author: DAVID S. NELSON, District Judge.

text:
    MASSACHUSETTS FAIR SHARE, INC., and Herbert Regan, Plaintiffs, v. TOWN OF ROCKLAND, et al., Defendants.
    Civ. A. No. 81-3325-N.
    United States District Court, D. Massachusetts.
    May 23, 1985.

      Marc S. Seigle, Boston, Mass., for plaintiff.
    Thomas F. Bowes, Plympton, Mass., for Town of Plympton.
    Robert C. Bliss, North Attleboro, Mass., for Town of North Attleboro.
    Paul M. Lynch, Asst. Town Counsel, Marblehead, Mass., for Town of Marble-head.
    Donald J. Scutiere, Town Counsel, Salem, Mass., for Town of Boxford.
    David G. Nagle, Jr., Hanover, Mass., for Town of Hanover.
    Philip H. Macchi, Norwood, Mass., Leonard Kopelman, Kopelman & Paige, Boston, Mass., for Town of Walpole.
    Thomas P. Crotty, New Bedford, Mass., for Town of Marion.
    Ashod N. Amirian, Town Counsel, Haverhill, Mass., for Town of Merrimac.
    John H. Flood, Boston, Mass., for Town of Avon.
    S. Peter Gorshel, Peabody, Mass., for Town of Lynnfield.
    William G. Evans, Evans & Evans, Tops-field, Mass., for Town of Topsfield.
    Paul L. Kenny, Town Counsel, Danvers, Mass., for Town of Danvers.
    Michael O’Brien, (Town of Salem) Salem, Mass., for Town of Salem (City of Salem).
    John J. Vasapolli, Law Office of Usher A. Moren, Lynn, Mass., for Town of Saugus.
    A. Stanley Littlefield, Rockland, Mass., for Town of Avon.
    David Lee Turner, Boston, Mass., for Town of Rockport.
    F. Joseph Geogan, Rockland, Mass., for Town of Rockland.
    Richard J. White, Shirley, Mass., for Town of Rockland.
    John A. Vitale, Hanson, Mass., for Town of Hanson.
   MEMORANDUM AND ORDER

DAVID S. NELSON, District Judge.

This is an action brought by Massachusetts Fair Share, Inc. (“MFS”) and its president, Herbert Regan, against eighteen towns in Massachusetts pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief for alleged violations of plaintiffs’ first amendment rights. Specifically, the plaintiffs assert that each defendant town has an ordinance or bylaw regulating door-to-door solicitation that prohibits or restricts MFS’s ability to petition or communicate with citizens of the town and to solicit donations. This court has jurisdiction over this action pursuant to 28 U.S.C. § 1343(3).

MFS is a Massachusetts non-profit corporation organized for the purpose of promoting “social welfare and the elimination of poverty by seeking and establishing solutions to the common problems of poor and lower income people in Massachusetts,” Complaint j| 4, and so registered with the Massachusetts Attorney Generals Division of Public Charities pursuant to Massachusetts law. Mass.Gen. Laws Ann. ch. 68, § 19 (West 1980). MFS’s canvassing staff distributes literature, circulates petitions, and solicits financial contributions throughout the state. Complaint ([ 6. The plaintiffs allege that their canvassers are entitled to an opportunity to educate the public on and involve them in the activities of MFS. The plaintiffs further allege that the majority of MFS’s income is received from door-to-door solicitations. Complaint j[ 9. In order to carry out these aims, the plaintiffs seek to conduct canvassing between the hours of 6:00 p.m. and 9:00 p.m. on weekdays. Plaintiffs also maintain that these hours are the most effective periods for solicitation, in support of which they provide affidavits and statistical evidence. The primary issue before this court is whether the ordinances and bylaws of each defendant town or city, which the plaintiffs allege restrict their ability to canvass, are unconstitutional on their face, or unconstitutional as applied.

The plaintiffs’ original motion for summary judgment against all eighteen defendants was summarily denied on December 22, 1983. This court now reconsiders sua sponte the motion for summary judgment as against sixteen defendants, the plaintiffs having voluntarily dismissed the towns of Nahant and Merrimac. I now agree with the parties that this matter is appropriate for summary judgment, as the submissions disclose no disputed issue of fact that is both genuine and material. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976).

DISCUSSION

The alleged constitutional violations fall under four categories: (1) the denial to MFS of a permit to solicit or canvass; (2) the restriction of all soliciting to certain hours; (3) the prohibition of any soliciting after “sunset” or “daylight”; and (4) the restriction of solicitations for goods and services to certain daylight hours. The court will discuss each of these in turn after analyzing the general legal standards applicable in cases of solicitation and canvassing.

It is well established that canvassing and solicitation in residential neighborhoods are within the protections of the first amendment. See Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 629,100 S.Ct. 826, 832, 63 L.Ed.2d 73 (1980); Association of Community Organizations for Reform Now (ACORN) v. City of Frontenac, 714 F.2d 813, 816 (8th Cir.1983); Citizens for a Better Environment v. Village of Olympia Fields, 511 F.Supp. 104, 105 (N.D.Ill.1980). The Supreme Court has long protected speech even though it be in the form of a solicitation for money. See Bates v. State Bar of Arizona, 433 U.S. 350, 363, 97 S.Ct. 2691, 2698, 53 L.Ed.2d 810 (1977); New York Times v. Sullivan, 376 U.S. 254, 269-70, 84 S.Ct. 710, 720-21, 11 L.Ed.2d 686 (1964); Cantwell v. Connecticut, 310 U.S. 296, 306, 60 S.Ct. 900, 904, 84 L.Ed. 1213 (1940).

Although duly enacted provisions normally enjoy a presumption of constitutionality, where there is a question of improper infringement of the exercise of first amendment rights, the statute’s proponents bears the burden of establishing the statute’s constitutionality. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); ACORN v. City of Frontenac, 714 F.2d at 817; Citizens for a Better Environment v. Village of Schaumburg, 590 F.2d 220, 224 (7th Cir.1978), affd., 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Citizens for a Better Environment v. Village of Olympia Fields, 511 F.Supp. at 106.

It is clear, however, that the right to canvass or solicit is not unconditional, but subject to regulation if the regulation does not intrude upon the rights of free speech. E.g., Hynes v. Mayor of Oradell, 425 U.S. 610, 616-17, 96 S.Ct. 1755, 1758-59, 48 L.Ed.2d 243 (1976). But such regulation must be narrowly drawn so that town officials do not have the broad discretionary power to determine what messages residents will hear. Id. at 617, 96 S.Ct. at 1759. The regulation must be undertaken:

[Wjith due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease. Canvassers in such contexts are necessarily more than solicitors for money. Furthermore, because charitable solicitation does more than inform private economic decisions and is not primarily concerned with providing information about the characteristics and costs of goods and services, it has not been dealt with in our cases as a variety of purely commercial speech.

Village of Schaumburg, 444 U.S. at 632, 100 S.Ct. at 833.

