Douglas R. Parks v. Richard H. Finan Ronald T. Keller Kenneth L. Morckel Lee A. Darden

385 F.3d 694, 2004 U.S. App. LEXIS 20495, 2004 WL 2169413
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 29, 2004
Docket03-3848
StatusPublished
Cited by25 cases

This text of 385 F.3d 694 (Douglas R. Parks v. Richard H. Finan Ronald T. Keller Kenneth L. Morckel Lee A. Darden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Douglas R. Parks v. Richard H. Finan Ronald T. Keller Kenneth L. Morckel Lee A. Darden, 385 F.3d 694, 2004 U.S. App. LEXIS 20495, 2004 WL 2169413 (6th Cir. 2004).

Opinions

ROGERS, J., delivered the opinion of the court, in which SCHWARZER, D.J., joined. COOK, J. (pp. 706-08), delivered a separate dissenting opinion. ,

OPINION

ROGERS, Circuit Judge.

On two separate occasions in April 2002, Douglas Parks entered the grounds of the Ohio state capitol and attempted to preach a Christian message — the first time by preaching, the second time by wearing a sandwich board and distributing leaflets. Both times Ohio State Highway Patrol (“OSHP”) troopers informed Parks that he was required to obtain a permit prior to conducting these activities on the Capitol Square and asked Parks to leave. After the second of these encounters, Parks instituted this action in the district court, seeking an injunction preventing the Capitol Square Review and Advisory Board (“CSRAB”) and OSHP from enforcing the permit requirement against him.1 The district court, finding the permitting scheme deficient in many respects under the First Amendment, permanently enjoined CSRAB from enforcing the permitting scheme against individual speakers. We construe the injunction to apply only to the application of the permitting scheme to individuals who are not acting as part of a group or in concert, and we affirm on grounds more limited than those relied upon by the district court.

I

Ohio’s Capitol Square consists of the state capitol buildings and the surrounding Capitol grounds, a ten-acre area bounded on all sides by city streets. See Ohio Rev.Code Ann. § 105.41(L) (Anderson 2001) (amended 2002); Ohio Admin. Code (OAC) § 128-4-ORB) (2001). Use of the grounds, which are generally open to the [696]*696public, is governed by state regulations rather than by Columbus ordinances. See Ohio Rev.Code Ann. § 105.41(E)(2). The Capitol grounds includes the steps of the capitol itself, and all the area bounded by the surrounding streets, including the walkways, grassy areas, monuments and fountains contained therein. OAC § 128-4-01(B). CSRAB has plenary control of Capitol Square, and is empowered to promulgate rules and regulations for the use of the square. See Ohio Rev.Code Ann. § 105.41(D)(3), (E).

CSRAB makes the square available for speeches and public gatherings advocating various causes, both secular and religious, but requires a permit as a prerequisite for those activities. Although CSRAB issues the permits on a first-come, first-served basis, it may deny permits if in its discretion it finds that the planned activity fails to meet one of five criteria.2 OAC § 128-4-02(A). In order to obtain a permit, a person seeking to use the capitol grounds must apply, in writing, to CSRAB anywhere from 15 to 180 days prior to the planned event. OAC § 128-4-03(A). The application must include, inter alia, the name, address and telephone number of the person responsible for organizing the event, and must be accompanied by a $20 fee “to cover the administrative cost of issuing a permit.” OAC § 128^4-03(A)(6), (C).

CSRAB reviews timely filed applications and issues a response, generally granting the permit unless there is a conflict for use of the space or the use threatens to violate the restrictions of § 128-4-02(A). CSRAB may waive the timeliness requirements “for good cause shown.” OAC § 128-4-03(A), (Q).

On April 11, 2002, Parks entered the capitol grounds, positioned himself on a sidewalk near a plaque bearing the Ohio state motto, “With God, All Things Are Possible,” and began to preach. On the same day, an animal rights group called Protect Our Earth’s Treasures (“POET”) staged a small rally in the same area of Capitol Square, to call on Ohio’s legislature to adopt an excise tax on meat. POET had a permit to gather there, obtained with a waiver of the 15-day waiting period because the legislature had taken up a tax measure on short notice. Although Parks and the leader of the POET rally were aware of each other’s presence, there is no indication in the record that Parks’s preaching disrupted POET’s activities. Nor did the permit indicate that POET had the exclusive right to use any portion of Capitol Square.

Shortly after Parks began speaking, two uniformed OSHP troopers approached him and asked him to present his permit. Learning that Parks had none, the troopers told him that he would have to leave. The supervising officer informed Parks that a permit was required for speaking on the capitol grounds, but he was free to speak on the perimeter sidewalks without [697]*697a permit. Parks, fearing arrest, complied with the troopers’ request to leave.

He returned to Capitol Square on April 19, 2002. This time instead of preaching he wore a sandwich board bearing religious content and distributed leaflets with religious messages. Again, Parks had not obtained a permit. Parks testified in the district court that his religious beliefs preclude him from obtaining a permit to preach. As Parks had no permit, OSHP troopers again confronted him and asked him to leave the area. The troopers told Parks that he would be arrested and charged with criminal trespass, if he remained. Parks complied with the request and left the area.

On January 31, 2003, Parks filed suit in the district court seeking a declaratory judgment and a permanent injunction preventing CSRAB from enforcing its permitting scheme against his activities. After conducting an evidentiary hearing, the district court entered an order on June 4, 2003, permanently enjoining CSRAB from enforcing the permitting scheme “against individual speakers.” The district court concluded that, in several respects, the permitting scheme was not narrowly tailored to serve a significant government interest.

The district court found that the Capitol Square area was a public forum, but did not find it necessary to determine whether the area was a “traditional public forum” or a “designated public forum,” as the relevant constitutional tests in the context of this case are the same. For five reasons, the district court found that CSRAB’s permitting scheme was not narrowly tailored to serve a significant government interest, as required by the First Amendment.

First, the district court reasoned that the permitting scheme lacked any meaningful time limit on the permitting process. The district court considered the regulation requiring CSRAB to act “without unreasonable delay” to be so vague as to “impose[] no concrete period of time in which the CSRAB must decide whether to issue- a permit.” The lack of a definite time period, in the district court’s view, created an impermissible risk of the suppression of ideas, and this concern was not allayed by the “first-come, first-served” standard, inasmuch as the standard could be waived by CSRAB.

Second, the district court concluded that the permitting scheme granted CSRAB overly broad discretion to waive its $20 permit fee. Although the district court noted that there was no evidence of improper manipulation of the permit fee to include or exclude certain speakers for content-based reasons, it reasoned that the permitting scheme was flawed nonetheless because there were no restrictions to permit CSRAB from applying waivers to the permit fee for content-biased reasons in the future.

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Bluebook (online)
385 F.3d 694, 2004 U.S. App. LEXIS 20495, 2004 WL 2169413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-r-parks-v-richard-h-finan-ronald-t-keller-kenneth-l-morckel-ca6-2004.