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STREICH v. PENNSYLVANIA COMMN. ON CHARITABLE ORGS.

January 31, 1984

FRANCINE STREICH, PENNSYLVANIA INSTITUTE FOR COMMUNITY AFFAIRS, JON KEST, ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, Plaintiffs
v.
PENNSYLVANIA COMMISSION ON CHARITABLE ORGANIZATIONS, LEROY ZIMMERMAN, Attorney General of the Commonwealth of Pennsylvania, WILLIAM DAVIS, PATRICIA CRAWFORD, ARTHUR McDERMOTT, JONATHAN VIPOND, JAMES FARLEY, RONALD PETRICK, JOHN DALSIMER and JAMES MAXEY, III, Defendants


R. DIXON HERMAN, District Judge


The opinion of the court was delivered by: HERMAN

HERMAN, District Judge

 I. BACKGROUND

 This case was initiated by the filing of a Complaint on September 8, 1981. The Plaintiffs alleged, essentially, that the Pennsylvania Solicitation of Charitable Funds Act, 10 P.S. §§ 160-1 et seq., (hereafter "the Act") is unconstitutional. A request for a preliminary injunction was denied on October 21, 1981. 523 F. Supp. 1377. The action was subsequently, stayed pending the Pennsylvania Supreme Court's decision in COMMONWEALTH OF PENNSYLVANIA v. ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, 502 Pa. 1, 463 A.2d 406 (1983). That decision recognized that the Association of Community Organizations for Reform Now (hereafter "ACORN") is a charity subject to the provisions of the Act. Plaintiffs have since renewed their motion for summary judgment. The motion is now before the court.

 The Act in question is intended "not only to require proper registration of charitable organizations, professional fundraisers and professional solicitors but also to regulate the soliciting of money and property by or on behalf of charitable organizations, professional fund-raisers, professional solicitors and to require proper accounting for the use and distribution of said funds." 10 P.S. § 160-1.1. It is enforced by a seven-person Commission on Charitable Organizations (hereafter "Commission") which has the authority to promulgate rules and regulations consistent with the provisions of the Act. 10 P.S. § 160-5. The Act applies to all charitable organizations which intend to solicit contributions within the Commonwealth. 10 P.S. § 160-3. Such charities must, annually, file a registration form setting forth certain required information. Additionally, a registration fee of $10, $25, or $100 is required. 10 P.S. § 160-3(d).

 The Commission possesses discretionary authority in several instances. It may require that an audit be submitted by the charity. Investigations of applicants may be conducted if the Commission deems it necessary. The Commission may, upon a showing of special facts or circumstances, waive the provisions of § 160-5(a) which limits the amount a charity may pay to a professional solicitor to 15% of the contributions received. 10 P.S. § 160-6(a.1). The Commission also has considerable enforcement discretion.

 Violations of the Act may result in revocation or denial of a charity's registration. Additionally, criminal sanctions may be imposed for willful violations of the Act. 10 P.S. § 160-14.

 II. DISCUSSION

 Plaintiffs, initially, point out that the solicitation activities at issue are clearly protected by the First Amendment. We agree. The Supreme Court, in SCHAUMBURG v. CITIZENS FOR A BETTER ENVIRONMENT, 444 U.S. 620, 633, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980), held that charitable solicitations in residential neighborhoods are clearly within the protections of the First Amendment. Statutes regulating such speech must be narrowly drawn, and may not invest undue discrimination in enforcement officials. GRAYNED v. ROCKFORD, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). Nevertheless the Supreme Court has also:

 
. . . consistently recognized a municipality's power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interest without running afoul of the First Amendment.

 HYNES v. MAYOR OF ORADELL, 425 U.S. 610, 616-617, 48 L. Ed. 2d 243, 96 S. Ct. 1755 (1976). The reasoning of the Court would clearly apply to laws enacted by states to also serve the interests recognized in HYNES. These basic principles, then, form the background for the Plaintiffs' specific challenges to the Act. Each of the Plaintiffs' arguments will now be addressed.

 First, Plaintiffs allege that 10 P.S. § 160-3(f)(6), allowing disapproval of an application if the "activities to be financed will be incompatible with the health, safety or welfare of the citizens of the Commonwealth of Pennsylvania," is unconstitutionally vague and an undue delegation of discretion. They cite, primarily, SHUTTLESWORTH v. BIRMINGHAM, 394 U.S. 147, 22 L. Ed. 2d 162, 89 S. Ct. 935 (1969) to support their position. In SHUTTLESWORTH, the Supreme Court determined that a local parade ordinance which allowed a commission to deny a parade permit if "in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused," served to confer virtually unbridled and absolute power upon the commission to determine who was allowed to march. Here, the statutory language of 10 P.S. § 160-3(f)(6) grants similar authority to the Pennsylvania Commission.

 No ordinance or statute may grant unbridled discretion to an individual or group to determine limitations on freedom of speech. Rather, a "law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." SHUTTLESWORTH, at 150-151. This is necessary since such licensing involves a prior restraint of speech. While we accept the state's proposition that a prior restraint of organizations which desire to solicit funds from the citizens of a state may be justified by a substantial state interest in protecting its citizens from unscrupulous charities and soliciting, *fn1" we also recognize the need for narrow and clear standards of enforcement. Here, the phrase "incompatible with the health, safety or welfare of the citizens of the Commonwealth" is extremely broad and open to considerable interpretation and discretionary application. We believe that the language in question is sufficiently indefinite that persons of reasonable intelligence "must necessarily guess at its meaning," BROADRICK v. OKLAHOMA, 413 U.S. 601, 607, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973), and that the discretionary power conferred on the Commission is overly broad and unrestrained. Supporting this conclusion are cases ruling that similar guidelines are unconstitutionally vague. See SOUTHEASTERN PROMOTIONS v. CONRAD, 420 U.S. 546, 43 L. Ed. 2d 448, 95 S. Ct. 1239 ...


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