Therefore, the validity of a regulation that infringes upon the exercise of first amendment freedoms will be sustained only if the regulation is (1) narrowly drawn to further a legitimate government objective, (2) unrelated to the restriction of communication, and (3) not unduly restrictive of first amendment rights. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 658, 101 S.Ct. 2559, 2569, 69 L.Ed.2d 298 (1981); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981); Village of Schaumberg, 444 U.S. at 637, 100 S.Ct. at 836; Cantwell v. Connecticut, 310 U.S. at 306, 60 S.Ct. at 904.

The Supreme Court has recognized the importance of canvassing in the areas of political campaigns and public matters, particularly in the discussion of sensitive and controversial issues. See Hynes v. Mayor of Oradell, 425 U.S. at 625, 96 S.Ct. at 1763 (Brennan, J., concurring). In Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), Justice Black, writing for the Court, set the benchmark against which first amendment restrictions must be measured:

While door to door distributers of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion. The widespread use of this method of communication by many groups espousing various causes attests [to] its major importance. Pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people ... Of course, as every person acquainted with political life knows, door to door campaigning is one of the most accepted techniques of popular support, while the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. Door to door distribution of circulars is essential to the poorly financed causes of little people.
Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.

Id. at 145-46, 63 S.Ct. at 864-65.

I. Denial of a Permit

The court first turns to the plaintiffs’ claims against the defendants Avon, Hanson, and Rockland who denied MFS’s requests for a permit to conduct door-to-door solicitation at anytime. The town of Avon denied MFS a permit to solicit or canvass pursuant to Avon, Mass., Code, art. IX § 2. The town of Hanson refused to grant the plaintiffs a permit based on a policy adopted by the Board of Selectmen, effective March 9, 1976, restricting house-to-house solicitation within the town to members of local non-profit organizations. Similarly the Board of Selectmen of the town of Rockland denied MFS’s request to solicit on the grounds that they had restricted solicitation in the town to only local organizations.

The Supreme Court has recognized that a town may validly protect its citizenry from fraud and disruption of the peaceful enjoyment of their homes, but has held invalid such regulations when they unreasonably obstructed the collection of funds. See Cantwell v. Connecticut, 310 U.S. at 296, 60 S.Ct. 296. In Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939), the Supreme Court held unconstitutional an ordinance that dealt specifically with solicitors and canvassers. The ordinance required them to obtain a permit from the Chief of Police, which he would not issue if he decided that “the canvasser is not of good character or is canvassing for a project not free from fraud.” Id. at 158, 60 S.Ct. at 149. Similarly, the Supreme Court held that a city ordinance requiring an identification permit for canvassing or soliciting from house to house for charitable or political purposes was unconstitutionally vague. See Hynes v. Mayor of Oradell, 425 U.S. at 610, 96 S.Ct. at 1755. These strict standards are used in the first amendment area because of the possibility that protected speech and activities may be inhibited by overly broad statutes. See Hynes v. Mayor of Oradell, 425 U.S. at 620, 96 S.Ct. at 1760; Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959).

The Town of Rockland ordinance must therefore fall because it fails to conform to the constitutional requirement of sufficiently narrow specificity. See Rock-land, Mass., Ordinance, art. XIV § 2A (1980). First, the ordinance does not sufficiently specify what those within its reach must do in order to comply. As in Schneider, the Rockland ordinance requires that a canvasser must obtain a permit from the Chief of Police and in order to obtain such permit, must submit “satisfactory evidence of his honesty and moral character and satisfactory proof of his identity.” But the applicant is not told what must be set forth as “satisfactory” evidence of his character, or what the police will consider sufficient identification. Id. Nor does the ordinance provide a statutory deadline for municipal action upon a permit application which is an essential feature of a permit system. Id. Cf. A Quaker Action Group v. Morton, 516 F.2d 717, 735 (D.C.Cir.1975). Thus, the failure to explain what identification and evidence of “moral character” is required gives the police the effective power to grant or deny permission to canvass for specific political or charitable causes. The ordinance suffers in its practical application from the vice condemned by principles long established in Supreme Court cases. See, e.g., Hynes v. Mayor of Oradell, 425 U.S. at 622, 96 S.Ct. at 1761, citing Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958).

Similarly, the Avon ordinance must fall because it also fails to meet these constitutional standards. In pertinent part, the ordinance requires all persons who solicit funds regardless of their purpose to obtain a permit from the Board of Selectmen “under such terms and conditions as the Board may prescribe.” Avon, Mass., Code, art. IX § 2. The applicant is not told what information is necessary to obtain a permit nor is there a deadline for action by the Board of Selectmen on the application. In fact, the Board of Selectmen are given broad power to set such “terms and conditions” as they deem fit for each applicant. This ordinance thus allows the Avon Board of Selectmen to grant or deny permits or issue limited permits depending on the applicant’s political or charitable beliefs— clearly unconstitutional on its face.

Finally, in the case of the town of Hanson, the Board of Selectmen denied MFS a permit to canvass or solicit pursuant to a policy effective March 9, 1976, restricting house-to-house solicitations within the town to members of local non-profit organizations, although the town of Hanson provides an exemption to its prohibition of solicitation to local non-profit orgnizations. The town argues that this policy was adopted to prevent house-breaks and public annoyance because the town residents are reluctant to have strangers coming to their door. The evidence, however, does not support the overly broad and restrictive canvass and solicitation rule. There is no evidence that solicitors or canvassers from outside Hanson are more likely to commit housebreaks. Moreover, it is no more annoying to decline to contribute to a local non-profit organization than it is to decline to make a contribution to a traveling canvasser.

The town further argues that there is no constitutional violation because no actual bylaw exists which prohibits solicitation within the town. The analysis, however, cannot stop here. Local governmental bodies can be sued directly under 42 U.S.C. § 1983 where an alleged official policy or custom deprives an individual of his constitutional rights even though such policy or custom has not received formal approval through local government’s official decision-making channels. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). The town of Hanson’s prohibition is just such a policy because it deprives organizations who are located outside the city limits from conducting any canvassing or solicitation in Hanson. Clearly, such a blanket prohibition restricts the flow of information and ideas and cannot be constitutionally sustained. See Citizens for a Better Environment v. City of Park Ridge, 567 F.2d 689 (7th Cir.1975).

In view of the above, the court finds that the defendants’ ordinances insofar as they do not establish reasonable guidelines and deadlines for municipal action with respect to permit applications and insofar as defendants’ ordinances prohibit door-to-door solication by the plaintiffs, the defendants’ ordinances are void on their face and as applied to plaintiffs.

