

 At first acquaintance with this action, it appeared to the Court that it would be required to interpret and apply the First Amendment's forbidding of any law respecting the establishment of a religion or prohibiting the free exercise thereof. *fn1" This prohibition applies not only to Congress but also to the states through the Fourteenth Amendment. Abington School District v. Schempp, 374 U.S. 203, 215-216, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963) and cases cited therein. Schempp held that a state may not require reading from the Bible and recitation of The Lord's Prayer in public schools. In this context, courts are sometimes required to define just what the word "religion" means. We recall that courts have construed "religion" to mean "one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will", Davis v. Beason, 133 U.S. 333, 342, 10 S. Ct. 299, 33 L. Ed. 637 (1890), quoted so frequently with approval. Also instructive is the statement by Mr. Chief Justice Hughes in his dissent in United States v. Macintosh, 283 U.S. 605, 633-634, 51 S. Ct. 570, 75 L. Ed. 1302 (1931) (with Justices Holmes, Stone and Brandeis concurring):

 
"The essence of religion is belief in a relation to God involving duties superior to those arising from any human relations. . . . one cannot speak of religious liberty, with proper appreciation of its essential and historic significance, without assuming the existence of a belief and supreme allegiance to the will of God."

 In recent years, however, the Supreme Court has tended to define religion in broader terms, rather than with reference only to traditional, theistic understandings of that term. See: Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970); United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965).

 Much testimony was offered by the Plaintiffs on the reliance placed by the Church members on the Old and New Testaments, as interpreted in "Divine Principle" by Dr. Sun Myung Moon covering such subjects as the Principles of Creation, the Fall of Man, the Advent of the Messiah, the Resurrection, the Preparation for the Second Advent. We heard of the importance of home solicitation in the furtherance of this World Movement.

 There was testimony that some of the solicitors had been readily accepted in the City of McKeesport and that after the Temporary Restraining Order had been granted, no complaints were made to City officials on the activities of the Church members. There was, however, no testimony offered to support any contention that members of the Church were, in fact, involved in the sale of personal property. Nor did the City Solicitor, at this point, contend that Ordinance No. 1833 could be properly applied to the actions of the Plaintiffs in this case, although no offer was made to permit the requested solicitation. It is clear, therefore, that application of this ordinance to Plaintiffs' activities would deprive them of due process, and the injunction as applied for by the Plaintiffs must, under the evidence developed in the case, issue.

 We do not intend that the injunction we are here issuing shall in any way indicate that, although beliefs with respect to religion are free from restraint, actions are not subject to control. See Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969); Murdock v. Pennsylvania, 319 U.S. 105, 63 S. Ct. 870, 87 L. Ed. 1292 (1943); Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). Also see, the excellent opinion of Judge Hubert Teitelbaum of this Court in Intern. Soc. for Krishna Consciousness of W. Penna., Inc. v. Griffin, 437 F. Supp. 666 (1977).

 A statute or ordinance which operates as a prior restraint on the exercise of First Amendment freedoms must have narrow, objective and definite standards to guide the licensing authority. Cantwell, supra; Shuttlesworth, supra. In this case, we do not meet the freedom of religion issue since the ordinance attacked does not apply and cannot be construed to apply to the distribution of religious tracts or the solicitation of donations within the City. *fn3"

 We find there is a justiciable controversy and that the Plaintiffs are suffering irreparable injury, and are threatened with irreparable harm in the future, by reason of the acts complained of which are causing a substantial loss or impairment of freedom of movement and which will continue to occur so long as the Defendants' conduct continues. The Plaintiffs have no plain, adequate or complete remedy at law to redress the wrongs complained of and injunction alone will give them substantial relief and prevent further irreparable injury, damage and inconvenience. This Court's jurisdiction for declaratory and injunctive relief is clearly proper under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-2.

 The following shall constitute the findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52, and an appropriate order shall be entered.

 Exhibit "A"

 City Council of the City of McKeesport

 PENNSYLVANIA

 FORTY-EIGHTH ...


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