The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5381 October 3, 1978 CHARITABLE SOLICITATION: Contributions to religious organizations CONSTITUTIONAL LAW: Freedom of Religion Freedom of Speech CONSTITUTION OF MICHIGAN: Art 1, Sec. 1 (Civil Rights) Art 1, Sec. 5 (Freedom of Speech) STATUTES: Title broader than body STATE: Preemption of municipal ordinance MUNICIPALITIES: Preemption of ordinance by State Where the title of a statute contains language preempting municipal regulation of the same subject, the fact that the preemptive language was struck from the body of a bill by the legislature prior to enactment indicates the intent of the legislature that the State law not preempt the field from local regulation. Inasmuch as the First Amendment to the United States Constitution protects the right of persons to go house-to-house, speak to occupants, distribute literature and solicit funds for religious purposes, a municipality may not adopt an ordinance prohibiting such activities. A municipality may not impose a fee nor require posting of a bond as a condition precedent to canvassing or solicitation of funds for religious purposes. A municipality may protect the community against possible crime and annoyance by requiring that solicitors or canvassers going house-to-house on behalf of religious organizations identify themselves and the organizations they represent. A municipality may regulate the reasonable hours that a solicitor for a religious organization may canvass door-to-door. A municipality may not restrict canvassing by representatives of religious organizations to residents of the community. Honorable Michael J. Griffin State Representative The Capitol Lansing, Michigan You have requested my opinion respecting the authority of a local unit of government to regulate the solicitation of contributions by a religious organization. Your question raises issues involving areas of religious exercise and free expression which are protected by the United States Constitution and by the Michigan Constitution of 1963. The First Amendment to the Constitution of the United States provides: 'Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' The people of the State of Michigan have approved the following provisions of the Constitution of 1963 protecting freedom of religion and freedom of speech: 'No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.' Const 1963, art 1, Sec. 2. 'Every person may freely speak, write, express and publish his views on all subjects, being responsibile for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.' Const 1963, art 1, Sec. 5. In Michigan, monetary solicitations by charitable organizations are regulated by the charitable organizations and solicitations act, 1975 PA 169; MCLA 400.271 et seq; MSA 3.240(1) et seq, which is entitled: 'AN ACT to regulate organizations and persons soliciting or collecting contributions for charitable purposes; to require registration, disclosure of information and licensing before solicitation of contributions; to provide for reporting of financial and other information by those licensed or registered and those claiming exemption; to prescribe standards of conduct and administration, and to prohibit certain actions; to provide for enforcement, investigation, and promulgation of rules by the attorney general; to preempt local regulation; to provide penalties for violations; and to repeal certain acts and parts of acts.' (Emphasis added.) The emphasized language in its title indicates that 1975 PA 169, supra, is preemptive of local regulation. Such indication in the title, however, is not controlling as to the issue of state preemption given the unequivocal legislative history of the act. People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977). It should also be noted that the definition of 'charitable organization' excludes 'duly constituted religious organizations' which meet certain requirements, 1975 PA 169, supra, Sec. 2(a). 1975 PA 169, supra, was introduced into the legislature as House Bill 4015. In its original form, HB 4015 contained a 'Section 23' which gave effect to the title's preemptive language: 'A charitable organization, professional fund raiser, professional solicitor, or solicitor is not subject to any licensure or regulation by a municipal corporation or local government unit. This act is exclusive and preemptive.' HB 4015, Sec. 23. The noted Sec. 23 of HB 4015 was struck from the bill by Senate amendment, 1975 SJ 1388 (June 26, 1975). The bill, as enacted into law as 1975 PA 169, supra, thus did not contain the preemptive language. The Senate amendment striking Sec. 23 of HB 4015, therefore, evidences a legislative intention that the act not be preemptive of local regulation. Consequently, local regulation of charitable solicitations is not preempted by state law. The freedom to exercise one's religion is one of the liberties guaranteed by the First Amendment to the Constitution of the United States and occupies a preferred place with freedom of speech and the other liberties enumerated therein in our basic society. Prince v Massachusetts, 321 US 158; 64 S Ct 438; 88 L Ed 645 (1944). The actions of distributing literature and soliciting contributions by a person for religious purposes is an intimate part of the exercise of religion. Murdock v Pennsylvania, 319 US 105; 63 S Ct 870; 87 L Ed 1292; 146 ALR 81 (1943). Const 1963, art 1, Secs. 2 and 5 contain no less guarantees. The First Amendment to the Constitution of the United States protects the right of persons to go house to house, speak to occupants, distribute literature and solicit funds for religious purposes. A municipal ordinance which would make it a crime for a person to knock on doors or ring door bells in order to distribute literature inviting persons to a religious meeting violates the First Amendment to the Constitution of the United States. Martin v City of Struthers, Ohio, 319 US 141; 63 S Ct 862; 87 L Ed 1313 (1943). Thus, a municipality may not prohibit persons from going from door to door to distribute literature and solicit contributions for religious purposes without violating the First Amendment to the Constitution of the United States and Const 1963, art 1, Secs. 2 and 5. It is equally well settled that a municipal ordinance may not require a prior