II. Restriction of Solicitation to Certain Hours

The court next turns to plaintiffs’ challenge to time restrictions on door-to-door solicitation. The towns of Rockport and Walpole restrict solicitation and canvassing to the hours of 8:00 a.m. to 6:00 p.m. and 9:00 a.m. to 5:00 p.m., respectively. The town of Saugus allows canvassing between the hours of 3:00 p.m. to 6:00 p.m. on weekday evenings, but does not allow the solicitation of donations. The town of Hanover granted the plaintiffs permission to canvass during the hours of 9:30 a.m. 12:00 p.m. and 1:30 p.m. to 5:00 p.m. The town of North Attleboro allowed the plaintiffs to canvass between the hours of 3:30 p.m. and 8:30 p.m. on weekday evenings only. The town of Marion prohibits solicitation after 5:00 p.m. except by prior appointment with the resident. The city of Salem prohibits solicitation after 5:00 p.m. These above-named defendants contend that the interest of crime prevention and public annoyance are furthered by the time restrictions. In this regard, the court finds the cases of Pennsylvania Public Interest Coalition (PPIC) v. York Township, 569 F.Supp. 1398 (M.D.Penn.1983); Citizens for A Better Environment v. Village of Olympia Fields, 511 F.Supp. 104; Connecticut Citizens Action Group (CCAG) v. Town of Southington, 508 F.Supp. 43 (D.Conn. 1980); ACORN v. City of Frontenac, 714 F.2d 813 (8th Cir.1983); and New York Community Action Network, Inc. v. Town of Hempstead, 601 F.Supp. 1066 (E.D.N.Y.1984) instructive. In CCAG, the court invalidated an ordinance that prohibited canvassing and solicitation in the town after 6:00 p.m. The court noted:

It is common knowledge that most working people are employed outside the home during the working day until about 6:00 p.m. The hours after six o’clock would encompass the normal evening hours during which prospective household occupants would normally be available to be solicited or canvassed. The precedents governing this matter require a much more careful regard for First Amendment rights, than that shown by Southington’s overly restrictive ordinance.

508 F.Supp. at 45-46.

Similarly, in PPIC v. York Township, the court invalidated an ordinance which prohibited persons engaged in “transient retail business” from making calls by telephone or by physical presence except between the hours of 9:00 a.m. and 6:00 p.m. The plaintiff, a registered charitable organization, was informed by town officials that they would not be allowed to solicit after 6:00 p.m. The court found that there was no evidence to support the proposition that the ordinance prevented crime. The court further found that the public annoyance justification did not support the “overly broad and unduly restrictive time limitations.” 569 F.Supp. at 1403. The court stated:

This is far too high a price to pay to insure the undisturbed peace of the individual home, when less restrictive and equally effective alternatives are available. The annoyance rationale may justify a prohibition against late night or early morning solicitation, but the assertion of potential annoyance, as here without more, will not support a blanket ban on solicitation at other times. Since constitutional principles require that the regulation be narrowly drawn to further the legitimate governmental objective, the proponent of the regulation must demonstrate that the government’s objectives will not be served sufficiently by means less restrictive of first amendment freedoms.

Id.

The Court of Appeals for the Eighth Circuit in ACORN v. City of Frontenac found an ordinance that prevented charitable canvassing between the hours of 6:00 p.m. and 9:00 a.m. and on Sundays and legal holidays to be unduly intrusive upon the first amendment rights of the plaintiff. In addition, the court noted that the residents were not members of a “captive audience” and that the solicitor or canvasser had no right to make an uninvited entry into a resident’s home. The test applied stated as follows:

714 F.2d at 816 (footnote omitted). But see Pennsylvania Alliance for Jobs and Energy v. Council of the Borough of Munhall, 743 F.2d 182 (3d Cir.1984) (stating that the “ ‘ample alternative channels of communications’ standard applies, unless the regulation in question is content-based. Then the more stringent 'least restrictive alternative’ standard applies.”)

Similarly, in New York Community Action Network v. Town of Hempstead, a citizen action group challenged the constitutionality of a town ordinance which made it unlawful to canvass after one-half hour before sunset or 7:00 p.m., whichever is earlier. The court held that although the town’s alleged justifications were legitimate objectives, the town had not met its burden of establishing the statute’s constitutionality by demonstrating that these objectives of protecting citizens from undue annoyance and crime could not be met by less intrusive restrictions following the Eighth Circuit’s test employed in ACORN v. City of Frontenac.

Although the defendants have argued that the time restrictions for door-to-door solicitation will further a legitimate governmental interest in controlling crime, the defendants have failed to establish through statistics or other data that their time restrictions will actually prevent crime. Thus, the defendants have failed to demonstrate that the government’s objectives would not be served sufficiently by means less restrictive of first amendment freedoms. See Organization for a Better Austin v. Keefe, 402 U.S. at 419, 91 S.Ct. at 1577.

The legitimate interest in reducing crime can be better served by measures less intrusive than such overly restrictive time limitations. The defendant could, for example, employ an application and identification requirement, or the defendants could simply enforce their existing consumer fraud, trespass, burglary and other penal laws without unconstitutionally restricting the first amendment rights of the plaintiffs.

Similarly, the defendants’ concerns with public annoyance may be accommodated without impermissibly infringing upon the first amendment rights of the plaintiffs. Local trespass laws may be enforced against solicitors who ignore a resident's no solicitation directive or remain on private property after its owner has indicated that the intruder is not welcome. Furthermore, a resident wishing to avoid solicitors may do so by simply posting a “no solicitation” or “no trespassing” sign at his door or at the entrance to his property. See Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. at 620, 100 S.Ct. at 826; Citizens for a Better Environment v. Village of Olympia Fields, 511 F.Supp. at 107.

Some defendants in support for their position have suggested the availability of alternative modes of communication, such as the telephone and Saturday hours with respect to those defendants who allow Saturday solicitation. The fact that MFS may use other methods to contact citizens is not relevant to this first amendment challenge. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975); Citizens for a Better Environment v. Village of Schaumburg, 590 F.2d at 224; Citizens for a Better Environment v. Village of Olympia Fields, 511 F.Supp. at 106.

For the foregoing reasons, the court finds these defendants’ ordinances which restrict door-to-door solicitation to certain daylight hours unconstitutional on their face and as applied to the plaintiffs.

III. Prohibition of Solicitation After Sunset

As in the case of time restrictions, prohibitions of solicitations after sunset must be invalidated. The towns of Lynn-field and Plympton which prohibit .solicitation and canvassing after “sunset” and “daylight hours” have failed to show that the governmental interest in crime prevention is furthered by restricting solicitation to these time periods. Such regulations unduly intrude upon first amendment rights. Moreover, the defendants’ public annoyance justification will not support a first amendment challenge when the defendants have an ample supply of legislative weapons which are much less intrusive of plaintiffs and their residents’ first amendment rights than a blanket ban on solicitation after sunset. See Citizens for a Better Environment v. Village of Olympia, 511 F.Supp. 104 (N.D.Ill.1980).

Further, the towns have failed to define the terms “sunset” and “daylight hours.” The lack of clarity with regard to these inherently ambiguous terms raises the spectre of both chilling effect and discriminatory enforcement. See West Virginia Citizens Action Group v. Daley, 324 S.E.2d 713, 720 (W.Va.1984) (where the court invalidated an ordinance which restricted door-to-door canvassing and solicitation to “between 9:00 a.m. and sunset.”) The court concluded that the failure to define the term “sunset” in the ordinance rendered the ordinance unconstitutionally vague and that “[a] fine line drawn through dusk is too slender a thread upon which to hang the exercise of fundamental free speech rights.” Id. at 721.

