[ Previous Page]  [ Home Page ]

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. 5820

November 26, 1980

CONSTITUTIONAL LAW:

Freedom of religion, freedom of speech, Const 1963, art 1, Sec. 1 (civil rights), art 1, Sec. 5 (freedom of speech)

NATURAL RESOURCES:

Rules prohibiting religious solicitation and proselytizing in state parks

The Department of Natural Resources may not prohibit, under administrative rules, religious solicitation, canvassing or proselytizing within state parks by religious organizations who properly gain admission thereto. Rules may require religious organizations to identify themselves and their members to park officials in advance and in writing and fix reasonable hours for canvassing and solicitation.

Mr. Howard Tanner

Director

Department of Natural Resources

Mason Building

7th Floor

Lansing, Michigan 48909

You have requested my opinion respecting the authority of the Department of Natural Resources, pursuant to administrative rule, to prohibit religious solicitation and proselytizing in the Michigan State Parks.

Under the authority of 1921 PA 17, MCLA 299.1 et seq; MSA 13.1 et seq; and the Executive Organization Act of 1965, 1965 PA 380, Secs. 9 and 252; MCLA 16.109 and 16.352; MSA 3.29(9) and 3.29(252), the Department of Natural Resources has promulgated administrative rules lelating to state parks and recreation areas. Administrative Code, 1979 AACS (Supp 100), R 299.321 provides:

'A person shall not commit any of the following acts in a state park or recreation area:

(d) Peddle or systematically solicit business of any nature; distribute handbills or other advertising matter; post signs on any lands, waters, structures, or property; or use such areas as a base of commercial operations without first obtaining proper written permission.'

The Administrative Code, 1979 AACS (Supp 100), supra, R 299.326(b), defines 'proper written permission' as 'a written permit issued by the director of the department of natural resources or the director's authorized representative.' 1921 PA 17, supra, Sec. 3a, makes violation of administrative rules punishable as a misdemeanor. See also Administrative Code, supra, 299.327.

On its face, Administrative Rule 299.321(d), supra, is not applicable to religious proselytizing in the State Parks. The rule pertains to 'business' and 'commercial operations' and regulates the same by requiring advance written permission for such activities. Express mention in an enactment of one thing implies exclusion of other things not mentioned. Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971); People v Malik, 70 Mich App 133; 245 NW2d 434 (1976). Accordingly, religious proselytizing may be considered as encompassed within Administrative Rule 299.321(d), supra.

It is, therefore, my opinion that Administrative Rule 299.321(d), supra, is not applicable by its specific terms to religious proselytizing in the Michigan State Parks, and may not be so applied.

However, the following discussion will provide guidance to the Department of Natural Resources should the department deem it advisable to promulgate an administrative rule addressing religious proselytizing in the State Parks.

At issue are fundamental questions of free exercise of religion and free expression protected by the United States Constitution and 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.'

Const 1963, art 1, Sec. 2, provides freedom of religion and 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.'

Further, Const 1963, art 1, Sec. 5 provides:

'Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.'

The freedom to exercise one's religion is one of the liberties guaranteed by the First Amendment to the US Constitution and Const 1963, art 1, Sec. 2, supra, and occupies a preferred place with freedom of speech and other liberties guaranteed to the People. 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; (1943). Const 1963, art 1, Secs. 2 and 5, supra, contain similar guarantees. The Courts, both federal and state, are vigilant in protecting the exercise of First Amendment rights against prior restraint and the possible 'chilling' effect of government regulation. Staub v City of Boxley, 355 US 313; 78 S Ct 277; 2 L Ed 302 (1958); Soof v City of Highland Park, 30 Mich App 400; 186 NW2d 361 (1971).

In International Society for Krishna Consciousness, Inc v Bowen, 600 F2d 667 (CA 7, 1979), cert den, 444 US 963; 100 S Ct 448; 62 L Ed 2d 375 (1979), the Court of Appeals, in affirming the district court, held that Indiana State Fair officials could not confine plaintiff's religious ritual to a vendor's booth, as required by State Fair regulations. (1) The Krishna religious organization practiced a ritual requiring its members to go into public places, disseminate and sell religious literature and solicit contributions (the ritual termed 'Sankirtan'). The regulation in question required that no distribution of literature, or solicitation of donations where the outright selling of literature or any other commodity occurs, shall take place anywhere within the State Fair area, except from within the confines of a booth rented from the State Fair Board. The plaintiffs sought advance permission from the State Fair Board to practice Sankirtan within the public areas of the fair, and not within a booth. The defendants advised plaintiffs that they could apply for booth space, but would not be permitted to circulate within the public areas of the fair. The plaintiffs did not rent a booth, and were taken into custody by defendants when plaintiffs attempted to distribute their literature and solicit contributions in the public areas at the fair grounds.

The district court (2) permanently enjoined defendants from interfering in any way with plaintiff's activities when its members paid admission to the fair and practiced the Sankirtan ritual on public thoroughfares of the fair grounds during normal operating hours. The district court held that the First Amendment protected plaintiff's ritual, stating:

"And the mere fact that religious literature is sold, or contributions solicited, does not put this form of evangelism outside the pale of constitutional protection. Murdock v Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); International Soc. for Krishna Con v City of New Orleans, 347 F.Sup. 945 (E.D. La. 1972)." 456 F Supp 437, 442.

