Appendix — Dallas County Hospital District v. Dallas Association of Community Organizations for Reform Now

Supreme Court brief1982

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Text

A-1

DALLAS ASSOCIATION OF COMMUNITY

ORGANIZATIONS FOR REFORM NOW, et al.,

Plaintiffs-A ppellants,

DALLAS COUNTY HOSPITAL DISTRICT,

Defendant-Appellee.

No. 79-3967.

United States Court of Appeals,

Fifth Circuit.*

Unit A

ization

to promote social and economic changes brought action chal-

ing, on First Amendment grounds, public hospital’s “no

solicitation rule.” The United States District Court for the

Northern District of Texas, Barefoot Sanders, Jr., J., entered

for defendant, 478 F.Supp. 1250, and the Court of

rend gegy Siding edie ert ge meyy bow amend

en banc, the Court of Appeals held that hospital’s “no

solicitation rule” was unconstitutional because hospital ad-

Coleman, Circuit Judge, dissented and filed opinion.

*Former Fifth Circuit case, Section 9(1) of Public Law 96-452

— October 14, 1980.

A-2

1. Constitutional Law — 90.1(4)

Hospital’s “no solicitation rule’ was unconstitutional

because hospital administration could not forbid the distribu-

tion of literature, based on its content, throughout entire

hospital area and could not delegate unfettered discretion to

administrator to interpret the rule by making his own decision

about acceptability of content of the literature, and rule was

also overbroad in that it potentially reached and restricted

every single mode of expression, including pure speech; a

proper rule would define by objective standards literature

2. Constitutional Law — 90.1 (4)

The First Amendment is violated by unreasonable end

unequal restrictions on access to public property, as well as

by delegation authority to a single person to determine who

ee ee ee ee

3. Constitutional Law — 90(3)

A rule acceptable under the First Amendment would pre-

vent only those expressions that are basically incompatible

with normal activity of a particular place at a particular

Tex., for plaintiffs-appellants.

Mary F. Keller, American Civil Liberties Foundation of

Texas, Inc., Austin, Tex., amicus curiae for Texas Civil

Liberties Union.

Robert L. Schwartz, Chicago, IIl., amicus curiae for Amer-

ican Hospital Ass’n.

Earl Luna, Dallas, Tex., Thomas V. Murto, III, for

defendant appellee.

A-3

from the United States District Court for the

District of Texas.

Appeal

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public forum, and disruptive expressions that interfere with

the purpose, function and administration of a hospital.

[1] The troublesome “no solicitation rule” ig

Pesizend etestnistontess to pryvent ACORN Sem

vaste

fereeger hy

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ire hospital area, and (ii) the hospital

tion cannot delegate unfettered discretion to the

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447 U.S. 530,

2382, 65 LBd2d 319, 326, 327 (1980),

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recognized the validity of reasonable time, place,

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review must exist so that decisions by the administration

as to what areas are susceptible to disruption might be

The present “no solicitation rule” at Parkland is not vague

or the distribution of leaflets, are incompatible with the pri-

mary activities of all areas where care is being

administered. We reverse both the District Court’s finding

that Parkland is not a public forum and its holding that

Parkland’s “no ion rule” is constitutional. The case

is remanded to the District Court for reconsideration and a

decision in accordance with the principles set forth above.

Except insofar as explicitly granted in this per curiam

opinion, it is ordered that the petition for rehearing is

*ACORN recognizes that it would be inappropriate to leaflet in

some areas, but insists that the more public areas, such as clinic

waiting rooms, are proper forums for its activities. This abstract

argument fails to take into account the overcrowded and congested

conditions at Parkland. Under such circumstances, it may be neces-

sary to provide medical care to patients even in areas originally

designated as visitors’ lobbies, or patients’ waiting rooms. These

factors must be considered in any assessment of the interference

caused by solicitation or leafleting.

A-9

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United States Court of Appeals

FOR THE FIFTH CIRCUIT*

October Term, 19

No. 79-3967

D. C. Docket No. CA 3-79-0055-H

DaLias ASSOCIATION OF COMMUNITY

ORGANIZATIONS For Rerorm Now, ET AL,

Plaintiffs-Appellants,

versus

Da.ias County Hosprrat District,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Texas

dh i

Haft

iy:

Plaintiffs-

For Rerorm Now, ET AL.,

B-1

DALLAS ASSOCIATION OF COMMUNITY ORGANIZTATIONS

Daitas County Hosprrar District,

No. 79-3967

iE aati

B-2

areas of the hospital and out-patient clinic areas. U.S.C.A.