IV. Restriction of Solicitation of Goods and Services

Finally, the Court addresses plaintiffs’ challenge to defendants’ ordinances with respect to persons who solicit “orders for the sale of goods, wares and merchandise.” The towns of Boxford, Danvers, Marblehead and Topsfield have bylaws which regulate such solicitation for commercial purposes. Specifically, these ordinances restrict canvassers, solicitors, hawkers and peddlers from soliciting orders for the sale of goods to certain hours. See Boxford, Mass., Ordinance art. 9 § 1.1 (1974); Danvers, Mass., Ordinance to Regulate Hawkers and Peddlers (July 5, 1960); Topsfield, Mass., Ordinance to Regulate Hawkers and Peddlers (June 17, 1963); Marblehead, Mass., Ordinance ch. 31, § 1 (1972).

MFS, however, is a non-profit corporation which distributes literature, seeks volunteer participation, and solicits financial contributions. There is no sale or distribution of merchandise within any reasonable construction of these bylaws and therefore the court finds them inapplicable to the plaintiffs. Indeed, the towns of Boxford, Marblehead, and Topsfield represent that their bylaws only apply to those who sell or solicit the sale of merchandise and would not apply to the plaintiffs’ activities as stated in the complaint. As to the last defendant Danvers, who continues to assert that its bylaws are applicable to the plaintiffs, the court finds that these bylaws which are similar in content to those of the above three defendants cannot be so applied.

Accordingly, judgment will enter for the plaintiffs as against Avon, Hanover, Hanson, Lynnfield, Marion, North Attleboro, Plympton, Rockland, Rockport, Salem, Saugus, and Walpole. In the case of Boxford, Danvers, Marblehead, and Topsfield, the court finds that the laws challenged by the plaintiffs cannot be applied to the plaintiffs’ activities.

SO ORDERED.

      . The defendant towns named in the plaintiffs’ complaint are: Avon, Boxford, Danvers, Hanover, Hanson, Lynnfield, Marblehead, Marion, Merrimac, Nahant, North Attleboro, Plympton, Rockland, Rockport, Salem, Saugus, Topsfield, and Walpole.

      . Thirteen defendants have responded to plaintiffs’ summary judgment motion with memoranda in opposition and cross-motions for summary judgment. The defendant towns of Avon, Danvers, and Salem failed to oppose or otherwise respond to the plaintiffs' motion for summary judgment or this court’s order requiring such responses. Notice was given pursuant to Fed.R.Civ.P. 55(a) and a default order was issued as to these three towns on April 30, 1984. The court, however, nonetheless here considers and decides the substance of the claims against these defaulted defendants.

      . The defendants rely on Westfall v. Clayton County, 477 F.Supp. 862 (N.D.Ga.1979) and McMurdie v. Doutt, 468 F.Supp. 766 (N.D.Ohio 1979) in defense of their time restraints. While these cases have sustained time restrictions similar to those challenged at bar, this court finds their reasoning unpersuasive. The McMurdie opinion is devoid of any analysis on time restrictions. In Westfall, the district court relied in part upon the availability of both Saturday hours for door-to-door solicitation and public places the plaintiff could deliver their message. Westfall, supra at 865, 871-72. This court agrees with the district court in Citizens for a

        Better Environment v. Village of Olympia Fields, 511 F.Supp. at 107-108, that the analysis in Westfall does not comport with the constitutional principles of free speech elucidated by the Supreme Court. See CCAG v. Town of Southington, 508 F.Supp. 43 at 46 n. 2; ACORN v. City of Frontenac, 714 F.2d at 819 n. 10.

      . The court is aware that an ordinance restricting solicitation might be necessary at some late evening hour to minimize annoyance. Such a task, however, must be accomplished through less vague time prohibitions than found in the instant case.


source: Caselaw Access Project

author: SPELLMAN, District Judge.

license: Public Domain

text:
    Kenneth Alan SIMKIN, Plaintiff, v. Barbara Anne NORCROSS, Defendant.
    No. 85-177-CIV-EPS.
    United States District Court, S.D. Florida, Miami Division.
    May 23, 1985.
    Kenneth Alan Simkin, pro se.
    Gene Brown, Marathon, Fla., for defendant.

      . On April 11-12, 1985, this Court presided over a non-jury trial. The unusual story that follows constitutes this Court’s findings of fact.
      Because of the parties' candid and intimately detailed testimony, this Court has endeavored to share and celebrate their fascinating lives.- Although some liberty has been taken in assembling the facts and circumstances of their case into this unusual narrative, this Court does not mean to embarrass or offend anyone. This Court does hope that some are entertained by this Memorandum Opinion. But this Court's purpose is not entertainment. In this case, as in all others, this Court has attempted to do justice within the confines of the law.

   MEMORANDUM OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW

SPELLMAN, District Judge.

The Plaintiff, Kenneth Alan Simkin, and the Defendant, Barbara Anne Norcross, both claim title to the thirty foot Morgan Sailing Vessel “SHEMARA,” Florida Registration Number FL8839CG. The “SHE-MARA” is currently residing with the Defendant in Key Colony Beach, Florida. The Plaintiff, however, believes that he should have custody of the “SHEMARA.” Thus, on January 29, 1985, he instituted this action to have the “SHEMARA” awarded to him. This is his story.

I

Lured by the South Florida sunshine and promise of adventure, Ken Simkin, a British citizen, embarked on a fortnight holiday in Marathon, Florida in December, 1982. Although, as in the best of melodramas, Simkin is living in reduced circumstances now, he was, in 1982, a man of not inconsiderable means. In December, he was sojourning, along with his brother, at the Ruttger’s Ocean Beach Club in Key Colony Beach, Florida.

An affable fellow, Simkin soon met Susan Taute, the wife of a Marathon fishing boat captain. Mrs. Taute introduced Simkin to Judy Szpak.

Szpak introduced Simkin to her thirty foot Morgan sailing vessel. “You like her, don’t you?” Szpak must have asked. “She is a fine vessel. And for only thirty four thousand ($34,000.00) dollars, I’ll let you have her!”

Impetuously, Simkin accepted the offer. He gave Szpak one thousand ($1,000.00) dollars as a good faith deposit and christened his vessel “SHEMARA.”

Still excited over his recent acquisition, Simkin met the Defendant, Barbara Nor-cross, on December 30, 1982. Known at the time as Barbara Vaughan, Norcross was employed as a hostess at Sinbad’s Restaurant in Key Colony Beach. The two met at Sinbad’s.

Norcross was a capable hostess. Her cheery presence not only charmed the patrons but seemingly implied to all that the fare at Sinbad’s was delicious.

Although Simkin personally did not care for the fare, he was frequently found at Sinbad’s. It was there that he met Laura Macklin. Laura’s husband, Richard, held the lease on Sinbad’s and supervised its hostess Barbara Anne Norcross.

Laura Macklin, no doubt aware that Simkin had recently purchased the Morgan sloop, attempted to interest Simkin in her fifty-seven foot Carrier Craft houseboat. Showing Simkin a photograph of the houseboat, the “AMORE DE LA VITA,” Macklin must have inquired, “You like her, don’t you?”

Simkin’s facial expression — a naive and brooding fascination — obviously prompted Macklin to continue.

