Opinion
Case No. 01-1226-JTM
July 16, 2001
MEMORANDUM AND ORDER
This matter comes before the court on plaintiffs' motion for a temporary restraining order seeking to enjoin defendants from enforcing their Parade Ordinance, Chapter 3.13 ("Parade Ordinance") and Municipal Order dated June 8, 2001 ("Municipal Order") and plaintiffs' motion for waiver of posting a security bond in obtaining a temporary restraining order. Plaintiffs bring this action asserting violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution and under federal law, particularly 42 U.S.C. § 1983, and §§ 1, 2, 3, 7, 9, and 11 of the Kansas Bill of Rights. The court held a hearing in this matter on July 16, 2001 and is prepared to rule. For the reasons set forth below, the court grants in part and denies in part plaintiffs' motion for a temporary restraining order and grants plaintiffs' motion for waiver of security bond.
I. Factual Background
Plaintiff Donna Lippoldt is a resident of Sedgwick County, Kansas; plaintiff Operation Save America is an unincorporated association; and plaintiff Philip Benham is a resident of Dallas County, Texas, serving as director of Operation Save America. Defendants Deputy Chief Steven Cole and Beth Harlenske are employees and agents of defendant City of Wichita, Kansas. Plaintiffs indicate that they seek to engage in speech activities related to the nature of abortion and abortion alternatives directed at those seeking to have or perform abortions and to those persons escorting others to have abortions as well as the general public. Plaintiffs' desire is to convey their speech from public sidewalks and right-of-ways in Wichita, Kansas (the "City") through parade activities. On July 6, 2001, plaintiffs submitted parade permit applications to the City for planned parades beginning on July 17, 2001 with the last parade on July 21, 2001. Plaintiffs submitted the applications more than ten days prior to the first scheduled event on forms provided by the City and accompanied by the required fees as set forth in Ordinance Section 3.13.04. Plaintiffs assert that the applications complied with all requirements of Section 3.13 and that the applications fully met the standards for issuance set forth in Section 3.13.05. Plaintiffs further contend that none of the explicit exceptions established by Section 3.13.05 of the Ordinance apply to the parade applications in question. To date, defendants have not granted plaintiffs' parade permit applications. Plaintiffs thus conclude that either the City has an unwritten policy containing grounds for exclusion beyond those listed in the Parade Ordinance or the City officials have exercised discretion to deny plaintiffs' requested permits on grounds beyond the Ordinance.
The City's Parade Ordinance, Chapter 3.13, states:
Section 3.13.030 Application.
A person seeking the issuance of a parade permit shall file an application with the city treasurer's office on forms provided by the city treasurer.
(1) Filing. An application for a parade permit shall be filed with the city treasurer not less than ten days before the date on which it is proposed to conduct the parade and no parade permit shall be issued for any date prior to ten days after the application is filed. The application shall be signed by the applicant.
(2) Contents. The application for a parade permit shall set forth the following information:
(a) The name, address and telephone number of the person seeking to conduct such parade;
(b) If the parade is proposed to be conducted for, on behalf of, or by an organization, the name, address and telephone number of the headquarters of the organization and the name, address and telephone number of the local authorized representative of such organization responsible for the conduct of the parade;
(c) The name, address and telephone number of the person who will be the parade chairman and who will be responsible for its conduct;
(d) The date when the parade is to be conducted;
(e) The route to be traveled, the starting point and termination point;
(f) The approximate number of persons, animals and vehicles which will constitute such parade, together with the specific classification of such animals and specific description of such vehicles;
(g) The hours when such parade will start and terminate;
(h) The location of any assembly areas of such parade and the time in which units of the parade will begin to assemble at any such assembly area or areas;
(i) The purpose of the parade. (Ord. No. 38-112 §§ 3)
Section 3.13.040 Application fee.
A fee of fifteen dollars to cover the expenses incident to processing shall be paid by the person applying for the permit at the time of the filing of the application. (Ord. No. 38-112 §§ 4) Section 3.13.050 Standards for issuance.