Const. Amend. 1.

2. Constitutional Law — 90.1(1)

relief from enforcement of hospital’s “no solicitation rule,”

the organization failed to show a lack of suitable alternative

forums for conducting its solicitation such as would warrant

granting of relief. U.S.C.A.Const. Amend. 1.

Roger E. Albright, Dallas Legal Services Fdn., Inc., Dallas,

Tex., for plaintiffs-appellants.

Mary F. Keller, American Civil Liberties Foundation of

Texas, Inc., Austin, Tex., for Texas Civil Liberties Union.

Robert L. Schwartz, Chicago, IIl., for American Hospital

Earl Luna, Thomas V. Murto, III, Dallas, Tex., for

defendant-appellee.

Appeal from the United States District Court for the

Northern District of Texas.

Before BROWN, COLEMAN and GEE, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This appeal presents a constitutional issue that is not

clearly controlled by prior authority. Plaintiffs, the Dallas

Association of Community Organizations for Reform Now

(ACORN), Scott Holladay, the past regional organizer for

ACORN, and Leon Gowans, chairman of a neighborhood

group affiliated with ACORN, appeal the District Court’s,

478 F.Supp. 1250, judgment denying them injunctive and

declaratory relief and attorney’s fees, and awarding court

*Unless necessity dictates otherwise, plaintiffs wil] be referred to

collectively throughout this opinion as ACORN.

B-3

costs to the defendant, Dallas County Hospital District

(District) , in an action brought pursuant to 42 U.S.C. § 1983,

et seq., as well as the First and Fourteenth Amendments.’

ACORN contends that the District Court erred in concluding

(i) that a hospital owned and operated by the District, a

tions at the hospital warrant the implementation of time,

place, and manner restrictions on First Amendment activity

in even the nonpatient care areas, we affirm, and do not reach

th tit ti lity of th “ Li it ti ] ”

The District is a political subdivision created and operated

One of the major hospitals providing health care to the

indigent in Dallas is Parkland Memorial Hospital, owned

and operated by the District. Parkland has facilities for

emergency care, inpatient hospital care, and outpatient care.

*Jurisdiction is conferred by 25 U.S.C. § 1343(3).

B-4

complex has three entrances for patients

entrance for most patients being admitted

to the hospital, the outpatient clinic entrance to the side,

Parkland hospital

— the front lobby

and an emergency room entrance in the rear. It is surrounded

by busy public streets. Vehicular access is limited to three

parking lot on the grounds of

across the street. Those patients

entrances. There is a patient

the hospital and a public lot

xi generally

city property

who do not arrive by private automobile or taxi

come by bus. Three bus stops are located on

to the hospital.

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In the fall of 1978, one of the issues in which ACORN

members were interested was the improvement of health

care provided to low and moderate income residents of Dallas

B-6

prohibited without prior written approval of the Hospital

Administrator.”

Ten days later, six to eight ACORN members entered the

first floor of the outpatient clinic without permission and

attempted to distribute two different leaflets to people in

speaking employees in the clinic, and (v) additional parking

for patients and their families.’

After a bench trial, the District Court held that although

ACORN's leafletting at Parkland is the kind of activity pro-

*One of the leaflets, which was less controversial than the other,

was two typed pages. This leaflet promoted neighborhood health

clinics, criticized the Board’s opposition to these clinics, and listed

some of the other concerns of ACORN about Parkland. Most of the

testimony at trial related to the possible detrimental effects on

patients of the second leaflet. At the top of this one page leaflet is

a large bold faced caption saying. “How long have you been waiting

for decent health care?” Under the caption is a cartoon depicting the

patient waiting area. The doctor at the door is shouting, “Next!”

to the only occupant of the waiting room —a skeleton draped in a

chair with cobwebs over its head. Under this graphic cartoon is a

short demand for neighborhood health clinics, a notice of an

;

ACORN attacks these conclusions, advancing four theories

why the District Court’s ruling is incorrect. First, ACORN

Laue

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**Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714,

