Opposition Brief — City of Clearwater v. Church of Scientology Flag Service Organization, Inc.

‘fh ] —re Vourt, U.S,

No. 93-1604 —/ FILED

— JUL 71 1994

IN THE OFFIC

Avi VE OF Turin

CLERK

Supreme Court of the United States —)

OCTOBER TERM, 1993

>

CITY OF CLEARWATER, FLORIDA, et al.,

Petitioners,

—vVi—

CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

ERIC M. LIEBERMAN

Counsel of Record

LAURIE EDELSTEIN

CAROLINE RULE

RABINOWITZ, BOUDIN, STANDARD,

KRINSKY & LIEBERMAN, P.C.

740 Broadway—Fifth Floor

New York, New York 10003-9518

(212) 254-1111 ;

JOHNSON & JOHNSON

100 South Ashley Drive

Suite 1450

Tampa, Florida 33602

(813) 223-5321

Date: July 11, 1994 Attorneys for Respondent

i

R’ LE 29.1 STATEMENT

Respondent Church of Scientology Flag Service Organi-

zation, Inc. has no parent companies or subsidiaries to list

pursuant to Rule 29.1 of the Rules of the Supreme Court.

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIOB o.oo ccccscccccdscdceau. v

OPINIONS BELOW ...............cc0cc. ond bet Fas |

STATEMENT OF THE CASE........ Perret Tee

Statement of Facts .......... 2

Proceedings Below........................ rrr 5

REASONS FOR DENYING THE PETITION......__. &

I. REVIEW OF THE ELEVENTH CIRCUIT’S

INTERLOCUTORY ORDER IS INAPPROPRIATE

BECAUSE DETERMINATION OF THE FACTUAL

QUESTION WHETHER THE CITY ENACTED

THE ORDINANCE WITH DISCRIMINATORY

MOTIVE MAY PROVE DISPOSITIVE OF THIS

Sol S ASPEE ee sd ceudousheasaciee ee eee 8

A. Resolution Of The Church’s Establishment

Clause Challenge Requires A Factual Deter-

mination Whether The Ordinance Was Enacted

For An Improper Discriminatory Purpose .. 8

B. The Court Of Appeals Correctly Ruled That

Conflicting Evidence Precluded The Grant Of

Summary Judgment On The Question Of The

City’s Motive In Enacting The Ordinance... 10

Il. THE ELEVENTH CIRCUIT’S DECISION IS

CONSISTENT WITH THE DECISIONS OF

OTHER CIRCUITS AND OF THIS COURT ..... 13

PAGE

A. The Eleventh Circuit’s Opinion Does Not

Conflict With The Fifth Circuit’s Decision

In ISKCON vy. City of Houston.............. 15

B. The Eleventh Circuit’s Decision Is Entirely

Consistent With This Court’s Ruling In

Jimmy Swagegart Ministries...............45. 19

C. The City Has Articulated No Important Or

Novel Legal Question For This Court’s Review

With Respect To The Eleventh Circuit's First

Amendment Analysis .................. sute'a's 21

111. THE COURT OF APPEALS APPLIED THE

CORRECT LEGAL STANDARDS IN ANALYZING

THE CHURCH’S ESTABLISH-MENT CLAUSE

AND FREE EXERCISE CLAIMS............. 26

A. The Court Of Appeals Correctly Applied The

Governing Establishment Clause Tests...... 26

B. The Court of Appeals’ Free Exercise Analysis

Is Consistent With This Court’s Decision In

Employment Division v. Smith....... 28

PPP aPOGIET bd dcevecereterccierres hod wwrs 30

APPENDICES

February 4, 1991, Judgment ina Civil Case...... A-]

September 16, 1991, Order of the District Court

Denying Motion for New Trial and/or Motion to

Alter or Amend Judgment he Sobaiieasiniars A-3

PAGE

September 17, 1991, Amended Judgment in a

COV Er GMOS ccs cessvica et) A-5

July 23, 1984, Order of the District Court Holding

Ordinance No. 3479-84 Facially Valid A-6

TABLE OF AUTHORITIES

Cases PAGE

Adickes v. 8S. H. Kress & Co., 398 U.S. 144 (1970) 10

Aguilar v. Felton, 473 U.S. 402 (1985)..... ‘ss 28

Americans United for Separation of Church and State,

etal. v. City of Clearwater, No. 84-699-Civ.-T-17

‘(Ro Sh POPP errr reer rrr rr orerer ee ; ‘3 6

Branzburg v. Hayes, 408 U.S. 665 (1972).... 24

Cantwell v. Connecticut, 310 U.S. 296 (1940) ....14, 21, 29

Church of Scientology Flag Service Organization v

City of Clearwater, 777 F.2d 598 (11th Cir. 1985),

cert. denied, 476 U.S. 1116 (1986)............ 6

Edwards v. Aguillard, 482 U.S. 578 (1987) ..... 9

Employment Division v. Smith, 494 U.S. 872

(199G) cccceveves sodas ... 21, 28, 29, 30

Fernandes v. Limmer, 465 F. Supp. 493 (N.D. Tex

1979), aff'd in part, reversed in (other) part,

663 F.2d 619 (Sth Cir. 1981) 22

Gospel Army v. Los Angeles, 27 Cal. 2d 232, 163

P.2d704 (1945), appeal dismissed, 331 U.S

EEE ceatdrnrnecaracerees aeeadl oe <a

Hernandez v. Commissioner of Internal Revenue,

490 U.S. 680 (1989)...... Reem Nye

International Society for Krishna Consciousness of

Houston, Inc. v. City of Houston, 689 F.2d 541

(See Cos, Dale A SO) tice ovcedorn ms 43,. 15,.16,. 17,.2Z3

International Society for Krishna Consciousness V.

Barber, 650 F.2d 430 (2nd Cir. 1981) .. 23

vi

PAGE

Jimmy Swaggart Ministries v. Board of Equalization,

ee Rees OTM AEDOUD pi ticcscrcceweneccccccsees 19, 20, 27

Larson v. Valente, 456 U.S. 228 (1982) ............... 26, 27

Lemon v. Kurtzman, 403 U.S. 602 (1971)........... 9, 26, 27

Lynch v. Donnelly, 465 U.S. 668 (1984) ............. 7,9, 10

Murdock v. Pennsylvania, 319 U.S. 105 (1943)....... 29

NLRB vy. Catholic Bishop of Chicago, 440 U.S. 490

sg. SERGE ATE RE re © oe Pie Bim Fa ae ot Co aR 22

Riley v. National Federation of the Blind, 487 U.S.

PEE Us sivk 6unkebanebanudhecchdelcaceceskinni 14, 29

Secretary of State of Maryland v. Munson, 467 U.S.

SE EE sibs bbe LGN Sw bik Benen bas daduxr census 23, 24, 29

Surinach v. Pesquera de Busquets, 604 F.2d 73 (1st Cir.

SRV ARC TER KASA SCAM Ed Aner ceunband dbo nsonannsvers 22

Sylte v. Metropolitan Government, 493 F. Supp. 313

da ada ov dut dbus eedsriecens 23

Taylor v. City of Knoxville, 566 F. Supp. 925 (E.D.

II SS bitectcccdecddedt Sak ee of 23

Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620 (1980) ...14, 23, 24, 25, 29

Wallace v. Jaffree, 472 U.S. 38 (1985) .........0...... 9, 10

Constitution

U.S. Constitution, First Amendment.................. passim

Federal Statutes and Rules

ee lis cus bles oe ee

nN

vil

PAGE

26 03,5.C.. OB SOROS) cs sscccdddesedesvetessesss Vedder 2

Religious Freedom Restoration Act of 1993, Pub. L

No. 103-141, 107 Stat. 1488 (1993) (codified at

r aie Fol >» — ) PPPPPPPTPTT TTT TTTiiree any 30

Ped. BR. Civ. F. FOIE). cccccesees tdi fo davies 6 10

Bi Goes See Bee cede ccedeterens , 1,6

Bs Gabe Ws Bed dvcevesedss Soake (eeddanaaeaies 2

BS. Cas Re DIB ccc vicce. 7 raevees ‘ee 6

State Statutes and Ordinances

Ark. Code Ann. § 4-28-408(a).......... 14

Conn. Gen. Stat. Ann. § 21a-190(d)........ 14

Fla. Stat. Ann. § 943.10........... ee 25

Ga. Code Ann. § 43-—17-—2(2)... 14

Ga. Code Ann. § 43-17-9(a)(3) 14

Ga. Code Ann. § 43-17-9(d) ...... 14

Haw. Rev. Stat. § 467 B-11(1) i4

Haw. Rev. Stat § 467 B-11(6) 14

Ill. Rev. Stat. § 5103(a) 14

Ill. Rev. Stat. § 5103(b)(2) : 14

Me. Rev. Stat. Ann. tit. 9, § 5003()). 14

Me. Rev. Stat. Ann. tit. 9, § SO06(1)(A) 14

Md. Code Ann. § 6-102(c)(L)(ii)(2) .... 14

Md. Code Ann. § 6-102(c)(1)(i1)(3) 14

Vill

Mass. Gen. Laws Ann. Ch. 67, § 20 ......----eeeeeeees

Mich. Comp. Laws Ann. § 400.272(a)...-------0s00e 5

Mich. Comp. Laws Ann. § 400.283(c)....---e cece eeees

Minn. Stat. Ann. § 309.515(b) ...... 6-60 cece renee eee ees

Minn. Stat. Ann. § 309.515(d) .....-- 6. e reece reer:

N.J. Stat. Ann. § 45:17A-S(a)... 66-0 eee e eee neers

NJ. Stat. Ann. § 45:17A-S(b)(2) «00-6 eee eee e eee ees

N.Y. Exec. Law § 172-a(1)....---- eee e cere reer eer eees

N.Y. Exec. Law § 172-a(2)(D).....- 0. eee e cece reece:

N.C. Gen. Stat. § 131C-S(a) .....---- cece cere eee rere:

N.D. Cent. Code § 50-22-O1(1) ...--- 00 - eee eee e eee reees

Ohio Rev. Code Ann. § 1716.03(A)....-----+.05 eee ee es

Ohio Rev. Code Ann. § 1716.03(D).....---- +6000 es:

Okla. Stat. Ann. tit. 18, §552.4(1) ..-..---- essere rere:

Okla. Stat. Ann. tit. 18, §552.4(3) ....-----eeeeeeee ees

Pa. Stat. Ann. tit. 10, § 162.3 .......-e cece renee rer reees

Pa. Stat. Ann. tit. 10, § 162.7(a)(2)..-.---- eee creer ees

R.1. Gen. Laws § 5-53-3(2) ..-----eececceeeererrseeeees

R.I. Gen. Laws § 5-53-3(6) «10... cece ee eer reer reeeeees

Va. Code Ann. § 57-48(2)(i)..--. cece cere reer ere rerees

Va. Code Ann. § 57-60(a)(4)..-..---- eee cere rere renee

W. Va. Code § 29-19-6(4).....- 0c eee cere creer reer erees

W. Va. Code § 29-19-6(5)...---. eee cere rere reer eterets

PAGE

City of Clearwater, Florida Ordinance No. 3479-84. . passim

Other Authorities

BNA Daily Tax Reporter, No. 196 (Oct. 13, 1993) .... 2

Florida Dept. of Law Enforcement, Crime in Florida,

1989 Annual Report........ bhebndddedudsepedseude 25

Internal Revenue Service, Cumulative List of Organiz-

ations Described in Section 170(c) of the Internal

Revenue Code of 1986, Publication 78 (rev. 2-94),

Supp. No. 1994-1

etna adh

8 tS ae WR ee Dill Oe wee er

a ne

et ee ee

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respondent Church of Scientology Flag Service Organiza-

tion (the “Church”) files this brief in opposition to the petition

for writ of certiorari. As set forth herein, the opinion below was

consistent with the decisions of this Court, and, contrary to the

suggestions of the City, does not conflict with the decisions of

the Fifth Circuit or any other circuit. Moreover, the court of

appeals reversed the district court’s order granting summary

judgment to the defendant City on the plaintiff Church's claim

of discriminatory purpose, on the ground that the record

revealed controverted issues of material fact. The court of

appeals remanded the case for trial on that issue. Thus, cer-

tiorari is particularly inappropriate in the present interlocutory

context of this case, in the absence of a full record after trial.

OPINIONS BELOW

Petitioners fail to mention or append the judgment of the dis-

trict court, dated February 4, 1991, granting the Church’s

motion for partial summary judgment on the issue of standing,

denying the Church’s motion for partial summary judgment on

other issues, denying the City’s motion for partial summary

judgment on the issue of standing, and granting the City’s

motion for partial summary judgment on other issues (A-1 to

A-2).' On September 16, 1991, the district court issued an

order (A-3 to A-4) denying the Church’s motion for new trial

and/or to alter or amend judgment, except that the clerk was

directed to amend the judgment to grant the City’s motion for

summary judgment on all issues, except standing. An amended

judgment was issued on September 17, 1991 (A-5).

STATEMENT OF THE CASE

The petition fails to present a coherent or accurate account

of the facts or the proceedings below. The petition should be

denied on that ground alone. S. Ct. R. 14.5. In any event, it

therefore is necessary for respondent to set forth these matters

. References to “A__” are to pages in the appendix to this Brief.

References to “__a” are to pages in the appendix to the petition itself.

2

in greater detail than might ordinarily be required in a brief in

opposition. See S. Ct. R. 15.1.

Statement of Facts

Respondent is a church of the Scientology religion that

provides religious training and counseling in Clearwater,

Florida. R1-18-2.? The Internal Revenue Service has recog-

nized the respondent as a church, within the meaning of 26

U.S.C. §170(c), exempt from taxation under 26 U.S.C.

§ 501(c)(3). See Internal Revenue Service, Cumulative List of

Organizations Described in Section 1 70(c) of the Internal Rev-

enue Code of 1986, Publication 78 (rev. 2-94), Supp. No. 1994-

1.° Its religious activities are directed toward its members.

R1-18-2. The Church solicits contributions from members at its

facilities in Clearwater, usually in the course of offering its

religious services. R5-110-Tab 3 at 9. Such solicitations are

‘ Record references are made to the record in the court of appeals

as follows: “R[volume]—[document number]-[page]” unless otherwise

noted. Where the document in the record is indexed by tabs or volumes,

the tab or volume is referred to prior to the page.

> To divert attention from the ordinance’s extraordinary intrusion

into internal church affairs, the City scurrilously alleges “a panoply of

crimes and bad acts by and questionable policies of Scientology.” Pet. at

5. The fact is that no federal, state or local crimes have ever even been

charged against the Church or its officers, directors, or managing agents;

the City has not alleged that they have. While it is true that over thirteen

years ago certain officials of a different Scientology church were con-

victed for actions against the IRS in the mid-1970s, those officials long

ago were removed from all positions of authority. Even the IRS has been

satisfied that this is true, because it recently affirmatively recognized all

Scientology churches, including respondent, as tax-exempt under 26

U.S.C. § 501(c)(3), i.e., that the churches are operated in a manner con-

sistent with public policy. BNA Daily Tax Reporter, No. 196 at K-1 to K-

5 (Oct. 13, 1993). In any event, as discussed in the text, post, the

ordinance does nothing to prevent or punish the kinds of acts the City

describes.

The City’s reference to alleged Church “policies,” Pet. at 5, is similarly

incorrect. The undisputed record below shows that the purported “make

money” policy that the City quotes in tabloid Style is merely “a

description of the function and job of the person in charge of fundraising

for the church.” R5-114-3. There are no “policies” authorizing the kind of

vindictive actions set forth by the City (Pet. at 5 n.2). RS-114-3, 4, 5.

——s

—

De nl AN a EY tT ge Ot cE

3

typically made without representations as to the intended use

of the money contributed; the contributions are used to support

the general programs and operations of the Church. /d.

This case raises questions of the constitutionality of Clear-

water Ordinance No. 3479-84 (143a-164a). The ordinance suc-

ceeds a prior ordinance, No. 3091-83, enacted in 1983, which

is the subject of the Petition and Brief in Opposition in No. 93-

1603, petition pending. The ordinance is directed toward the

“solicitation” of funds by “charitable organizations,” a term

that encompasses groups that are or hold themselves out to be

“benevolent, educational, voluntary health, philanthropic,

humane, religious or eleemosynary” in nature. Section 100.01(1)

(146a-147a). The term “solicitation of funds” is broadly

defined to include not only all requests within the City “for the

donation of money, property, or anything of value,” but also the

selling or offering for sale of any property, explicitly including

books, pamphlets and brochures, “upon the representation,

express or implied, that the proceeds of such sale will be used

for a charitable purpose.” Section 100.01(2) (147a) (emphasis

added).

The ordinance requires al! charitable organizations wishing

to solicit funds to file a registration statement and obtain a cer-

tificate of registration from the City Clerk. Section 100.03(1)

(151a). The registration statement calls for extensive infor-

mation concerning the collection and disbursement of funds by

the organization, including “an explanation of the intended use

of the funds,” Section 100.03(1)(d) (152a), a schedule of costs

to be expended not only in the solicitation process itself,

but also “in connection with their disbursement,” Section

100.03(1)(i) (153a), and the names, addresses, and telephone

numbers of all persons responsible for the disbursement. Sec-

tion 100.03(1)(e) (152a). The registration statement is a pub-

lic document. Section 100.03(7) (156a).

At the end of the annual period covered by the registration

statement, the organization must file a public closing statement

detailing the amount of funds solicited, all expenses incurred,

and the actual or proposed use of the proceeds. Section

100.03(8) (156a-157a). Charitable organizations must maintain

records and documents necessary for the filing of the regis-

tration and closing statements for a period of three years. Sec-

4

tion 100.04 (157a-158a). Thus, to the extent a charitable orga-

nization, including a church, solicits funds to carry out its gen-

eral programs or operations (in contrast to a specific

charitable purpose such as relief to victims of a flood or earth-

quake), it is required to provide detailed information con-

cerning its overall budget and program of operations.

The ordinance also sets forth “Prohibited Acts,” violation of

which are punishable by a $1,000 fine or incarceration of up to

six months. Section 100.05(1)-(2) (158a-160a). The City Attor-

ney, upon receipt of ten “bona fide” complaints, must investi-

gate alleged violations and issue subpoenas without court order.

Section 100.06(1) (160a-161a). The City Attorney not only can

inquire into the truth of information on the registration state -

ment, Section 100.05(1)(b) (158a-159a), he also may investi-

gate the “use of any scheme or artifice to defraud or obtain

money or property by means of any false statement or repre-

sentation.” Section 100.05(1)(c) (159a). This authority has

been construed by the City Attorney as permitting him to inves-

tigate whether promises of benefits from participation in reli-

gious services are fraudulent. RS-110-Tab 2, Ex. B. at 40-42.

Most critically, the ordinance regulates all solicitations by

charitable organizations of their own members, on their own

premises. Thus, even churches are required to submit to City

officials detailed records-concerning funds donated by mem-

bers for the general purposes of the church, including a full

accounting of all expenditures made from such funds. Sections

100.03, 100.04 (151a-158a). City officials may investigate such

expenditures, require disclosure of all relevant church records,

and bring prosecutions for failure to comply with provisions of

the ordinance. Section 100.06 (160a-162a).

The ordinance provides an alternative to submission of reg-

istration and closing statements with respect to funds donated

by members. Under Section 100.02(3) (151a), an organization

may elect to exclude information regarding such funds from its

public registration statement provided that it makes the same

information available to all members in a “private statement.”

In addition, the organization must make available to its mem-

bers “the records and documents that are necessary to complete

this private statement for a period of three years. . .” Section

100.02(3)(c) (151a). Thus, the ordinance requires that churches

ni te

SS lll yl MI ae

Se ee ee

make their books and records available to every member upon

demand, subject to potential criminal penalty.

