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Citizens Action Coalition of Indiana, Inc. v. Town of Yorktown

United States District Court, S.D. Indiana, Indianapolis Division

September 30, 2014


Page 900

For CITIZENS ACTION COALITION OF INDIANA, INC., Plaintiff: Jennifer A. Washburn, CITIZENS ACTION COALITION, Indianapolis, IN; William R. Groth, FILLENWARTH DENNERLINE GROTH & TOWE LLP, Indianapolis, IN; Gavin Minor Rose, ACLU OF INDIANA, Indianapolis, IN.

For TOWN OF YORKTOWN, INDIANA, Defendant: Lester H. Cohen, Scott E. Shockley, DEFUR VORAN LLP, Muncie, IN; Robert Scott Daniels, DEFUR VORAN LLP - Fishers, Fishers, IN.

Page 901



Plaintiff, Citizens Action Coalition of Indiana, Inc. (" CAC" ), brings this action against the Town of Yorktown, Indiana, (" Yorktown" or " Town" ) challenging the constitutionality of several provisions of Ordinance No. 688, which has subsequently been amended and superseded by Ordinance No. 710 (the " Ordinance" ) during the course of this litigation. After this amendment, the only remaining constitutional challenge involves whether the prohibition of door-to-door canvassing and solicitation after the hour of 9:00 p.m. or sunset, whichever is earlier, comports with the First Amendment. Both parties have moved for summary judgment with respect to this issue. The court, having reviewed all briefing and applicable law, now GRANTS CAC's motion for summary judgment and DENIES the Town's motion for summary judgment.

I. Background

Yorktown is a small, semi-rural residential community located in Delaware County,

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Indiana, directly contiguous to the City of Muncie. (Deposition of Pete Olson (" Pete Olson Dep." ) 8:20-9:3). The Town is inhabited by approximately 14,300 people, living in 3,500 residences. ( Id. at 8:4-10, 9:4-19).

The legislative body for the Town is the Yorktown Town Council. (Pete Olson Dep. 11:7-9). Pete Olson serves as the Town Manager. ( Id. at 6:5-15). The Yorktown Town Council contains seven (7) elected members whose responsibilities include passing ordinances to govern the Town, such as the Ordinance at issue here. ( Id. at 11:7-19).

A. The Ordinance

1. Relevant Provisions

CAC originally brought this lawsuit in response to Ordinance No. 688, which was passed by the Yorktown Town Council on February 27, 2012, and took effect 30 days later in April of 2012. ( Id. at 14:20-15:12). Due to this lawsuit, the Town amended Ordinance 688 and replaced it with Ordinance 710. ( Id. at 18:11-18). The new ordinance was passed unanimously by the Yorktown Town Council on June 17, 2013, and took effect immediately. ( Id. at 18:19-19:9).

The Ordinance regulates the ability of persons to peddle, solicit, or fundraise door-to-door. (Yorktown Codified Ordinance § 688). The Ordinance sets forth regulations and restrictions for a person classified as a: (1) non-commercial door-to-door advocate, (2) peddler, (3) professional fundraiser, (4) solicitor, or (5) transient merchant. (Yorktown Codified Ordinance§ 688.01[1]). The Town considers CAC's activities to be those of a non-commercial door-to-door advocate. ( See Affidavit of Pete Olson (" Pete Olson Aff.) 10). A non-commercial advocate is defined by the Ordinance as follows:

A person who goes door-to-door for the purposes of disseminating religious, political, social or other ideological beliefs, and includes any person who canvasses or distributes pamphlets or other written intended for non-commercial purposes. Requests for donations to directly support the non-commercial purpose of disseminating religious, political, social or other ideological beliefs and which are incidental to such advocacy shall be considered non-commercial solicitation. This includes any person who canvasses or distributes pamphlets or other written information intended for non-commercial purposes.

(Yorktown Codified Ordinance § 688.01). For all non-commercial advocates, including CAC, the Ordinance contains no registration requirement, no identification requirement, and no fee or license requirement. (Yorktown Codified Ordinance § 688.02; Pete Olson Dep. 27:21-28:3).