“She is a fine vessel,” celebrated Macklin. “And for only seventy-seven thousand ($77,000.00) dollars, I’ll let you have her!”

Before considering Macklin’s offer, Simkin decided to venture to Fort Lauderdale to inspect the “AMORE DE LA VITA.” Macklin provided Simkin with the necessary directions to Pier 66, but, unfortunately, Simkin could not locate the vessel. He returned to Marathon, a disappointed man.

Simkin spent New Year’s Day with his new friend, Barbara Norcross. He told her of his recent purchase and described the “SHEMARA” to her. He told her that he was also interested in acquiring the Macklin’s houseboat. He introduced Norcross to his brother. The following day, however, Simkin returned, with his brother, to England.

Nevertheless, despite the paucity of time spent in Ken Simkin’s company, Barbara Norcross testified on direct examination that she was, at this time, “falling in love with Ken.”

On February 10, 1983, Simkin was back again in South Florida. After meeting Simkin at the Marathon Airport, Norcross accompanied him to Fort Lauderdale. Obviously aided by better directions, the two had no trouble locating either Pier 66 or the “AMORE DE LA VITA.” They met the Macklins and several other guests on board the houseboat.

Housed in separate berths, Ken and Barbara spent the night on the “AMORE DE LA VITA.” Although Barbara testified that she was embarrassed by these sleeping arrangements, they were both in good spirits at the time. They slept peacefully, unaware that on the following day their lives would undergo a sudden and dramatic change.

As the first gray streaks of a new dawn filtered tenuously above Fort Lauderdale, the boating party embarked on their two day voyage to Key Colony Beach. At dusk, they docked at Gilbert’s Marina and Restaurant for an evening of merriment. Both Simkin and Norcross admitted that they were “very drunk.”

Upon returning to the “AMORE DE LA VITA,” our friends found that the commodious master stateroom, previously occupied by the Macklins, was now, mysteriously, being made available for them. At the thought, Simkin’s normally ruddy complexion began to pale. Lamely, he lodged his protest. “As all on board appear to be respectfully married,” he explained, “proprieties should be observed.”

Laura Macklin, a notary public by trade, shrewdly solved the dilemma. In a “midnight marriage ceremony,” complete with a paper cigar band as a ring, she pronounced Ken and Barbara “husband and wife.”

After a brief honeymoon, Simkin returned, on February 16, 1983, to his home in Liverpool, England. His new-found bride and the Macklins arrived several weeks later, ostensibly to meet Simkin’s family and friends and for, in Barbara Nor-cross’ words, “a real marriage ceremony.”

Kenneth Simkin had, by this time in his confused personal life, completed payment on the thirty foot Morgan sailing vessel “SHEMARA.” Thus, on February 25, 1983, Judy Szpak, the Registered Owner, transfered title to Simkin.

Meanwhile, Simkin and his guests spent Easter that year traveling through much of Great Britain and Europe. London, England, Dublin, Ireland and Paris, France were among the many ports of call. Barbie, Ken’s latest nickname for his wife, described this vacation as “a whirlwind tour.” During the tour, Barbie was overjoyed and found herself often dreaming of the perfect life she would share with Ken.

Barbie’s perfect future did not come true. She found her dreams being shattered as quickly as they had grown. Although Ken introduced Barbie to all as his “wife,” he did not, as promised, arrange for “a real marriage ceremony.” And the abrupt and atrocious manner in which Ken “tossed” the engagement ring, valued at five thousand ($5,000.00) dollars, onto Barbie’s unsuspecting lap while in his car, was, as Barbie testified “not appreciated.”

“It was then that I began to realize,” Barbie woefully continued, “that he was not the man I married!”

After Easter, the Macklins returned to the states. Barbara Norcross, known at this time as Barbara Simkin, stayed on in Liverpool with Ken. In May, 1983, she too returned to South Florida. She lived on the “AMORE DE LA VITA,” which Simkin impulsively agreed to purchase from Laura Macklin for seventy-seven thousand ($77,-000.00) dollars. Simkin, his funds seriously depleted, remained in Liverpool. He attempted to sell his home.

Unsuccessful in his efforts, Simkin finally joined Norcross in Marathon in June, 1983. Laura Macklin had prompted the visit. Although Simkin had given Macklin over forty-six thousand ($46,000.00) dollars towards the purchase price of the houseboat, Macklin was anxious to complete the sale.

Simkin, however, could not come up with the balance of the purchase price. It was therefore decided that Macklin would have the houseboat painted and then sold, optimistically, for one hundred five thousand ($105,000.00) dollars. Laura Macklin would then divide the profits with Simkin.

Out of Simkin’s share of the profits was to be deducted seven thousand eight hundred ($7,800.00) dollars — the asking price for the Macklin’s 1979 Cadillac Eldorado. Norcross begged Simkin to purchase the car for her exclusive use. Simkin agreed to this arrangement and then returned to England.

While Simkin was in England, Norcross, with Simkin’s money and permission, founded United Kingdoms Ltd., a window washing, maid service and catering business. Although doing very well initially, the business was irreparably damaged after the business records were stolen in October, 1983. The perpetrators were alleged to be Norcross’ friends and employees. They were never apprehended by the police.

In November, 1983, Simkin was again back in Marathon. Norcross was living in a rented home in Key Colony Beach and working as a chef in the newly-opened Candlelight Restaurant (formerly Sinbad’s). Simkin moved in with Norcross although they once again slept in separate bedrooms.

Despite these less than ideal living arrangements, Norcross’ career flourished. She was, if anything, overly qualified to be a chef. Norcross also enjoyed her new position at the Candlelight.

Few assets coupled with enormous liabilities convinced Simkin to close United Kingdoms Ltd. He instead opened a joint bank account with the last of his money — seven thousand ($7,000.00) dollars. Within one week, Norcross withdrew six thousand ($6,000.00) dollars. It was then that Simkin sadly realized his wife coveted money with the same ferocious intensity she hungered after new recipes. He decided to salvage the remaining one thousand ($1,000.00) dollars before he had nothing left.

In January, 1984, after her successful stint at the Candlelight, Norcross began working at Kelsey’s Pancho Villa Restaurant in Marathon, Florida. She became Kelsey’s executive chef. She also became increasingly despondent about her marriage. While she encouragingly prepared food for Marathon, Simkin, ironically, sold weight loss products.

In April, 1984, Norcross suffered a serious fall in the kitchen of Pancho Villa’s and spent several weeks in traction at Fisherman’s Hospital. In June, 1984, she was convinced that her ailing marriage could not likewise be healed. She thus had Simkin meet her at her Attorney, Frank Green-man’s office. In that office, Simkin was informed that his wife, Mrs. Simkin, wanted a divorce.

Angered by the news, Simkin found he could not face his once beloved, Barbie. To avoid a seething confrontation, he stormed out of the attorney’s office. At Norcross’ rented home, he packed some of his belongings and prepared to leave Marathon in the “SHEMARA.” Norcross attempted to thwart Simkin’s departure by dismantling, the electrical wiring in the “SHEMARA.” She was unable to do so.

