Petition — Schaumburg v. Citizens for a Better Environment
Supreme Court brief1980
Ask Donna
What actually matters in this document.
Text
Suprome Coart, 0. $. |
FILED
FEB 28 1979
IN THE
Supreme Court of the Cnited States
OCTOBER TERM, 1978
No. 78-1335
CITIZENS FOR A BETTER ENVIRONMENT, AN ILLINOIS
NON-FOR-PROFIT CORPORATION, ET AL.,
Respondents,
vs.
VILLAGE OF SCHAUMBURG,
Petitioners.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT.
JACK M. SIEGEL,
39 South LaSalle Street, |
Chicago, Illinois 60603,
312-263-2968,
Attorney for Petitioners, Village
of Schaumburg.
Gunthorp-Warren Printing Company, Chicago @ Financial 6-6565
4
ae
PAGE
RE So lata realy heals bi Wa wwe wae ve be -de.s 1
a ee a NaF bh Ud oie C8 b's vb dese 2
Questions Presented for Review ...................- 2
I MD ewe See eh ep et eae tenes 3
Reasons Relied on for Allowance of the Writ........... 6
I. The Plaintiffs Were Not Entitled to a Summary
ee SSC eee 6a RE ae ere ae 8
II. Section 20(g) of Chapter 22 of the Schaumburg
Village Code Is Not Unconstitutional on Its Face
ie MI CAREW as a iid gg oes SAS ie.9 oO ames 4 15
Ill. A Municipality Has the Right to Prohibit Purported
Charitable Solicitations When the Soliciting Organi-
zation Fails to Demonstrate That at Least 75 Per
Cent of Its Receipts Are Utilized for Charitable
I aU Ns are ia in Spa 4 wipe y S66 bob e's oi 26
RENT SEGUE UR > ye te a ana Oe IP 30
Appendix A:
Seventh Circuit Opinion of Decmber 1, 1978....... Al
Appendix B:
U. S. District Court Opinion of February 17, 1978.. A13
Appendix C:
ar a Al7
li
TABLE OF AUTHORITIES.
Cases.
Adickes v. Kress & Co., 398 U. S. 144, 26 L. Ed. 2d 142
CUPRA ae 9:2 PRS pisces nla rpc d ase hehe EES 10
Associated Press v. United States of America, 326 U. S. 1,
S9 L.. Bd. 2013; GS Bat. TER CIS): oe. ek 9
Breard v. Alexandria, 341 U. S. 622, 95 L. Ed. 1233... .6, 19
Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84
L. Ed. 155 (1939) (distinguished) ............... 24
Grayned v. City of Rockford, 408 U. S. 104, 33 L. Ed. 2d
Dae CME CER Saat A AN alld on ate haben GES 21, 28
Green River v. Bunger, 50 Wyo. 52, 58, P. 2d 456...... 20
Hall v. Commonwealth, 188 Va. 72, 335 U. S.875...... 20
Hynes v. Mayor of Oradell, 425 U. S. 610, 96 S. Ct. 1756,
482, L.-Eds 2d 243 (1976)... 20 Sk. 5, 6, 15, 16. 17, 25
Lloyd Corp. v. Tanner, 407 U. S. 551, 33 L. Ed. 2d 131.. 20
Martin v. Struthers, 319 U. S. 141, 63 S. Ct. 862, 87 L. Ed.
1313: (1943) Cdintinguithed): <6. fo ies eae ee 24
National Foundation v. City of Fort Worth, 415 F. 2d 41
(Sth Cir. 1969), cert. denied, 396 U. S. 1040 (1970)
EEN Na SME eRe atD Rata Decoy GAM ost t a aUhey 5, 6, 21, 23, 29, 30
Poller v. Columbia Broadcasting System, 368 U. S. 464,
Fd Ts: BE GRR. GO i BNL IAs Rie eee ees 11
Sartor v. Arkansas Nat. Gas Corp., 321 U. S. 620, 627, 88
bees SOF tie Oth eh bees cee ees 9
Schneider v. State, 308 U. S. 147, 60 S. Ct. 146, 84 L. Ed.
ESD CAGIP) CONES os. 6 Sa be Le oe 24
Thomas v. Collins, 323 U. S. 516, 65 S. Ct. 315, 323, 89
L. Ed. 440 (1945) (distinguished) ................ 26
iii
Town of Green River v. Fuller Brush Company, 65 F. 2d
WE PE a, ge et TON Cis hale We Kwh.eWa gos) * 19
United States v. Dieboldt, 369 U. S. 654, 8 L. Ed. 2d 176,
EIN ees etn Rata e's sw Ge nung SW hw Nighse/ Ke wie ares 4 10
Watchtower Bible & Tract Society v. Metropolitan Life In-
surance Company, 272 App. Div. 1039, 335 U.S. 886. 20
Statutes.
Federal Rules of Civil Procedure, Rule 56(c) ......... 9
Ordinances.
Schaumburg Village Code, Chapter 22, Article III. .3, 18, A17
eee
re
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1978
CITIZENS FOR A BETTER ENVIRONMENT, An ILLINOIS
NON-FOR-PROFIT CORPORATION, ET AL.,
Respondents,
vs,
VILLAGE OF SCHAUMBURG,
Petitioners.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT.
The Village of Schaumburg, an Illinois municipal corporation,
petitions for writ of certiorari to review the decision of the
United States Court of Appeals for the Seventh Circuit, rendered
December 1, 1978.
OPINIONS BELOW.
The Seventh Circuit’s decision of December 1, 1978, is
reprinted in full as Appendix A to this petition.
The opinion of the Trial Court, entered February 17, 1978,
is reprinted in full as Appendix B to this petition.
JURISDICTION.
The judgment of the Circuit Court of Appeals for the Seventh
Circuit was entered on December 1, 1978. No petition for
rehearing was filed.
The jurisdiction of this Court is invoked pursuant to the
provisions of 28 U.S.C. § 1254. This petition for writ of
certiorari has been filed in accordance with 28 U.S.C. § 2101.
QUESTIONS PRESENTED FOR REVIEW.
1. Were the plaintiffs entitled to a Summary Judgment hold-
ing Section 20(g) of the ordinance of the Village of Schaumburg
regulating charitable solicitations invalid?
2. Is Section 20(g) of Chapter 22 of the Schaumburg Vil-
lage Code, which requires that 75 percent of the proceeds of
charitable solicitations will be used directly for the charitable
purpose of the organization, unconstitutional either on its face
or as applied?
3. Does a municipality have the right to prohibit purportedly
charitable solicitations when the soliciting organization fails to
demonstrate that at least 75 percent of its receipts are utilized
for charitable purposes?
CONSTITUTIONAL PROVISIONS INVOLVED.
This case involves the First and Fourteenth Amendments of
the Constitution of the United States. The relevant provisions
are set forth in Appendix C to this petition.
A nr
STATEMENT OF THE CASE.
This is a complaint for declaratory judgment and injunction
brought by an organization known as Citizens For A Better
Environment and two of its officers against approximately twenty
municipalities in the Chicago metropolitan area. The complaint
challenged the validity of the various ordinances of the defendant
municipalities which regulate the solicitation for funds by organi-
zations within their corporate limits. The plaintiffs filed a motion
for summary judgment. Certain of the municipal defendants
were dismissed by agreement and the Court found provisions of
various other ordinances to be unconstitutional as a violation of
the First and Fourteenth Amendments.
The Village of Schaumburg, petitioner herein, had adopted
an ordinance regulating charitable solicitations within the corpo-
rate limits of the Village (Appendix C). The ordinance provided
a framework for the issuance of permits to charitable organiza-
tions desiring to solicit funds in the Village. The only provision
of the ordinance challenged was a section which required, in
essence, that at least 75 percent of the proceeds of the solicita-
tions by the organization regulated be used directly for charitable
purposes of the organization.
That section, designated 20(g) of Chapter 22 of the Village
Code, required:
“Satisfactory proof that at least seventy-five per cent of
the proceeds of such solicitations will be used directly for
the charitable purpose of the organization. For such pur-
poses, the following items shall not be deemed to be used
for the charitable purposes of the organization, to wit:
(1) Salaries or commissions paid to solicitors;
(2) Administrative expenses of the organization,
including, but not limited to, salaries, attorney’s fees,
rents, telephone, advertising expenses, contributions to
4
other organizations and persons, except as a charitable
contribution and related expenses incurred as adminis-
trative or overhead items.
For the purpose of satisfying the requirements of sub-
paragraph (g), the organization shall submit a certified
audit of the last full year of operations, indicating the
distribution of funds collected by the organization, or such
other comparable evidence as may demonstrate the fact
that at least seventy-five per cent of the funds collected are
utilized directly and solely for the charitable purpose of
the organization.”
The plaintiff refused to submit the information necessary to
satisfy this requirement and was denied a permit. No other
sections of the ordinance were challenged and it was admitted
that if all the conditions of the ordinance were met, the Village
Board had no discretion and, by the terms of the ordinance, was
required to issue such permit.
The Trial Court granted the plaintiffs’ motion for summary
judgment and filed a written opinion dated February 17, 1978 in
which the Court held Section 20(g) to be unconstitutional
noting that CBE was able and willing to comply with other |
requirements of the ordinance and did not challenge them. The
Trial Court held that Section 20(g) was unconstitutional and
void on its face and its enforcement against CBE was, there-
fore, enjoined.
The Court of Appeals affirmed the Trial Court but specifically
held that it would not decide the reasonableness of the seventy-
five percent requirement as applied to solicitation by more tradi-
tional charitable organizations. It did, however, hold the require-
ment is on its face unreasonable when applied te an organization
which, by its nature, allegedly devotes a large portion of its
efforts to information gathering and promotion of its objectives
and where its paid solicitors necessarily combine solicitation
with other primary activities in the organization.
The Court of Appeals held that the Village had a legitimate
interest in protecting its citizens from fraud by solicitors who
5
would use the funds for purposes other than those expressly or
impliedly represented and pointed out that the 75 percent re-
quirement might be valid where solicitors represent themselves
as mere conduits for contributions. It held, however, that the
standard was not a sufficiently narrow solution to the problems
of potential fraud or to the need to identify those organizations
entitled only to the protections afforded commercial speech.
The Court of Appeals recognized that the appropriate guid-
ance on the issue was this Court’s opinion in Hynes v. Mayor of
Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed. 2d 243
(1976), but found that section 22-20(g) was not justified by
this Court’s ruling in Hynes.
