The opinion of the court was delivered by: WEINSTEIN
Members of the North Shore Right to Life Committee (an anti-abortion group) complain that they have been refused permission to march in a Memorial Day parade organized by American Legion Post Number 304. The First and Fourteenth Amendments mandate that they be permitted to join the parade.
The Town of North Hempstead controls most of the streets used by the marchers. While there is no statutory permit system, the practice has been to apply for "permission" to parade. "Consent" is always given. This informal practice alerts the municipality to the need for traffic control, sanitation and other services.
Last year, as it has for many years, the Town granted Post 304 permission to conduct a parade on Memorial Day. The Legion invited various local organizations to participate. Plaintiffs received no invitation and their formal request to join was denied by the legislature on the ground that their involvement would violate the American Legion constitution, requiring the Legion to be "absolutely non-political and . . . not . . . used for the dissemination of partisan principles. . . ." National Constitution, the American Legion, Article II, Section 2. The Right to Lifer's request for an injunction was denied by the New York Supreme Court, Nassau County.
Tradition has it that Memorial Day began after the Civil War when southern women chose May 30 to decorate the graves of soldiers of both the Union and Confederate armies. Union veterans arranged parades in the northern states until 1919 when the American Legion was chartered by Congress. The Legion then began organizing Memorial Day activities; a substantial portion of its Post Commander's Guide is devoted to Memorial Day proceedings.
In the villages in the Town of North Hempstead, Nassau County, on the north shore of Long Island, Memorial Day parades have for many years been the communities' major annual event. Markers on Long Island indicate skirmishes in the Revolutionary War. Nearby are graves of those who served in all of our conflicts from the Civil War to Vietnam. Infused with this aura of American history and surrounded by the beauty of spring on Memorial Day, residents pause before plunging into summer activities, put aside their individual problems, and recall together those who gave their lives that we might enjoy this land and its freedoms.
In no sense is this a private procession of the American Legion. It belongs to all the people. Memorial Day is proclaimed by the President. In New York State, statutory provisions prescribe the date (N.Y. General Construction Law § 24 (McKinney 1978)), limit the amount which municipalities may appropriate for celebrations (N.Y. General City Law §§ 12, 13; N.Y. Town Law § 64 (12) (McKinney 1978)), and give local governments the power to regulate commercial and business activities on the holiday (N.Y. General Municipal Law § 86 (McKinney 1978)). Proper observance of the day is deemed a "county purpose" in Nassau County. N.Y. County Law § 840 (McKinney 1978).
Defendants argue that plaintiffs are barred by res judicata since they could have appealed from the adverse 1977 state court decision. Even though the parade had already taken place an appeal was possible. See Matter of Rosenbluth v. Finkelstein, 300 N.Y. 402, 404, 91 N.E.2d 581 (1950). Nor would mootness have barred further proceedings in the Supreme Court. A case is not moot if
(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.
SEC v. Samuel H. Sloan, 436 U. S. 103, 98 S. Ct. 1702, 1707, 56 L. Ed. 2d 148, 46 U.S.L.W. 4426, 4428 (1978).
Plaintiffs' claims are not barred. The state court records reveal that the contentions now presented were not fully litigated; the state court opinion is devoid of constitutional discussion. This Circuit refuses to apply res judicata where constitutional issues were either not explicitly raised or not fully litigated in state proceedings. See Winters v. Lavine, 574 F.2d 46, slip op. at 6493-95 (2d Cir. 1978); Turco v. Monroe County Bar Association, 554 F.2d 515, 520-21 (2d Cir. 1977); Graves v. Olgiati, 550 F.2d 1327, 1329 (2d Cir. 1977); Newman v. Board of Education of the City School District of New York, 508 F.2d 277, 278 (2d Cir. 1975); Lombard v. Board of Education of City of New York, 502 F.2d 631, 635-37 (2d Cir. 1974).
B. Claims Against The Town of North Hempstead
While North Hempstead has no applicable parade ordinance or formal permit system, there is a custom and pattern of conduct with an effect equivalent to that of state action. Cf. N.Y. Municipal Home Rule Law § 101.a. (6) (McKinney 1978) (local governments' power to adopt and amend laws relating to use of streets).
The Civil Rights Act itself prohibits deprivation of constitutional rights by "custom or usage" as well as by statute, ordinance, or regulation. 42 U.S.C. § 1983. In Adickes v. S. H. Kress and Company, 398 U.S. 144, 169, 90 S. Ct. 1598, 1614, 26 L. Ed. 2d 142 (1970), the Supreme Court interpreted the phrase "custom or usage" to include:
settled practises of state officials . . . imposing sanctions or withholding benefits . . . [which] transform private predilections into compulsory rules of behavior no ...