The parties' dispute centers on § 688.09 of the Ordinance, which provides:

It is unlawful for any person to peddle, solicit or fundraise before the hour of 9:00 a.m. of any day or after the hour of 9:00 p.m. (or sunset, whichever is earlier) of any day without the specific prior consent of the prospective buyer.

(Yorktown Codified Ordinance § 688.09 (" Hours Restriction" )). The Hours Restriction applies to everyone under the Ordinance, including non-commercial advocates, whether or not they are required to obtain a license. (Pete Olson Aff. ¶ 11). A person who violates this restriction " shall, upon conviction, be subject to a fine

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not exceeding $2,500. A separate offense shall be deemed committed upon each day during which a violation occurs or continues." (Yorktown Codified Ordinance § 10.99).

In practice, the end time of the Hours Restriction is typically guided by the time of sunset. For almost three (3) months of 2013 (the beginning of November through January), sunset occurred before 6:00 p.m. ( See Pl.'s Ex. 5, Sunset Tables[2]). Indeed, sunset occurred as early as 5:16 p.m. on December 3, 2013 through December 12, 2013. ( Id.). For almost five (5) months of 2013 (mid-October through early March), sunset occurred before 7:00 p.m., and for over six (6) months of 2013 (mid-September to late March), sunset occurred before 8:00 p.m. ( Id.). On the other hand, sunset occurred after 9:00 p.m. only 63 days in 2013. ( Id.).

2. Reasons for the Ordinance

The Yorktown Town Council passed the Ordinance for two primary reasons: (1) privacy interests of its residents, and (2) safety concerns voiced by its residents. (Pete Olson Dep. 31:23-32:11). Residents stated that they were apprehensive about canvassers approaching their homes after dark. ( Id. at 32:12-33:11). Most of their fears stemmed from the fact that many of the Town's subdivisions were built far apart, lack sidewalks, and, contain few streetlights. ( Id. at 36:7-37:17). Although new subdivisions in the Town now must go through a zoning process that requires sidewalks and streetlights, only three to five subdivisions of the approximately twenty-five (25) subdivisions meet those requirements. ( Id. at 40:4-24). Residents also noted that they value their privacy, and prefer not being interrupted during the evening hours. According to the Town Manager, these concerns stem from the fact that the Town's residents are " coming home from the grind, trying to take care of the kids, [and] putting them to bed . . ." ( Id. at 37:25-38:17). That said, the Town did not have any complaints or concerns involving fraud or any other illegal activities by persons going door-to-door. ( Id. at 43:2-7, 44:14-16).


CAC is an Indiana non-profit organization dedicated to promoting and preserving the rights of Indiana citizens on issues such as utility rate-making and regulations, health care, environmental well-being, and political participation. (Affidavit of Kerwin Olson (" K. Olson Aff." ) ¶ 3; Affidavit of Laura Sucec (" Sucec Aff." ) ¶ 3). CAC has operated continuously in Indiana since 1974 and currently has approximately 40,000 members. (K. Olson Aff. ¶ 3). Currently, CAC's only office is located in Indianapolis, Indiana. ( Id. at ¶ 4; Sucec Aff. ¶ 4).

1. Canvassing

CAC's funding stream is severely limited, so it relies on contributions from supporters to advance its mission. (K. Olson Aff. ¶ 4; Sucec Aff. ¶ 4). In particular, CAC engages in " canvassing" operations, which involves making direct contact with potential supporters. (K. Olson Aff. ¶ 5; Sucec Aff. ¶ 5). This is done in two ways: (1) " field canvassing," which involves canvassers going door-to-door in Indiana's cities and towns to engage willing listeners, and (2) " phone canvassing," in which canvassers call persons on the telephone. (K. Olson Aff. ¶ 5; Sucec Aff. ¶ 5). CAC has conducted field canvassing in Indiana since

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1980 and phone canvassing since 1982. (K. Olson Aff. ΒΆ 5; ...

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