The Court attempted to distinguish a decision of the Fifth
Circuit, National Foundation v. City of Ft. Worth, 415 F. 2d 41
(Sth Cir. 1969), cert. denied, 396 U.S. 1040 (1970), which
upheld an ordinance which limited the cost of solicitation of
charitable contributions to 20 percent of total receipts. The
Seventh Circuit pointed out that the Fort Worth ordinance
allowed an organization which did not meet the requirement to
show that its percentage was not unreasonable.
The Court, in its opinion, ignored the Village’s argument that
the plaintiffs were not entitled to a summary judgment on the
grounds that there were material issues of fact remaining for
trial. The Court merely pointed out that since CBE’s failure to
qualify for a charitable solicitation permit was caused solely by
its inability to meet the 75 percent requirement, it followed that
any issue of fact as to the nature of CBE’s particular activity
was not material to its standing, therefore, not an obstacle to the
granting of the motion for summary judgment.
REASONS RELIED ON FOR ALLOWANCE
OF THE WRIT.
The writ should be granted in this case because the decision
of the Court of Appeals is clearly in conflict with this Court's
decision in Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S. Ct.
1755, 48 L. Ed. 2d 243 (1976), and with the Fifth Circuit's
opinion in National Foundation v. City of Ft. Worth, 415 F. 2d
41 (Sth Cir. 1969).
Moreoyer, the opinion ignores the principle originally laid
down by this Court in Breard v. Alexandria, 341 U.S. 622, 95
L. Ed. 1233. These cases clearly hold that the First Amendment
is not grounds for forcing a municipality to permit solicitation of
funds within its corporate limits and that a municipality may
properly regulate door-to-door canvassing and solicitation. The
thrust of the Oradell decision is to recognize a municipality's
power to protect its citizens not only from crime, but undue
annoyance by solicitors purportedly acting in a charitable cause.
The opinion of the Court of Appeals will have the effect of
granting absolute license to any organization, which purports
to be charitable in nature, to abuse the rights of citizens and
homeowners in the name of the First Amendment. The opinion
itself is inconsistent because it recognizes that the 75 percent
requirement is not unreasonable on its face and yet grants a
motion for summary judgment thereby denying to the defendant
the opportunity to show the reasonableness of the 75 percent
requirement. The net effect is that every municipality in the
- country must now permit any organization, which designates
itself as charitable, to enjoy unlimited solicitation priviliges not-
withstanding the fact that the funds so derived may be used for
purposes far removed from the concepts of charity.
This Court cannot be unmindful of the continuing threat to
the safety and privacy of private citizens posed by a multitude
7
of organizations organized for nefarious purposes but hiding
behind the shield of “charity” or purportedly disseminating in-
formation. The Court of Appeals assumed that the organization
in question here performed the “functions of information dis-
semination, discussion, and advocacy of public issues.” This
assumption is controverted in the pleadings and the defendant
was not given the opportunity on a trial of the issues to test
these allegations.
The result of this opinion, therefore, is that a simple allega-
tion that a gorup is engaged in the dissemination of ideas or
the promotion of legislation or other, governmental activity will
guarantee its immunity from the kind of effort to screen such
organizations, employed by the Village of Schaumburg here.
It must be emphasized that the Village does not seek a total
ban on such solicitations. It has reasonable regulations relating
to solicitation for commercial purposes which are not at issue
here. The only question is whether the Village of Schaumburg
can properly require that 75 percent of the funds collected by
a “charitable” not-for-profit organization be devoted to the pur-
poses for which the organization purportedly was created, as a
condition of a permit. The Court of Appeals recognized that
such a requirement was not unreasonable on its face and yet
denied the defer \ant the opportunity to show the reasonableness
as applied to this specific organization. Such a determination is
contrary to the decisions of this Court and finds no justification |
in the First Amendment.
ARGUMENT.
THE PLAINTIFFS WERE NOT ENTITLED TO A
SUMMARY JUDGMENT.
This is a declaratory judgment and injunction action brought
by the Citizens for a Better Environment against the Village of
Schaumburg seeking a declaration that the ordinance of the
Village of Schaumburg regulating charitable organizations is
unconstitutional and seeking an injunction against the enforce-
ment of the ordinance by the Village. The plaintiffs filed a
motion for summary judgment at the same time that they filed
an amended complaint for declaratory judgment and injunction.
The Village filed an answer to the amended complaint and an
answer to the motion for summary judgment. The motion for
summary judgment was based on the contention of the plaintiffs
that upon all the records filed and proceedings in the case there
was no genuine issue as to any material fact and that the plain-
tiffs were entitled to judgment as a matter of law.
An examination of the pleadings, the affidavit in support of
the motion for summary judgment, and the answer to the motion
filed by the Village, indicates clearly that there are in fact
material issues which prevent the granting of the motion for
summary judgment and the trial court therefore erred in granting
the motion.
Ae we shall demonstrate below, it is clear that as a matter of
law the ordinance of the Village of Schaumburg, including the
controverted section, Section 22-20(g), is wholly valid as a
matter of law. The ordinance does not impinge upon any
federally protected constitutional rights and is a reasonable
exercise of the police power.
9
Thus, it is clear that the plaintiffs were not entitled to a
summary judgment holding that the ordinance was unconsti-
tutional on its face as a matter of law, However, it is also clear
that the pleading, the motions and other matters in the files
indicate clearly that there are material issues of fact upon which
the court could only rule after taking evidence and conducting
a trial.
The rules with respect to summary judgment are well known
and extensive discussion and citation are not necessary here,
Rule 56(c) of the Rules of Civil Procedure relating to motions
for summary judgment provides in part: “The judgment sought
shall be rendered forthwith if the pleadings, deposition, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.”
This Court on numerous occasions has considered the impli-
cations of the motion for summary judgment and has refused
to approve summary judgments when inferences could be drawn
from underlying facts, which when viewed in the light most
favorable to the party opposing the motion, would indicate the
presence of a material issue of fact. In the case of Associated
Press v. United States of America, 326 U. S. 1, 89 L. Ed.
2013, 65 S. Ct. 1416 (1945), the Court noted that: “Rule 56
should be cautiously invoked to the end that parties may always
be afforded a trial where there is a bona fide dispute of facts
between them.”
In the case of Sartor v. Arkansas Nat. Gas Corp., 321 U. S.
620, 88 L. Ed. 967 (1943), the Court, in holding that a
summary judgment was improperly granted, commented at
page 627:
“The Court of Appeals below heretofore has correctly
noted that Rule 56 authorizes summary judgment only
where the moving party is entitled to judgment as a matter
of law, where it is quite clear what the truth is, that no
genuine issue remains for trial, and that the purpose of the
rule is not to cut litigants off from their right of trial by
10
jury if they realy have issues to try. American Ins. Co. v.
Gentile Bros. Co. (CCA Sth) 109 F(2d) 732; Whitaker
v. Coleman (CCA 5th) 115 F(2d) 305).”
The Court went on to conclude at page 628:
“It may well be that the weight of the evidence would be
found on a trial to be with defendant. But it may not
withdraw these witnesses from cross-examination, the best
method yet devised for testing trustworthiness of testimony.
And their credibility and the weight to be given to their
opinions is to be determined, after trial, in the regular
manner, The judgment according is reversed.”
The Court in the leading case of United States v. Diebold,
369 U. S. 654, 8 L. Ed. 2d 176, 177 (1962), said: “On sum-
mary judgment the inferences to be drawn from the underlying
facts contained in (such) materials must be viewed in the light
most favorable to the party opposing the motion.” The Court
there concluded that the materials before the District Court,
having raised a genuine issue as to ultimate facts, it was improper -
to decide the issue on a motion for summary judgment.
In the case of Adickes v. Kress & Co., 398 U. S. 144, 26
L. Ed. 2d 142 (1970), the Court again discussed at length
the criteria for granting a motion for summary judgment.
At page 152, the Court said:
“Our own scrutiny of the factual allegations of petition-
er’s complaint, as well as the material found in the affidavits
and depositions presented by Kress to the District Court,
however, convinces us that summary judgment was im-
proper here, for we think respondent failed to carry its
— of showing the absence of any genuine issue of
act.”
The Court went on to say at 398 U. S. 158:
“‘fo]n summary judgment the inferences to be drawn
from. the underlying facts contained in [the moving party's]
materials must be viewed in the light most favorable to the
party opposing the motion. United States v. Diebold, Inc.,
ype 654, 655, 8 L.Ed 2d 176, 177, 82 S Ct. 993]
Fe
11
It further commented at 160:
“And, in a comment directed specifically to a contention
like respondent’s, the Committee stated that ‘[w]here the
evidentiary matter in support of the motion does not
establish the absence of a genuine issue, summary judgment
must be denied even if no opposing evidentiary matter is
presented.’ ”
It concluded its discussion of the motion for summary judgment
at page 161 when it said:
“Yet the party moving for summary judgment has the
burden to show that he is entitled to judgment under estab-
lished principles; and if he does not discharge that burden
then he is not entitled to judgment. No defense to an in-
sufficient showing is required.” 6 J. Moore, Federal Practice
q 56.22[2], pp. 2824-2825 (2d Ed 1966).”
The basic rule was also well stated in Poller v. Columbia
Broadcasting System, 368 U. S. 464, 7 L. Ed. 2d 458 (1962),
where the Court at page 46! said:
“Summary judgment should be entered only when the
pleadings, depositions, affidavits, and admissions filed in
the case ‘show that [except as to the amount of damages]
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.’ Rule 56(c), Fed Rules Civ Proc. This rule authorizes
summary judgment ‘only where the moving party is entitled
to judgment as a matter of law, where it is quite clear what
the truth is, . . . [and where] no genuine issue remains for
trial . . . [for] the purpose of the rule is not to cut litigants
off from their right of trial by jury if they really have issues
to try.” Sartor v. Arkansas Natural Gas Corp. 321 US 620,
627, 88 L ed 967, 972, 64 S Ct 724 (1944).”
The affidavit~of Larry Hoellwarth in support of the motion
for summary judgment is not helpful in determining whether
or not there are material issues of fact to be decided. The only
allegation of the affidavit which bears upon what the plaintiffs
actually do is paragraph 8 of the affidavit which in essence
12
states that representatives of CBE distribute pamphlets on en-
vironmental subjects and on CBE activities, answer questions,
- accept signatures, and accepts contributions from residents. Such
activities, even if in fact true, would not necessarily preclude the
type of regulation contained in the Schaumburg ordinance.