41 L.Ed.2d 770 (1974).

ee ne a ee

S.Ct. 1817, 1830, 48 L.Ed.2d 346, 363-64 (

Rockford, 408 U.S. 104, 92 8.Ct. 2294, 33 L.Ed.2d 222 (1

72)

pendent Community School District, 209 USS. 508, 512 né,

89 S.Ct. 733, 739 n.6, 21 L.Ed2d 731, 741 n.6 (1969). More-

over, in Lehman v. City of Shaker Heights, 418 U.S. 298, 94

549 (9th Cir. 1978); Chicago Area Military Project v.

of Chicago, 508 F.2d 921, 925 (7th Cir. 1975); Inter-

eo Nd re nd tony how b ach ed Bog

F.Supp. 714, 718 (N.D.Tex.1978).

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applied

cifically, ACORN claims that the “rule” must be struck down

Court

rule,”

because it is both “vague” and “overbroad.”

District

tion

III.

the

“no

discriminately, does not violate the First

ACORN also claims that

concluded that Parkland

al afl a

Ale

Having determined that Parkland may constitutionally

limit the activities of ACORN in the front lobby of Parkland

B-14

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C-1

DALLAS ASSOCIATION OF COMMUNITY

ORGANIZATIONS FOR REFORM NOW,

Leon Gowans, and Scott Holladay, Plaintiffs,

Vv.

DALLAS COUNTY HOSPITAL DISTRICT, Defendant.

improved waiting

U.S.C.A.Const. Amend. 1; Vernon’s Ann.Tex.Civ.St. art.

4494n.

C-2

2. Constitutional Law — 90.1(4)

As a prior restraint on speech, public hospital’s no-solicita-

tion rule carried a heavy presumption against its validity.

U.S.C.A.Const. Amend. 1.

3. Constitutional Law — 90.1 (1)

Prior restraints against leafleting are particularly suspect

because of the importance of pamphleteering in the birth of

liberty in this country. U.S.C.A.Const. Amend. 1.

4. Constitutional Law — 90(3)

Merely stating that prior restraints on speech are pre-

work for a First Amendment case. U.S.C.A.Const. Amend. 1.

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C-3

8. Constitutional Law — 90(3)

First Amendment activity can constitutionally be sub-

jected to reasonable time, manner, and place regulations, and

in some cases prohibited. U.S.C.A.Const. Amend. 1.

9. Constitutional Law — 90(3)

total ban. U.S.C.A.Const. Amend. 1.

10. Constitutional Law — 90.1 (4)

Activities of organization of low to moderate income fami-

lies designed to promote social and economic changes in

leafleting at public hospital for purpose of improving alleged-

and identifying

for patients and their families was the kind of activity pro-

tected by the First Amendment. U.S.C.A.Const. Amend. 1.

11. Constitutional Law — 90.1(4)

Public ownership or public admittance is a threshold

requirement for a “public forum” for First Amendment pur-

poses. U.S.C.A.Const. Amend. 1.

12. Constitutional Law — 90.1 (4)

A place is not a public forum for First Amendment pur-

poses simply because it is publicly owned or because the

public is permitted to be there. U.S.C.A. Const. Amend. 1.

13. Constitutional Law — 90.1(4)

there are some places in community which are inherently

inappropriate for certain kinds of First Amendment activity.

U.S.C.A.Const. Amend. 1.

C-4

14. Constitutional Law — 90.1(4)

In deciding the public forum question for First Amendment

purposes two tests are used: historical and realistic, with the

Celestial tant Seshian Shell te Gna daaeuin f Gut Sesame

Ob yer erage tmwoenge dosed nadt, cae naan

while the realistic test requires determining the

Ged ditties cones coed ke tae ORDA

Amend. 1.

15. Constitutional Law — 90.1 (4)

The historical test should not be the exclusive measure of

what is a public forum for First Amendment purposes as it

places a time lock on the Constitution. U.S.C.A.Const.

Amend. 1.

16. Constitutional Law — 90.1 (4)

_ Under the realistic test for determining whether a place

place is a public forum. U.S.C.A.Const. Amend. 1.

17. Constitutional Law — 90.1 (4)

public transportation

and state capitol grounds. U.S.C.A.Const. Amend. 1.

18. Constitutional Law — 90.1 (4)

19. Constitutional Law — 90.1(4)

A public hospital is not a public forum for First Amend-

ment purposes. U.S.C.A. Const. Amend. 1.

