The opinion of the court was delivered by: CARTER
ROBERT L. CARTER, District Judge.
Plaintiff organization, along with the president of its New York temple, brought this civil rights suit for declaratory relief and a preliminary and permanent injunction against the enforcement of three New York Port Authority licensing regulations. The Hare Krishna Society charges that the regulations are unconstitutional on their face and as applied. Plaintiffs claim that the regulations unconstitutionally vest discretion in officials at Kennedy, LaGuardia and Newark airports to grant or deny licenses for the exercise of religious literature and the solicitation of First Amendment rights -- for example, the dissemination of contributions -- without appropriate standards to govern such discretion. This action was brought pursuant to 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983.
The International Society for Krishna Consciousness, Inc. is an international religious organization which espouses the religious and missionary views of Krishna Consciousness. It is duly organized under the laws of the State of New York and maintains temples and schools in cities throughout the United States, including New York City.
The Hare Krishna Society imposes on its members the duty to perform a religious ritual known as Sankirtan, which consists of soliciting and accepting donations and contributions while disseminating religious literature and information in public places. Sankirtan is directed to spreading religious truth as it is known to the Hare Krishna Society, attracting new members, and supporting the Society's religious activities.
Krishna Society devotees have attempted to perform Sankirtan at Kennedy, LaGuardia and Newark airports. These airports come under the jurisdiction of the New York Port Authority. Members of plaintiffs' sect have been informed by Port Authority police that if they solicit donations or disseminate religious literature in portions of the airports leased to airline tenants without the permission of those tenants, they will be subject to arrest for loitering and for trespass. Indeed, criminal complaints for loitering were issued against a number of plaintiffs' members for activities at LaGuardia Airport. While other criminal proceedings that had been pending against Krishna Society members were dismissed at the request of the Port Authority, twelve complaints apparently remain on the books due to the failure of the ten members named in the complaints to appear on the return date set.
Plaintiffs and the Port Authority have worked out an arrangement for the performance of plaintiffs' Sankirtan obligations in areas at the three airports not subject to airline lease agreements. Plaintiffs initially sought to reach similar agreements with the various airline tenants. Pursuant to one such agreement, Eastern Airlines adopted rules which would allow plaintiffs to conduct Sankirtan activities in areas controlled by Eastern. Delta and TWA offered plaintiffs the use of their terminals under similar rules. Plaintiffs, however, subsequently decided that they no longer wished to deal with each of the airline tenants at the three airports, and they now press for the promulgation of appropriate time, place and manner regulations by the Port Authority which would apply to all airport property.
The Port Authority is a bi-state governmental agency created by the States of New York and New Jersey with the consent of Congress (McK.Unconsol.L. § 6401 et seq., N.J.S.A. 32:1-1 et seq., 42 Stat. 174 (1921)). It owns and/or operates various transportation, terminal and other commerce facilities in the bi-state Port District, including Kennedy, LaGuardia and Newark airports. The Port Authority leases space at these airport facilities to various airlines.
The Port Authority is authorized "to make suitable rules and regulations not inconsistent with the constitution of the United States . . . for the improvement of the conduct of navigation and commerce. . . ." (McK.Unconsol.L. § 6419). The Port Authority promulgated the following regulations, found in Title 21, chapter 24 of the New York Code of Rules and Regulations: (1) "No person shall post, distribute or display signs, advertisements, circulars, printed or written matter at any air terminal without permission"
(§ 1260.13); (2) "No person shall solicit funds for any purpose at any air terminal without permission" (§ 1260.14); and (3) "No person, unless duly authorized by the Port Authority, shall, in or upon any area, platform, stairway, station, waiting room or any other appurtenance of an air terminal: (a) sell, or offer for sale any article or merchandise; . . . (d) solicit alms" (§ 1260.15). The Port Authority, plaintiffs claim, promulgated no standards to guide the discretion of the officials that are empowered to grant such permission with respect to §§ 1260.13-.15.
In their initial complaint, plaintiffs named Eastern Airlines and Walter Lee, Superintendent of the Port Authority Police Force, as defendants along with the Port Authority. Only the Port Authority was named as a party in plaintiffs' amended complaint; but Walter Lee was renamed a defendant in plaintiffs' second amended complaint, filed February 3, 1976.
On January 22, 1976, pursuant to F.R.Civ.P. 12(b) and 19, the Port Authority moved to dismiss plaintiffs' complaint
on the following grounds: (1) the Port Authority was not a person within the meaning of 42 U.S.C. § 1983; (2) failure to join airlines who are lessees of the Port Authority and, as such, are indispensable parties; (3) failure to request the convening of a three judge court; and (4) under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), the court should abstain from enjoining the enforcement of, or declaring unconstitutional, a state criminal statute while state criminal prosecutions under the statute are pending against members of plaintiffs' sect.
The first ground advanced by the Port Authority for dismissal is failure to state a cause of action under 42 U.S.C. § 1983. It contends that the Port Authority, as an instrumentality of New York and New Jersey, is not a person within the meaning of § 1983, and therefore, dismissal is required. Apparently to circumvent this argument, plaintiff joined the Superintendent of the Port Authority Police Force, Walter Lee, as a defendant. Although the Port Authority had an opportunity to address the issue again following the filing of plaintiffs' second amended complaint, it ignored the inclusion of Lee as a defendant and reasserted its position that dismissal was required because the Port Authority is not a "person" within the meaning of § 1983.
The Second Circuit has held that while municipalities are not deemed "persons" under the Civil Rights Act, "agencies" are, Forman v. Community Services, Inc., 500 F.2d 1246, 1255 (2d Cir. 1974), rev'd on other grounds sub nom. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 846 n.11, 95 S. Ct. 2051, 44 L. Ed. 2d 621 (1975). Thus, the State Housing Finance Agency was deemed to be a "person" within the meaning of § 1983. More recently however, the Second Circuit has announced that it doubted the Forman opinion intended to "imply that all 'agencies' are persons under § 1983 . . ." Monell v. Department of Soc. Serv. of the City of New ...