If, as the trial court is required to do, it drew inferences most
favorable to the party opposing the motion, it could well infer
that the activities described by Hoellwarth are in fact of a fully
commercial nature. As the cases on door-to-door solicitation
point out, there is a dichotomy between the exercise of freedom
of speech and religion on the one hand and purely commercial
activities on the other. The Village has adopted regulations
covering commercial peddlers and solicitation which are not in
issue here. The mere fact that the material which is sold may be
informative does not change the commercial character of the
business undertaking. Likewise, the mere fact that an organi-
zation is organized as not-for-profit, or even approved by the
Attorney General as a charitable organization, does not mean
that the solicitation itself is not commercial in nature. It is
because of the fact that the Village desires to make certain that
commercial activities are not clothed with the appearance of
charity that the requirement of a 75% devotion of funds to
the charitable purposes has been imposed, Certainly, the affi-
davit of Hoellwarth, which was not subject to cross-examination
as the result of the granting of the motion for summary judg-
ment, is insufficient standing by itself to support a motion for
summary judgment. Yet, only that affidavit appears in the record
to support the purported First Amendment activities of the
plaintiffs.
The Village at least should be entitled to inquire into whether
what CBE does is protected under the First and Fourteenth
Amendments. It was effectively precluded from doing so by the
granting of the motion for summary judgment. The factual
background of this controversy as sketched in the pleadings
and as revealed in the Hoellwarth affidavit is so incomplete as
to preclude the entry of a summary judgment.
13
We therefore respectfully suggest that the trial court as a
matter of law erred in granting the motion for summary judg-
ment, and this cause should have been remanded for the purpose
of determining whether the trial court had jurisdiction under
the statutes and constitutional provisions invoked to even con-
sider the controversy. The trial court should also be required to
take evidence 0. the question of just what CBE in fact does,
which brings it within the purview of First Amendment protec-
tions. In this connection it might be noted that attached to the
Village’s answer as an exhibit in support of its allegations on
information and belief, was a newspaper article headlined “Is
$$ Real Cause in Clean Air Fight?” The information contained
in that article at least gives some basis for believing that CBE
is engaged primarily and overwhelmingly in the business of
making money for its officers and canvassers. Whatever the
merits of the free enterprise system as applied to these can-
vassers, the truth of the alleged facts must be determined in
order to ascertain the extent to which the activities in question
are subject to First Amendment protection.
It should be noted that the plaintiffs did not file a reply or in
any manner controvert the allegations in the Village’s answer.
Therefore, for the purposes of the motion for summary judg-
ment, the allegations in the answer as affirmative defenses, in-
cluding the exhibit, must be taken as true. The exhibit indicates
that more than two-thirds of the $290,399 collected by CBE
in fiscal year 1974-75 was spent on salaries and employee health
benefits. Slightly smaller percentages have been spent on salaries
each year since CBE’s founding. The exhibit points out that
about 69% of the salaries were paid to solicitors and fund-
raisers and 31% to program organizers, and contrasts these
figures with the salary and benefit costs of 27% for the Ameri-
can Cancer Society, 15% for the Heart of Illinois United Way
Organization, and 22% for the Chicago Chapter of the National
Multiple Sclerosis Society.
Cs
14
It should also be noted that the New York Attorney General’s
office filed suit against CBE, charging the organization had
perpetrated a “fraud upon the public” by using 74% of the
$175,808 collected in fiscal year 1972-73 for administration
and fund raising expenses. The suit never came to trial because
ofthe demise of the New York organization.
We suggest that these allegations, which are stated on in-
formation and belief, as shown on an exhibit to our answer,
raise serious questions as to whether or not the activities of
the plaintiffs are in fact a charitable, not-for-profit activity which
is protected by the First and Fourteenth Amendments. We be-
lieve we are entitled to a trial on these issues, and that the trial
court erred in granting the motion for summary judgment.
The Court of Appeals, in its opinion, ignores the question as
to whether a summary judgment was proper because of the
presence of controverted material issues of fact. The Court con-
cludes that the constitutional validity of Section 22-20(g) is
solely a question of law. However, subsequently the Court spe-
cifically determines that it will not pass upon the reasonableness
of the 75 percent requirement as applied to the “more tradi-
tional charitable organizations.
The Court, however, goes on to say, “the requirement is on
its face unreasonable when applied to an organization which
by its nature allegedly devotes a large portion of its efforts to
information gathering and promotion of its objectives, and where
its paid solicitors necessarily combine solicitation with other pri-
mary activities of the organization.” (Emphasis added. )
Yet the record does not permit the Court to reach this con-
clusion with respect to the nature of the organization in ques-
tion. The very nature of the organization is controverted in the
pleadings. The Court of Appeals could not reach the conclusion
that the ordinance was unconstitutional on its face without pass-
ing upon its reasonableness generally, absent a factual determi-
nation as to tne nature of the organization in question.
(
15
We believe that this Court should grant the petition for Writ
of Certiorari because of the vital constitutional questions in-
volved. We believe that the First Amendment does not prevent
the Village from enacting the ordinance in question here. We
would be remiss, however, if we did not point out that the very
posture of this case, decided as it was on a motion for summary
judgment when material issues of fact remained to be decided
makes the cause inappropriate for the kind of determination
made by the Court of Appeals.
Ii.
SECTION 20(g) OF CHAPTER 22 OF THE SCHAUMBURG
VILLAGE CODE IS NOT UNCONSTITUTIONAL ON ITS
FACE OR AS APPLIED.
The ambiguous opinion of the Court of Appeals apparently
recognizes that the 75 percent requirement as_a pre-condition
to a charitable solicitation permit is not unreasonable on its face.
Having so determined, the Court of Appeals should have re-
versed the Trial Court for the purpose of taking evidence as
to the reasonableness of such requirement as applied to the
organization in question. Instead, the Court makes a pronounce-
ment that the 75 percent requirement is on its face unreasonable
“when applied to an organization which, by its nature, allegedly
devotes a large portion of its efforts to information gathering
and promotion of its objectives, and where its paid solicitors
necessarily combine solicitation with other primary activities of
the organization.” (Emphasis added. )
The Court goes on to recognize as it must, based upon this
Court’s opinion in Hynes v. Mayor of Oradell, 425 U. S. 610,
96 S. Ct. 1755, 48 L. Ed. 2d 243 (1976), that the Village has
a legitimate interest in protecting its, citizens from a fraud by
solicitors. The Court says it has a similar interest in identifying
~sorganzations where the salaries paid are so large in relation to
ad
16
the services provided that the organization is actually a for-
profit venture.
The Court of Appeals objects that the requirement applies
where it is made clear that the contributions will be used for
reasonable salaries, yet the Court prohibited an inquiry into the
question of reasonableness. But, even if this Court should con-
clude that the only issue present is a question of law, we submit
that the section in question is clearly valid.
The most recent authoritative decision with respect to the
question presented is the decision of this Court in Hynes v.
Mayor of Oradell, 425 U. S. 610, 48 L. Ed. 2d 243 (1976).
That case involved the constitutionality of a burough ordinance
requiring that any person, including representatives of civic
groups and organizations desiring to canvass or solicit for a
recognized charitable cause or for a political campaign or cause,
must notify the police department in writing for identification
only.
The Court held that the ordinance in question was invalid
because the ordinance’s coverage was unclear, there being no
explanation as to what was a “recognized charity” and what was
meant by a “federal, state, county or municipal . . . cause” or
what groups fell into the class of borough civic groups and
organizations. The Court further held that the ordinance did
not sufficiently specify what actions were necessary for compli-
ance, there being no explanation as to what must be included
in the notice or what the police considered sufficient as iden-
tification and explicit standards were not provided for those who
applied the ordinance.
However, the case is most significant for laying down certain
basic propositions which are totally controlling in the case at bar.
The thrust of the Oradell case is clearly that a municipality has
the right to protect its citizens from crime and annoyance by
regulating soliciting and canvassing and that there is no absolute
right under the Constitution to make such solicitation. Although
the ordinance in question in the Oradell case was held to be
€
17
invalid, it was held invalid because of vagueness and lack of
standards. These defects are clearly not present in the Schaum-
burg ordinance. The Court specifically pointed out that:
“_.. the court has consistently recognized a municipality’s
power to protect its citizens from crime and undue annoy-
ance 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 interests without run-
ning afoul of the First Amendment.” 425 U.S. 610, 616,
48 L. ed. 2d 243, 251.
At 48 L. ed. 2d 252 the Court went on to use language which
is totally controlling in the case at bar, it said:
“There is, of course, no absolute right under the Federal
Constitution to enter on the private premises of another and
knock on a door for any purpose, and the police power
permits reasonable regulation for public safety. We cannot
say, and indeed appellants do not argue, that door-to-door
canvassing and solicitation are immune from regulation
under the State’s police power, whether the purpose of the
regulation is to protect from danger or to protect the peace-
ful enjoyment of the home. See Roman v. Post Office Dept.,
397 U. S. 728, 735-738, 25 L. Ed. 2d 736, 90 S. Ct. 1484
(1970).”
The Court held the ordinance in question unconstitutional
because of vagueness. The provisions in question, which the
Court found defective, included a phrase, “recognized charitable
cause” and a “federal, state, county or municipal cause”. Finally
it was not clear in the ordinance what groups fell into the class of
“Borough Civic Groups and Organizations” that the ordinance
also covered. 425 U.S. 621, 48 L. ed. 2d 243, 253.
The ordinance in question also failed because it did not
sufficiently specify what these within its reach had to do in
order to comply.
These defects in the Oradell ordinance do not exist in the
Schaumburg ordinance. The ordinance is absolutely and totally
clear both with respect to the standards to be applied and the
18
manner in which a permit is to be sought. Section 22-19 of the
: ordinance clearly defines a charitable organization. Moreover the
provisions of Section 22-20 explaining the contents of the appli-
cation resolve any doubt as who or what organization is in
fact covered by the ordinance in question.
The contents of the application are specifically spelled out in
subparagraphs (a) through (g) of Section 22-20. Included are
the name of the organization, name and address of the person in
charge of solicitation, the names and addresses of all persons
who will solicit, the dates and times of day such solicitation are
to be made, a written statement of recent date by the Attorney
General of the State of Illinois indicating that the organization
has complied with the State Statute regulating solicitation and
collection of funds for charitable purposes, satisfactory proof
that the organization is a tax exempt organization under the
Internal Revenue code of the United States and satisfactory proof
that at least 75% of the proceeds of such solicitations will be
used directly for the charitable purposes of the organization.
The ordinance further provides what items will not be deemed
to be used for charitable purposes including salaries and com-
missions paid to solicitors and salaries, attorneys fees, rent,
telephone, advertising expenses, contributions to other organiza-
tions and purposes except as a charitable contribution and related
expenses incurred as administrative or overhead items.
The manner in which the application is to be submitted and
processed is also specifically spelled out in Section 22-21, Section
22-22 and Section 22-24. For the purpose of satisfying the
requirement of 75% of the proceeds being used directly for
charitable purpgses the organization is to submit a certified audit
of the last full year of operation.