It was late afternoon when Simkin set sail for Fort Lauderdale. Dusk, like an anodyne to the recent disagreement, was settling over Marathon. Soon, the night would come, with sleep and, for a while, forgetfulness. But now, Simkin felt a genuine regret and a sorrow over his failed marriage. He also must have wondered if he would ever be wise about women.

On November 26, 1984, Florida Circuit Judge David P. Kirwan found that the marriage of the Simkins was “irretrievably broken,” and thus entered a Final Judgment of Dissolution of Marriage.

Having felt safe in Fort Lauderdale, it was not until December, 1984 that Simkin ventured back to Marathon. Simkin knew that his ex-wife was in New York at the time. Still, this visit proved to be a mistake.

With the permission of the owner, Simkin docked the “SHEMARA” at the Buccaneer Resort and Marina in Marathon. The vessel was tied to a jetty and in good condition. However, when Simkin attempted to retrieve his vessel, it was gone.

II

Thus, Simkin has instituted this action to retrieve his vessel. And even though Nor-cross tells a different story, this Court believes and is impressed by Simkin’s version.

Norcross first argued, at the pre-trial conference on March 28, 1985, that she should be permitted to keep the “SHE-MARA” because Simkin abandoned the vessel. In support of this claim, Anne H. Castle testified for Norcross at the non-jury trial. Castle stated that the “SHE-MARA” was run aground and in poor condition when she saw it at the Buccanneer. She therefore had Captain Mark Travis move the boat.

This Court chooses not to believe Castle’s testimony. • Simkin testified that he tied the “SHEMARA” to a jetty and left the vessel in good condition.. Based on his testimony, which this Court finds credible, it is clear that Simkin had no intent to and, in fact, did not abandon the vessel.

As an additional argument, Nor-cross testified that the “SHEMARA” was a gift from Simkin. This Court disagrees. Aware of the conflict in the testimony presented, the choice to credit some testimony and reject other versions of events is clearly within the province of the trier of fact. See Nunez v. Superior Oil Co., 572 F.2d 1119 (5th Cir.1978). This Court is in the best position to weigh the testimonial evidence since it observed the witnesses and evaluated their credibility. Having evaluated the credibility of the witnesses, this Court chooses to believe Simkin’s testimony that the “SHEMARA” was not a gift to Barbara Norcross.

This conclusion is not altered by the Vessel Certificate of Title presented at trial as Defendant’s Exhibit 1. Nor is the conclusion affected by the “signed documents authorizing her [Norcross] to deal with the vessel as she pleased.” See Defendant’s Amendment to Answer, filed on April 9, 1985. Although the Certificate of Title lists Barbara A. Simkin as the registered owner, the documentation on file with the Department of Natural Resources indicates that Norcross, to obtain the Title, represented, under oath, that she purchased the vessel from Judy Szpak for five thousand ($5,000.00) dollars. This representation is incorrect. At the non-jury trial, Norcross testified, under oath, that Ken Simkin purchased the vessel from Judy Szpak for thirty four thousand ($34,000.00) dollars.

Norcross’ misrepresentation, however, was also unauthorized. This Court considers the Power of Attorney, Defendant’s Exhibit 3, to be, as Simkin explained, “a forgery.” And Defendant’s Exhibit 2, dated June 29, 1983, would not permit Nor-cross to “deal” with the “SHEMARA” “as she pleased,” but only “authorise[d sic]” Norcross “to dispose” of the vessel. Obtaining a certificate of title in one’s own name by misrepresenting one’s self as the purchaser of the vessel but later claiming to this Court that the vessel was a gift is not “disposing]” of the vessel. Instead, this Court finds that what Simkin contemplated by the authorization “to dispose” was for Norcross to “sell the boat outright through a Broker.” See Letter of August 9, 1983, Defendant’s Exhibit 4. In that letter, Simkin also cautioned Norcross against any other “scheme you have in mind.” Therefore, without commenting on Norcross’ improper and unauthorized misrepresentation, this Court is of the opinion that Defendant’s Exhibit 1 can be disregarded and Norcross’ credibility doubted.

For these reasons, this Court decides that Simkin must be permitted to retrieve the “SHEMARA.” This Court is of the opinion that Simkin has suffered enough; it is therefore this Court’s desire and ruling that Simkin’s story have a happy ending.

      . Simkin had vacationed in South Florida in September, 1982 as well. Then, an alleged "robbery” separated Simkin from his passport and "air ticket to England.” One reason for his return in December was to claim his possessions from the Key West police..

      . At the pre-trial conference on March 28, 1985, Simkin indicated to , this Court that he not only demanded that the “SHEMARA” be returned but that the Defendant be ordered to return all of the money she had taken from him and the gifts she had received from him. This Court finds this claim to be without merit. The gifts and the money, this Court finds, were completed gifts from Simkin to Norcross and can not now be set aside.

      . Based on this ruling, the United States Marshal is directed to accompany Mr. Simkin to Marathon and insure that he immediately obtain possession of the "SHEMARA" in a peaceful manner.
      As a further precautionary matter, the Defendant, Barbara Anne Norcross, the Nominal Defendant, Anne H. Castle and John Clark, the mechanic who performed repairs on the "SHE-MARA” for the Defendant Norcross during the pendency of this action, are hereby enjoined from in any way interfering with Simkin’s possession and enjoyment of the "SHEMARA.”


author: ASPEN, District Judge:

text:
    UNITED STATES of America, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, Defendant.
    No. 80 C 5124.
    United States District Court, N.D. Illinois, E.D.
    May 23, 1985.

      Margaret Gordon, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
    Robert C. Howard, Hartunian, Futterman & Howard, Hugh R. McCombs, Isham, Lincoln & Beale, Chicago, Ill., for defendant.
   MEMORANDUM ORDER

ASPEN, District Judge:

This case is on remand from the decision of the Court of Appeals last year ordering this Court to determine “whether the Board is receiving the maximum level of funding that is available under the criteria of programs through which funds for desegregation can be disbursed.” United States v. Bd. of Education of the City of Chicago, 744 F.2d 1300, 1306 (7th Cir.1984) (“Board II”), cert. denied, — U.S.-, 105 S.Ct. 2358, 86 L.Ed.2d 259 (1985). The mandate entails, among other things, a thorough review of how the Secretary exercised his discretion in allocating funds already appropriated by Congress for school desegregation. The parties have engaged in intensive discovery in preparing for the Court’s initial decision on remand concerning the Secretary’s allocation of funds for Fiscal Year (“FY”) 1984. The Secretary has refused to produce twenty-seven documents sought by the Board, asserting the deliberative-process privilege as to all of them and the attorney-client privilege and the work-product immunity as to two of them. The Board has moved to compel production. For the reasons stated below, we order the Secretary to produce all of the documents to the Court for an in camera inspection, after which we will rule on the availability of each document.

