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September 22, 1981

NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, The New York Football Giants, Inc., and Cosmos Soccer Club, Inc., Defendants

The opinion of the court was delivered by: BIUNNO

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".

 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..."

 The 1939 special election for pari-mutuel betting at horse race tracks was the only one within this language.

 One of the difficult problems with the Authority's enabling legislation was one of the controls specified by the 1939 amendment, which allowed:

"pari-mutuel betting on the results of the racing of horses only, from which the State shall derive a reasonable revenue for the support of government..." (emphasis added)

 Detailed analysis of this provision is found in the several opinions in 61 N.J. 1, 292 A.2d 545 (1972).

 After the 1939 constitutional amendment authorizing pari-mutuel betting at legalized race tracks, there were four separate tracks licensed by the State Racing Commission. These were the Garden State Race Track (outside of Camden), the Monmouth Park Race Track (west of Long Branch), Atlantic City Race Track (near Atlantic City) and Freehold Race Track (off Route 9, Freehold). All four were privately owned and operated, with the State receiving a share of the gross bets. The first three were "flat" or thoroughbred tracks, while Freehold was a harness racing track. Thus, the race track at the Sports Complex is the only New Jersey track owned and operated by an instrumentality of the State, i.e., the Authority.

 To satisfy the 1939 constitutional amendment that the legalized pari-mutuel betting provide a reasonable revenue for the support of government, the enabling legislation requires that 1/2 of 1% of the gross amounts bet be deposited annually in the General State Fund "as an initial payment to the State", NJSA 5:10-7(f). In addition, after making all payments and setting aside all reserves called for by the bond resolution, and payments to local municipalities in lieu of taxes under NJSA 5:10-18, subd. b and c, the remaining balance is to be deposited in the General State Fund, NJSA 5:10-6, subd. b(6), with 40% thereof to be appropriated to the Meadowlands Commission. By amendment of 1978 in connection with refunding bonds issued by the State pursuant to referendum, the 40% share for the Meadowlands Commission is to be appropriated from the balance of the amount so paid after deducting debt service savings realized from the refinancing so achieved.

 Also, in 1978, after a fire that destroyed the structures at the Garden State Race Track, a supplemental law was passed to enable the Authority to acquire the land, reconstruct and operate the track, but only upon presentation of a feasibility study demonstrating that the project would generate revenues sufficient to insure repayment of indebtedness incurred, and that the operation will not have a materially adverse effect on the operations and financial condition of the Sports Complex. Legislative approval is also required before undertaking the project. See NJPL 1978, c. 1, NJSA 5:10-27 (pocket part). The Garden State project has not been undertaken.

 At the time of trial, the Sports Complex consisted only of the two facilities: the race track and Giants stadium. The racetrack had been enlarged by adding a fourth floor to house an enclosed restaurant seating 1,000 patrons and equipped with some 70 pari-mutuel windows (Exh. C-4, p. 14). Another project, in the early stages of construction at the time, was a 20,000 seat arena on a previously undeveloped 67 acres at the east end of the Sports Complex site. Aside from indoor sports activities (i.e., basketball, hockey, etc.), the facility was planned with 40,000 sq. ft. of potential exhibit space which, if used with the arena floor, can support industrial and leisure-type exhibits and shows. Parking would be provided for 4,000 cars with overflow using the 20,000 car area in existence for the race track and stadium. See Exh. C-4, p. 13. Since trial, the arena has been completed and was opened in August, 1981.

 No part of the present suit, and none of the evidence of record, deals with this third structure. This opinion contains no ruling in connection with the arena structure.

 In order to support a claim under 42 U.S.C. § 1983, the deprivation of asserted rights under the Constitution or laws of the United States must be "under color of state law".

 The defendants have taken the position that the race track and stadium are operated precisely in the same fashion as private facilities are.

 Reliance is placed on testimony, such as that of the witness Harter, to the effect that:

 1. The Authority project was financed with funds from the private sector through the issuance of bonds (the capital structure is 100% debt and zero equity), and not with tax funds.

 2. The Authority is a supplier of funds rather than a user of funds. It is to be a profitmaker. It generates revenues in the same way as private enterprises. It relies on ticket sales, institutional advertising, and the efforts of its lessee and licensee, the Giants and the Cosmos.

 3. The employees at the managerial level are drawn from private enterprise and with experience in the subject field.

 4. All employees, whether managerial or rank and file, are not in the civil service, and such labor unions as are recognized are private sector unions.

 5. The Authority has its own private plan for medical and life insurance benefits, entirely separate and apart from any plan applicable to State employees.