Members or factions who are dissatisfied with their church’s

compliance with the private statement or the requirement as

to open books and records may invoke the aid of the City

Attorney to compel compliance. Sections 100.06(1), 100.05(b)

(160a-161a, 158a-159a). The City Attorney is authorized to

investigate organizations, including by the use of compulsory

process, to determine whether they have provided full and

accurate disclosure to their members. Section 100.06(2) (161a).

And documents and records subpoenaed, including the private

statement, become public records. Thus, by means of the

enforcement process, these so-called private statements will

ultimately become public documents as well.

Finally, the ordinance requires that churches that provide

refunds for donations or purchases establish a written refund

policy. Section 100.05(f)-(g) (159a). The ordinance requires

that this statement be distributed at the time the policy is

announced, even during a church service. RS-1i0-Tab 2, Ex. B

43-45. Moreover, the ordinance requires that refunds be made

within sixty days of the request. Section 100.05(f) (159a).

Proceedings Below

The Church filed this lawsuit in March 1984, alleging that

the ordinance was unconstitutional for a variety of reasons,

including, inter alia, that (1) it was enacted with a discrimi-

natory animus against the Church and the Scientology religion,

(2) it unlawfully sought to regulate fundraising by churches

from their own members and on their own premises; (3) it

unlawfully caused excessive governmental intrusion into mat-

ters of ecclesiastical governance, administration, and finances,

(4) it unconstitutionally imposed a licensing system for the sale

or distribution of religious literature; and (5) it unlawfully

vested broad discretion in the officials charged with its

enforcement, without sufficient standards to govern its exer-

cise. The complaint sought declaratory and injunctive relief.*

. A coalition of religious groups, including the National Council

of Churches of Christ in the U.S.A., the American Baptist Church, the

American Jewish Committee, the Suncoast American Baptist Church, and

6

On July 13, 1984, after oral argument, the district court held

that the ordinance was facially valid, stating no reasons for its

conclusion, and certified the question of facial validity for

appeal (A-6 to A-9). On August 17, 1984, the court of appeals

granted the Church’s application for permission to appeal the

questions certified. A different panel vacated the prior panel’s

grant of leave to appeal, finding that the Church’s facial chal-

lenge to the statute was not ripe for review. Church of Scien-

tology Flag Serv. Org. v. City of Clearwater, 777 F.2d 598, 608

(11th Cir. 1985), cert. denied, 476 U.S. 1116 (1986).

Upon remand, the parties conducted discovery’ and filed

cross-motions for summary judgment. The district court granted

the Church’s motion for partial summary judgment that Sci-

entology is a religion and that the Church has standing to raise

its claims under the First Amendment religion clauses. In all

other respects it rejected the Church’s challenge to the ordi-

nance. The district court granted the City’s motion for summary

judgment on all other issues, and dismissed the complaint. The

Americans United for Separation of Church and State, also sued to cha)-

lenge the constitutionality of the ordinance. That case remains pending

in the district court, presumably awaiting final determination of this case.

Americans United for Separation of Church and State, et al. v. City of

Clearwater, No. 84-699- Civ.-T-17 (M.D. Fla.).

: In their petition in this case (Pet. at 11, Part D), petitioners

attempt to incorporate a discussion about the discovery in this case that

they improperly have placed in their petition in No. 93-1603 (Pet. in No.

93-1603, at 10-12, Part F). They also have included as an “appendix” to

this petition two pages from their brief below (165a-166a). These blatant

attempts to circumvent this Court's page limitation, S. Ct. R. 33.3(a),

along with the other rule violations and unprofessionalism of the peti-

tions, are reason enough to deny them. S. Ct. R. 14.5.

In any event, in the “incorporated” argument from the petition in No.

93-1603, petitioners suggest that the Church imposed meritless objections

to the City’s bloated discovery requests and improperly sought to extend

this litigation. These allegations are false. When the Church objected to

the City’s 101 separate categories of document requests on the ground

that they were grossly overboard and burdensome, the Magistrate Judge

warned that if the City chose to file a motion to compel, he would impose

a $50 fine for each unfounded request and each unfounded objection.

R46-119-2. At that point, the City, obviously recognizing that discretion

was the better part of valor, refrained from filing any motion to compel.

ee

district court did not address the Church’s claim that the City

enacted the ordinance for a discriminatory ‘ectarian purpose,

to encourage or force the Church to leave town.

The court of appeals reversed the district court’s judgment in

major respects, remanding for further proceedings and trial on

the Church’s sectarian purpose claim. Applying well-estab-

lished case law from this Court, the court of appeals held that

if the predominant purpose of the ordinance was “to convey 4

message of endorsement or disapproval of religion,” Lynch v.

Donnelly, 465 U.S. 668, 691 (1984) (O’Connor, J., concurring),

or, to put it slightly otherwise, if the challenged law “was born

of animus to religion in general or Scientology in particular,”

Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680,

696 (1989), then it violated the Establishment Clause. The

court of appeals then reviewed the evidence presented to the

district court by both sides with respect to the City’s motion for

summary judgment, in the light most favorable to the Church

as the non-moving party, and found that a trier of fact could

conclude “that the city commission conducted its legislative

process from beginning to end with the intention of singling

out Scientology for burdensome regulation. The record shows

a widespread political movement, apparently driven by an

upsurge of sectarian fervor, intent on driving Scientology from

Clearwater” (27a). The court of appeals concluded that the evi-

dence presented by the Church “precludes judgment as a mat-

ter of law for the City” (35a). It vacated the judgment and

remanded for further proceedings, including trial. /d.

The court of appeals also held key provisions of the ordi-

nance unconstitutional, as applied to churches. The court turned

its greatest attention to the provisions requiring churches to

publicly disclose detailed financial information about how they

used every dollar raised from virtually any source, including

donations made by church members on church premises. Under

the ordinance, a church could not solicit funds from its own

membership at its own services without first obtaining a license

from the city and without agreeing to make widespread dis-

closure of its intended and actual use of the funds raised. The

court of appeals found these provisions to constitute improper

and excessive regulation of and entanglement with internal

ecclesiastical matters (38a, 39a).° The City’s petition for

rehearing and suggestion of rehearing en banc was denied

(140a).

REASONS FOR DENYING THE PETITION

1. REVIEW OF THE ELEVENTH CIRCUIT’S INTER-

LOCUTORY ORDER IS INAPPROPRIATE BECAUSE

DETERMINATION OF THE FACTUAL QUESTION

WHETHER THE CITY ENACTED THE ORDI-

NANCE WITH DISCRIMINATORY MOTIVE MAY

PROVE DISPOSITIVE OF THIS LITIGATION

The petition should be denied because it asks the Court to

review a case that is in an interlocutory posture. In reversing

the district court’s decision granting summary judgment to the -

City, the Eleventh Circuit remanded the case for a factual

inquiry into whether the City enacted the ordinance with an

impermissible sectarian or religiously discriminatory purpose:

to burden the Church and drive it from Clearwater. If trial

reveals that the City enacted the ordinance for an improper

purpose, the ordinance must fall on that ground alone. Review

now is thus both unnecessary and premature, a determination

that the City adopted the ordinance with an improper motive

would obviate any need for further examination of the various

legal questions the City purports to raise in its petition.

A. Resolution Of The Church’s Establishment Clause

Challenge Requires A Factual Determination

Whether The Ordinance Was Enacted For An

Improper Discriminatory Purpose

As the court of appeals recognized, throughout this litigation

the Church has “vigorously argued” that the City enacted the

The court also struck down a provision mandating that if a

church maintains a policy to refund donations under certain circum-

stances, it must do so within sixty days of a request. “The statute has the

principal effect of mandating a church policy . . . The provision

advances the City’s illegitimate goal of dictating to churches what the

[refund] policy shall be, simultancously imposing its own enforcement

mechanisms in support of the mandated policy” (69a-70a)

6

9

ordinance with the specific aim of substantially harassing and

burdening the Church (26a), and displayed a preference for

more “main-line” denominations by adapting the ordinance to

accommodate their concerns, while refusing to consult with the

Church over the legislation (28a-33a). In granting summary

judgment to the City, the district court did not even mention

this claim, let alone discuss the relevant evidence.

The court of appeals reversed and remanded for a full factual

determination of the purpose behind the ordinance, applying

well-established rules governing a claim that legislation was

enacted with an improper religious motive in violation of the

Establishment Clause. When legislation is attacked on Estab-

lishment Clause grounds, a court must first examine whether

the law facially differentiates among religions. Hernandez, 490

U.S. at 695. If the legislation, like the ordinance at issue here,

does not facially discriminate against or favor a particular reli-

gion, a court will then apply the three-pronged inquiry set forth

in Lemon v. Kurtzman, 403 U.S. 602 (1971); see Hernandez,

490 U.S. at 695, as did the Eleventh Circuit in this case.

The court of appeals correctly noted (18a) that the initial

question under Lemon is whether the legislation has a “secular

legislative purpose.” Lemon, 403 U.S. at 612. Only if legisla-

tion has a secular purpose will a court examine, under the sec-

ond and third prongs of Lemon, whether the legislation’s

primary effect is one that advances or inhibits religion, and

whether the legislation promotes “excessive government entan-

glement with religion.” Jd. at 612-13 (citations omitted). The

Church’s claim that the ordinance was born of improper dis-

criminatory motives thus implicates the first prong of Lemon,

which focuses on “the purpose that animated adoption” of the

law. Edwards v. Aguillard, 482 U.S. 578, 585 (1987).