Upon receipt of a properly completed application form and upon payment of the fee as above provided, the city treasurer shall issue a permit as provided for hereunder. Provided, however, that no parade permit shall be issued for the following or under the following conditions:
(1) When the parade is to be held for the sole purpose of advertising any product, goods or event designed for profit. Provided, however, that this prohibition shall not apply to signs identifying organizations or sponsors furnishing or sponsoring floats or transportation for any given parade;
(2) For parades to be conducted between the hours of seven a.m. and eight-thirty a.m. and four p.m. and five-thirty p.m. except on Saturdays, Sundays and legal holidays;
(3) For parades to be held on any portion of highways U.S. 54, I-235 and I-135;
(4) When the designated route for the parade would include more than two of the following streets between Central Avenue and Lewis Street: Washington Street, St. Francis Street, Emporia Street, Topeka Street, Broadway Avenue, Main Street, Market Street or Waco Street;
(5) When the designated route for the parade would include more than two of the following streets between Washington Street and the Arkansas River: Central Avenue, 2nd Street, 1st Street, Douglas Avenue, William Street, Maple Street and Waterman Street;
(6) When the designated route for the parade would require the closing of more than one of the following bridges to normal vehicular traffic: 2nd Street Bridge at 2nd Street and McLean Boulevard, the Maple Street Bridge at McLean Boulevard and Maple Street or the Douglas Avenue Bridge at 300 West Douglas. (Ord. No. 38-112 §§ 5)
Section 3.13.060 Notice to other city officials. Immediately upon the issuance of a parade permit, the city treasurer shall send a copy thereof to the following:
(1) The city manager;
(2) The chief of police;
(3) The fire chief;
(4) The director of the metropolitan transit authority;
(5) The director of emergency communications;
(6) The director of operations and maintenance;
(7) The director of engineering;
(8) The director of parks (when proposed route cuts through or is adjacent to a park.) (Ord. No. 38-112 §§ 7)
Plaintiffs assert that the Parade Ordinance is unconstitutional on its face, or as applied to the instant applications, in that it violates plaintiffs' right to free speech and assembly. Defendants' Municipal Court Order dated June 8, 2001 states that bond requirements for certain offenses at or near specified locations in Wichita, Kansas, will be increased for the dates of July 13, 2001 through July 22, 2001. Specifically, the Order states:
A resident of Sedgwick County who gives a verifiable name and permanent address will be released on a $2,000.00 cash bond. A condition of release shall be that the individual violate no laws. A person who refuses to give his/her name and address to law enforcement officers or who resides out of the county will be required to post a $3,000 cash bond. A condition of release shall be that the individual violate no laws.
Municipal Order, at 2. The Municipal Order sets cash bonds for subsequent arrests at $4,000 for Sedgwick County residents and $5,000 for an out of county arrestee. Plaintiffs assert that the Municipal Order's unequal bond requirement is unconstitutional on its face as it violates the privileges and immunities clause of the United States Constitution.
II. Standards for Temporary Restraining Order
A temporary restraining order is an emergency remedy which may only issue in exceptional circumstances and only until the court can hear arguments or evidence on the subject matter of the controversy. It "is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 117 S.Ct. 1865, 1867 (1997).
In order to obtain a temporary restraining order or a preliminary injunction, the plaintiff must establish: (1) that he will suffer an irreparable injury absent an injunction; (2) that the threatened injury outweighs the harm an injunction may cause the opposing party; (3) that an injunction would not be adverse to the public interest; and (4) that he is substantially likely to prevail on the merits. State of Utah v. Babbitt, 137 F.3d 1193, 1200 n. 7 (10th Cir. 1998). If the
III. Analysis and Discussion
Plaintiffs have satisfied the first three requirements to the court's satisfaction. First, the irreparable harm that plaintiffs would suffer in the absence of injunctive relief is unquestionable. The Supreme Court states, "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690(1976). Similarly, because plaintiffs' fundamental free speech rights are at issue, it is clear that the threatened injury to those rights, i.e., the inability to legally engage in speech activities, outweighs whatever speculative damage the proposed injunction may cause defendants. Finally, the public interest must always lie with preservation of First Amendment rights. See e.g., Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 578 F.2d 1122, 1127 (5th Cir. 1978); Erskine v. West Palm Beach, 473 F. Supp. 48, 51 (S.D. Fla. 1979); Kelly v. U.S. Postal Service, 492 F. Supp. 121, 131 (S.D.Ohio 1980). The remaining question is whether plaintiffs are likely to prevail on the merits of their claims.
