Capital Area Right to Life, Inc. v. Downtown Frankfort, Inc.

862 S.W.2d 297, 1993 Ky. LEXIS 97, 1993 WL 237872

• Court: Kentucky Supreme Court
• Decided: July 1, 1993
• Docket: 92-SC-347-DG
• Status: Published

Opinions

LEIBSON, Justice.

The respondent, Downtown Frankfort, Inc. (DFI) is a non-profit corporation established to promote downtown revitalization in Frankfort, Kentucky. John Gray is its president. As one of its activities, DFI organized and sponsored a “Great Pumpkin Festival” as a special event to be held on the city’s St. Clair Mall, on Saturday, October 27, 1990.

Capital Area Right To Life, Inc. (CARTL) had a booth at the 1989 Festival, but was denied a permit to have a booth at the 1990 Festival, being advised by letter from President John Gray that DFI had decided upon a “policy on the issue of festival participation” under which “theme festivals, events, and booths are meant to be for fun and entertainment, [and] DFI reserves the right to deny participation to any displayer/merchandiser deemed inappropriate to that theme and purpose.” Additionally, Gray advised CARTL orally that it could not have a booth because it was a “controversial group.” This 1990 festival policy evolved because, at the 1989 Festival, DFI had received complaints from many festival-goers, as well as other festival participants, about the inappropriateness of advocacy groups such as CARTL participating in a family-oriented Halloween/Fall Festival. At oral argument both sides took note that, at the 1989 Festival, CARTL’s booth had distributed plastic models of fetuses in little baskets.

The record shows that DFI’s 1990 festival policy was applied evenhandedly in that CARTL’s counterparts, Kentucky NOW and the Kentucky Religious Coalition for Abortion Rights, were also denied participation as not in keeping with the Halloween/Fall Harvest theme of the “Great Pumpkin Festival.”

CARTL filed suit in Franklin Circuit Court against DFI and Gray alleging “the actions of the Defendants jointly and severally deprived the Plaintiff of its rights under the First and Fourteenth Amendments to the United States Constitution (more specifically, abridging the freedom of speech), unlawfully restricts the use of public property and denies to the Plaintiff equal access to a public forum.” CARTL sought relief under the Kentucky Declaratory Judgments Act (KRS Chapter 418) and the Federal Civil Rights Act (Title 42, U.S.Code, Sec. 1983).

The trial court denied the injunction and entered summary judgment for the defendants, Gray and DFI. The Kentucky Court of Appeals panel affirmed; one judge dissented. Because the case involves freedom of speech, a constitutional issue of great public importance, we granted discretionary review. For reasons to be stated, we affirm.

The evidence in this case consists solely of affidavits filed on behalf of the parties concerned. These affidavits are not in conflict on any facts material to deciding this controversy. Thus, while we differ with the trial court and the Court of Appeals about the reasons for deciding DFI’s actions did not violate CARTL’s constitutional rights, we agree this was a proper case for summary judgment.

On appeal, CARTL addressed, for the first time, freedom of speech provisions in our Kentucky Constitution (Ky. Const., Sec. 1(4) and See. 8), in addition to the federal constitutional law arguments CARTL presented at the trial level. We will not undertake to decide whether the right to frame arguments based on the Kentucky Constitution has been lost by procedural default, because CARTL offers no differences between the two constitutions pertinent to the issues in this case.

This case was decided in the trial court and in the Court of Appeals on grounds that DFI and Gray are private parties, not public entities, and that the Fourteenth Amendment, and through it First Amendment rights, do not apply to private parties unless those parties are engaged in activity deemed to be “state action.” Jackson v. Metropolitan Ed. Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Having stated the issue in the simplest of terms, the application of the principle became exceedingly complicated. Both courts below engaged in labored analysis of various factors and tests applied to decide the “state action” question in a multiplicity of decisions (most of them unrelated to abridging or restricting free speech), ultimately deciding that DFI and Gray were not state actors when they denied CARTL a permit to operate a booth at the festival.

The trial court analyzed the case using three tests: the “public function test,” which asks whether private actors are “performing functions traditionally the exclusive prerogative of the city”; the “state compulsion test,” which asks whether “the city has exercised coersive [sic.] power or has provided such significant encouragement, either overt or covert, that choice must in law be deemed to be that of the city”; and the “nexus test” which asks whether the city and DFI were “intertwined in a ‘symbiotic relationship’ ” such that they were “joint participants.” The trial court concluded:

“Applying the three tests to the facts at hand it becomes apparent that DFI was not performing a city function. It follows that the plaintiff was denied no constitutional right.”