Thus the standards and the manner of application are spelled
out, clearly and specifically and the problem of lack of standards
which proved fatal in the Hynes case simply does not exist with
respect to the Schaumburg ordinance. The ordinance is also
clear that ‘no discretion is vested in the Village Board. Section
19
22-21 specifically provides: “If the Village Board shall find and
determine that all requirements of this article have been met, a
permit shall be issued specifying the dates and times at which
solicitation may take place”.
The hours of solicitation are set forth in Section 22-24. The
dates and times of day such solicitations are to be made in the
geographical area within the Village is determined by the appli-
cation under Section 22-20. It necessarily follows that under
doctrine of Hynes v. Mayor of Oradell the Schaumburg ordi-
nance is totally and completely valid. It was enacted pursuant to
the recognized authority of municipalities to regulate canvassing
and soliciting under the police ; _ wer to protect its citizens from
fraud and danger and to protect the peaceful enjoyment of the
home. The standards guiding the issuance of permits are specific
and reasonable. The ordinance does not leave any discretion in
the hands of the Village Board. All parties who meet the provi-
sions of the ordinance are entitled to a permit to solicit.
The power of a municipality to regulate soliciting even in the
face of a First Amendment challenge was first recognized by this
Court in the case of Breard v. Alexandria, 341 U.S. 622, 95
L. ed. 1233. In the Breard case, the Court treated at length the
history of the so-called Green River ordinance. It referred with
approval to the original decision in Town of Green River v.
Fuller Brush Company, 65 F.2d 112, where the ordinance
declared uninvited solicitors visiting private premises to be a
nuisance, and the Federal Court sustained the ordinance as not
being in violation of any federal rights. In Breard, as in the case
at bar, the canvassers were seliing publications and the ordinance
prohibiting them from soliciting door to door was alleged to
abridge freedom of speech and press. The court pointed out:
“We agree that the fact that periodicals are sold does not put
them beyond the protection of the First Amendment. The selling,
however, brings into the transaction a commercial feature.” The
court concluded:
“It would be, it seems to us, a misuse of the great guarantees
of free speech and free press to use those guarantees to
20
force a community to admit the solicitors of publications to
the home premises of its residents. We see no abridgement
_ of the principles of the First Amendment in this ordinance.”
The court pointed out that in an earlier case involving a Green
River ordinance, Green River v. Bunger, 50 Wyo. 52, 58 P. 2d
456, the Court had dismissed an appeal for lack of a substantial
federal question.
Two other state cases involving substantially the same kind of
questions as applied to Jehovah’s Witnesses were dismissed by
this Court for lack of a federal question. Hall v. Commonwealth,
188 Va. 72, 335 U.S. 875; Watchtower Bible & Tract Society
Vv. Metropolitan Life Insurance Company, 272 App. Div. 1039,
335 U.S. 886.
This Court has repeatedly held that the First Amendment does
not give unbridled discretion for the exercise of free speech on
private property, or even on public property. Thus, in the case of
Tinker v. DesMoines Community School District, 393 U. S. 503,
21 L. Ed. 2d 731 (1969), Mr. Justice Black in a dissenting
opinion pointed out at page 517:
“While I have always believed that under the First and
Fourteenth Amendments neither the State nor the Federal
Government has any authority to regulate or censor the
content of speech, I have never believed that any person has
a right to give speeches or engage in demonstrations where
he pleases and when he pleases. This Court has already
rejected such a notion. In Cox v Louisiana, 379 US 536,
554, 13 L Ed 2d 471, 85 S Ct 453 (1965), for example,
the Court clearly stated that the rights of free speech and
' assembly ‘do not mean that everyone with opinions or
beliefs to express may address a group at any public place
and at any time.’”
Moreover, it is clear that the First Amendment does not
require that individuals be permitted to go on private property to
express their opinions, Lloyd Corp. v. Tanner, 407 U.S. 551,
33 L. Ed. 2d 131, and a municipality can even prevent the use
of public streets by ordinance when the exercise of freedom of
21
speech would result in an interference with normal activities.
Grayned v. City of Rockford, 408 U.S. 104, 33 L. Ed. 2d 222
(1972). In the Grayned case incidentaliy, the Supreme Court
rejected an argument of overbreadth and vagueness as applied
to a municipal ordinance considerably less specific than the
ordinance in the case at bar.
It is stated by the Court of Appeals that the 75% standard is
unreasonable as applied here. Yet, this is a matter for proof and
not for mere conclusion. The legislative body certainly could
reasonably conclude that a 75% requirement for the use of
funds by an organization purporting to be charitable in nature
was reasonable. The burden would be upon the plaintiffs to
overcome the presumption of validity attaching to that legislative
action. The mere conclusion that the standard is unreasonable as
applied falls far short of the proof necessary to hold an ordi-
nance unconstitutional.
As a matter of fact, the United States Court of Appeals for
the Fifth Circuit has specifically held constitutional an ordinance
which limited the cost of solicitation of charitable contributions
within the city to 20% of the total receipts. In the case of
National Foundation v. City of Fort Worth, 415 F.2d 41
(1969), the Court at page 45 said:
“No constitutional right exists to make public solicita-
tion of funds for charity. The reasonable regulation of
charitable organizations is within a government’s police
power. Cantwell v. State of Connecticut, 310 U.S. 296,
304, 60 S.Ct. 900, 84 L.Ed. 1213; American Cancer
Society v. City of Dayton, 1953, 160 Ohio St. 114, 114
N.E.2d 219; Gospel Army v. City of Los Angeles, 1945:
27 Cal.2d 232, 163 P.2d 704; Eye Dog Foundation v.
State Board of Guide Dogs, supra 63 Cal.Rptr. at 30, 432
P.2d at 726; City of Seattle v. Rogers, 1940, 6 Wash.2d
32, 106 P.2d 598, 130 A.L.R. 1498; Ex parte Williams,
1940, 345 Mo. 1121, 139 S.W.2d 485, cert. denied
Williams v. Golden, 311 U.S. 675, 61 S.Ct. 42, 85 L.Ed.
434; Ex parte White, 1935, 56 Okl.Cir. 418, 41 P.2d 488;
Ex parte Dart, 172 Cal. 47, 155 P. 63 L.R.A. 1916D,
22
905, Ann.Cas. 1917D, 1127. In Cantwell, supra, the
Supreme Court stated that:
“Without doubt a state may protect its citizens from
fraudulent solicitation by requiring a stranger in the
community, before permitting him publicly to solicit
funds for any purpose, to establish his identity and his
authority to act for the cause which he purports to
represent. The state is likewise free to regulate the
time and manner of solicitation generally, in the inter-
est of public safety, peace, comfort or convenience.”
310 U.S. at 306-307, 60 S. Ct. at 904.
Since the solicitation of funds for charity may be the
subject of state regulation, we now inquire whether the
ordinance adopted by the City to regulate public solicitation
on the streets of Fort Worth was a reasonable ‘exercise of
its police power.”
It went on to consider whether or not the ordinance in question
was reasonable. At page 46, the Court of Appeals recognized
the right of the municipality to deny permission to solicit if the
cost of collection was excessive. It said: a
“As an incident to the right of a city to regulate the use
of its streets by solicitors and as an element of the protec-
tion a city may afford its citizens, a city may reasonably
require of one who wishes to solicit that he furnish it with a
statement of the past and expected receipts and costs of
collection of the funds solicited within its limits and to deny
permission to solicit if the cost of collection is excessive.”
Finally, the Court recognized that the burden was on the plaintiff
to establish that the ordinance was unreasonable. It said at
page 46:
“Upon the Foundation rested the burden of establishing that
the ordinance did not rest on any reasonable basis. Gold-
blatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8
L.Ed.2d 130. It did not meet this burden and we cannot
say that the limitation provisions of the ordinance are un-
reasonable, especially in light of the strong presumption of
constitutionality afforded an ordinance. Goldblatt v. Town
of Hempstead, supra; Mestre v. City of Atlanta, Sth Cir.
23
1958, 255 F.2d 401; Standard Oil Co. v. City of: Talla-
hassee, 5th Cir. 1950, 183 F.2d 410, cert. denied 340 U.S.
892, 71 S.Ct. 208, 95 L.Ed. 647; City of Anchorage v.
Richardson Vista Corp., 9th Cir. 1957, 242 F.2d 276; City
of Seattle v. Rogers, supra; American Cancer Society v.
City of Dayton, supra at 223 of 114 N.E.2d. The standards
fixed by the ordinance are a valid and constitutional means
of achieving the City’s purpose of protecting its citizens.”
The Court then went on to reject an argument that the ordinance
was lacking in definite and certain standards. An examination of
the ordinance, which is set forth in a footnote to the opinion,
makes it clear that the Fort Worth ordinance was not nearly as
specific or definite as the Schaumburg ordinance. It would appear
that the case of National Foundation v. City of Fort Worth is
totally controlling on the issues in this case. At the very least, the
holding in the case indicates that a motion for summary judg-
ment was totally improper, and that the Village is entitled to a
trial, at least on the question of the reasonableness of the 75%
restriction, Since the 75% restriction is the only point in issue,
the Court of Appeals conclusion that the standard is unreason-
able certainly does not conform with the decision in the National
Foundation case.
The Court of Appeals attempts to distinguish the National
Foundation case on the grounds that an organization which did
not meet the requirement was given the opportunity to show
that its percentage was not unreasonable.
The Fifth Circuit opinion is not based upon such a distinction.
The quotation from the case, which appears in the Court of
Appeals opinion, is taken out of context and was not the basis
upon which the opinion rests. Instead, as indicated above, the
Court clearly held that a city may reasonably require of one
who wishes to solicit, a statement of the past and expected
receipts and costs of collection and to deny permission to solicit
if the cost of collection is excessive. Unlike the Fort Worth
ordinance, the Schaumburg ordinance contains specific standards
24
by which to measure the application for a permit. The element
of discretion is totally removed.
At the very least, the question as to whether the 75 percent
requirement is unreasonable as applied, is a question fact
which must be determined by a trial. Yet, contrary to the
specific holding in the Fort Worth case, the Court of Appeals
here makes a determination that the 75 percent requirement is
unreasonable on its face when applied to an organization
allegedly carrying out activities which the Court of Appeals
deems to be non-commercial in nature.
The Court of Appeals says, “the 75 percent requirement might
be valid where solicitors represent themselves as mere conduits
for contributions.” There is nothing in the record to indicate that
anything to the contrary is represented. But the Court of Appeals
then goes on to say that the standard is thus not a sufficiently
narrow solution to the problems of potential fraud or to the need
to identify those organizations entitled only to the protections
afforded commercial speech. The Court of Appeals ignores the
fact that the 75 percent requirement does in fact provide such a
solution recognized as valid in the National Foundation case.