The court's discussion of the first three requirements applies to plaintiffs' claims relating to the Parade Ordinance. The court need not discuss the first three factors relative to plaintiffs' claims relating to the Municipal Order because the court finds that plaintiffs are not likely to succeed on the merits of that claim as set forth below.
Because the court must presume that plaintiffs will exercise their free speech rights in a lawful manner, it cannot conceive of a cognizable injury to defendants from the requested relief.
A. Constitutionality of the City's Parade Ordinance
The City Ordinance, by requiring a permit and fee before authorizing a parade in what is unquestionably a traditional public forum, is a prior restraint on speech. See Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151, 89 S.Ct. 935, 938-939 (1969). Prior restraints must overcome a "heavy presumption" of invalidity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). Nonetheless, the City, within certain constitutional requirements, may impose a permit requirement on those wishing to hold a parade. See Cox v. New Hampshire, 312 U.S. 569, 574-576, 61 S.Ct. 762, 765-766 (1941).
One of the benchmark requirements for a constitutional application of a "time, place, and manner" prior restraint is that the licensing scheme cannot delegate overly broad discretion to a government official. An ordinance that allows discretionary application is "inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view." Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649, 101 S.Ct. 2559, 2565, (1981). In order to limit the potential for official censorship, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license" must contain "narrow, objective, and definite standards to guide the licensing authority." Shuttlesworth, 394 U.S., at 150-151, 89 S.Ct., at 938.
Under these stringent standards, the Parade Ordinance is constitutional on its face. Under Section 3.13.05, the Ordinance states, "[u]pon receipt of a properly completed application form and upon payment of the fee as above provided, the city treasurer shall issue a permit as provided for hereunder. Provided, however, that no parade permit shall be issued for the following or under the following conditions:" Parade Ordinance, Section 3.13.05. The section then goes on to list parades held for the sole purpose of advertising a product and other limitations that fall squarely in the category of specifically listed time restrictions, place restrictions, and manner restrictions. Unless one of the specific exceptions are met, the Ordinance mandates that the licensing official "shall issue a permit." In short, the licensing official in this case, has no discretion whatsoever under the express terms of section 3.13.05. On its face, the Parade Ordinance's "Standards for Issuance" are clear and non-discretionary and thus constitutional. Given that plaintiffs' applications did not fall within any of the express exceptions to issuance, defendants have gone beyond the face of the Ordinance in refusing to grant plaintiffs' permit. Thus, even though the Ordinance is facially valid, the court must determine whether it is being unconstitutionally applied. If defendants select criteria for denial of an application beyond the specific exceptions listed in the Ordinance, they are exercising essentially unfettered discretion. In the present circumstance, defendants assert that plaintiffs' proposed parade routes will restrict access to an abortion clinic in violation of federal law. While this may be a valid concern, the court cannot allow defendants to utilize a prior restraint on speech as a means of enforcing a law that is entirely unrelated to legitimate municipal regulation of the public streets and sidewalks. Defendants' denial of the parade licenses for reasons outside the limiting terms of the Parade Ordinance is an unconstitutional exercise of discretion. A desire to avoid a potential violation of federal law is simply not a "narrow, objective, and definite standard to guide the licensing authority" as required for a constitutional prior restraint. The court thus finds that plaintiffs are likely to prevail on the merits of their claim that defendants' Parade Ordinance is unconstitutional as applied in this case. As such, plaintiffs' request for a temporary restraining order regarding enforcement of the defendants' Parade Ordinance is granted.
