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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. 6584

June 2, 1989

CONSTITUTIONAL LAW:

US Const, Am I--violation by restriction upon solicitation of contributions from municipal employees to specific charitable organizations

MUNICIPALITIES:

Regulation of solicitation of employees by charitable organizations

If a local unit of government chooses to permit the solicitation of its employees by charitable organizations, it may restrict participation in the solicitation to particular charitable organizations, provided that the reasonable standards for inclusion of charitable organizations in the solicitation are established and the standards are not violative of First Amendment speech protection or other constitutional rights.

Honorable Paul Hillegonds

Honorable Teola P. Hunter

State Representatives

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the following question:

May local units of government restrict participation in the solicitation of charitable contributions from its employees to specific charitable organizations?

The issue of regulating the participation of charitable organizations in soliciting contributions from employees of local units of government is not addressed by Michigan statute. However, it is well settled that the solicitation of charitable contributions constitutes an exercise of First Amendment rights. Schaumburg v Citizens for a Better Environment, 444 US 620, 632-633; 100 SCt 826; 63 LEd 2d 73 (1980):

"[C]haritable appeals for funds, ... involve a variety of speech interests--communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes--that are within the protection of the First Amendment.

" '[O]ur cases long have protected speech even though it is in the form of ... a solicitation to pay or contribute money, New York Times Co. v. Sullivan, [376 U.S. 254 (1964) ] [84 SCt 710; 11 LEd 2d 686; 95 ALR2d 1412].' Bates v. State Bar of Arizona, 433 U.S. [350], at 363 [53 L Ed 2d 810; 97 SCt 2691 (1977) ].

"The issue is whether the Village has exercised its power to regulate solicitation in such a manner as not unduly to intrude upon the rights of free speech."

In finding unconstitutionally overbroad a Village of Schaumburg ordinance restricting charitable solicitations to organizations which spent no more than a specified amount of proceeds on administrative expenses, the United States Supreme Court held:

"The Village may serve its legitimate interests, but it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms." 444 US at 637.

Consequently, the regulation of charitable solicitations must not intrude upon the free speech protections of the First Amendment. This principle was espoused in Black United Fund of New Jersey, Inc v Kean, 593 FSupp 1567, 1569 (D, NJ 1984), rev'd other grounds 763 F2d 156 (CA 3, 1985), wherein the issue posed was "whether the state having opened its doors and services to one charitable organization can deny access to all others without having established any standards or procedures by which another charity could even be considered."

In Black United Fund, the state treasurer was, pursuant to statute, vested with discretion to permit contributions of state employees through payroll deduction to combined charity drives, such as united funds, community chests, or united appeals charities. No standards or procedures were established to govern the treasurer's exercise of discretion as to which charities would be permitted to solicit contributions. Consequently, employee contributions were restricted to one charitable organization; no other charitable organizations were permitted to participate in the state's annual charitable campaign.

The court in Black United Fund initially noted that no constitutional obligation required the state to permit charitable solicitation of its employees. However, since the New Jersey statute regulated charitable activity, it became subject to scrutiny under First Amendment freedom of speech protections.

In finding that the restrictions on access to New Jersey's charitable campaign for payroll deductions were unreasonable, thus constituting a violation of freedom of speech, the court ruled:

"The state could validly, and reasonably, decide that it must limit access to its facilities in order not to unduly disrupt the operation of state business. Access must be allocated, however, in 'some evenhanded manner,' NAACP v. Devine, 727 F.2d [1247] at 1265 [234 USAppDC 148], citing Heffron v. Int'l Society for Krishna Consciousness, 452 U.S. 640, 649, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1980), without presumptively favoring one group over another. If the Legislature wanted to restrict access to charities which would benefit the most individuals while incurring the least disruption, it could do so. But it cannot do so presumptively, without any on-going factual inquiry into the degree to which any one applicant for access meets the specified criteria, and still maintain that it is acting reasonably. [Footnote omitted.]" Black United Fund, 593 FSupp at 1575.

The offending statute was also found to violate the Equal Protection Clause of the Fourteenth Amendment. The statute conferred a benefit on one charity to the exclusion of all others, thus creating a disparate classification of charities without a rational relationship to any legitimate government objective:

"Presumptive favoring of one charity over all others without the use of criteria to adjust to evolving circumstances is not merely unreasonable, it is not even minimally rational....

"....

"This irrational classification, invoked to justify the differential treatment of potential Campaign participants, violates the equal protection clause." Black United Fund, 593 FSupp at 1575, 1577.

The court came to the following conclusion:

"The state purpose involved here is to open the doors for the limited and commendable purpose of aiding charities in their search and need for funds. Recognizing without hesitation that such access must be limited, other charities are entitled to know the standards for inclusion and to have the right to comply with or challenge those standards. In their absence, plaintiff and others are denied equal access without knowing the basis for same.

"Plaintiff's free speech rights have been impinged. There may be a rational and reasonable basis for denying the plaintiff access to state offices, but it cannot be one shrouded in secrecy and not susceptible to compliance or challenge. Before the denial of such a fundamental right takes place, the reasons and basis for same should be the subject of established and disclosed standards. Plaintiff should not be denied its rights of free speech for reasons it does not know and cannot discover." Black United Fund, 593 FSupp at 1581.

Restrictions imposed by local units of government on charitable organizations desiring access to solicit employees for charitable contributions must, therefore, be codified in standards designed to inform the organizations on what basis they may be included in or excluded from solicitation. The standards imposed are subject to constitutional scrutiny because the regulation of charitable activity involves First Amendment freedom of speech rights.

It is my opinion, therefore, that if a local unit of government chooses to permit the solicitation of its employees by charitable organizations, it may restrict participation in the solicitation to particular charitable organizations, provided that the reasonable standards for inclusion of charitable organizations in the solicitation are established and the standards are not violative of First Amendment speech protection or other constitutional rights.

Frank J. Kelley

Attorney General


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