C-5

20. Hospitals — 6

Public hospital’s no-solicitation rule would not be stricken

as overly broad, with district court fashioning a rule per-

mitting distribution in public areas, such as clinic waiting

rooms, of pamphlet calling atiention to and seeking rectifica-

tion of alleged deficiencies in outpatient services. U.S.C.

A.Const. Amend. 1.

Roger E. Albright, Dallas Legal Services Foundation, Inc.,

Dallas, Tex., for plaintiffs.

Earl Luna and Thomas V. Murto, III, Dallas, Tex., for

defendant.

OPINION

SANDERS, District Judge.

ee ee ene eee Gane Othe ane

Plaintiffs contend this no solicitation rule is an overly

broad prior restraint of speech, and sue to have the rule

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to handle;*

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floor of the clinic with closed treatment rooms sur-

rund the waiting rooms. Most of the patients served in

where thee are" sultant umber of paving

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registration desk. Frequently, ill patients

to the registration desk.

lobby has a

go to the emergency room come

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who should

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the District opposed; (2) improved waiting room conditions;

3 (4)

in the clinic; and (5) additional parking for

patients and their families.

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of a neighborhood group affiliated with ACORN. ACORN

(ths

employees

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In 1967 the Board of Managers of the Defendant District

adopted the no solicitation rule which is challenged in this

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’ Rockford. 408 U.S. at 115, 92 S.Ct. 2294 (1972).

Soeh chithies peltticin ts aad inotineey ndhts amine

discrimination on the basis of content may more likely violate

the first amendment than a total ban. Cf. Police Department

fee ‘tual protection to ditingish between lab

guarantees are not absolute; a person

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S.Ct. at 1220 (1976), stated tl

exercised be

“public

be carried

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than use

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1*Lehman v. Sg ne SE, GS OS. Se, 88 ee es

41 L.Ed.2d 770 (

“Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 LEd.2d 505

“Adderly v. Fla., 386 U.S. 39, 87 S.Ct. 242, 17 LEd2d 149

(1976).

“Edwards v. 8. C.; 372 U.S. 229, 93 8.

(1966).

(1963).

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‘About 4.7% of the patients admitted each month to the hospital

come from outpatient Clinic.

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given area of

patient or the rendering of

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than judges to decide if child is mentally or emotionally ill).

Nor is it possible to determine solicitation in a

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ity. Parkland’s no solicitation rule, applied nondiscriminately

does not violate the first amendment and is constitutional.

Judgment will be entered for defendant.

D-1

DALLAS ASSOCIATION OF COMMUNITY ORGANIZTATIONS

For Rerorm Now, ET AL.,

Plaintiffs-Appellants,

Vv.

Datias County Hosprrat District,

Defendant- Appellee.

Appeal from the United States District Court for the

Northern District of Texas

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 3-19-82, 5 Cir., 198... F2d._).

(June 18, 1982)

SS tamedine a BROWN and GEE, Circuit Judges.

) Treating the suggestion for rehearing en banc as a

petition for panel rehearing its ordered that the petition

for panel rehearing is DENIED. No member of the panel

nor Judge of this Administrative Unit in regular active ser-

vice having requested that the Court be polled on rehearing

*Former Fifth Circuit case, Section 9(1) of Public Law 96-452-

October 14, 1980.

D-2

en banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16; Fifth Circuit Judicial Council

United States Circuit Judge

Clerk’s Note:

See Rule 41 FRAP and Local

Rule 17 for Stay of the

Mandate.

E-1

U.S. Court of Appeals

FILED

August 9, 1982

Gilbert F. Ganucheau, Clerk

In The

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-3967

DALLAS ASSOCIATION OF COMMUNITY ORGANIZATIONS

For Rerorm Now, ET AL.,

Plaintiffs-A ppellants,

Vv.

Da.ias County Hosprrat District,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

ORDER:

( The motion of Appellee for 1) stay & recall and stay

of the issuance of the mandate pending petition for writ of

certiorari is DENIED.