If it is found that a law was enacted for an impermissible

purpose, no inquiry into the second or third prong of Lemon is

necessary; the law must fall on that ground alone. Lynch, 465

U.S. at 690 (O’Connor, J., concurring); see also Wallace v. Jaf-

free, 472 U.S. 38, 56 (1985). The factual question whether the

ordinance “was born of animus to religion in general or

Scientology in particular,” Hernandez, 490 US. at 696, is thus

both a threshold issue and potentially dispositive.

|

10

Although it attempts to argue that the court of appeals

improperly applied the law on the question of discriminatory

purpose, the City has cited no case in which legislation was

upheld despite a determination that it was enacted with a reli-

giously-based discriminatory Purpose. Its failure to do so is not

Surprising; this Court has consistently stated that legislation

enacted with the governmental Purpose of either endorsing

or disapproving of religion cannot survive Scrutiny under

the Establishment Clause. See, e.g., Lynch, 465 U.S. at 690

(O’Connor, J., concurring); Wallace v. Jaffree, 472 U.S. at 56.

Thus, the court of appeals’ simple application of these prece-

dents raises no important or novel question of law, and there is

no reason for this Court to review this case now before a

complete record has been developed on the City’s purpose in

enacting the ordinance. Logic and concern for the orderly pro-

gression of litigation require that the case be remanded fora

decision on this potentially determinative issue.

B. The Court Of Appeals Correctly Ruled That Con-

flicting Evidence Precluded The Grant Of Sum-

mary Judgment On The Question Of The City’s

Motive In Enacting The Ordinance

The City argues that the court of appeals wrongly interpreted

the facts in finding that the record precluded summary judg-

ment on the question of discriminatory Purpose. Pet. at 12-13.

This contention unquestionably does not afford a reason for

this Court to review the case. The court of appeals applied the

appropriate standard of review, correctly Stating that “summary

judgment may be granted only if no genuine dispute remains as

to any material fact” (17a), see Fed. R. Civ. P. 56(c), and that

the evidence must be “[cJonstrued in the light most favorable

to the non-moving Party” (27a); see Adickes v. S. H. Kress &

Co., 398 U.S. 144, 157 (1970). Applying this Standard, the

court was unable to rule out the existence of a genuine dispute

as to a material fact (35a).

Despite the district court's non-treatment of this question,

the court of appeals recognized that Significant evidence

Suggests that the City did in fact act with invidious purpose

in adopting the ordinance. “The record shows a widespread

11

political movement, apparently driven by an upsurge of sec-

tarian fervor, intent on driving Scientology from Clearwater”

(27a). Its detailed discussion of the evidence (27a-35a) con-

firms that it was correct in reversing the grant of summary

judgment.

The court noted that the City had retained Michael Flynn, a

Boston lawyer who has dedicated much of his career to liti-

gating against the Church, to coordinate the hearings that led

to adoption of the ordinances. Neither Flynn nor the City Com-

missioners made any secret that the proposed ordinance was

directed at the Church; indeed, the local press referred to it as

the “anti-Scientology” ordinance. R1-18-9, 10 and Vol. 2,

Ex. M, Vol. 3, Ex. Q at 3, Ex. R, Vol 4, Ex. DD. During his

election campaign, City Commissioner James Calderbank

declared: “I will explore every avenue and support every legal

means of encouraging the Scientologists to leave” (31a).

A later newspaper article reported Calderbank as saying, “Sci-

entology ‘has to be treated like a cancer—first you arrest its

growth, then remove it from the city. . . or nullify its exis-

tence.’ ” Jd. Another candidate for a Commissioner’s position

was reported to say that “Scientologists lie, steal and cheat”

and to believe that “the community must work to destroy the

organization at the top” (32a). The then-mayor of Clearwater

likewise characterized the Church as a “dark cloud that is upon

us” (31a), and referred to “an organized effort of the City of

Clearwater” in connection with the Scientologists (32a). When

asked whether the City intended to hold hearings on any other

organization, the mayor responded, “I don’t know of anyone

else that is claiming to be a religion that is not” (33a).

These comments by City officials are themselves sufficient

to preclude holding as a matter of law that the City did not

enact the ordinance with anti-Church animus. The court of

appeals, however, also examined other evidence of improper

purpose. For example, Flynn advised the City that the ordi-

nance would allow it to collect data in support of its position

that the Church is not a bona fide religion entitled to exemption

from property taxes (28a). More tellingly, evidence revealed

that the City hoped also to deprive the Church of its privilege

to pay the lower non-profit bulk postage rates, and to interfere

with the Church’s state and federal income tax exemptions. /d.

12

These objectives, which are not legitimate concerns of a city

government, may certainly be viewed as evidence of the City’s

desire to discriminate against the Church (28a-29a).

Evidence also showed that a number of changes were made

in the 1983 ordinance at the request of “more popular denom-

inations” (30a). For example, the City attempted to develop a

definition of “membership” that, when combined with a mem-

bership exemption from the ordinance’s reporting requirements,

would exempt members of other churches, but not the Church.

R1-18-27, Vol. 4, Ex. EEE at 4. (This provision was the subject

of litigation concerning the 1983 ordinance. See No. 93-1603,

pet. pending.) As another example, the Church is perhaps

unique among religious Organizations in that it permits mem-

bers to obtain a limited refund of sums donated. This refund

policy is intimately connected with the Church’s ecclesiastical

doctrines, and requests for refunds are considered in light of

those doctrines. Consequently, the City’s effort to regulate such

refunds was obviously directed at the Church’s unique policy

and provides significant evidence that the City carefully con-

Structed the ordinance to affect most Strongly the Church,

rather than other eleemosynary organizations.

The City’s heated discussion of whether the court of appeals

engaged in some kind of “transmutation of concern over crime

into allegedly antireligious feelings,” Pet. at 12, overlooks the

obvious fact that the court of appeals did not make any ultimate

determination on the City’s motivation in adopting the ordi-

nance. The court decided only that there was sufficient evi-

dence to suggest that a trial might reveal that the City enacted

the ordinance “with the intention of singling out Scientology

for burdensome regulation” (27a), and consequently that sum-

mary judgment was inappropriate (35a).

The City’s major objection appears to be that “[t}he panel

had been informed that deposition testimony showed uniformly

that Clearwater was concerned orly with crimes and bad acts.”

Pet. at 12. Of course, the City can point to no authority for the

Proposition that self-serving deposition testimony of its own

Officials (for which it provides no record Citations) is con-

trolling over all other evidence. The City also protests that the

court of appeals’ observations “may have condemned Clear-

water to future defeat at trial upon remand.” Pet. at 13. This

ee

_" id.

Ten wee

extravagant claim is ludicrous. No ultimate factual determi-

nation has yet been made whether the City acted with imper-

missible motive, or, if so, whether it would nevertheless have

enacted the ordinance, and this determination can be made only

after a full factual development in the district court. At base,

the City’s argument is simply a lament over the existence of

conflicting evidence on the issue of improper motive. This only

confirms that the court of appeals ruled correctly that summary

judgment was inappropriate on this issue, and that the con-

flicting evidence should be weighed properly at a full trial.

ll. THE ELEVENTH CIRCUIT’S DECISION IS CON-

SISTENT WITH THE DECISIONS OF OTHER CIR-

CUITS AND OF THIS COURT

The City repeatedly asserts that certiorari is necessary to

resolve a purported conflict between the decision of the

Eleventh Circuit in this case and the decision of the Fifth Cir-

cuit in International Soc’y for Krishna Consciousness of Hous-

ton, Inc. (“ISKCON”) v. City of Houston, 689 F.2d 541 (Sth

Cir. Unit A 1982), as well as the rulings of other courts of

appeals and this Court. According to the City, if the Eleventh

Circuit’s rulings are allowed to stand, they will throw into

question numerous other disclosure laws. Pet. at 2.

Petitioners have attempted to manufacture a conflict where

none exists. As shown below, the Eleventh Circuit’s decision

is entirely consistent with the Fifth Circuit’s decision in

ISKCON v. City of Houston, with numerous other rulings of

courts of appeals, and with decisions of this Court.

What petitioners fail to acknowledge is that the ordinance at

issue in this case is unique. In no other jurisdiction has a gov-

ernment entity sought to regulate solicitations by churches for

general church purposes or solicitations by churches of their

own members on church premises. Only in Clearwater, Florida,

and nowhere else, has a government entity attempted to require

that a minister file a registration statement prior to passing the

plate at a Sunday service or to mandate statements accounting

for every dollar collected from the faithful.

Thus, petitioners’ repeated statements that the ordinance is

“similar or identical to hundreds, or thousands, of state, county

14

and city disclosure laws all over the country,” Pet. at 2, is false.

A survey of state and local solicitation laws demonstrates that

they all exempt either solicitation conducted by religious orga-

nizations, at least for general church or religious purposes, or

membership solicitations.’ The typical charitable solicitation

law is directed at non-religious Organizations raising money for

a Single or a variety of specific charitable purposes, such as

flood or famine relief, medical research, or aid to the poor. And

even laws of that kind have been subject to searching First

Amendment scrutiny and review. See Riley v. National Fed’n

of the Blind, 487 U.S. 781 (1988); Village of Schaumburg v.

Citizens for a Better Env't, 444 U.S. 620 (1980); and Cantwell

v. Connecticut, 310 U.S. 296 (1940). No court has ever upheld

a law requiring detailed disclosure of a church’s overall bud-

get, its program of operations, and its solicitations of its own

members on its own premises.

Indeed, it was precisely these aspects of the ordinance-—its

requirements of extensive disclosure of a church’s program of

Petitioners list a number of registration and disclosure laws,

which they contend are similar, if not identical, to the Clearwater ordi-

nance. See Pet. at 7 & n. 3. However, in so doing, they ignore the sections

of those laws that establish the exemptions described above. The fol-

lowing sections of the laws petitioners cite exempt from their coverage

membership solicitations: Ark. Code Ann. § 4-28-408(a); Ga. Code Ann.

§§ 43-17-9(a)(3),-9(d):; Haw. Rev. Stat. § 467 B-11(6); Ill. Rev. Stat.

§ 5103(b)(2); Me. Rev. Stat. Ann. tit. 9, § 5006(1)(A); Md. Code Ann.

§ 6-102(c)(1)(ii)(3); Mich. Comp. Laws Ann. § 400.283(c); Minn. Stat.