The Court of Appeals, in its opinion, relies upon Cantwell v.
Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213
(1940), 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). These cases are clearly not
applicable here. In each of these cases, this Court determined
that the ordinances in question involved administrative discretion
without standards. This Court considered Cantwell at length in
the Oradell case. It also clearly distinguished Schneider v. State
and Martin v. Struthers. These cases involved ordinances which
required permits without standards and vested unbridled dis-
cretion in an administrative officer or simply prevented canvass-
ing completely. :
As a matter of fact, in the Cantwell case-this Court said,
“without doubt a state may protect its citizens from fraudulent
25
solicitation by requiring a stranger in the community, before
permitting him publicly to solicit funds for any purpose, to
establish identity and his authority to act for the cause which
he purports to represent.” 48 L. ed. 2d 252.
In commenting on the very cases relied upon by the Court
here, the court in Oradell said: ,
“These opinions of the Court and the dissenting opinions
found common ground as to the important municipal inter-
ests at stake. See Martin v. Struthers, supra, at 152, 87
L. Ed. 1313, 63 S. Ct. 862 (Frankfurter, J., dissenting) ;
id., at 154, 87 L. Ed. 1313, 63 S. Ct. 862 (Reed, J., dis-
senting); Douglas v. Jeannette, 319 U.S. 157, 166, 87 L.
Ed. 1324, 63 S.Ct. 877 (1963) (Jackson J., dissenting
in Martin v. Struthers). Professor Zechariah Chafee articu-
lated something of the householder’s right to be let alone,
saying:
‘Of all the methods of spreading unpopular ideas,
[house-to-house canvassing] seems the least entitled to
extensive protection. The possibilities of persuasion
are slight compared with the certainties of annoyance.
Great as is the value of exposing citizens to novel
views, home is one place where a man ought to be able
to shut himself up in his own ideas if he desires.’
Free speech in the United States 406 (1954).
Professor Chafee went on to note: ‘[These cases] do not
invalidate all ordinances that include within their scope . . .
doorway dissemination of thought. Several sentences in the
opinions state that ordinances suitably designed to take care
of legitimate social interests are not void.’ Id., at 407.”
It must be emphasized that this case is not one where the
granting of a permit is at the discretion of the Chief of Police,
the Village Board, or any other official. Permits are granted in a
mandatory fashion to all who meet the requirements of the
ordinance. The ordinance contains clear and definite standards
which are reasonably utilized to determine the identity of a
truly charitable organization. The standards include approval
by the Attorney General, and tax-exempt status under the In-
ternal Revenue Code.
26
The other standard which the Court of Appeals sets aside by
fiat, has to do with the amount of funds actually expended for
charitable purposes.
The quotation from Justice Brennan in Hynes quoting Thomas
v. Collins, 323 U. S. 516, 65 S. Ct. 315, 323, 89 L. Ed. 440
(1945), is not relevant. Justice Brennan’s remarks clearly were
related to restraining orderly discussion and persuasion at an
appropriate time and place. We suggest that the invasion of a
private home uninvited and at inappropriate hours is not a
proper time and place for orderly discussion and persuasion.
We think it is clear that Section 20(g) of Chapter 22 of the
Schaumburg Village Code is not invalid on its face nor as ap-
plied to the plaintiffs’ organization here.
The opinion of the Court of Appeals flies in the face of this
Court’s rulings in Breard and Hynes and that of the Fifth Cir-
cuit in the National Foundation case. It opens the door to un-
restricted solicitation in the name of charity by organizations
which are nothing more nor less than fraudulent devices to
enrich the sponsors at the expense of the unwitting public. The
magnificent edifice of the First Amendment should not be
utilized to sanction such a sorry effort.
IIl.
A MUNICIPALITY HAS THE RIGHT TO PROHIBIT PUR-
PORTED CHARITABLE SOLICITATIONS WHEN THE
SOLICITING ORGANIZATION FAILS TO DEMONSTRATE
THAT AT LEAST 75 PERCENT OF ITS RECEIPTS ARE
UTILIZED FOR CHARITABLE PURPOSES.
This case presents a simple question as to whether a munici-
pality may, in the interest of protecting the public from fraud,
crime and undue annoyance, prohibit door-to-door solicitation
for funds on private property by an allegedly charitable organ-
Rt we we A
27
ization which devotes more than one quarter of its collections
for other than the charitable purposes of the organization.
We believe we have demonstrated above that this Court has
repeatedly recognized in Oradell and even Cantwell and Martin
Vv. Struthers that there are important municipal interests at stake.
Professor Chaffee has articulated the householder’s right to be
left alone pointing out that the possibilities of persuasion are
slight compared to the certainty of annoyance.
The cases which have invalidated ordinances which purported
to regulate or prohibit door-to-door solicitation turned upon the
unabridged discretion, vested usually in administrative officers
and did not announce a rule that such solicitation in the name
of charity was beyond the scope of reasonable municipal regu-
lation. When, as is apparently the case here, a majority of the
funds are utilized not for the charitable purposes for which the
organization is purportedly organized, but instead to compensate
canvassers, officers, and employees, it must be concluded that
what is involved is nothing more nor less than a commercial
enterprise even though it be dressed in the trappings of a chari-
table or environmental purpose.
Schaumburg’s ordinance is intimately related to the articulated
substantial governmental interests clearly recognized by this
Court in Hynes and Breard. The protections of citizens from
crime and undue annoyance and in the quiet enjoyment of their
homes are well recognized, articulated and substantial govern-
mental interests. In fact, they are paramount objectives of any
organized society.
If a citizen inquires as to whether a solicitor has received a
permit from a municipality, he knows immediately whether or
not the solicitor represents a charitable organization as recog-
nized by the Village or is involved in either a commercial or
even fraudulent enterprise. A homeowner has a legitimate right
to know whether or not the solicitor who presents himself at
his door as a representative of a charitable organization is in
fact telling the truth.
28
The Village, as an exercise of its police power, clearly has the
right to prescreen individuals who would represent themselves
as charitable solicitors. The Village, of course, is not censoring
the views of CBE or any other group. All the traditional methods
of communication are open, be they radio, television, news-
papers or even handbills in the public streets. All the Village is
seeking is to require that persons who go upon the private prop-
erty of its citizens and represent themselves as charitable solici-
tors are in fact what they claim to be. No legitimate views are
being barred from the Village of Schaumburg nor is any chilling
effect on the First Amendment presented.
We would be the first to agree that an ordinance of this
nature must set forth standards which are specific and not vague.
However, it is clear that this ordinance does in fact set forth
specific standards. In the case of Grayned y. City of Rockford,
408 U. S. 104, 33 L. Ed. 2d 222, this Court was considering
an ordinance which outlawed demonstrations near schools in
session and the Rockford Anti-Noise Ordinance which prohibited
disturbing a school session by willfully making a noise or diver-
sion while on adjacent public or private grounds.
The Court held valid as not vague the anti-noise ordinance.
The Court relying upon Tinker v, DesMoines School District,
393 U.S. 503, held that the ordinance was not overbroad or
vague and further held that expressive activity may be prohibited
if it materially disrupts classwork or involves substantial disorder
or invasion of the rights of others. The Court went on to
note that:
“Rockford’s modest restriction on some peaceful picketing
represents a considered and specific legislative judgment
that some kinds of expressive activities should be restricted
at a particular time and place . . . Such a reasonable regu-
lation is not inconsistent with the First and Fourteenth
Amendments.”
The specific standards of this ordinance make it clear that the
Village can properly legislate to restrict some kinds of expressive
oN ene eictint
29
activity at a particular time and place, in this instance, at the
domiciles of its citizens. We have previously discussed the
Oradell case at length and pointed out that the standards im-
posed in the Schaumburg ordinance clearly meet the require-
ments of Justice Berger’s opinion.
The Court of Appeals’ opinion also attacks the definition of
“charitable organization” or “charitable purpose” set forth in
Section 22-19 of the Schaumburg ordinance; but, that section
was never attacked or challenged for vagueness in the Court
below. The Court of Appeals simply reached out to justify its
untenable position by raising an issue which was not before the
Trial Court.
This Court’s decision in the Hynes case involves phrases which
were totally unclear in the context of the ordinance there at
issue. The Court held that there was an unbridled grant of dis-
cretion to an administrative officer and that the individuals
subject to the ordinance could not know what the requirements
of the ordinance were in fact. No such difficulties present them-
selves in the case at bar.
The standards of the ordinance are clear. The 75 percent
requirement admittedly is not unreasonable on its face but only
purportedly as applied by the Court of Appeals to a factual
situation which was not properly before it.
The National Foundation case recognizes the right of a
municipality to prohibit solicitations for funds by charitable
organizations when in fact a disproportionate amount of the
funds are not used for charitable purposes. We suggest that
under the decisions of this Court and in the interest of the
public welfare, a municipality does have the right to prohibit
so-called charitable solicitations when less than 75 percent of its
receipts are utilized for charitable purposes. To transform this
exercise of municipal authority into a violation of the First and
Fourteenth Amendments would, in the words of this Court in the
Breard case, constitute “a misuse of the great guarantees of free
speech and free press.”
ad
30
CONCLUSION.
This Court should grant the Writ of Certiorari because the
recent opinion of the Court of Appeals is clearly contrary to this
Court’s holding in Hynes v. Mayor of Oradell, 425 U.S. 610,
96 S. Ct. 1755, 48 L. Ed. 2d 243 (1976). The opinion flies in
the face of the repeated holdings of this Court that solicitation
for funds can be regulated by an ordinance carefully and
narrowly drawn. The Court of Appeals opinion is also directly
contrary to that of another Circuit, National Foundation v. City
of Fort Worth, 415 F. 2d 41 (Sth Cir. 1969), cert. denied, 396
U.S. 1040 (1970). It takes away the right of local municipali-
ties to protect citizens in their homes, from fraud, crime or
merely unwanted annoyances.
The Court of Appeals opinion affirms a summary judgment by
holding unreasonable as applied, an ordinance provision which
it admits could be reasonable on its face. At the same time, it
denies the opportunity to present evidence on the question of
reasonableness as applied.
The Court of Appeals misreads this Court’s opinions to grant
an unlimited license to solicit on the doorsteps of the homes of
private citizens to any organization which alleges that it is
engaged in the dissemination of information or the promotion of
legislation or other governmental action. This kind of unbridled
license is neither mandated nor required by the First Amendment
but in fact does violence to the equally sacred constitutional
principle of the right to be left alone.