The Court of Appeals took the inquiry one step further, addressing the question posed in Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482, 497 (1982):

“Whether these different tests are actually different in operation or simply different ways of characterizing the necessarily fact-bound inquiry that confronts the Court in such a situation.... ‘Only by sifting facts and weighing circumstances can the nonob-vious involvement of the State in private conduct be attributed its true significance.’ ”

After separately analyzing the factors and tests applied in many different cases, the Court of Appeals concluded:

“From all the foregoing we have observed that every case must be examined from the facts of each situation; that the receipt of state funds does not convert private actors to state actors; and that in the case at bench the government is not in the business of conducting festivals. Neither can it be said that there was any duty, legal or otherwise, for the city or county to promote or revitalize downtown Frankfort or, for that matter, any other area within their respective boundaries.... CARTL has failed in establishing that DFI was performing a public function.”

The Court of Appeals reached its decision by separately analyzing each reason proffered for attaching the “state action” label to DFI’s activities, and then rejecting each in turn on the basis DFI’s activities did not prove state action. The Dissenting Opinion by Judge Huddleston reached the opposite conclusion by considering DFI’s activities in the aggregate. Judge Huddleston conceded that “examined separately and in light of existing United States Supreme Court decisions these factors do not individually represent a significant degree of state action,” but concluded “as the Supreme Court has stated, ‘the dispositive question in any state-action case is not whether any single fact or relationship presents a sufficient degree of state involvement, but rather whether the aggregate of all relevant factors compels a finding of state responsibility.’ Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856 [860], 6 L.Ed.2d 45, 50 (1961).” We agree with the Court of Appeals’ Dissenting Opinion that “[u]pon weighing the circumstances of this case” in the “aggregate,” DFI qualifies as a state actor.

There are many factors that point to this conclusion. DFI is incorporated as a private, non-profit corporation, but its purpose is to bring about “revitalization” of Downtown Frankfort. This is a function it took over from the city to the extent of carrying out the “Main Street Program,” which is operated under the patronage and guidance of the Kentucky Heritage Council, an agency of state government under the Education and Humanities Cabinet. KRS 171.3801 and 171.381. DFI’s principal funding is from monies received from the Kentucky Heritage Council, from the City of Frankfort, and from the Franklin County Fiscal Court, although it also charges dues to its members and presumably accepts private contributions.

One of the functions of the Kentucky Heritage Council is the “administration” of a “grants program” which includes the “Main Street Program,” the impetus behind the “Great Pumpkin Festival.” The unrefuted affidavit from John R. Sower, formerly May- or of the City of Frankfort from 1978-82, filed on behalf of CARTL states:

“Downtown Frankfort, Inc., has in fact taken over a function formerly performed by the City of Frankfort. The City used to hire its own staff to promote the revitalization of downtown as a place to live, visit, shop, invest, etc. During the affiant’s term as Mayor, the City received a ‘Main Street’ program fund for this purpose and hired Randy Shipp and Todd Graham to promote downtown Frankfort.”

Finally, and of great significance, the St. Clair Mall upon which this festival is conducted is a public area, but a permit for a booth on this public area must be obtained from DFI: “no formal city permit is issued.” Thus the city has delegated to DFI control over the St. Clair Mall, albeit-only to the limited extent of deciding who shall be permitted to maintain booths there during the hours of the festival.

These factors leave no room to doubt that the activities engaged in by DFI in conducting the “Great Pumpkin Festival,” in the aggregate, constitute state action.

In one of the latest U.S. Supreme Court cases on the subject of state action, Edmonson v. Leesville Concrete Co., 500 U.S.-, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), a case cited by both sides as supporting authority, the Court held that the exercise of peremptory challenges by private litigants in civil cases, if exercised in a racially discriminatory manner, involves sufficient “interdependence” or “joint participation” in the exercise of governmental authority that it should be viewed as state action. The Court considered the private party status of the actor outweighed by the public nature of the function being performed: “... when private litigants participate in the selection of jurors, they serve an important function within the government and act with its substantial assistance.” Id. at-, 111 S.Ct. at 2087, 114 L.Ed.2d at 678.

The Edmonson case supports CARTL’s “state action” claim in this case. Like the Leesville Concrete Co. in Edmonson, here DFI’s ease against classifying its activities as state action rests on its claim it is a private non-profit organization rather than a state agency. This begs the question. In the context of the issue before us, DFI’s right to restrict participation by CARTL in the “Great Pumpkin Festival,” the issue is whether DFI is involved in a “symbiotic relationship” with government, a relationship involving close, mutually beneficial association of two dissimilar entities. What constitutes a “symbiotic relationship” is a multifaceted question, elusive because the term has different meanings depending upon the context of the case. See for discussion: Edmonson v. Leesville Concrete Co., supra; Burton v. Wilmington Parking Authority, supra and West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

Thus we conclude that in conducting the “Great Pumpkin Festival” and setting policy as to what individuals, groups or organizations could maintain booths at the festival, the activities of DFI and Gray constituted state action. But this does not end the inquiry: state action of this nature does not necessarily abridge the constitutional right of free speech. This, also, depends on the circumstances. From the many cases cited to us, the U.S. Supreme Court case that seems closest to the present one factually, and the case which we look to for guidance, is Heffron v. Int’l Soc. For Krishna Cons., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981).