Ann. § 309.515(d); N.J. Stat. Ann. § 45:17A-5(b)(2); N.Y. Exec. Law

§ 172-a(2)(b); Ohio Rev. Code Ann. § 1716.03(D); Okla. Stat. Ann. tit.

18, §552.4(3); Pa. Stat. Ann. tit. 10, § 162.7(a)(2) (only short form

required); R.I. Gen. Laws § 5-53-3(6), Va. Code Ann. §57-

60(a)(4); W. Va. Code § 29-19-6(4).

These sections broadly exempt religious organizations: Ark. Code Ann.

§ 4-28-408(a); Conn. Gen. Stat. Ann. § 21a-190(d); Ga. Code Ann. 43-

17-2(2); Haw. Rev. Stat. § 467 B-11(1); Ill. Rev. Stat. § 5103(a); Me. Rev.

Stat. Ann. tit. 9, § 5003(1); Md. Code Ann. § 6-102(c)(1)(ii)(2); Mass.

Gen. Laws Ann. Ch. 67, § 20; Mich. Comp. Laws Ann. § 400.272(a);

Minn. Stat. Ann. § 309.515(b); N.J. Stat. Ann. § 45:17A-S(a); N.Y. Exec.

Law § 172-a(1); N.C. Gen. Stat. § 131C-S(a); N.D. Cent. Code § 50-22-

01(1); Ohio Rev. Code Ann. § 1716.03(A); Okla. Stat. Ann. tit. 18,

§ 552.4(1); Pa. Stat. Ann. tit. 10, § 162.3; R.I. Gen. Laws § 5-53-3(2); Va.

Code Ann. § 57-48(2)(i); W. Va. Code § 29-19-6(5).

ee Se” —- to — se

st PLL se

15

operations and its solicitation of its members—that were crit-

ical to the Eleventh Circuit’s determination that key provisions

of the Clearwater ordinance violated the Establishment Clause

and failed to meet the exacting scrutiny required under the First

Amendment. Moreover, the Eleventh Circuit’s ruling was

grounded on and entirely consistent with well-established law

both in the courts of appeals and this Court. No basis exists,

therefore, for this Court to grant review of the decision.

A. The Eleventh Circuit’s Opinion Does Not Conflict

With The Fifth Circuit’s Decision In ISKCON v.

City of Houston

The City contends that the ordinance is identical to an ordi-

nance enacted by the City of Houston that required charitable

organizations, including churches, to register and disclose

information as a condition to solicitation of the public in pub-

lic places and whose constitutionality was challenged in

ISKCON v. City of Houston. According to the City, because the

Eleventh Circuit struck down the Clearwater ordinance, while

the Fifth Circuit upheld the Houston ordinance, the two deci-

sions conflict. A close examination of the two decisions, how-

ever, reveals that not only are the two ordinances not identical,

but the two decisions are entirely consistent. Indeed, the

reasoning of the Fifth Circuit required the rejection of certain

provisions of the Clearwater ordinance as unconstitutional.

Petitioners are correct that the Eleventh Circuit noted that

the information requested by the Clearwater ordinance is “vir-

tually identical” to the disclosure required under the Houston

ordinance. However, petitioners fail to disclose that in the very

same sentenc- the court stated that despite this superficial sim-

ilarity, “there are significant differences between the Clear-

water and Houston laws” (7a). The court then engaged in a

lengthy and detailed analysis of those differences.

First, the Eleventh Circuit noted that, unlike the Houston

ordinance, the Clearwater disclosure form must be filed “even

if the organization intends to solicit only from its own mem-

bers” (8a). The Houston ordinance, in contrast, contained a

broad exemption for membership solicitations and solicitations

on an organization’s premises. See ISKCON v. City of Houston,

689 F.2d at 544. Second, although both the Houston and Clear-

16

water ordinances required the filing of a retrospective report-

ing statement at the end of each annual registration period,

Clearwater’s provisions for retrospective disclosure “differ[ed]

from the Houston ordinance” in that they were far more exten-

sive and far-reaching (9a). Not only did the Clearwater ordi-

nance require detailed disclosure of the expenses incurred in

the solicitation of funds and of every proposed or actual use of

the funds, but it required disclosure of the bank account in

which the funds were located, applied to membership solici-

tations, and imposed criminal penalties for failure to comply.

Third, the court noted that the Clearwater ordinance defined a

number of other criminal offenses in connection with its dis-

closure requirements, whereas “[n]o such criminal provisions

were included in the Houston ordinance” (10a).

Finally, the Eleventh Circuit found that the Clearwater ordi-

nance conferred far broader executive discretion than the Hous-

ton ordinance with respect to enforcement of the ordinance, and

that the Houston ordinance provided a means by which

churches could avoid unwanted state entanglement in their

affairs. Under the Houston ordinance, an organization could

choose to omit information from the registration statement so

long as it furnished an explanation for the omission. See 689

F.2d at 547. As the Eleventh Circuit recognized, Houston had

adopted an interpretation of its ordinance “giving the admin-

istering official no discretion to evaluate the adequacy of infor-

mation provided by registrants” (11a). Indeed, as Houston

emphasized in its brief to the Fifth Circuit, the enforcing offi-

cial had “no power to review the information for accuracy nor

to judge the sufficiency of any explanation offered [as to why

information was not included.]” R5-113-Exhibit A. Houston

further suggested that the only basis to deny a certificate would

be if the applicant were to file a wholly or partially “blank reg-

istration form” and that the only function of the official review-

ing the form would be “to determine whether or not it has been

filled out.” Jd. The Fifth Circuit adopted this interpretation of

the law as controlling. ISKCON v. City of Houston, 689 F.2d at

547. In contrast, the Eleventh Circuit found that the City of

Clearwater explicitly refused to limit the discretion of city offi-

cials in these respects. The Clearwater city clerk had the power

i Saber eet tetihg SAE eet Us

oe

17

to determine whether a registration form met the ordinance’s

requirements and to deny registration if it were determined that

it did not. This power included the ability to “determine

whether the stated purpose of the solicitation was in fact a

charitable one” as well as to require a “specific explanation of

how the funds will be used to further the purposes stated” (10a-

lla). In addition, the Clearwater ordinance contained no

express guidance with respect to these matters. Id.

Moreover, it was precisely these differences between the

ordinances that compelled the Eleventh Circuit to conclude that

certain provisions of the Clearwater ordinance fostered exces-

sive government entanglement with religion in violation of the

Establishment Clause. Essential to the Fifth Circuit’s uphold-

ing of the Houston ordinance was its exemption for organiza-

tions that solicit from their own members. Houston had

emphasized in its brief that “the failure to grant such [a mem-

bership] exemption would unduly interfere with the practice of

religion in violation of the First Amendment.” R5-113-Exhibit

A. The Fifth Circuit echoed this argument, noting: “All that is

mandated is disclosure to the public about those funds which

are solicited from the public.” ISKCON v. City of Houston, 689

F.2d. at 556. Critical for the court was that the “internal oper-

ations of the organization, apart from its public solicitation,

remain under the veil of privacy.” /d.

Also critical to the Fifth Circuit’s decision was the removal

from the Houston law, by amendment, of the city’s broad inves-

tigatory and prosecutorial powers, a change that substantially

mitigated the possibility of enduring government surveillance

of and entanglement with churches. Jd, at 543, 546-47. The

court placed particular emphasis on the fact that the ordinance

did not permit the city to deny a solicitati~n certificate simply

because of an organization’s decision not to supply certain

information or because of the intended use of the funds raised.

Because of the limited discretionary function of the enforcing

official, if a church believed that to provide certain information

would result in excessive entanglement with its affairs, it could

simply say so, and this explanation would have to be accepted.

(Houston did not believe that this rendered its ordinance mean-

ingless because potential public donors would at least know

that the church declined to provide the information in question,

18

and could act accordingly.) In contrast, in finding certain pro-

visions of the Clearwater ordinance unconstitutional, the

Eleventh Circuit placed particular emphasis on the city’s broad

investigatory, prosecutorial, and discretionary powers.

For example, the Eleventh Circuit found that unlike routine

administrative and recordkeeping regulations narrowly drawn

to specific regulatory objectives, the “detailed monitoring and

close administrative interaction” imposed by the Clearwater

ordinance involved the executive and judicial authorities in

every aspect of the church’s activities (38a). Not only did it

make them “the ultimate arbiters of the appropriate level of dis-

closure to the church’s members in all matters of ecclesiastical

fiscal administration” but it also conferred “responsibility for

apprising themselves and the public concerning such matters.”

Id. According to the court, this “detailed” and “close” surveil-

lance violated the command of the Establishment Clause that

“*(njeither a state nor the Federal Government can, openly or

secretly, participate in the affairs of any religious organizations

or groups and vice versa.’” Id. (quoting Everson v. Board of

Educ., 330 U.S. 1, 16 (1947)).

The court of appeals further found that Clearwater’s alter-

native private statement procedures applicable to member

solicitations also triggered excessive entanglement because

they subjected churches to the continuous surveillance of their

members (with the ultimate threat of City intervention, inves-

tigation and prosecution) by requiring disclosure of all records

underlying the statements upon request (39a). Not only did the

City not possess the power to require a church to make such

detailed information available to its members, but in trying to

accomplish this objective, the City “impermissibly imposed its

own preferences concerning the degree of disclosure to mem-

bers concerning daily operations.” Jd. Such conduct directly

violated the principle of the Establishment Clause that “civil

authorities must abstain from interposing themselves in matters

of church organization and governance” (41a).

Finally, the Eleventh Circuit determined that the regulatory

regime imposed by the Clearwater ordinance was “doubly

offensive” because of its imposition of criminal enforcement

mechanisms (44a). The investigatory and prosecutorial powers

conferred by the ordinance “underscore[d] the already sub-

pels 2G Eee aE APPS CS

per ene ee eS

ame Sem

19

stantial risk of government participation in intramural church

conflict and decisionmaking” and thus further fostered an

excessive government entanglement. /d. As noted above, the

Houston ordinance contained no such provisions.

Thus, contrary to petitioners’ suggestion, the Eleventh Cir-

cuit’s decision is entirely consistent with the Fifth Circuit's.