The Court of Appeals for the Seventh Circuit has rendered a
decision on an extremely important and far reaching question
— nme
31
which we suggest is clearly in conflict with the decisions of this
Court and another Court of Appeals. It is a vitally important
question which should be settled by this Court and the petition
should be granted.
Respectfully submitted,
JACK M. SIEGEL,
39 South LaSalle Street,
Chicago, Illinois 60603,
312-263-2968,
Attorney for Petitioners, Village
of Schaumburg.
on <a
Al
APPENDIX A—OPINION OF SEVENTH CIRCUIT
COURT OF APPEALS,
IN THE UNITED STATES COURT OF APPEALS
For the Seventh Circuit
No. 78-1384
CITIZENS For A BETTER ENVIRONMENT, an Illinois not-for-
profit corporation, and LARRY A. HOELLWARTH,
Plaintiffs-A ppellees,
VILLAGE OF SCHAUMBURG,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 76-C-470—Prentice H. Marshall, Judge.
ARGUED SEPTEMBER 18, 1978—-DECIDED DECEMBER 1, 1978
Before FAIRCHILD, Chief Judge, KILKENNY, Senior Circuit
Judge*, and BAUER, Circuit Judge.
FAIRCHILD, Chief Judge. This is an appeal from a judgment
wherein a portion of a village code regulating solicitation by
charitable organizations was found unconstitutional on its face.
The Village of Schaumburg (hereinafter “the Village’),
defendant below and appellant here, is a municipal corporation
and home rule municipality located in Cook County, Illinois.
Chapter 22 of the Village code regulates the activities of peddlers
and solicitors within the Village.
* The Honorable John F. Kilkenny, Senior Circuit _— of the
Ninth Circuit, is sitting by designation.
A2
Article II (sections 22-6 through 22-18) regulates the activi-
ties of for-profit peddlers and solicitors, defined in section 22-6
as persons who go from place to place to sell or take orders for
merchandise or services. A permit is required for such activity,
and an application for a permit is to be denied “to any applicant
who is not found to be a person of good character and repu-
tation” (section 22-9). The permit may be revoked for violation
of any Village ordinance or state or federal law, or when the
registrant “shall cease to possess the qualifications and character
required . . . for the original registration” (section 22-11).
Violators of sections 22-6 through 22-17 are subject to a
maximum fine of $500 for each offense (section 22-18).
Charitable solicitations, on the other hand, are regulated by
article III (sections 22-19 through 22-24). Section 22-19 defines
a charitable organization as “any benevolent, philanthropic,
patrigtic, not-for-profit, or eleemosynary group, association or
corporation, or such organization purporting to be such, which
solicits and collects funds for charitable purposes.” A charitable
purpose is defined as “any charitable, benevolent, philanthropic,
patriotic, or eleemosynary purpose.” A permit is also required
for charitable solicitations, but the requirements for the granting
of a permit are different from those for’ for-profit peddlers and
solicitors. For example, the organization must have complied
with specified portions of state law relating to charitable solicita-
tions and be recognized as tax exempt under section 501 (c) (3)
of the United States Internal Revenue Code. Section 22-20(g)
requires that 75 percent of the proceeds of solicitations must be
used directly for the charitable purpose of the organization.
Solicitors’ salaries and administrative expenses (which include
other employees’ salaries) are deemed not used for the organi-
zation’s charitable purpose.’
1. The requirement contained in section 22-20(g) is as follows:
(g) Satisfactory proof that at least seventy-five per cent of
the proceeds of such solicitations will be used directly for the
charitable purpose of the organization. For such purposes, the
(Footnote continued on next page.)
A3
Citizens for a Better Environment (hereinafter “CBE”),
plaintiff below and appellee here, is an organization whose
stated purpose is the protection and improvement of the Tilinois
environment. CBE is registered and in good standing with the
Illinois Attorney General’s Charitable Trust Division, and is
recognized as tax exempt and gifts to it as tax deductible under
the United States Internal Revenue Code. CBE applied for and
was denied a permit to canvass and solicit contributions from
door-to-door in the Village and in various other municipalities
in the Chicago metropolitan area.” CBE and two of its officers
brought suit against these municipalities for a declaratory
judgment and injunction.
The portions of the suit against the other municipalities were
concluded in various ways. In the action against the Village,
the district court, after recognizing that CBE met all other
requirements of section 22-20 and the denial of permission to ~
canvass in the Village was based solely on CBE’s failure to
meet the 75 percent requirement, declared, upom ‘motion by
CBE ‘for summary judgment, that section 22-20( 2) and the
Village’s action thereunder were constitutionally impermissible,
enjoined further prohibition of CBE soliciting and canvassing
in the Village, and ordered the Village to issue a permit to
CBE forthwithé The rationale of the district court was that the
75 percent requirement was an impermissible form of censor-
(Footnote continued from preceding page.)
following items shall not be deemed to be used for the charitable
purposes of the organization, to wit:
(1) Salaries or commissions paid to solicitors;
(2) Administrative expenses of the organization, includ-
ing, but not limited to, salaries, attorneys’ fees, rents,
telephone, advertising expenses, contributions to other
organizations and persons, except as a charitable contri-
bution and related expenses incurred as administrative or
overhead items.
2. Counsel for CBE stated that it is the practice of the organiza-
tion, regardless of its opinion of the validity of a particular regulation,
to comply with municipal permit requirements if possible.
A4
ship and a restraint on the exercise of First Amendment free-
doms, and that the Village. had no legitimate interest in
prescribing such a test.
1.
CBE’s failure to qualify for a charitable solicitation pefmit
from the Village was caused solely by its inability to meét the
75 percent requirement, and the decision of the district court
was limited to that requirement. Therefore on this appeal we
are concerned only with the validity of tion 22-20(g).
The Village asserts that summary judgment by the district
court was improper because material issues of fact were present.
The Village iaises a question as to the actual nature of CBE’s
activities; it asserts that as an organization mainly concerned
with providing salaries for its members, CBE’s activities are not
within the protection of the First and Fourteenth Amendments,
and thus the district court 1acked jurisdiction to pass on the
constitutionality of section 22-20(g). The Village also alleges
that the 75 percent requirement is a reasonable way to protect
its citizens by distinguishing commercial from charitabie organ-
izations, and at a minimum a trial was required to determine
that reasonableness. ;
The Village also argues that section 22-20(g) is not uncon-
stitutional on its face. This argument is based on the Village’s
evaluation of the provisions of chapter 22 in light of previous
cases where the regulation of solicitation was declared uncon-
stitutional, and on the Supreme Court’s pronouncement that
there is no absolute right to enter on private premises and solicit
funds.* The Village concludes from its evaluation that the fatal
flaws of vagueness and impermissible discretion of public
officials are not present in chapter 22, that the provisions enjoy
a presumption of constitutional validity that has not been over-
3. Hynes v. Mayor of Oradell, 425 U.S. 610, 619, 96 S. Ct.
1755, 1760, 48 L. Ed. 2d 243 (1976).
a eaner eadt
AS
come, and that any infringement of First Amendment rights is
minimal and a result of the Village’s legitimate interest in
protecting its citizens from fraud by those operating under the
guise of charitable organizations.
CBE, on the other hand, argues that summary judgment was
proper, alleging that classification of its particular activities is
irrelevant to the question of constitutionality. CBE argues that
section 22-20(g) is too restrictive of First Amendment freedoms
and is thus invalid on its face; it provides an absojute bar to
canvassing and soliciting if an organization does not meet the
75 percent requirement, it militates against certain types of
organizations, it in effect requests information which has a
“chilling effect” on the exercise of First Amendment rights, and
it is not intimately related to the purpose of protection of the
Village citizens from fraud. .
———__~ ~~.
The special principles pertinent to First Amendment chal-
lenges lead to the conclusion that this action is properly brought
by CBE. CBE applied for and was denied a permit to canvass
in the Village. Thus a controversy exists, and CBE has the per-
sonal stake in the outcome required by this court in Grandco
Corp. Vv. Rockford, 536 F. 2d 197, 207 (7th Cir. 1976). In
that case a challenge to the facial validity of a movie theater
licensing ordinance was allowed where the challenger needed to
comply with the ordinance to operate its business and had ap-
plied for and been denied a license.
Furthermore, in the context of a First Amendment challenge,
there is no additional requirement that CBE show it would not
have been denied a permit under a constitutionally valid ordi-
‘nance. This principle was stated by the Supreme Court in
NAACP Vv. Button, 371 U.S. 415, 432, 83 S. Ct. 328, 337-38,
9 L. Ed. 2d 405 (1963):
“(T]he instant decree may be invalid if it prohibits privi-
leged exercises of First Amendment rights whether or not
A6
the record discloses that the petitioner has engaged in
privileged conduct. For in appraising a statute’s inhibitory
effect on such rights, this Court has not hestitated to take
into account possible applications of the statute in other
factual contexts besides that at bar.”
See also Thornhill v. Alabama, 310 U. S. 88, 97-98, 60 S. Ct.
736, 741-42, 84 L. Ed. 1093 (1940). This court recognized the
principle in Grandco, supra.
It thus follows that any issue of fact as to the nature of
CBE’s particular activities is not material to its standing to
challenge the Village code on First Amendment grounds and
is therefore not an obstacle to the granting of summary judg-
ment.
Ill.
We turn now to the constitutional validity of section 22-20
(g). The Village asserts that the reasonableness of section 22-
20(g) is an issue of fact. Undoubtedly the determination of
reasonableness is a factual inquiry in many situations. However,
in the present situation we conclude that the question is solely
one of law; we perceive no relevant factual questions which re-
quire resolution.
We agree with both parties that the appropriate and most
recent guidance on the issue before us is to be found in Hynes v.
Mayor of Oradell, 425 U. S. 610, 96 S. Ct. 1755, 48 L. Ed. 2d
243 (1976). Although the ordinance involved in Hynes was
invalidated on the ground of vagueness,* the general guidelines
the decision provides, evaluated in the context of prior de-
cisions on the regulation of solicitation, support our decision
here. :
The Supreme Court stated in Hynes that there is no absolute
right to enter on private premises and knock on another's door,
4. The ordinance at issue required registration with the police.
department, for identification purposes, by any person wishing to
canvass or solicit for a charitable or political cause.
eee ere
A7
and that the police power permits reasonable regulation of this
actiyity for the public safety. 425 U. S. at 619, 96 S. Ct. at
1760. However, when this regulation involves First Amend-
ment activity, that regulation-must be accomplished “so as not
to intrude upon the right of free speech,” 425 U. S. 616, 96
S. Ct. at 1758-59: it must be done “with narrow specificity,”
425 U. S. at 620, 96 S. Ct. at 1760, be “suitably designed” to
serve the legitimate interest involved, 425 U. S. at 619, 96 S. Ct.
at 1760, and must not give broad discretionary powets to
municipal officials in granting a permit, 425 U. S. at 617, 96
S. Ct. at 1759.
This framework is consistent with and further explained by
previous Supreme Court decisions relating to the regulation of
door-to-door solicitation. The Court has recognized the pur-
poses of the protection of the people from fraud and disruption
of the peaceful enjoyment of their homes, but has held invalid
such regulation when it unreasonably obstructed the collection
of funds, Cantwell v. Connecticut, 310 U. S. 296, 60 S. Ct.