In Heffron, the Minnesota Agricultural Society, a public corporation charged with operating Minnesota’s annual state fair, restricted the activities of the Krishna’s Society to distributing literature and soliciting donations within the fairgrounds to assigned locations. Its rules “require that any exhibitor conduct its sales, distribution, and funds solicitation operations from a booth rented from the Society. Space in the fairgrounds is rented to all comers in a nondiscriminatory fashion on a first-come, first-served basis with a rental charge based on the size and location of the booth. The Rule applies alike to nonprofit, charitable, and commercial enterprises.” 452 U.S. at 644, 101 S.Ct. at 2562. “[T]he Rule does not prevent organizational representatives from walking about the fairgrounds and communicating the organization’s views with fair patrons in face-to-face discussions.” Id. at 643-44, 101 S.Ct. at 2562.

There is no doubt the public agency engaged in conducting the state fair was engaged in state action. Yet the Opinion upholds the restrictions in the state fair rules against First Amendment challenge. The Court takes note that “[t]he State does not dispute ... Krishnas’ religious views and doctrines is protected by the First Amendment.” 452 U.S. at 647, 101 S.Ct. at 2563. The Court then states the following principle applicable in cases of this nature:

“It is also common ground, however, that the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired. [Cases cited.] ... the activities of ISKCON [the Krishna Society], like those of others protected by the First Amendment, are subject to reasonable time, place, and manner restrictions. [Cases cited.] ‘We have often approved restrictions of that kind provided they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in doing so they leave open ample alternative channels for communication of the information.’ [Cases cited.] The issue here ... is whether Rule 6.05 is a permissible restriction on the place and manner of communicating the views of the Krishna religion,_” Id. at 647-48, 101 S.Ct. at 2563-64.

We consider the issue before us the opposite side of the same coin. We interpret “content-neutral,” as used in Hejfron, to include being neutral as to the type of message the restriction permits as well as being nondiscriminatory between messages of the same type, so long as there is a logical and legitimate reason for restricting the type of message. The issue here is not whether DFI was involved in state action in regulating the use of the Mall, but whether the manner in which it regulated the use of the Mall on this occasion constituted “reasonable time, place, and manner restrictions.” Heffron, supra, 452 U.S. at 647, 101 S.Ct. at 2564. DFI was engaged in restricting those who could maintain a booth to entities consistent with the festival’s theme and subject matter. Thus the St. Clair Mall was a public area, but its use on this occasion is analogous to the use of the fairgrounds in the Hejfron case. So long as it applied its policy in an evenhanded, nondiscriminatory manner consistent with a legitimate purpose expressed in a specified policy, its policy is content-neutral in the only sense that is important to this case.

CARTL and its counterparts were free to walk about the Mall and exercise the right of free speech free of any supervision or restriction from DFI. The Mall was not a private area policed by DFI security officers, but a public area, the policing of which was left to public officials. DFI did not deny access to the St. Clair Mall to persons or organizations wishing to engage in “controversial” speech; it only denied such entities a permit for booth space during the hours of the festival.

It is a critical fact in this case that CARTL’s counterparts, NOW and the Religious Coalition for Abortion Rights, were also denied booths in keeping with the festival’s theme. It is also a critical fact that the scope of DFI’s activities did not include controlling speech on the Mall in any manner except restricting permits for booths to groups consistent with the theme of the festival. None of these organizations were in any manner prohibited from using the Mall to communicate freely with others attending the festival, not limited in any way by DFI and Gray, but limited only by the lawftd exercise of police power in a public place by public agencies. Given these facts we see no significant difference between the reasonableness of the limitations on the Krishna Society in the Hejfron case, and the limitations on CARTL in the present ease.

In Hejfron the U.S. Supreme Court stated:

“Furthermore, consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be asserted in fight of the characteristic nature and function of the particular forum involved.” 452 U.S. at 650-51,101 S.Ct. at 2565.

The restriction here was consistent with “consideration of [the] forum’s special attributes.” The restriction did not address the content of the message, but only the type of message for which a booth would be suitable. It did not restrict the exercise of free speech at the festival except to limit the “manner” of its exercise. Like Hejfron it was a reasonable limitation on “time, place and manner.”

For the reasons stated, we affirm.

STEPHENS, C.J., and COMBS, LEIBSON and REYNOLDS, JJ., concur. SPAIN, J., concurs in results, but further concludes that the actions of DFI did not amount to state action under the circumstances. WINTERSHEIMER, J., dissents by separate opinion in which LAMBERT, J., joins.