The Eleventh Circuit’s ruling was based precisely on those

aspects of the Clearwater ordinance that distinguished and dif-

ferentiated it from the Houston law. Indeed, in this respect, it

is also significant that the Eleventh Circuit did not determine

that the entire ordinance was unconstitutional. Rather, it upheld

certain provisions whose disclosure requirements standing

alone would in operation and effect be similar to the require-

ments imposed by the Houston ordinance (45a).

B. The Eleventh Circuit’s Decision Is Entirely Con-

sistent With This Court’s Ruling In Jimmy Swag-

gart Ministries

The City also suggests that the Eleventh Circuit’s decision

conflicts with Jimmy Swaggart Ministries v. Board of Equal-

ization, 493 U.S. 378 (1990), where this Court held that the

imposition of a generally applicable sales and use tax did not

violate the Establishment Clause. The City’s argument appears

to be that the Eleventh Circuit failed to take into account the

purported ease of complying with the ordinance when it found

that it fostered an excessive government entanglement with

religion. See Pet. at 23. The City suggests that this factor was

critical to the Court’s upholding of the regulation challenged in

Swaggart. This argument, however, serves only to demonstrate

petitioners’ profound misunderstanding of both the decision in

Swaggart and the court of appeals’ decision in this case.

In Swaggart—indeed, in the same section of the opinion

from which the City quotes, see Pet. at 21—the Court specif-

ically held that the administrative and recordkeeping burdens

imposed by a regulation are, in and of themselves, of limited

consequence in determining whether such a regulation violates

the Establishment Clause. 493 U.S. at 394-95. Rather, the crit-

ical issues are whether the statutory scheme results in “ ‘offi-

cial and continuing surveillance’” of the organization’s

day-to-day operations or whether the imposition of the tax

20

requires the state to inquire into the religious motive, content,

or purpose underlying the transaction. /d. at 395-96 (citation

omitted). In Swaggart, the Court found that the tax law

required “neither the involvement of state employees in, nor

on-site continuing inspection of, [the church’s] day-to-day

operations” and that the state’s only concern was whether there

was a sale or use. Jd. The Court therefore held that there was

no excessive entanglement resulting from the imposition of the

tax.

In contrast, the Eleventh Circuit, after exhaustively review-

ing the scope and effect of the Clearwater ordinance, found that

it was “ ‘significantly more intrusive into religious affairs’ ”

than any other “solicitation” regulation previously reviewed by

the courts, including the law challenged in Swaggart (38a)

(citation omitted). Indeed, the Eleventh Circuit explicitly dis-

tinguished the statutory scheme in Swaggart and that imposed

by the ordinance. Whereas the tax imposed in Swaggart was

“narrowly drawn to specific regulatory objectives” (37a), and

did not “enmesh the government in religious affairs,” 493 U.S.

at 699, the court of appeals found that Clearwater’s extensive

disclosure requirements and its program of “detailed moni-

toring and close administrative interaction” would draw the

government deeply into “every aspect of the church’s activi-

ties” (38a). Moreover, it would Subject the church to “the con-

tinuous surveillance” not only of the government but of its own

members (39a). Finally, because Clearwater’s disclosure pro-

visions were coupled with broad investigatory and prosecuto-

rial powers, the City would be required to inquire into the

religious motive for the church’s activities and the propriety of

particular expenditures (10a-12a, 44a).

The Eleventh Circuit’s conclusion that the Clearwater ordi-

nance fostered an impermissible and excessive governinent

entanglement with religion was thus entirely consistent with

Swaggart. Indeed, the reasoning and principles set forth in

Swaggart compelled this conclusion. In sharp contrast to the

“narrowly drawn” regulatory scheme in Swaggart, which lim-

ited the contact between church and state, the ordinance estab-

lished a regulatory scheme that invited and required intrusive

entanglement, thereby rendering it unconstitutional.

21

C. The City Has Articulated No Important Or Novel

Legal Question For This Court’s Review With

Respect To The Eleventh Circuit's First Amend-

ment Analysis

The City claims that the Eleventh Circuit “refused to credit

Clearwater’s crucial interest in protecting its populace against

fraud and bad acts and refused to credit the usefulness of dis-

closure in furthering that interest.” Pet. at 18. Contrary to the

City’s assertion, the Eleventh Circuit specifically held that the

City has a “compelling interest in preventing affirmative fraud”

by a religious organization upon church members and the pub-

lic (60a). However, after extensive analysis, the court con-

cluded that this interest was “not precisely furthered by the

broad disclosures compelled” by the ordinance (58a), and that

the ordinance was not sufficiently narrowly tailored to serve

the City’s interest (63a). As such, the ordinance failed to meet

the strict scrutiny required under the First Amendment.

Critical to the court’s analysis was that the ordinance’s dis-

closure and reporting requirements were not simply aimed

at preventing affirmative fraud, such as a false representation

by a “stranger” that money solicited will go to a particular

charity. See, e.g., Cantweli v. Connecticut, 310 U.S. 296, 306

(1940). The ordinance also required a church to disclose to

government authorities, the public, and its members on a con-

tinuing basis all of its activities and expenditures with respect

to all funds raised for its general purposes, even when the funds

were raised from its own members and on its own premises.

However, based on this Court’s precedents, the Eleventh Cir-

cuit found that the state has no legitimate interest in requiring

a church to disclose either to members or to public contributors

how funds solicited for general church purposes will be used.

Indeed, the Eleventh Circuit correctly determined that the First

Amendment precludes the state from forcing a religious orga-

nization to make such information available.

As the court of appeals noted, it is well-established that

“*fajll who unite themselves to such a body do so with an

implied consent to this government, and are bound to submit to

it’” (56a) (quoting Watson v. Jones, 80 U.S. (13 Wall.) 666,

728 (1872)). Based on this principle, the court concluded that

22

the City could not “substitute its own judgment as to the desir-

able level of disclosure to church members” (57a). This is pre-

cisely what the ordinance accomplished. By requiring a church

to disclose to members on a continuing basis how it chooses to

use funds solicited for general church purposes, the ordinance

dictated to religious organizations how they should govern

themselves and imposed a freedom of information act upon a

church and its members.

Similarly, with respect to disclosure of information to the

public, the Eleventh Circuit held, relying on this Court’s prece-

dents, that the state “may not compel specific disclosures

merely because, in its view, some potential contributors to

some causes might tend to think that those facts evidence

unfairness or some other objectionable quality in the use to

which funds will be put” (57a-58a). Instead, before donating to

a religious organization, a non-member may demand any infor-

mation desired and “‘if the solicitor refuses to give the

requested information, the potential donor may (and probably

would) refuse to donate’” (58a) (quoting Riley, 487 U.S. at

799). The state, however, may not require that such information

be provided. To do so would “burden a great deal of protected

expression without serving any legitimate purpose” (59a).

Thus, while recognizing the state’s compelling interest in

preventing religious organizations from fraudulently repre-

senting how they will use solicited funds, the Eleventh Circuit

correctly determined, in conformity with a host of other court

decisions, that the ordinance was not sufficiently tailored to

achieve this interest. See, e.g., NLRB v. Catholic Bishop of

Chicago, 440 U.S. 490, 502 (1979) (warning that “the very pro-

cess of inquiry” into internal church activities “may impinge on

rights guaranteed by the Religion Clauses”); Surinach v. Pes-

quera de Busquets, 604 F.2d 73 (1st Cir. 1979) (to same effect,

specifically with respect to ongoing financial disclosure by

churches); Fernandes v. Limmer, 465 F. Supp. 493, 504 (N.D.

Tex. 1979) (“No church . . . should be compelled to...

explain the source and use of each dollar without a showing of

compelling need achievable by no adequate alternative,” and

finding no such need in the context of solicitation activity),

aff’d in part, reversed in (other) part, 663 F.2d 619, 631 (Sth

Cir. 1981) (finding First Amendment bar “to a complete finan-

se

23

cial audit” of churches under guise of solicitation ordinance);

Taylor v. City of Knoxville, 566 F. Supp. 925, 932 (E.D. Tenn.

1982) (same); Sylte v. Metropolitan Gov't, 493 F. Supp. 313,

319 (M.D. Tenn. 1980) (same).

Indeed, petitioners have been able to point to no other “dis-

closure” statute or ordinance that has required churches to

make such continuing and public disclosures of their budgets

and activities, let alone of funds raised from their own mem-

bers, nor to any court opinion upholding such a law. Further-

more, the City’s reliance on Village of Schaumburg v. Citizens

for a Better Env't, 444 U.S. 620 (1980), and Secretary of State

of Maryland v. Munson, 467 U.S. 947 (1984), for the propo-

sition that this Court has approved or sanctioned the use of

such “disclosure” statutes is not only wholly misplaced, but it

is misleading. First, in neither case was there any attempt to

regulate solicitation of members or compel disclosure of such

donations or the use of the proceeds. Second, neither case

involved attempts to regulate solicitations by churches for gen-

eral fundraising purposes.” Finally, neither case authorized the

kind of disclosure plus investigatory and prosecutorial powers

that exist in the Clearwater ordinance.’ Indeed, in both Schaum-

In discussing the use of disclosure laws to prevent fraud, this

Court quite clearly contemplated public fundraising appeals by traditional

“charities,” such as the March of Dimes or the United Way. Indeed, in

Schaumburg, this Court cited as an example of such a financial disclosure

law an Illinois statute regulating solicitations by traditional charities. 444

U.S. at 638 n.12 (citing Il. Rev. Stat. Ch. 23 § 5102(a) (1977)). The Illi-

nois statute, significantly, exempted religious organizations from the

scope of its regulation. Ill. Rev. Stat. at § 5103.

y , ° . .