However, plaintiffs shall be subject to the following restrictions. First, plaintiffs will be allowed to parade one hour in the morning and one hour in the afternoon during the dates July 17-21, 2001. The parties shall meet in an effort to determine the times those parades will take place on each date. If the parties are unable to agree, the court will schedule the parades on its own. Second, plaintiffs will be able to parade from Kellogg Drive south on Bleckley Drive to Orme but will only occupy the western-most lane of traffic, leaving the east lane of traffic open. These restrictions should provide plaintiffs with adequate opportunity to exercise their First Amendment rights, while recognizing the city's interest in protecting the safety of the parade participants as well as upholding the Freedom of Access to Clinic Entrances Act (FACE).
B. Constitutionality of Municipal Order
Plaintiffs allege that the Municipal Order is unconstitutional in that it sets a higher cash bond rate for non-Sedgwick County residents than in-county residents. The court has serious reservations about plaintiffs' standing to raise this issue prior to an arrest, but finds that the Municipal Order does not violate the Privileges and Immunities Clause in any event. First, the court notes that Kansas residents who do not live in Sedgwick County are treated in the same way as residents of other states. Additionally, the increased amount of the cash bond is not inconsistent with the policies underlying the Clause, which establishes a "norm of comity" ensuring equal treatment by preventing states from imposing unreasonable burdens on citizens of other states. Austin v. New Hampshire, 420 U.S. 656, 660, 95 S.Ct. 1191, 1194 (1975); Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371, 383, 98 S.Ct. 1852, 1860 (1978). The Privileges and Immunities Clause protects only "those privileges and immunities bearing upon the vitality of the Nation as a single entity." Baldwin, 436 U.S. at 383, 98 S.Ct. at 1860. Nothing in the bond policy impedes interstate commerce, frustrates the exercise of federal power, or interferes with a nonresident's right to pursue a livelihood in Kansas. Id. The Municipal Order thus passes Privileges and Immunity scrutiny.
Nor does the order run afoul of the Kansas Bill of Rights or the Equal Protection Clause's prohibition on excessive bail. Constitutional prohibitions against excessive bail are integral to a concept of ordered liberty and are binding upon the states under the Fourteenth Amendment. Meechaicum v. Fountain, 696 F.2d 790, 791 (10th Cir. 1983) Bail is excessive when set at an amount higher than necessary to ensure appearance at trial. Id. The validity of restrictions upon bail turns on whether the restrictions are "rational, reasonable, and nondiscriminatory." Id. at 792. The bifurcated bond amounts clearly reflect the reasonable concern that non-residents are less likely to appear in subsequent legal proceedings than residents. The bond requirement rationally and reasonably furthers the purpose of ensuring that non-residents pay their fines or appear at trial. The policy thus does not constitute invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Additionally, the bond requirement in this case is reasonably required to secure the presence at trial of both residents and non-residents of Sedgwick County. The court thus concludes that the bond requirement is reasonable and not excessive. Having found no constitutional infirmity with the Municipal Order, the court denies plaintiffs' request for injunctive relief pertaining thereto.
C. Plaintiffs' Motion for Waiver of Posting of Security Bond
The plaintiffs have asked the court to exercise its discretion by not requiring an injunction bond in this case. Fed.R.Civ.P. 65(c) states that the court must order the plaintiff to give security, in such sum as the court deems proper, for the payment of costs and damages which are incurred or suffered by any party who is found to have been wrongfully enjoined. However, the Tenth Circuit instructs that the court has the discretion not to order an injunction bond if "there is an absence of proof showing a likelihood of harm." Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461 (10th Cir. 1987). Given the extent of the restraining order contemplated herein, there is no likelihood of monetary damages to defendants. The court thus finds that waiver of the injunction bond is appropriate in this case.
IT IS THEREFORE ORDERED this ___ day of July, 2001 that plaintiffs' motion for a temporary restraining order is granted in part and denied in part as follows: Defendants will grant the plaintiffs' parade permits filed on July 6, 2001, subject to the restrictions set forth above. Defendants may fully enforce their Municipal Order dated June 8, 2001. Additionally, plaintiffs' motion for waiver of security bond is granted.
movant has satisfied the first three requirements, he may establish the "likelihood of success" requirement by showing there are questions going to the merits so serious or doubtful as to make the issues ripe for litigation and deserving of more deliberate investigation. Walmer v. U.S. Dept. of Defense, 52 F.3d 851, 854 (10th Cir. 1995).