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STREICH v. PENNSYLVANIA COMMN. ON CHARITABLE ORGS.

October 21, 1981

Francine STREICH, et al., Plaintiffs,
v.
PENNSYLVANIA COMMISSION ON CHARITABLE ORGANIZATIONS, et al., Defendants



The opinion of the court was delivered by: HERMAN

MEMORANDUM

I. Introduction

 This memorandum constitutes the findings of fact and conclusions of law in support of our Order of October 2, 1981 denying Plaintiffs' motion for preliminary injunction. Plaintiffs in this action, two non-profit corporations and three individuals, seek to enjoin the Pennsylvania Commission on Charitable Organizations (hereinafter referred to as "the Commission") and the Attorney General of the Commonwealth of Pennsylvania from enforcing the Solicitation of Charitable Funds Act, 10 P.S. §§ 160-1 to 16, (hereinafter referred to as "the Act") against Plaintiffs, their agents, others similarly situated, and the public in general. They request both preliminary and permanent relief *fn1" as well as compensatory damages. The action is brought pursuant to 42 U.S.C. §§ 1983 & 1988, and the First and Fourteenth Amendments to the United States Constitution. Plaintiffs allege that the Act suffers from no less than eight constitutional defects.

 The availability of preliminary injunctive relief is dependent upon a consideration of four factors. The burden rests on the moving party to demonstrate (1) a reasonable probability of eventual success on the merits and (2) that they will be irreparably injured pendente lite if relief is not granted. In addition, the court should take into account (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest. Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811, 814-15 (3d Cir. 1978).

 Because we agree with the Defendants that substantial issues relating to the doctrines of abstention, ripeness and standing are present, we find that the Plaintiffs have not carried their burden of showing a reasonable likelihood of success on the merits. Preliminary relief is not appropriate in this instance, when it appears questionable whether or not the case will proceed to the merits of the claims.

 II. The Organizational Plaintiffs

 The organizational plaintiffs in this action, the Pennsylvania Institute for Community Affairs (hereinafter "PICA") and the Association of Community Organizations for Reform Now (hereinafter "ACORN"), allege that they wish to solicit money from the citizens of Pennsylvania without registering as charitable organizations in compliance with the provisions of the Act. They contend that the Act unconstitutionally infringes upon their rights to engage in charitable solicitation, a protected First Amendment activity.

 A. Plaintiff ACORN

 Plaintiff ACORN previously conducted canvassing and solicitation campaigns in Pennsylvania until it was designated as a "charitable organization" and required to register with the Pennsylvania Commission on Charitable Organizations. ACORN disputes that designation and has appealed the Commission's decision to the Pennsylvania Commonwealth Court.

 While acknowledging that charitable solicitation falls within the ambit of the First Amendment's protection, see Village of Schaumburg v. Citizens For a Better Environment, 444 U.S. 620, 628-632, 100 S. Ct. 826, 831-834, 63 L. Ed. 2d 73 (1980), and that any prior restraint on its exercise bears a heavy presumption against its constitutional validity, see, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59, 95 S. Ct. 1239, 1246, 43 L. Ed. 2d 448 (1975); Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51, 89 S. Ct. 935, 938, 22 L. Ed. 2d 162 (1969); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S. Ct. 631, 639, 9 L. Ed. 2d 584 (1963), we are not persuaded that it would be proper for us to exercise our jurisdiction over the challenges brought by Plaintiff ACORN. The abstention doctrine, as propounded in the line of cases following Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), contemplates that deference will be given to state court adjudication when the following "special circumstances" are present: First, the underlying issue of state law is uncertain; second, the statute at issue is fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question; and last, abstention may be required to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 306, 99 S. Ct. 2301, 2313, 60 L. Ed. 2d 895 (1979); D'Iorio v. County of Delaware, 592 F.2d 681, 685-86 (3d Cir. 1978). Although the courts have generally considered abstention inappropriate in First Amendment cases, See, e.g. Zwickler v. Koota, 389 U.S. 241, 252, 88 S. Ct. 391, 397, 19 L. Ed. 2d 444 (1967); Baggett v. Bullitt, 377 U.S. 360, 379, 84 S. Ct. 1316, 1326, 12 L. Ed. 2d 377 (1964); Citizens For a Better Environment v. Nassau County, 488 F.2d 1353, 1362 (2d Cir. 1973), the Babbitt case, 442 U.S. 289, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979) demonstrates that the Pullman doctrine may be invoked in a First Amendment context. In Babbitt, the Supreme Court directed abstention in an action attacking the constitutionality of an Arizona statute limiting union publicity. Id. Although we do not definitively decide the question, we believe that the Pullman abstention doctrine is implicated in this case. The Commonwealth Court may construe the Act so as to alleviate the alleged constitutional defects, or may vindicate ACORN's claim that the provisions of the Act do not apply to its activities. Certainly, such a result would present the case to us in a substantially different posture, or perhaps obviate altogether the need for a decision on the constitutional grounds. Christy v. Hammel, 87 F.R.D. 381, 384 (M.D.Pa.1980). Liberty Curtin Concerned Parents v. Keystone Central School District, 81 F.R.D. 590, 597-598 (M.D.Pa.1978).

 Furthermore, the abstention considerations advanced in the cases following Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) also merit attention here. Younger and its progeny established the principle that the federal courts should hesitate to interfere with an ongoing enforcement action brought by the state in its sovereign capacity *fn2" when the state court could hear and resolve his federal claims in the same proceeding. Trainor v. Hernandez, 431 U.S. 434, 440 & 444, 97 S. Ct. 1911, 1916 & 1918, 52 L. Ed. 2d 486 (1977). The Younger abstention doctrine has been extended to civil litigation in limited circumstances only and the extent to which it applies in the civil context is still somewhat uncertain. See Johnson v. Kelly, 583 F.2d 1242 (3d Cir. 1978). Nevertheless, we echo the concerns voiced by Justice Rehnquist in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975), a civil proceeding under Ohio's public nuisance statute.

 
(Interference) with a state judicial proceeding prevents the state not only from effectuating its substantive policies, but also from continuing to perform the separate function of providing a forum competent to vindicate any constitutional objections interposed against those policies. Such interference results in duplicative legal proceedings, and can readily be interpreted as reflecting negatively upon the State court's ability to enforce constitutional principles.

 Id. at 604, 95 S. Ct. at 1208.


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