Petitioners’ reliance on a number of circuit court cases for the

same proposition is similarly misleading. As discussed, ante, in ISKCON

v. City of Houston, the court emphasized that no attempt was made to

regulate solicitation of members and no disclosure was required except

with respect to funds raised from the public. In International Soc’y for

Krishna Consciousness v. Barber, 650 F.2d 430 (2nd Cir. 1981), the

court, while recognizing the state's interest in preventing fraud in the

solicitation of funds, invalidated the ordinance because of a failure to

establish that no less restrictive means were available. Finally, in Gospel

Army v. Los Angeles, 27 Cal. 2d 232, 163 P.2d 704 (1945), appeal dis-

missed, 331 U.S. 543 (1947), the solicitation ordinance regulated only

secular fundraising activities of religious organizations, exempting solic-

24

burg and Munson, this Court, while recognizing the state’s

interest in preventing fraud, invalidated solicitation regulations

because, as here, they were not sufficiently tailored to serve the

State’s interest.

For similar reasons, the City’s contention that the Eleventh

Circuit’s decision endangers the ability of the government to

protect citizens against other crimes carried out by religious

organizations, see Pet. at 26-27, is equally frivolous. Nowhere

has the City even attempted to demonstrate how the ordinance

will accomplish that purpose. Because the ordinance regulates

speech, association, and free exercise of religion, the City must

“ “convincingly show a substantial relation between the infor-

mation sought and a subject of overriding and compelling state

interest.’” Branzburg v. Hayes, 408 U.S. 665, 700 (1972)

(quoting Gibson v. Florida Legislative Investization Comm Nn,

372 U.S. 539, 546 (1963)).

The ordinance, however, bears no “ ‘reasonable relationship

to the achievement of the governmental purpose asserted as its

justification.’ ” Jd. (citation omitted). It hardly warrants expla-

nation that a law that purports to regulate charitable solicita-

tions by means of a complex and detailed licensing scheme

could not possibly affect such activities as burglaries, elec-

tronic bugging, framing of opponents, etc. Moreover, as the

Eleventh Circuit recognized, penal laws that directly prohibit

acts Over which the City has expressed concern already exist.

Indeed, not only are these criminal laws more direct and effec-

tive in combatting such crimes than an ordinance compelling

disclosure of voluntary donations of members to churches, but

the penal provisions further the government's interest by means

less restrictive of First Amendment rights (62a). Criminal

Statutes affect only criminal acts and criminals, unlike the ordi-

nance, which interjects City officials into every donation

by every church member in the City. Indeed, as this Court

Stated in Schaumburg, it in no way follows that because fraud,

itations made for evangelical, missionary, or religious purposes. 163 P.2d

at 711.

The other cases cited, Pet. at 21, are not relevant. They involve the

application of generally applicable laws to religious Organizations, not

solicitation regulations that implicate First Amendment freedoms.

ne

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25

trespass, and other crimes can be and generally are directly

proscribed, charitable solicitation can be unduly restricted:

“ ‘considerations of this sort do not empower a municipality to

abridge freedom of speech and press.’ ” 444 U.S. at 639 (quot-

ing Schneider v. State, 308 U.S. 147, 164 (1939)).

The City’s response to the above proposition once again

demonstrates a complete misunderstanding of applicable law.

It complains that “Clearwater cannot enforce the kinds of alter-

native laws listed by the Circuit,” which present less restrictive

means for addressing the City’s asserted interests in controlling

illegal and coercive conduct of religious organizations, because

they are “state laws.” Pet. at 18 (emphasis in original). This

statement is astonishing. It is the duty and function of Clear-

water’s own police department to enforce state penal laws

within the City. See, e.g., Fla. Stat. Ann. § 943.10 (defining the

term “law enforcement officer” as a person “employed full time

by any municipality . . . whose primary responsibility is the

prevention and detection of crime or the enforcement of the

penal, criminal, traffic or highway laws of the state.” ) (empha-

sis added). Clearly, the City’s contention that it does not have

the power to enforce such laws is absurd.'”

Finally, the City contends that this Court should review this

case because the Eleventh Circuit's decision impairs the gov-

ernment’s ability to protect citizens against crime by disabling

legislatures from passing anti-crime statutes inspired by the

actions of particular criminal organizations. See Pet. at 24-25.

This argument is without merit. To enact an anti-crime bill that

may punish criminals who are incidentally members of a par-

ticular religion is obviously quite different than to enact a

statute with the primary aim of discriminating against a reli-

gion. The unusual circumstances of this case—where legisla-

tion was directly aimed at burdening a particular religion—

obviously have no bearing on a government’s general ability to

enact anti-crime legislation.

10 ~—s In 1989 alone, the Clearwater police made 91 arrests for rob-

bery, 269 for aggravated assault, 327 for burglary, 1,778 for larceny, 2 for

kidnapping, and 2 for murder. Florida Dept. of Law Enforcement, Crime

in Florida, 1989 Annual Report 206. None of the arrests are known to

have been of officers, directors, or employees of the Church.

26

Il. THE COURT OF APPEALS APPLIED THE COR-

RECT LEGAL STANDARDS IN ANALYZING THE

CHURCH’S ESTABLISHMENT CLAUSE AND FREE

EXERCISE CLAIMS

A. The Court Of Appeals Correctly Applied The

Governing Establishment Clause Tests

The City contends that the court of appeals incorrectly failed

to apply a compelling state interest test to its analysis of

whether the ordinance was enacted for a sectarian purpose and

created excessive entanglement between City officials and

church entities in violation of the Establishment Clause. This

argument is without merit.

The City’s reliance on Larson v. Valente, 456 U.S. 228

(1982), for the proposition that a compelling state interest test

should be applied to the Church’s Establishment Clause claim

conflates two separate issues: whether legislation facially dis-

criminates among religions and whether legislation was enacted

with an improper motive or creates excessive entanglement.

The City wrongly equates the Eleventh Circuit’s conclusion

that the ordinance is facially neutral with a finding that the City

did not intend to discriminate against the Church in enacting

the ordinance. See Pet. at 15-16.

The court of appeals refused to apply Larson because the law

here is facially neutral, whereas Larson involved an ordinance

that facially created a denominational preference (50a). The

Court in Larson held only that Lemon is inapplicable in those

circumstances where a law facially discriminates. See 456 U.S.

at 252. The Court clarified the Larson analytic framework in

Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680,

695 (1989): when there is a claim “that a denominational pref-

erence exists,” the initial question is whether the challenged

law facially differentiates among religions as did the ordinance

in Larson. “If, however, no such facial preference exists, we

proceed to apply the customary three-pronged Establishment

Clause inquiry derived from Lemon.” Id. (citation omitted).

Hernandez thus clarifies that the Lemon analysis, rather than

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the Larson compelling-interest analysis, is to be applied ina

case like this, where a facially-neutral statute is claimed to

have been enacted out of religious animus.

Hernandez also repudiates the City’s suggestion that the

Eleventh Circuit should have determined, under Employment

Division v. Smith, 494 U.S. 872 (1990), that the ordinance was

constitutional because, the City claims, it is generally and neu-

trally applicable. Pet. at 15, 28. Hernandez makes it quite clear

that even if the ordinance were found to be facially neutral and

generally applicable, which is not the case here, it would not

ipso facto survive an Establishment Clause challenge. To the

contrary, after legislation claimed to violate the Establishment

Clause is determined to be facially neutral, a court should then

turn to the Lemon analysis, see 490 U.S. at 695, as did the

Eleventh Circuit in this case.

Finally, the City’s claim that the court of appeals should have

applied the compelling state interest test in determining

whether the ordinance creates an impermissible entanglement

between City officials and church entities rather than the

Lemon analysis is, in essence, a false issue. As the City itself

acknowledges, see Pet. at 28, this Court has found that the

Lemon tests “reflect the same concerns that warrant[] the appli-

cation of strict scrutiny.” Larson, 456 U-S. at 252. Indeed, in

determining whether a regulation creates an excessive entan-

glement, a court must take into account and incorporate the

secular interest of the government into its analysis. The exces-

sive entanglement prong of the Lemon test, as set forth by this

Court, “requires examination of ‘the character and purposes of

the institutions that are benefited, the nature of the aid that the

State provides, and the resulting relationship between the gov-

ernment and the religious authority.’ ” Swaggart, 493 U.S. at

393 (quoting Lemon, 403 U.S. at 613). Consideration of the

government’s inicrest is thus built into the process of deter-

mining whether a regulation creates an excessive entanglement

under all the facts and circumstances. The Court’s decisions

with respect to questions of excessive entanglement reflect pre-

cisely this type of analysis. Cf. Swaggart, 493 U.S. at 697-699

(balancing government's interest in imposing sales and use tax

against level of government intrusion into religious affairs in

28

finding no excessive entanglement); and Aguilar v. Felton, 473

U.S. 402 (1985) (weighing nature of state aid, institution

receiving aid, and resulting relationship between church and

State in administration of aid in finding that entanglement

between church and state was excessive).

In sum, the Eleventh Circuit applied the correct legal stan-

dards to the Church’s Establishment Clause claim, and its anal-

ysis presents no compelling question for this Court’s review.

B. The Court of Appeals’ Free Exercise Analysis Is

Consistent With This Court’s Decision In Employ-

ment Division v. Smith

The City contends that the free exercise portion of the court

of appeals’ decision conflicts with this Court’s decision in

Employment Division v. Smith, 494 U.S. 872 (1990), because

the court of appeals refused to apply Smith’s neutrally-and-

generally-applicable test to the City’s regulation of solicitation

activity. The City also incredibly asserts that the Eleventh Cir-

cuit “rul[ed] the compelling interest/strict scrutiny test inap-

plicable” to the Church’s Free Exercise claim. Pet. at 17.

However, neither of these arguments presents a bona fide ques-

tion meriting this Court’s review.

Initially, the City’s contention that the court “rulfed] the

compelling interest/strict scrutiny test inapplicable” to the

Church’s Free Exercise claim is simply not true. The court of

appeals clearly applied the test, indeed, Stating “we employ

“exacting First Amendment scrutiny’ ” (55a) (citation omitted).

The court concluded that the ordinance did not survive strict

scrutiny, not that the test was inapplicable (55a-63a).