1. The Deliberative-Process Privilege

The Secretary relies mostly on the deliberative-process privilege in withholding the documents, so we will focus on that privilege first. Sometimes called the “predecisional privilege,” it is unique to government and serves to protect the quality of the flow of ideas within a government agency. See, e.g., Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 866 (D.C.Cir.1980). The privilege extends only to communications which are predecisional, that is, generated before the adoption of agency policy, and deliberative, that is, reflecting the give-and-take of the consultative process. Id.; see also Resident Advisory Board v. Rizzo, 97 F.R.D. 749, 751 (E.D.Pa.1983). Communications made after the decision and designed to explain it are not privileged. Rizzo, 97 F.R.D. at 751. When the privilege does apply, it is qualified rather than absolute and “can be overcome if the party seeking discovery shows sufficient need for the otherwise privileged material.” Id. at 752. And since the benefits are “ ‘at best indirect and speculative,’ [the privilege] must be strictly confined ‘within the narrowest possible limits consistent with the logic of [its] principles.’ ” Id., quoting In re Grand Jury Proceedings, 599 F.2d 1224, 1235 (3d Cir.1979).

These abstract principles are easier to state than apply. Courts have created a formalistic two-step procedure in deciding whether to apply the privilege. The first step is a threshold one. The Court must first decide whether the government has shown that the privilege can apply at all. If so, the Court engages in the process noted above of balancing the litigant’s need for disclosure against the government’s need for secrecy. The first step in turn entails three requirements: (1) There must be a formal claim by the department head with control over the matter, after personal consideration of the problem; (2) the responsible official must demonstrate by affidavit precise and certain reasons for preserving the confidentiality of the documents in question; (3) the documents must be specifically identified and described. See Rizzo, 97 F.R.D. at 752-53. Although not doing so when he first claimed the privilege, the Secretary himself has now formally invoked the privilege by an affidavit which states that he has personally considered the problem. Thus, the first part of the threshold step is met. The parties dispute whether the Secretary has satisfied the second and third parts.

The Secretary has asserted the privilege with respect to twenty-seven documents. He has withheld more than three-fourths of these, twenty-one, from the Board, and has given the Board redacted copies of the other six. In his affidavit, the Secretary has briefly stated in conclusory terms that all of these documents are predecisional and deliberative. An attachment to the affidavit identifies and briefly describes each of the documents. Although brief and conclusory, the Secretary’s showing has met the threshold step of asserting the privilege. While the Court is sensitive to the Board’s concerns that the Secretary’s affidavit is brief and argumentative rather than factual, it is equally sensitive to the reality that it is hard to be very specific without violating the confidences the deliberative process privilege is meant to protect. Cf. Antonelli v. Federal Bureau of Investigation, 721 F.2d 615, 617 (7th Cir.1983) (FOIA context), cert. denied, — U.S. -, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984). But the Secretary’s mere assertion of the privilege does not necessarily mean he can withhold all or even any of the documents. As noted above, we must balance the Secretary’s need for confidentiality against the Board’s need for disclosure. In so doing, we will not rely on mere conclusory assertions. We will balance the interests after reviewing the documents in camera, so that we can make an informed analysis.

An in camera inspection may properly be used to decide whether a party’s claim of litigative need outweighs the government’s interest in confidentiality. See In re Agent Orange Product Liability Litigation, 97 F.R.D. 427, 434 (S.D.N.Y.1983). Though not automatic, such an inspection has grown more common. Id. And in camera inspection has been used when the private party makes a showing of relevancy, which is “the preliminary showing of necessity which permits at least an in camera review.” McClelland v. Andrus, 606 F.2d 1278, 1290 (D.C.Cir.1979).

The Board has made this preliminary showing of necessity warranting in camera review. Indeed, although we of course express no firm opinion without first seeing the documents, we venture to say that the Board will probably be able to make a very powerful showing of necessity. It is hard to imagine a case in which the government’s deliberative process is more relevant or crucial. At dispute is whether the Secretary has violated “a unique funding provision in a consent decree that constitutes an unprecedented settlement of a school desegregation claim by the United States.” Board II, 744 F.2d at 1304. We remind the Secretary that this consent decree imposes “ ‘a substantial obligation on the government to provide available funds to the Board.’ ” Id., quoting, Board I, 717 F.2d 378, 383 (7th Cir.1983). The government conceded at oral argument in Board II that in fulfilling the consent decree it was going to give the Board “top of the list priority” for desegregation assistance. Id. at 1305. The government also has conceded that the consent decree “binds the Secretary of Education’s discretion with respect to the funds that may be used for school desegregation pursuant to congressional appropriation, and [it] conceded that a district court may review the Secretary’s exercise of discretion in distributing those funds to the board.” Id. at 1306 n. 7. Clearly, then, this is not the usual “deliberative process” case in which a private party challenges governmental action or seeks documents via the Freedom of Information Act, and the government tries to prevent its decisionmaking process from being swept up unnecessarily into public. Here, the decisionmaking process is not “swept up into” the case, it is the case. The issue here is the deliberative process, and that issue has been defined in part by the United States and the Seventh Circuit. The United States has voluntarily bound itself to a consent decree under which it has made a great commitment to the Board; the Board alleges that the United States has violated its commitment; the government has conceded that its decision-making process is relevant to this Court’s decision on whether the consent decree was violated; and, finally, the Court of Appeals has remanded this case for “a determination of whether the Board is receiving the maximum level of funding,” that is, an inquiry into the decisionmaking process. Thus, the Secretary’s assertion of the privilege, if sustained, could have the harmful effect of preventing this Court from fulfilling its very mission on remand and depriving the Board of a full hearing on its case.

We reject the Secretary’s argument that the documents are not relevant. The Secretary claims that it has already produced documents and information concerning the funding decisions he actually made. The documents withheld are merely “pre-decisional documents containing recommendations, advice, and opinions that were not adopted by the Secretary.” United States Memorandum in Opposition to the Chicago Board of Education’s Motion to Compel at 2 (emphasis in original). While we agree that this description of the documents, if true, brings them within the privilege for purposes of balancing, that does not make them irrelevant to this proceeding. The nature of this unique case is such that the “roads not taken” are as relevant as those taken. The recommendations rejected and options considered are exactly what the Court needs to consider to fulfill its mandate of deciding whether the Secretary actually gave the Board “top of the list priority.” Likewise, we agree with the Board that a decision to fund one program could be tantamount to a decision not to fund the Board. This obviously bears on whether the Secretary violated his obligations under the consent decree.

2. Attorney-Client Privilege and Work-Product Immunity

The Secretary also asserts the attorney-client privilege and work-product immunity with respect to two of the twenty-seven documents. As with the other documents, we will rule on these issues following an in camera inspection.

The work-product immunity is qualified, like the deliberative-process privilege; it protects documents prepared by counsel in anticipation of litigation. See, e.g., Fed.R.Civ.P. 26(b)(3). A showing of substantial need may overcome the immunity. Rizzo, 97 F.R.D. at 752. The balancing test is similar to the one done for the deliberative process privilege, id., and we will do the appropriate weighing when we receive the documents in camera. One significant additional question we must consider in this weighing process, of course, will be the extent to which the memoranda contain “the mental impressions, conclusions, opinions or legal theories of an attorney.” Fed.R.Civ.P. 26(b)(3). Such “mental impression” work product is “nearly absolute ... and can be discovered only in very rare and extraordinary circumstances.” In re Murphy, 560 F.2d 326, 336 (8th Cir.1977); see also Duplan Corp. v. Moulinage et Retordie de Chavanoz, 509 F.2d 730, 734 (4th Cir.1974) (opinion work product is absolutely immune), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975).