The district court also held that the Indiana State Fair grounds constituted a First Amendment 'public forum', pertinently citing Anderson v Ionia Free Fair Association, Civ No G 78-569 CA (WD Mich, August 7, 1978.) Id. Further, public places, such as airports and bus terminals, have been held to be First Amendment forums where persons may circulate and engage in First Amendment expressions. (3) Id. The permanent injunction issued by the district court was subject to four conditions: (1) Krishna members were required to wear identification cards; (2) Krishna members were forbidden from representing their activities as sponsored by or connected with any fair or other government agency; (3) Krishna members were forbidden from touching unconsenting persons; and, (4) Krishna members were forbidden to practice Sankirtan with unconsenting persons waiting in line or watching a performance or attraction. 600 F2d 667, 669-670.

The Court of Appeals, in affirming the district court, stated that in light of the First Amendment and its protection of plaintiff's religious practice, any state interest in regulating plaintiff's ritual must be demonstrated to be a compelling interest which must be satisfied by the least burdensome regulation thereof. 600 F2d 667, 669-670; Sherbert v Verner, 374 US 398; 406-407; 83 S Ct 1790, 1795; 10 L Ed 2d 965, 971-972 (1963). The Court of Appeals instructively stated:

Although the presence of the wandering devotees near the booths of concessionaires may occasionally offend potential customers and drive them away, the Constitution forbids the defendants from restricting Sankirtan on this ground alone. The constitutional rights at issue here are 'strong medicine' and the resulting 'verbal tumult' or 'discord' are their 'necessary side-effects.' Cohen v California, 403 U.S. 15, 24-25, 91 S.Ct. 1780, 29 L.Ed. 2d 284 (1971) . . .. As this court noted in Collin v Smith, 578 F.2d 1197, [1205] (7th Cir.), cert. denied, 435 U.S. 916, 99 S.Ct. 291, 58 L.Ed. 2d 264 (1978):

'That the effective exercise of First Amendment rights may undercut a given government's policy on some issue is, indeed, one of the purposes of those rights. No distinction is constitutionally admissible that turns on the intrinsic justice of the policy in issue.' 600 F2d 667, 670.

Similar to the Indiana State Fair grounds at issue in International Society for Krishna Consciousness, Inc., Supra, the Michigan State Parks constitute a First Amendment 'public forum'. Accordingly, any restriction on the exercise of religion must be designed to meet a compelling state interest, and the accomplishment of such objective must be achieved by the least burdensome avenue of regulation.

OAG, 1977-1978, No 5381, p 650 (October 3, 1978) reviewed the constitutional authority of a governmental unit to regulate the solicitation of contributions by a religious organization. OAG, No 5381, supra, p 654, concluded 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.'

OAG, 1977-1978, No 5378, p 629 (September 25, 1978) reviewed the constitutional authority of a governmental unit to restrict door-to-door canvassing by organizations seeking citizen participation and support for their causes and held (p. 634):

'. . . the state and its municipal governments may require canvassers to identify themselves and the organization they represent, in writing, to municipal governmental authorities before they go from house to house in behalf of citizens organizations. However, both the First Amendment to the Constitution of the United States and Const 1963, art 1, Sec. 5 bar the state and its municipal governments from forbidding entirely representatives of citizen groups from canvassing door to door, requiring prior examination of the citizen's organization, its aims and approval before canvassing is permitted, requiring payment of fees or the posting of bonds, restricting canvassing to residents only, and requiring fingerprinting of canvassers.'

Accordingly, it is my opinion that the Department of Natural Resources may not prohibit under administrative rules religious solicitation, canvassing or proselytizing within the Michigan State parks by religious organizations who properly gain admission thereto. The DNR may, however, through properly promulgated rules, require religious organizations to identify themselves and their members to park officials in advance and in writing and may fix reasonable hours, pursuant to authorizing rules, during which canvassing and solicitation may take place without offending US Const, Am I and XIV, and Const 1963, art 1, Secs. 2 and 5, supra.

Frank J. Kelley

Attorney General

(1) Accord, International Society for Krishna Consciousness, Inc. v Maryland State Fair and Agricultural Society, Inc, No 79-1545 (CA 4, August 12, 1980), cert pending, ---- US ---- (1980); International Society for Krishna Consciousness, Inc v Heffron, ---- NW2d ---- (Minnesota Supreme Court, August 18, 1980).

(2) 456 F Supp 437 (SD Ind 1978)

(3) See also Prune Yard Shopping Center v Robins, ---- US ----; 100 S Ct 2035; ---- L Ed 2d ---- (1980); aff'g 23 Cal 3d 899; 592 P2d 341 (1979), wherein the United States Supreme Court, in a case involving a private shopping center to which the public was invited, held that state constitutional provisions permitting persons to exercise free speech and petition rights on the property of the privately owned shopping center did not violate the shopping center owner's property rights under US Const Am V and XIV, or free speech rights under US Const Am I and XIV.

 


[ Previous Page]  [ Home Page ]