Second, the core of the Eleventh Circuit’s decision rests

upon the Establishment Clause. Thus, even if Smith required a

less exacting scrutiny under the Free Exercise Clause than

applied by the court, the court’s purported error would not have

affected the outcome of the case.

Third, the court of appeals was clearly correct in applying

Strict scrutiny to the Church’s hybrid free exercise/free speech

claim. It is critical to recognize, as the court of appeals did and

as the City fails to do, that the First Amendment right at issue

is not simply that of free exercise, but a right grounded in free-

dom of speech and association, as well as the non-entanglement

29

principles of the Establishment Clause. It is firmly established

that solicitation is protected as speech under the First Amend-

ment, both because it is an effective method of proselytizing

and because fundraising is necessary for a church or associa-

tion to survive. See, e.g., Riley v. National Fed’n of the Blind,

487 U.S. 781, 788-89 (1988); Village of Schaumburg v. Citi-

zens for a Better Env't, 444 U.S. 620, 629 (1980); Murdock v.

Pennsylvania, 319 U.S. 105 (1943); Cantwell v. Connecticut,

310 U.S. 296 (1940). Courts carefully scrutinize regulation of

solicitations to ensure that the state does not infringe upon pro-

tected activity. See, e.g., Riley, 487 U.S. at 789 (regulation of

charitable solicitation subject to “exacting First Amendment

scrutiny”); Secretary of State of Maryland v. Joseph H. Mun-

son Co., 467 U.S. 947, 961 (1984) (laws regulating solicita-

tions must be “narrowly drawn” so as not to “unnecessarily

interferfe] with First Amendment freedoms”); Village of

Schaumburg, 444 U.S. at 637 (same).

The City’s reliance upon Smith is thus misplaced. Smith

addressed, and was limited to, “a free exercise claim uncon-

nected with any communicative activity or parental right.” 494

U.S. at 882. Indeed, Smith carefully noted that its rule did not

apply to hybrid situations, such as here, where free exercise

concerns are reinforced by other constitutional protections:

such as freedom of speech . . . see Cantwell v. Con-

necticut, 310 U.S. at 304-307 (invalidating a licensing

system for religious and charitable solicitations . . -)

_ . And it is easy to envision a case in which a challenge

on freedom of association grounds would likewise be rein-

forced by Free Exercise Clause concerns. Cf. Roberts v.

United States Jaycees, 468 U.S. 609 (1984).

494 U.S. at 881-82. Thus, not only does Smith not purport to

diminish the level of scrutiny required by Riley, Schaumburg,

and a host of other decisions, but the decision explicitly sup-

ports strict scrutiny, as in Cantwell, “for religious and chari-

table solicitations.” Jd. Indeed, to find otherwise, would mean

that simply because a church challenged the Clearwater ordi-

nance, the ordinance would be subject to a lesser level of

scrutiny than if the challenge had been brought by a secular

30

charity, e.g., the National Federation for the Blind, as in Riley,

or by a political advocacy group, e.g., the Citizens for a Better

Environment, as in Schaumburg.

Finally, in any event, Smith should no longer be applied. On

November 16, 1993, the President signed into law the Reli-

gious Freedom Restoration Act of 1993, Pub. L. No. 103-141,

107 Stat. 1488 (1993) (codified at 42 U.S.C. § 2000bb). That

Act directs the federal and state courts to apply strict scrutiny

to all free exercise challenges to federal, state, and local laws.

It prohibits any government entity from burdening religious

free exercise, “even if the burden results from a rule of general

applicability,” id. at § 3(a), except “in furtherance of a com-

pelling governmental interest” and then only by “the least

restrictive means of furthering that compelling governmental

interest.” Jd. at § 3(b). Moreover, the Act applies to all federal,

State and municipal laws “whether adopted before or after the

enactment of this Act.” Jd. at § 6. And, finally, the government

bears the burden of proof to justify any burden on religious free

exercise. Jd. at §§ 3(b) & 5(3).

In sum, the Eleventh Circuit correctly applied the strict

scrutiny test to the Church’s hybrid free exercise/free speech

claim and there is no compelling question of law requiring this

Court’s review.

CONCLUSION

For the foregoing reasons, the petition for certiorari should

be denied.

Respectfully submitted,

ERIC M. LIEBERMAN

LAURIE EDELSTEIN

CAROLINE RULE

JOHNSON & JOHNSON

Attorneys for Respondent

APPENDIX

ie

i

ue

-

ie

Ms

7

i

A-l

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

CASE NUMBER 84-719-Civ-T-17

Filed February 4, 1991

CHURCH OF SCIENTOLOGY FLAG SERVICES ORG., INC.,

Plaintiff,

al

CIry OF CLEARWATER, ef ai.,

Defendants.

JUDGMENT IN A CIVIL CASE

Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury has

rendered its verdict.

Decision by Court. This action came before the Court. A

decision has been rendered.

IT 1S ORDERED AND ADJUDGED

That Plaintiff Church of Scientology Flag Service, Org.,

Inc.’s Motion for Partial Summary Judgment against

Defendants, City of Clearwater, et al., on the issue of

standing is Granted.

A-2

That Plaintiff Church of Scientology Flag Service Org.,

Inc.’s Motion for Partial Summary Judgment against

Defendants, City of Clearwater, et al., on all issues other

than standing is Denied.

That Defendants, City of Clearwater, et al.’s Motion for

Partial Summary Judgment against Plaintiff Church of

Scientology Flag Service Org. Inc., on the issue of stand-

ing is Denied.

That Defendants, City of Clearwater, et al.’s Motion for

Partial Summary Judgment against Plaintiff Church of

Scientology Flag Service Org. Inc., on all issues other

than standing is Granted.

February 4,1991 DAVID L. EDWARDS

Date

Clerk

MEARLE S. SAYLOR

(By) Deputy Clerk

A-3

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CASE No. 84-719-Civ-T-17

Filed September 16, 1991

CHURCH OF SCIENTOLOGY FLAG SERVICE ORG., INC.,

Plaintiff,

CITY OF CLEARWATER, ef al.,

Defendants.

ORDER

This cause is before the Court on the following:

Dkt. 147 Plaintiff’s motion for new trial and/or motion to

alter or amend judgment filed, February 19, 1991

Dkt. 153 Defendants’ response to Plaintiff’s motion for new

trial and/or motion to alter or amend judgment,

filed March 12, 1991

Dkt. 162 Defendants’ motion for leave to file supplemental

memorandum in response to the Plaintiff’s motion

for new trial and/or motion to alter or amend judg-

ment, filed May 3, 1991

A-4

Dkt. 163 Plaintiff’s motion for leave to respond to Defen-

dants’ proposed supplemental memorandum, filed

May 16, 1991

The Court has carefully reviewed the above documents.

Accordingly, it is

ORDERED:

1. That Plaintiff’s motion for new trial and/or motion to

alter or amend judgment is denied except to the extent that the

judgment should be amended for clarification. The Clerk is

directed to amend the judgment to read as follows:

“That Defendants, City of Clearwater, et al.’s motion for

summary judgment is denied on the issue of standing, and

granted against Plaintiff, Church of Scientology Flag Service

Org., Inc., on all other issues.”

2. That all other motions listed above are denied as moot

(Dkt. 162, 163).

DONE AND ORDERED at Tampa, Florida this 16th day of

September, 1991.

/S/ ELIZABETH A. KOVACHEVICH

Elizabeth A. Kovachevich

United States District Judge

A-5

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

CASE NO. 84-719-Civ-T-17

Filed September 17, 1991

CHURCH OF SCIENTOLOGY FLAG SERVICE ORG., INC.

CITY OF CLEARWATER, ef ail

AMENDED JUDGMENT IN A CIVIL CASE

Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury has

rendered its verdict

*| Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and

a decision has been rendered

IT 1S ORDERED AND ADJUDGED

That Defendants, City of Clearwater, et al.'s motion for

summary judgment is denied on the issue of standing,

and granted against Plaintiff, Church of Scientology Flag

Service Org., Inc., on all other issues

September 17, 1991 DAVID L. EDWARDS

Date Clerk

SIMONE A. KONNER

(By) Deputy Clerk

A-6

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHURCH OF SCIENTOLOGY

FLAG SERVICE ORG., INC., Case No.

84-96-CIV-T-17

Plaintiff(s),

vs.

CITY OF CLEARWATER,

et al.,

Defendant(s).

ORDER

In their complaint, inter alia, the

plaintiffs contend that amended ordinance

3479-84, a copy of which is attached,

facially violates the freedom of

religion, freedom of press, freedom of

speech, and freedom of association

guarantees of the First Amendment; the

right of privacy guarantee of the First,

A-7

Fourth, Fifth, and Ninth Amendments; and

the equal protection and due process

clauses of the Fourteenth Amendment to

the Constitution of the United States.

To facilitate and accelerate the dispo-

sition of these claims, the Court

requested the parties to submit legal

memoranda solely on the issue of the

constitutionality of the amended ordi-

nance on its face. Having considered the

memoranda, the arguments of the parties,

and International Society for Krishna

Consciousness of Houston, Inc. v. City of

Houston, Texas, 689 F.2d 541 (5th Cir.

1982) and Poe v. City of Humble, Texas,

554 F. Supp. 233 (S.D. Texas 1983), the

Court now rules that each and every

section of amended ordinance 3479-84 is

constitutional on its face.

A-8

Pursuant to Title 28 U.S.C.

§1292(b), the Court expressly opines that

this order involves a controlling

question of law as to which there is

substantial ground for difference of

opinion and that an immediate appeal from

the order may materially advance the

ultimate termination of this litigation.

Counsel have indicated to the Court their

desire to immediately appeal this Court's

ruling; therefore, the Court orders the

Clerk of the Court to Administratively

Close case numbers 84-96, 84-699, and

84-719 during the pendency of said

appeal.

A-9

DONE and ORDERED in Chambers, in

Tampa, Florida, this 23rd day of July,

1984,

Elizabeth A. Kovachevich

United States District Judge

Copies furnished to:

All Counsel of Record