900, 84 L. Ed. 1213 (1940), or when it, in fact, prohibited
canvassing and solicitation, Schneider v. State, 308 U. S. 147,
60 S. Ct. 146, 84 L. Ed. 155 (1939). In Martin v. Struthers,
319 U. S. 141, 63 S. Ct. 862, 87 L. Ed. 1313 (1943), the
Court recognized the need to balance the purposes of protec-
tion and peace against the traditions and values of free discus-
sion and the dissemination of ideas.
If the restrictions placed on canvassing and soliciting by sec-
tion 22-20(g) do not meet these standards, then the provision
must fail. The fact that CBE may use other methods, such as
the mails, to contact Village citizens is not relevant to the First
Amendment challenges. See Va. State Board of Pharmacy v.
Va. Citizens Consumer Council, Inc., 425 U. S. 748, 757 n. 15,
96 S. Ct. 1817, 1823, 48 L. Ed. 2d 346 (1976). In addition,
although duly enacted -provisions normally enjoy a presump-
tion of constitutionality, the rule is not applicable where there
is a question of improper infringement of the exercise of First
A8
Amendment rights. See Organization for a Better Austin V.
Keefe, 402 U. S. 415, 419, 91 S. Ct. 1575, 29 L. Ed 2d 1
(1971), which vacated an injunction against the peaceful dis-
tribution of leaflets, stating that prior restraints bear a heavy
burden against constitutionality.
Section 22-20(g) sets out specific standards for the granting
of a permit; if these standards are met, the Village Board must
grant the permit. Thus, the provision does not have the same
facial defects of vagueness or broad discretion which have re-
sulted in the invalidation of prior regulatory efforts. However,
when the Court in Hynes stated that a narrowly drawn ordi-
nance which does not give broad discretion to public officials
“may serve these important [peace and protection] interests
without running afoul of the First Amendment,” 425 U. S. ai
616, 96 S. Ct. at 1759, [ervhasis added}, it could not have
meant that any ordinance which avoids those two pitfalls auto-
matically meets First Amendment standards.
Chapter 22 does present problems similar to those encoun-
tered with regulations previously struck down for vagueness.
Articles II and III do not necessarily cover all possible situations
of door-to-door solicitation. There is, for example, no express
exemption from the charitable solicitation provisions for reli-
gious or political campaign canvassing combined with solicita-
tion of funds, although this type of activity is arguably within
the section 22-19 broad definition.® In addition, it is unclear, as
Village counsel admits, whether non-scientific research activities
5. The Village argues that religious and political organizations
are not under sections 22-19 through 22-24 because they are not
specifically enumerated in section 22-19. This is certainly not
apparent on the face of the provision; indeed it seems inconsistent
with the broad ‘definition employed. Village counsel admits that
inclusion of religious organizations probably would result in impair-
ment of the First Amendment freedoms of such organizations.
The Illinois statutes regulating charitable solicitation employ essen-
tially the same definitions for charitable organization and charitable
purpose as the Village code; however, there is express exemption
from the registration requirements for religious organizations. III.
Rev. Stat. ch. 23, §§ 5101(a)(f), 5103(a).
A9
could be deemed part of an organization’s charitable purpose.
The logical implication of excluding all salaries from charitable
purpose is that it would not be so classified. Furthermore, it is
unclear whether organizations which neither meet the require-
ments of section 22-20 nor come under the definitions of for-
profit peddlers and solicitors are subject to any regulation under
the Village code.°
Once an organization does fall under the Village’s broad
definition of charitable organization, however, it is apparently
absolutely prohibited from canvassing and soliciting in the
Village if it does not meet the 75 percent requirement, or, as
the Village suggests in the case of CBE, it is forced to meet the
more strict requirements for for-profit activities under sections
22-6 through 22-18. Section 22-19 encompasses not only the
traditional concept of charitable organizations—those aiding
the poor or disadvantaged, for example, or working to over-
come traditionally recognized evils such as disease—but or-
ganizations such as CBE holds itself out to be, which serve an
information gathering and dissemination function and routinely
work to promote legislation or other government action. The
Village admits that “public interest” groups could come within
the purview of section 22-19. In such an organization paid
solicitors often also perform the functions of ‘information dis-
semination, discussion, and advocacy of public issues, In addi-
tion, where the cause is an unpopular one, the salaries paid to
solicitors may have to be relatively high to compensate for the
increased unpleasantness resulting from public reaction and to
ensure that the needed solicitation effort does indeed occur.
Certainly other paid members of the organization work to ob-
6. The Village alleges that CBE, at least, can apply for a permit
under the for-profit provisions. It is not clear that CBE would come
within the definition of section 22-6, and we note that organizations
purporting to be charitable come under section 22-19. More impor-
tantly, however, as we have already stated, we are concerned here
not with the particular characteristics of CBE but instead with the
impact of section 22-20(g) on organizations of the type CBE pur-
ports to be.
Al10
tain and compile relevant information and promote the organi-
zation’s position on its target issues. The district court recog-
nized the functional distinction between traditional charitable
organizations and those more oriented toward advocacy.
Mr. Justice Brennan, concurring in Hynes, noted the im-
portance of canvassing in the areas of political campaigns and
public matters, citing particularly the importance of discussion
of sensitive and controversial issues. 425 U. S. at 625, 96 S. Ct.
at 1763. Although Mr. Justice Brennan recognized the need for
more regulation where solicitation of funds is also involved,
he was speaking in the context of an ordinance requiring identi-
fication; we conclude that the greater regulation he recognized
was neither absolute prohibition nor an unnecessary additional
burden. But in essence these are the consequences organizations
which combine solicitation with their other activities must face."
We do not decide the reasonableness of the 75 percent require-
ment as applied to solicitation by the more traditional charitable
organizations. However, for the reasons stated below, the re-
quirement is on its face unreasonable when applied to an
organization which by its nature allegedly devotes a large por-
tion of its efforts to information gathering and promotion of its —
objectives, and where its paid solicitors necessarily combine
solicitation with other primary activities of the organization.
The Village has a legitimate interest in protecting its citizens
from fraud by solicitors who will use the funds collected for
purposes other than those expressly or impliedly represented. It
has a similar protection interest in identifying organizations
7. This court has also recognized the evils of absolute prohivition
of canvassing for funds by “ta non-profit group that expresses essen-
tially political ideas.” In a per curiam opinion reversing the denial of
a preliminary injunction sought by CBE in Citizens for a Better
Environment v. City of Park Ridge, No. 75-1587, ........ Bodh srhadess
(7th Cir. 1975), the court condemned, in spite of the legitimate
municipal interest in guarding the privacy of citizens and protecting
them from fraud; a blanket prohibition on charitable solicitations
except upon the request or invitation of residential owners or occu-
pants. The court’s characterization of CBE in that decision does not,
of course, bind the Village here.
>.
ee
SS ee teen a eS? ee ee
All
where the salaries paid are so large in relation to the services
provided that the organization is actually a for-profit venture.
The 75 percent requirement might be valid where solicitors rep-
resent themselves as mere conduits for contributions. But the
requirement as it exists in the Village code also applies where it
is made clear that the contributions will be used for reasonable
salaries of those who will gather and disseminate information
relevant to the organization’s purpose. Thus the standard is not a
_Sufficiently narrow solution to the problems of potential fraud or
to the need to identify those organizations entitled only to the
protections afforded commercial speech. The freedom of expres-
sion of organizations which do not present these problems is also
infringed, either by absolute prohibition or the additional burden
of the for-profit permit requirements.
In Schneider the Supreme Court stated that although abridg-
ment of First Amendment freedoms may be an efficient and
convenient means to prevent fraud and trespass, these considera-
tions cannot justify such abridgment. See also Justice Brennan’s
concurrence in Hynes, quoting Thomas v. Collins, 323 U.S. 516,
530, 65 S. Ct. 315, 323, 89 L. Ed. 440 (1945):
“[I]n the area of First Amendment protections, ‘[t]he
rational connection between the remedy provided and the
evil to be curbed, which in other contexts might support
legislation against attack on due process grounds, will not
suffice. .. . Accordingly, whatever occasion would restrain
orderly discussion and persuasion, at appropriate time and
place, must have clear support in public danger, actual
or impending.’ ”
425 U.S. at 628, 96 S. Ct. at 1764. Section 22-20(g) does not
meet this standard.
Our conclusion is not inconsistent with the Fifth Circuit's
decision in Nat'l Foundation v. City of Ft. Worth, 415 F. 2d 41
(Sth Cir. 1969), cert. denied, 396 U.S. 1040 (1970). That
decision upheld an ordinance which limited the cost of solicita-
tion of charitable contributions to 20 percent of total receipts.
However, the ordinance also allowed an organization which did
Al2
not meet the requirement to show that its percentage was not ©
unreasonable. The court recognized that within the broad class
of charitable organizations a rigid percentage requirement would
be difficult to justify, stating:
“A fixed percentage limitation on the costs of solicitation
might be undesirable and inapplicable if applied to all types
of charitable organizations. What may be proper in one
situation may not be so in other situations. The ordinance
before us does not imply a fixed standard but permits a
determination of reasonableness of the ratio between the
cost of solicitation and the amount collected.”
Section 22-20(g) provides no similar flexibility.
Accordingly, the decision of the district court is affirmed.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
Se ee ee ee Se
Al3
APPENDIX B—OPINION OF UNITED STATES
DISTRICT COURT.
IN THE UNITED STATES DISTRICT COURT
* * (Caption—76 C 470) * *
FINAL JUDGMENT.
