of money and the distribution of literature and other goods in exchange for a solicited donation, at the Meadowlands Sports Complex (Sports Complex) without thereby contravening the First Amendment as applied to the States through the Fourteenth Amendment. The suit is grounded on 42 U.S.C. § 1983.
There is no issue of denial of access, as there was in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961), which was an equal protection case involving the right of the Eagle Coffee Shoppe, Inc., a lessee of a Delaware public agency, to exclude Mr. Burton as a patron, and to refuse to serve him as it served others, solely on the ground that he was a Negro.
At the time of Burton, of course, the Civil Rights Act of 1964 had not yet been enacted, and the constitutional issue in Burton could not arise today. See 42 U.S.C. § 2000a, which guarantees equal access to any "place of public accommodation" without regard to race, color, religion or national origin (par. (a) ), and which defines such a "place" as including "any restaurant ... principally engaged in selling food for consumption on the premises" (par. (b)(2) ), as well as any "sports arena, stadium or other place of exhibition or entertainment" (par. (b)(3) ).
The same concept is embodied even more broadly in New Jersey's Law Against Discrimination, which forbids discrimination because of "race, creed, color, national origin, ancestry, age, sex, marital status or liability for service in the Armed Forces", NJSA 10:5-3, or because of the "physical handicap of such person", NJSA 10:5-4.1. For the definition of a "place of public accommodation", see NJSA 10:5-5(l ), and for the specific prohibition of denial of access for that category, see NJSA 10:5-12(f).
Although there is an entrance fee (by way of a parking charge) to enter the Sports Complex at all, and an admission fee (by way of ticket) to enter the racetrack or stadium, all who pay may enter without restriction based on any ground forbidden by either the federal or state statute. Nor do plaintiffs claim any right to enter without payment of the parking and admission fees charged to all patrons.
Nor is there any issue of equal protection raised against the policy forbidding solicitation and distribution. There is no suggestion that the policy allows some patrons to solicit or distribute and others not, or that there is any discretion to do so. The policy is uniform and applies to all patrons. Of course, there is distribution and sale of literature and merchandise by the concessionaires of the Authority, and by its tenants and licensees, such as the Giants football team and the Cosmos soccer club, but these are items directly connected with the specific activities carried on, such as programs and related souvenirs, or necessary incidentals such as food and beverages. All of these are an inherent part of the conduct of the Sports Complex and to not only accommodate patrons but also to support the revenues.
Also, there is no issue in this case involving denial of pure speech. Nothing in the policy forbids conversations between patrons on any subjects of interest to them. Reasonably construed, the policy is aimed at the organized solicitation of funds, by whatever means, to support a purpose unrelated to the activities for which the Sports Complex is operated, no matter how worthy or appealing such other purposes may be. The evidence showed without contradiction and without exception that all requests for permission to solicit have been uniformly declined.
Finally, there is no issue in this case of allowing solicitation and sales by outside groups from booths, in contrast to peripatetic solicitation and sales away from booths, as has been involved in some State Fair cases. There are no solicitation booths for use by outsiders, whether civic, charitable, religious or commercial. The only booths, and they are few in number, are portable (usually wheeled) ones for the concessionaires selling food, beverages, souvenirs, programs, and newspapers known for publishing daily racing information. From the court's viewing, of the racetrack on one occasion and of the stadium on another, it is obvious that both structures were designed and built to Spartan standards, without the provision of space for booths in sufficient number to accommodate the wide array of solicitors who would be entitled to a fair and reasonable opportunity to be assigned a booth if that system were adopted. Nor do the pleadings or the evidence even remotely suggest that the Authority is under any obligation to provide booths, or that plaintiffs have any desire to make use of a booth. The claim is one for peripatetic or ambulatory solicitation and distribution coupled with requests for donations.
I. The Sports Complex.
The Authority was created by N.J.P.L. 1971, c.137, NJSA 5:10-1, et seq. The title of the Act is:
"An Act to provide stadiums and other buildings and facilities in the Hackensack meadowlands for athletic contests, horse racing and other spectator sporting events and for trade shows and other expositions; creating the New Jersey Sports and Exhibition Authority and defining its powers and duties; authorizing the issuance of bonds and notes of the authority, providing for the terms and security thereof; and providing an appropriation therefor."
The general history preceding this enactment is well-known throughout the State and may be judicially noticed. Much of the history is reviewed in the litigation challenging the validity of the Act under the N.J. Constitution. See N.J. Sports and Exposition Authority v. McCrane, 119 N.J.Super. 457, 292 A.2d 580 (1971), modified and affirmed 61 N.J. 1, 292 A.2d 545 (1972), appeal dismissed 409 U.S. 943, 93 S. Ct. 270, 34 L. Ed. 2d 215.
Very briefly, the impetus arose from the long dissatisfaction felt in New Jersey with its perceived inferior position between the major cities of New York and Philadelphia, as well as vis-a-vis other States, in respect to professional athletic facilities.