 6. The Authority depends on being able to meet competition from private industry such as Madison Square Garden, Roosevelt Raceway, Monmouth Park, Yonkers Raceway, and others.

 7. It deals on a day-to-day basis with business people as customers, such as the Giants and the Cosmos. Even colleges and high schools utilizing the facilities are dealt with as business customers.

 8. A large group in private business with which it deals are in the race track: owners, trainers, horsemen, suppliers, vendors, grooms, jockeys and drivers are all in private business and deal with the Authority as independent contractors.

 9. It depends a good deal on advertising. There is no captive market. The Authority is not like a sewerage or water authority where there is but one place to go.

 10. It uses outside consultants in the fashion of a private corporation, including outside general counsel, advertising and public relations consultants, TV consultants, and a variety of others.

 In sum, the argument is that the Authority is engaged in business activities of a private sector nature-what is generally regarded as a proprietary function rather than a governmental function, such as providing roads and streets, or water or sewerage or general police and fire protection and the like. The distinction has long been recognized for one purpose or another.

 That the facts testified to are true the court has no doubt, and it is a fact that the betting operation (on which the financial success of the effort mainly depends) is required to provide reasonable revenues for the support of government, just as privately owned and operated New Jersey race tracks must do.

 These facts, though they may be relevant to other issues, however, are not controlling as the court sees it on the question of State action. See, e.g., Marsh v. Alabama, 326 U.S. 501, 502, 66 S. Ct. 276, 277, 90 L. Ed. 265 (1946), involving a "company town" privately owned.

 The Authority's "certificate of incorporation" establishes it as "a public body corporate and politic ... as an instrumentality of the State exercising public and essential governmental functions ...", NJSA 5:10-4, subd. a. Also, N.J.Const.1947, Art. 5, sec. 4, par. 1 requires that "All executive and administrative offices, departments, and instrumentalities of the State government ... shall be allocated by law among and within not more than twenty principal departments..." By NJSA 5:10-4, subd. a, the Authority is established "in the Department of Community Affairs", in compliance with the constitutional mandate. Action taken by the members of the Authority (equivalent to its directors or trustees) is subject to veto by the Governor within 15 days after delivery of the minutes of each meeting to him, NJSA 5:10-4, subd. i.

 The challenged policy is reflected in minutes of meetings of July 14, 1977 (Exh. P-102) and October 13, 1977 (Exh. P-101). There was no evidence that the minutes were delivered to the Governor, but if they were not, then under the veto provision they never took effect. Since that section requires that a true copy of the minutes of every meeting be delivered "forthwith" to the Governor, the presumption is that the law was obeyed. And, since there is nothing to show that the Governor disapproved them within 15 days, they took effect with his implied consent.

 Beyond that, in the litigation challenging the constitutionality of the enabling act, it could not have withstood the challenge without the determination by the Supreme Court of New Jersey that the statute was for public purposes and that the Authority was a public entity and an instrumentality of the State. This it found, 61 N.J. 1, 292 A.2d 545 (1972).

 In these circumstances, the court sees no legal basis for determining that the challenged policy is not under color of state law, and concludes that State action exists.

 Of course, a finding of State action is only the beginning of the inquiry. Without it, the inquiry would end. But the existence of State action does not at all imply that the action taken is invalid. The policy of the Authority is confined to its restricted domain at the Sports Complex, covering at most 750 acres of meadowlands, see NJSA 5:10-22. A site of 750 acres is hardly the entire State of New Jersey or, for that matter, is it more than a speck of the State's total area of 8,204.87 sq. miles.

 III. The Religion and the bona-fides of plaintiffs.

 There was considerable testimony, and massive amounts of documentary exhibits about the claimed religion. A summary of what was shown is set out in Appendix A to this opinion.

 It is enough here to say that the claimed religion is a Western World variation of an offshoot or sect of the ancient Hindu religion, attributed to Lord Caitanya in the late 1400's or early 1500's. His teachings are said to have been brought to Canada in 1896, and to New York in about 1965.

 There seems not to be any specific name for the Western variation. It is described as the Hare Krishna movement, or Krishna consciousness, but these terms seem equally applicable to the underlying Caitanya sect. At least so far as secular auxiliary entities of the religion are concerned, the phrase most commonly used seems to be the International Society for Krishna Consciousness, and its acronym, ISKCON. However, as the Appendix discloses, more than a dozen separate entities exist in the United States with the same or nearly the same name.

 The religious umbrella for these units appears to be a vaguely described group of "commissioners", each assigned to a territorial segment on a world-wide basis, yet there seems not to be any central unit of a structural or organizational nature. About all that can be said is that all ...

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