The Plaintiffs in this action are the Citizens for a Better
Environment (CBE), an Illinois not-for-profit corporation, and
a certain named employee of the organization. CBE’s major
source of financial support consists of small contributions from
individual citizens. CBE wishes to conduct a door-to-door fund-
raising canvass in the defendant village, Schaumburg, Illinois. In
Count I, the Plaintiffs contend that the Village of Schaumburg’s
refusal to allow a CBE canvass deprives them of their rights
guaranteed by the first and fourteenth amendments to the United
States Constitution. Counts II and III of the Complaint charge
that Village of Schaumburg’s solicitation ordinance violates the
first and fourteenth amendments. Count II challenges the Ordi-
nance as enacted by the Village of Schaumburg, and Count III
challenges its subsequent codification.
CBE seeks: (1) judgment declaring the ordinance void and
an injunction prohibiting its enforcement; and (2) judgment
declaring the Village Board’s action void and an injunction
prohibiting further interference with the Plaintiffs’ right to can-
vass Schaumburg. CBE now moves for summary judgment. This
motion is now ready for decision on the pleadings, exhibits, and.
memoranda submitted by the parties.
The Schaumburg ordinance regulates charitable solicitation.
All prospective solicitors must first procure a charitable solicita-
tion permit from the Village. The applicant must submit infor-
mation, including the name of the organization and the name
Al4
under which it intends to solicit contributions, the name and
address of the person in charge of solicitation in the Village, the
names and addresses of all persons who will solicit contributions
in the Village, the dates and times of day such solicitations are
to be made, and the geographic area within the Village wherein
such solicitation shall be conducted at a particular time and day,
a written statement of recent date by the Attorney General of
Illinois that the organization has complied with the provisions of
“An Act to Regulate Solicitation and Collection of Funds for
Charitable Purposes,” satisfactory proof that the organization is
a tax-exempt organization under the Internal Revenue Code of
the United States, § 501(c)(3), and satisfactory proof that at
least seventy-five percent of the proceeds of such solicitations will
be used directly for the charitable purpose of the organization.
Chapter 22, § 20(g), of the Schaumburg Village Code states
the following:
(g) Satisfactory proof that at least seventy-five percent of
the proceeds of such solicitations will be used directly for
the charitable purpose of the organization. For such pur-
poses, the following items shall not be deemed to be used
for the charitable purposes of the organization, to wit:
(1) Salaries or commissions paid to solicitors;
(2) Administrative expenses of the organization,
including, but not limited to, salaries, attorneys’ fees,
rents, telephone, advertising expenses, contributions to
other organizations and persons, except as a charitable
contribution and related expenses incurred as adminis-
trative or overhead items.
For the purpose of satisfying the requirements of subpara-
graph (g), the organization shall submit a certified audit of
the last full year of operations, indicating the distribution
of funds collected by the organization, or such other com-
parable evidence as may demonstrate the fact that at least
seventy-five per cent of the funds collected are utilized
directly and solely for the charitable purpose of the organi-
zation. (Ord. No. 1052, § 3.)
CBE’s main concern is with this particular requirement.
ee ee <n sane
os
ae at a
AlS5
Through the years, the United States Supreme Court has
enunciated definitive guidelines for application when the govern-
ment’s right to regulate clashes with first-amciudment freedoms.
Plainly, the government may regulate solicitation in order to
protect the community from fraud. A city may, for example,
require the solicitor to appear and establish his identity and
authority to act in behalf of the cause he represents. Cantwell v.
Connecticut, 310 U. S. 296, 306 (1940). Any action impinging
upon the freedom of expression and discussion, however, must
be minimal, and intimately related to an articulated, substantial
governmental interest. As noted in NAACP v. Button, 371 U. S.
415, 438 (1963), “[p]recision of regulation must be the touch-
stone in an area so closely touching our most precious free-
doms.” In a long line of cases the Court has consistently invali-
dated statutes and ordinances that permit a public official to
exercise broad discretion in granting or denying the right to
engage in constitutionally protected activities; e.g., NAACP v.
Button, supra; Staub v. City of Baxley, 355 U.S. 313 (1958):
Martin v. City of Struthers, 319 U.S. 141 (1943); Cantwell v.
Connecticut, 310 U.S. 296 (1940); Schneider v. State, 308
U.S. 147 (1939),
In this Court’s decision of February 25, 1977, in this case
entered regarding the Village of Palatine, this Court stated:
. . . Also constitutionally impermissible, is the provision of
the ordinance requiring the applicant to supply “such addi-
tional information as the Chief of Police” of the Village of
Palatine requests.
This provision authorizes the Chief of Police in his discre-
tion to solicit information about an organization’s views and
practices, and to deny a permit on the basis of his evalua-
tion of those views and practices.
In fact, this appears to be what happened. Exhibit 4 of the
Hoellwarth affidavit is a letter from the Village Board deny-
ing plaintiffs the right to solicit because in the Board’s view,
the majority of plaintiffs contribution do not make their
way to plaintiffs’ chartered function. This is a form of
censorship prohibited by the Supreme Court.
Al6
The Schaumburg requirement that 75% of the proceeds of a
solicitation will. be used directly for the charitable purpose of the
organization before a permit will be issued is also constitutionally
impermissible.
It does not make any difference that in the case a similar
requirement was codified by the Village Board of Schaumburg
instead of imposed by the Chief of Police.
The Village of Schaumburg’s soliciting ordinance mandates
the issuance of a permit to any person or group that can meet
its requirements. CBE was apparently denied the right to solicit
in the Village of Schaumburg only because it did not comply
with this requirement in § 20(g) since CBE is able and willing
to comply with the other requirements and does not challenge
them at this time.
The Plaintiffs’ Motion for Summary Judgment on Counts
II and III is granted insofar as Section 20(g) of Chapter 22 of
the Village of Schaumburg Code and § 3(g) of Village of
Schaumburg ordinance entitled “An Ordinance Regulating
Soliciting by Charitable Organizations” and numbered 1052
are declared unconstitutional and void on their face, and their
enforcement against CBE is hereby enjoined.
The Plaintiff's Motion for Summary Judgment on Count I is
granted. The action of the Village of Schaumburg denying CBE
pexmission to canvass and solicit funds in the Village is declared
in violation of the constitutional rights of CBE. The Village of
Schaumburg is enjoined from further prohibition of the CBE.
canvass and solicitation of funds and is ordered to issue a permit
to canvass and solicit funds to CBE forthwith.
Enter:
/s/ Prentice H. Marshall
Judge
Dated: February 17, 1978.
SAM 6 eT OE
oe nie ene
en eae
Al7
APPENDIX C—-AMENDMENTS TO UNITED STATES
CONSTITUTION.
AMENDMENT XIV.
§ 1. Citizenship rights not to be abridged by states
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
eng within its jurisdiction the equal protection of the
aws.
AMENDMENT [I.]
Freedom of religion, speech and press; peaceful assemblage;
petition of grievances
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 the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
SCHAUMBURG VILLAGE Copk, CHAPTER 22, AR‘ICLE III.
Article III. Charitable Organizations.
For state law as to solicitation of funds for charitable purposes,
see Ill. Rev. Stat., ch. 23, § 5101 et seq.
Sec. 22-19. Definitions.
For the purpose of this article, the following words and
phrases shall have the following meanings unless a different
meaning is required by the context:
Charitable organization. Any benevolent, philanthropic,
patriotic, not-for-profit, or eleemosynary group, association or
Al8
corporation, or such organization purporting to be such, which
solicits and collects funds for charitable purposes.
Charitable purpose. Any charitable, benevolent, philan-
thropic, patriotic, or eleemosynary purpose.
Contribution. The promise or grant of any money or prop-
erty of any kind or value, including payments for literature in
excess of the fair market value of said literature. (Ord. No.
1052, § 2.)
Sec. 22-20. Permits—Required; contents of application.
Every charitable organization, which solicits or intends to
solicit contributions from persons in the village by door-to-door
solicitation or the use of public streets and public ways, shall
prior to such solicitation apply for a permit. Said application
shall be made to the village clerk and shall include the following
information:
(a) The name of the organization arid the name under
which it intends to solicit contributions.
(b) The name and address of the person in charge of
solicitation in the village.
(c) The names and addresses of all the persons whe
will solicit contributions in the village.
(d) The dates and times of day such solicitations are
to be made and the geographic area within the village
wherein such solicitation siiall be conducted at a particu-
lar time and day.
(e) A written statement of recent date by the Attorney
General of Illinois that the organization has complied with
the provisions of “An Act to Regulate Solicitation and
Collection of Funds for Charitable Purposes,” Illinois Re-
vised Statutes, chapter 23, section 5101, and such statute
as it may hereafter be amended.
Al9
(f) Satisfactory proof that the organization is a tax
exempt organization under the Internal Revenue Code of
the United States, section 501 (c) (3).
(g) Satisfactory proof tha‘ at least seventy-five per cent
of the proceeds of such solicitations will be used directly
for the charitable purpose of the organization. For such
purposes, the following items shall not be deemed to be
used for the charitable purposes of the organization, to wit:
(1) Salaries or commissions paid to sovicitors;
(2) Administrative expenses of the organization,
including, but not limited to, salaries, attorneys’ fees,
rents, telephone advertising expenses, contributions
to other organizations 2d persons, except as a chari-
table contribution and related expenses incurred as
administrative or overhead items.
For the purpose of satisfying the requirements of subpara-
graph (g), the organization shall submit a certified audit of
the last full year of operations, indicating the distribution of
funds collected by the organization, or such other comparable
evidence as may demonstrate the fact that at least seventy-five
per cent of the funds collected are utilized directly and solely for
the charitable purpose of the organization. (Ord. No. 1052,
§ 3.)
Sec. 22-21. Same—Submission and verification of applica-
tions; issuance.
All applications shall be submitted to the village clerk and
shall be verified under oath by a responsible officer of the
soliciting organization. All completed applications shall be sub-
mitted by the village clerk to the village board. If the village
board shall find and determine that all requirements of this
article have been met, a permit shall be issued specifying the
dates and times at which solicitation may take place. (Ord. No.
1052, § 7.)
SL Lee AT RRR TO meer eR TT
A20
Sec. 22-22. Same—Fee.
Each application for a charitable solicitation permit shall be
accompanied by a fee in the amount of ten dollars. (Ord. No.
1052, § 6.)
Sec. 22-23. Indicted or convicted felons as solicitors.
It shall be unlawful for any.charitable organization to utilize
as a solicitor any person who has been convicted of a felony or is
presently under indictment for a felony. (Ord. No. 1052, § 5.)
Sec. 22-24. Hours; entering premises posted for “no soliciting.”
No permit issued under the provisions of this article shall
permit solicitation before the hour of 9:00 A.M. and after the
hour of 6:00 P.M., or on Sunday. Nothing herein provided shall
‘permit a solicitor to go upon any premises which has posted a
sign indicating “no solicitors or peddlers invited.” (Ord. No.
1052, § 4.)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.