The attorney-client privilege is narrower than the work-product immunity. Indeed, like the deliberative-process privilege, it must be “strictly confined within the narrowest possible limits.” United States v. Lawless, 709 F.2d 485, 487 (7th Cir.1983). Its elements are these:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. 8 Wigmore § 2292.

Id. at 487. Contrary to the assertions of the Board, which are not supported by the cases it cites, the bar of the attorney-client privilege is absolute when it applies. See, e.g., Lawless, 709 F.2d at 487 (privileged information is permanently protected unless waived); 8 C. Wright & A. Miller, Federal Practice & Procedure § 2017 (1970) at 133. Thus, we will not engage in the above-noted balancing process with regard to the two documents which raise the attorney-client privilege issue. Nevertheless, in camera inspection is appropriate to make an informed decision as to whether the privilege applies at all. See In the Matter of Witnesses Before the Special March 1980 Grand Jury, 729 F.2d 489, 495 (7th Cir.1984); Lawless, 709 F.2d at 486, 488 (both district and appellate courts examined documents in camera). Accordingly, we will rule on the availability of the privilege after seeing the two documents, taking into consideration the opposing views of the parties with respect to the issue of confidentiality, as well as the general principles embodied by the privilege.

3. Conclusion

We order the government to turn over to the Court no later than May 30, 1985, the twenty-seven documents it withheld from discovery. After its in camera inspection and its consideration in light of the legal issues expressed above and in the parties’ memoranda, the Court will rule very quickly on the extent to which the documents can be produced. We will then be receptive to any necessary motions to change modestly the briefing schedule, should we release some of the documents to the Board. However, we order the parties both to reevaluate their respective positions as to the documents and to meet immediately after receiving this opinion. Perhaps after considering the views we have expressed, the parties can reach an agreement as to the availability or not of some or all of the documents. They are to notify the Court of the results of their meeting no later than May 28, 1985, at 5:00 p.m. To the extent, if at all, the parties do not agree, we will decide the issue. For now, the Board’s motion to compel is taken under advisement, pending production by the United States of the relevant documents for an in camera inspection. It is so ordered.

      . There are several corollaries to these two elements. The privilege does not extend to factual or objective material outside of the deliberative process or severable from otherwise privileged documents. See EPA v. Mink, 410 U.S. 73, 87-88, 93 S.Ct. 827, 836, 35 L.Ed.2d 119 (1977). Even a predecisional, deliberative document sheds the privilege if adopted as the agency position on an issue or if used in dealings with the public. See Coastal States, 617 F.2d at 866.

      . His affidavit essentially sketches the elements of the privilege in one paragraph, and then makes a policy pitch in a different paragraph:
      4) The documents and conversations described in the Attachment consist of deliberative material, including communications between and among officials of the Executive Branch, including former Secretary Bell, members of Department staff and staff of other Executive agencies. These communications consist of predecisional opinions and recommendations of Department staff concerning positions to be taken by the Department on the use of FY 1985 funds to support FY 1984 programs; namely, the Secretary’s Discretionary Fund, title IV of the Civil Rights Act of 1964 (Title IV), Follow Through, Women’s Educational Equity Act, Territorial Teacher Training and General Assistance to the Virgin Islands.
      5) An essential requirement of the policy-making process is the assurance that the Secretary and his staff are able to engage in free and candid exchange of views and deliberations in considering the effect of legislative action on the functioning of the Department and the appropriate response of the Executive Branch to proposed legislation. Clearly, such exchange of information would be severely restricted and likely lacking in any constructive value if its contents were subject to public or judicial scrutiny, whether during or after the policy-making process had occurred. The knowledge that their deliberations and recommendations may be scrutinized by persons having differing interests to those of the Department of Education would create an inhibiting atmosphere for the Secretary’s advisers, unconducive to the formulation of sound policy.

      . For example, one typical document is identified and described as follows:
      Memorandum dated 2/21/84 from Frank B. Withrow, Director, DTRAD, to Donald J. Senese, Assistant Secretary, Office of Educational Research and Improvement (OERI), recommending the funding slate for FY 1984 Teacher Incentive grants. (This document reflects the recommended figures for awards to the grantees listed under Teacher Incentives Grants in the “Secretary’s Discretionary Fund FY 1984 Report," already provided to the Board at this deposition.)

      . Relevance is one important factor to consider in a showing of necessity. Others include the existence of alternate means of proof and the presence of allegations of governmental misconduct. See Dowd v. Calabrese, 101 F.R.D. 427, 431 (D.D.C.1984). The Dowd court held that documents of "the highest relevance” constituted “a concrete and particularized basis for disclosure which far outweighs the government's generalized interest in the confidentiality of its deliberations.” 101 F.R.D. at 431. As we note in the text, the documents are probably of "the highest relevance" in this case. Moreover, the allegations of violations of the consent decree are not unlike allegations of governmental misconduct. Indeed, this case has been laced with allegations of bad faith on the part of the government. While the Seventh Circuit reversed many of Judge Shadur’s findings of bad faith, see Board II, 744 F.2d at 1307, it did not reverse all of them. Id. at 1307-08 (overturning district court’s remedy, but not reversing the findings of bad faith upon which remedy was based). Although the legislative activities which generated this finding of bad faith are tangential to the funding issues now before us, we cannot be blind to the government’s previous attempts in this case to impair the consent decree. As the Seventh Circuit said:
      In the circumstances of this case, we deem it important to note that the actions of the Executive Branch described above and reflected in the hearings below could be interpreted to contravene the spirit of the Decree. Such actions, while perhaps within constitutional limits, cannot enhance the respect to which this Decree is entitled and do not befit a signatory of the stature of the United States Department of Justice. The Executive Branch initiated this critical litigation and bears a continuing shared and special responsibility for its eventual outcome, regardless of changes in personnel and ideology that will inevitably accompany the passage of time.

        Id. at 1308.

      . Of course, upon receiving the documents, the Court will give due weight to the concerns of confidentiality which underlie the privilege. However, in this special case the documents will likely prove to be centrally relevant. If so, it is unlikely that the need for secrecy will outweigh the Board’s need for the documents.

      . One is a memorandum from General Counsel to former Secretary Bell, which, according to the Secretary, gives legal advice on policy issues relating to the interim release of FY 1984 funds. The second is another memorandum from Counsel to Mr. Bell, giving legal and budgetary advice on funding Education Technology projects in FY 1984.

      . Rizzo, 97 F.R.D. at 752, involved only the deliberative process privilege and the work-product immunity, both of which are qualified. The attorney-client privilege was not a part of the case. While Coastal States, 617 F.2d at 862-63, did discuss the attorney-client privilege, it never stated that the privilege is qualified. Rather, the opinion focussed on whether the communications at issue were confidential, and thus whether the privilege applies at all.