&) The motion of Appellee for () stay & recall and stay

of the issuance of the mandatae pending petition for writ of

certiorari is GRANTED to and including Sept. 15, 1982, the

stay to continue in force until the final disposition of the

case by the Supreme Court, provided that within the period

above mentioned there shall be filed with the Clerk of this

Court the certificate of the Clerk of the Supreme Court that

United States Circuit Judge

G-1

Art. 4494n. County hospital districts; counties of 190,000

or more and Galveston County

Creation of district

rt ail;

RHE

‘ik

stile

it rH

the One Hundred Dollars ($100.00) valuation”; and

pr eM tS NO ORS

for the levy of a tax not to exceed Seventy-five Cents (75¢)

on the One Hundred Dollars ($100.00) valuation.”

G-2

ie ee

Pe anil &

27eesie O41 Gl ie ih

Han ae |

Secs. 2a, 2b. Repealed by Acts 1979, 66th Leg., p. 2329,

ch. 841, §6(a) (1), eff. Jan. 1, 1982.

Sec. 2 amended by Acts 1979, 66th Leg., p. 2327, ch. 841,

§ 4(s), eff. Jan. 1, 1982.

ay [3

Te aii}

i |

Sec. 2c added by Acts 1979, 66th Leg., p. 671, ch. 298, § 1, eff.

Aug. 27, 1979.

ig:

the faith and credit of

create

the obligations of such Hospital

and

bonds

and

sinking fund

ae Sa nen ican ne Se nase Sanaa ae

iif hil

and sell

Bonds of district; taxes to pay bonds and interest;

PR Bre BS a

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233 Ba 3° athe g223 rH | Jt 5

i] SE enatene Tapa

sh i: eh eH 22 fv i Hale

baa82 Leis us Ai : ie i E

ue ey de il

alti att He: ay ny

ih anal Tea i BM in

G-5

computed in accordance with recognized standard bond

interest cost tables, shall not exceed the average interest

cost per annum so computed upon the bonds to be

County or city property or funds; transfer to district

Sec. 4. Any lends, buildings or equipment that may be

jointly or separately owned by such county and city, and by

which medical or

ao ELL

TRIES

ill]

iit

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bit

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fill

li!

SHE 4

2 = THERE

artis

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case may be, in the event of default in the payment of the

principal or interest on any of such bonds in accordance with

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The Board of Managers shall have the authority to appoint

to the staff such doctors and to employ such technicians,

nurses and other employees of every kind and character as

hospi‘al or hospital system; provided that no contract or term

may be deemed advisable for the efficient operation of the

of employment shall exceed the period of two (2) years.

The Board of Managers, with the approval of the Com-

missioners Court shall be authorized to contract with any

county for care and treatment of such county’s sick, diseased

in an amount not to exceed the actual cost of the service

650,000 to 900,000

and duties as otherwise set out within this section.

Sec. 5(a) amended by Acts 1981, 67th Leg., p. 589, ch. 237,

§ 118, eff. Sept. 1981.

Retirement system

Sec. 5a. The Board of Managers may in addition to retire-

ment programs authorized by this Act establish such other

a;HE

Bi HAA

id: Hie

tify

nal

a2 4348

S BE.

G-11

Powers of Commissioners Court; duties of district, county

officers, employees or agents

Sec. 6. The Commissioners Court of any such county shall

have the power to prescribe the method and manner of mak-

ing purchases and expenditures by and for such Hospital Dis-

ees E

1b nie

Hy bil

eet teiteds

aii ili

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AHI Halt Gh ale 4

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a. He Uh |

g oF g

cage

: g

pees sakes ES 2 & ib:

pallial i ia

aap Wie Le

eff. Sept. 1, 1981

10.

the Board

this

District

county

tory of

them access on demand to all records, reports, books, papers,

and accounts pertaining to the Hospital District.

Legal representatives of district

Sec. 12. It shall be the duty of the County Attorney,

District Attorney or Criminal District Attorney, as the case

the general fund of the county for the account of the budget

of the County Attorney, District Attorney or Criminal

District Attorney, as the case may be, to pay all additional

salaries and expenses incurred by such officer in perfurming

Ti Baas

wi Hl

i HA

: mi HE

THEA

Heel

HEHE TUE

unite

is situated, the

as to his

“egal

t in whale i

such patient, or

Hospital

per

sum

to collect

relatives

of a

patient

or in part,

Sec. 14. Whenever a patient has been admitted to the

ee eee ee nee ene

his

are

part,

rela

for

Patients; inquiry as to ability to pay; liability of relatives

1Article 4494i.

HH !

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423

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