In the old days, before TV cut into stadium attendance, New Jersey had at least two important baseball farm teams, the Newark Bears (a farm team for the Yankees) and the Jersey City Giants (a farm team for the Giants). These have long vanished. When professional football made its bow, there were some minor league games at the Newark School Stadium, but not much else, and even that vanished when professional football built a following on TV broadcasting, culminating with the Superbowl game.
The economics of professional sports also changed drastically with time. Major revenues came to be derived from TV broadcasting rather than from paid attendance, and with the enlargement of leagues and transfer of teams to various parts of the country, New Jersey saw itself slighted.
During the administration of Governor Cahill, the idea was conceived of trying to attract a major league professional team to a New Jersey home location. The only interest developed was with the New York Football Giants who, for a while, were without a stadium and played their home games at the Yale Bowl in Connecticut.
There was never any question about where a stadium should be located, if one were to be built, and that location was in the Hackensack meadowlands, some 20,000 acres of semi-swampland and the largest undeveloped area of real estate near New York City.
Development of the Meadowlands had been a much discussed and studied dream for a very long time. In 1968, the Meadowlands Development Commission was created, P.L. 1968, c. 404, NJSA 13:17-1, et seq. to try to organize a specific plan or program to put this area to use. Aside from its proximity to New York City, the area is threaded with major highways and is accessible via Route 3 to mid-town New York, via Route 80 and the N.J. Turnpike to the George Washington Bridge, and via the Garden State Parkway and Route 3 to the N.Y. Thruway. The northern segment of New Jersey is heavily populated as well, and adds to the New York potential "market".
It was soon found, however, that no professional team had the financial ability to undertake the capital expense of land acquisition, site preparation and construction of a major league stadium and supporting facilities. Direct State funding was ruled out because of the need for a statewide referendum under N.J.Const., 1947, Art. 8, sec. 2, par. 3. An autonomous public instrumentality issuing revenue bonds was out of the question because the revenues from a stadium could not possibly meet bond service requirements and it would be impossible to sell the bonds.
Whoever the author was, someone came up with the idea that if a pari-mutuel race track were built along with the stadium, its revenues could carry the combined project. This is what was done. The policy declaration in NJSA 5:10-2 emphasizes the public need for inducing professional athletic teams (particularly major league football and baseball) to locate their franchises in New Jersey, and the need to provide stadiums in addition to horse racing. The powers in NJSA 5:10-5 mention the holding of horse race meetings and the operation of a pari-mutuel system of wagering, but do not mention a "stadium". This is mentioned in NJSA 5:10-6.
Even after the act was passed and its validity under local law established, however, the project was not activated at once, no doubt due to the financial uncertainties of the 1973 OPEC oil embargo and the ensuing quadrupling of oil prices.
In any event, in the transition period between the Cahill and Byrne administrations, the latter decided to have the project go forward. See Exh C-3, the financial "prospectus" for the 1974 revenue bonds dated January 15, 1974. The insert between pp. 8-9 of that exhibit shows the master site plan, which has been executed substantially as shown.
The estimates at that time foresaw $ 58.8 million for land acquisition, $ 46.7 million for site preparation and parking areas, $ 42.8 million for the race track, and $ 48.8 million for the stadium. See Exh C-3, p.12. Net operating revenue for 1977 were estimated at $ 28.7 million from the racetrack, Exh. P-3, p.18, but no estimate was made of net revenues from the stadium.
The "prospectus" for the 1978 refunding bonds, Exh. C-4, carries actual figures for 1977. At p. 15, it shows $ 49.4 million of racing revenue before administrative expenses, and.$ 1.2 million of stadium revenue before those expenses, which aggregated $ 3.3 million. See, also, p. B-6 of Exh. C-4.
So far as land, site preparation and construction costs are concerned, Exh. C-4 shows at p. B-18 that land cost at the end of 1977 was $ 57.7 million, site preparation was $ 55.5 million, construction of the race track was $ 60.6 million, and of the stadium $ 75.9 million. Taking just the stadium construction cost of $ 75.9 million, the net revenue of.$ 1.2 million before administrative expense works out to less than 2%, or not even enough to pay the stadium's share of bond interest (7.5% on the 1974 term bonds and 6.25% on the 1978 term bonds). That the race track revenue substantially carries the entire project is beyond dispute.
From the standpoint of the N.J. constitution, the authorization to conduct pari-mutuel wagering at the race track derives from an amendment to Art. 4, sec. 7, par. 2 of the 1844 Constitution, adopted at a special election June 20, 1939 and proclaimed July 11, 1939.
That amendment authorized pari-mutuel betting at duly legalized race tracks, thereby modifying the original 1844 Constitution which barred the legalization of any lottery, and the 1897 amendment which barred the legalization of any "pool-selling, book-making or gambling of any kind." When the 1947 Constitution was adopted, the 1939 authorization for pari-mutuel betting at legalized race tracks was continued in force by reference: Art 4, sec. 7, par. 2 begins with the general prohibition:
"No gambling of any kind shall be authorized by the Legislature"
It then excepts:
"unless the specific kind, restrictions and control thereof have been heretofore submitted to, and authorized by a majority of the votes cast by, the people at a special election..."