examination of a religious organization, its aims, and approval by local officials, in their discretion, before soliciting or canvassing for religious purposes by its members is permitted. Lovell v City of Griffin, 303 US 444; 58 S Ct 666; 82 L Ed 949 (1938); Schneider v State (Town of Irvington), 308 US 147; 60 S Ct 146; 84 L Ed 155 (1939); Cantwell v Connecticut, 310 US 296; 60 S Ct 900; 84 L Ed 1213 (1940); Staub v City of Baxley, 355 US 313; 78 S Ct 277; 2 L Ed 2d 302 (1958). Nor may a municipality impose a fee or the posting of a bond as a condition precedent before persons may canvass or solicit funds for religious purposes. In Follett v Town of McCormick, 321 US 573; 64 S Ct 717; 88 L Ed 938 (1944), the U.S. Supreme Court declared unconstitutional a town ordinance which required a fee of $1 per day or $15 per year to license persons seeking to distribute religious liternature and to receive contributions therefor within the town. The Court struck down as unconstitutional the fee as a flat license tax on the constitutional right of free exercise of religion, and held that the power to tax the exercise of the right of religious freedom is the power to control or suppress its enjoyment. The law of the land protects the free exercise of religion immune from the interference of the requirement of a license. Concurring Opinion of Mr. Justice Reed in Follett, supra. While Cox v State of New Hampshire, 312 US 569; 61 S Ct 762; 85 L Ed 1049 (1941) upheld a fee imposed by a municipality for the use of public streets for parades or processions of organizations, including religious organizations, at amounts ranging from a nominal sum, undisclosed in the opinion, to $300 because the fee imposed was not a tax but one fairly apportioned to cover expenses in maintaining control of streets and public safety during the parade or procession, research reveals no decision of the high court extending the holding in Cox, supra, to the imposition of fees or requiring of bonds as a condition precedent for a municipality to allow representatives of religious organizations to go from door to door to raise funds for religious purposes. The line between the imposition of an unlawful tax and an apportioned fee to meet the costs of the community is exceedingly narrow. The freedom of exercise of religion and freedom of speech should not be subject to prior restraint while the amount of the fee may be litigated as to whether it has been fairly apportioned to represent the cost to the community or is in fact a tax upon the exercise of religious freedom, especially when municipal costs are, at best, nominal. (1) Unlike the policing of parades and processions needed to protect public safety, the actions of individual canvassers of religious organizations within a community do not appear to require attendant police surveillance. However, the municipality may protect the community against possible crime and annoyance by requiring that solicitors or canvassers going house to house in behalf of religious organizations identify themselves and the organizations they represent, in advance and in writing, to municipal authorities. The constitutionality of an ordinance of a municipal corporation which required persons soliciting from house to house in behalf of charitable and political organizations to identify themselves and the organization they represented was upheld as within the proper authority of the municipality to safeguard the public, even though the ordinance itself was struck down because of its vagueness and overbreadth in the meaning of the phrase 'recognized charitable cause'. Hynes v The Mayor and Counsel of the Borough of Oradell, 425 US 610; 96 S Ct 1755; 48 L Ed 243 (1976). The municipality may also enact penal ordinances to punish persons committing any fraud on the public. Cantwell v Connecticut, supra. It is also within the power of the municipality, in order to protect the health of its citizens, to regulate the hours that such solicitors may canvass from door to door within the municipality. Cantwell v Connecticut, supra. However, it must be stressed that a municipality may not 'chill' the constitutionally-protected rights of free exercise of religion and freedom of speech by imposing unreasonable hour restrictions so that, in effect, solicitors and canvassers may not freely exercise their constitutional rights within the municipality. In this regard, it must be observed that canvassers should be able to go from house to house during reasonable hours when persons residing therein are expected to be at home and available to answer the door. Lawful authority for the municipality to protect the public against frauds rests upon the rationale that a municipality 'may protect its citizens from fraudulent solicitation by requiring a stranger in the community' to identify himself or herself and the organization which is represented in the solicitation. (Emphasis supplied.) Cantwell v Connecticut, supra, 310 US at 306. Obviously, this rationable does not apply and a municipality may not regulate canvassers or solicitors of religious organizations who call upon their own members in their homes. Municipalities may not restrict canvassing by representatives of religious organizations to residents of the community only. Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1968). In summary, it is my opinion that a municipality may protect its citizens against possible crime and annoyance by requiring that persons seeking to go from house to house to request and receive contributions in behalf of religious organizations identify themselves and the organizations they represent, in advance and in writing, to municipal officials and they may fix reasonable hours during which such canvassing and soliciting may take place without offending the First Amendment to the United States Constitution and Const 1963, art 1, Secs. 2 and 5. The First Amendment to the Constitution of the United States and Const 1963, art 1, Secs. 2 and 5 prohibit a municipality from forbidding entirely canvassing in the community for the purpose of soliciting contributions by representatives of religious organizations, from licensing of such persons, from imposing fees or bond requirements upon such persons and restricting solicitation to residents only. Frank J. Kelley Attorney General (1)