Opposition Brief — SHARE v. Bering

‘.. Supreme Court, vU.S,

EILED

°) DEC 8 196

No. 86-746 ‘JOSEPH F. SPANIOL, se.

CLERK

In The

Supreme Court of the United States

October Term 1986

———~ *

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SHARE, et al.,

Petitioners,

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STACIE BERING, M.D., et al.,

Respondents.

— *

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On Petition for a Writ of Certiorari

to the Supreme Court of the State of Washington

RESPONDENTS' BRIEF IN OPPOSITION

PATRICK K. STILEY,

Attorney of record

JEFFRY K. FINER

210 Rookery Building

North 14 Howard Street

Spokane, Washington 99201

(509) 747-8181

QUESTIONS PRESENTED

A state trial court enjoined individuals demonstrating in

front of a nine-story medical building from picketing along a

limited portion of public sidewalk adjacent to the facility's

single public entrance. The injunction also prohibited the oral

use, at the picket site, of specified phrases regarding the

murdering or killing of children by doctors in the building.

The Supreme Court of Washington upheld the place restriction

but remanded the content restriction due to its overbreadth.

Respondents challenge the questions as formulated by

petitioners. The questions presented should be:

1. Whether an injunction is overbroad for setting a

limited place restriction on individuals whose conduct was

found to have obstructed access to a multi-purpose medical

building in a manner inimical to privacy, dangerous to health,

and incompatible with the normal activity of the facility?

2. Whether a content restriction prohibiting the

continued use of specific oral epithets, found to cause physical

and psychological harm to children when uttered in face-to-

face confrontations at the portal to private medical offices, is

reviewable for overbreadth where the state's highest court has

permanently stayed enforcement and remanded the issue to

narrow the injunction?

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TABLE OF CONTENTS

QUESTIONS PIRI Bille ssnensnsessesnaccsndnsacornnny i

TABLES OF QUIN TICE Dy ssssctsnccnsdsncsecdanesiiaaueeee ii

TABLES OF ALS TERME Rae a nesnncnssntancessatadinnbranans il

STATEMENT OF TERS CAGES, occ scscccccssscsessescsseanses 1

REASONS WHY THE PETITION |

SEP ULA) BES LI Peoniccctscscasuxidasansialaabaiaenanis 4

I. The place restriction upheld below strictly

follows this Court's established

time, place, and manner analysis.......... 5

II. The state high court stayed and remanded

the content restrictions for further

hearings; thus, the decision is not a final

judgment under 28 U.S.C. § 1257............. 9

CUNT AISIIUIN, «.0<casccessncesnecassaubapeneanaenamaantaan 14

TABLE OF AUTHORITIES

CASES:

California Bankers Association v. Schultz,

416 U.S. SE (iP Piscsasscccstddaneatinss mana 9

Clean-Up ‘84 v. Heinrich, 759 F.2d 1511

(Ulde Cie, SRD. ncsccisissacseaneeacae 8,9

Cox Broadcasting Corp. v. Cohn, 420

U.S. 46D, SFG CIP Ta cc sceusiscntsanasiins 10, 11, 12

Food Employees v. Logan Valley, 391

U.S. SUB CHDGT ho ssnccknarcicassatassenriiane 10

Grayned v. Rockford, 408 U.S. 104

- iii -

Construction Laborers v. Curry, 371 U.S.

iii eecawkhenyaxadanvscessexs0 12

Mills v. Alabama, 384 U.S. 214 (1966)............. 8, 10

Organization for a Better Austin v. Keefe,

RE I PU POs sive nascccscsescscesesas 10

_ Piper v. Swan, 319 F.Supp. 908 (E.D.

eee cin ceissasns deve. 8

State v. Black, 54 N.J.L. 446, 24 A. 489,

aff'd, 65 N.J.L. 688, 51 A. 1109

sli he waa taeuancas suns ivacesss 8

Uphaus v. Wyman, 360 U.S. 72 (1959)............ 9

Wheeler v. Barrera, 417 U.S. 402 (1974).......... 9,12

CONSTITUTIONAL PROVISIONS:

United States Const., amendment I................... 4

Washtington State Const., article 1, § 5............. 4

STATUTES AND RULES:

I ME RPE RRL 6s 6nd5insiccenncesndeasansesssssas a Ae

No. 86-746

In The

SUPREME COURT OF THE UNTED STATES

. October Term 1986

SHARE, et al.,

Petitioners,

Vv.

STACIE BERING, M.D., et al.,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of the State of Washington

RESPONDENTS' BRIEF IN OPPOSITION

The respondents, pediatrician Michael McCarthy,

obstetrician-gynecologists Pam Silverstein and Stacie Bering,

and medical building owner Howard Johnson, respectfully

request that this Court deny the petition for writ of certiorari

seeking review of the Washington State Supreme Court's

opinion entered in this proceeding on June 19, 1986. That

~2.

opinion is reported at 106 Wash. 2d 212, 721 P.2d 918

(1986).

STATEMENT OF THE CASE

The respondents concur in the docketed Statement of

the Case (Pet. 4-6) subject to the addition of the following

items not included in the petitioners’ statement:

(1) The state's high court upheld the finding that the

picketers' conduct "created a substantial risk of physical and

mental harm, and ‘counseling’ had been forced upon persons

attempting to enter or leave the premises.” (Pet. 7a).!

(2) The state's high court upheld the finding that the

picketers' conduct "in instances gave rise to a clear and present

danger to patients." (Pet. at 7a).

(3) The state's high court upheld the finding that

"picketing had been conducted in a manner incompatible with

the character and function of the Medical Building.” (Pet. at

7a).

The Washington State Supreme Court upheld the trial

court's finding, based upon the evidence admitted during a

day-long hearing on the permanent injunction including

numerous affidavits, eyewitness testimony, and over 100

1Citations to the opinion of the Washington State Supreme

Court refer to the Appendix attached to this proceeding's Petition for Writ

of Certiorari. Pet. 1-99a.

~

photographs. (Pet. at 1la). The evidence showed that

picketers grabbed patients and staff; patrolled and blocked the

public sidewalk and the single public entrance at the nine-story

multi-purpose medical building; threatened and screamed at

patients; interfered with parents bringing children to

respondent Michael McCarthy, a pediatric respiratory allergist;

entered physicians’ offices to advocate their political views;

interfered with patients in advanced stages of pregnancy,

including one suspected toxemic in acute medical danger; and

blocked a patient miscarrying a wanted pregnancy so that she

had to force her way through picketers on a snow covered

sidewalk in order to reach her nurse and wheelchair. (Pet. at

4-6a).

The trial court also held contempt hearings several

weeks following the entry of the permanent injunction. Six

individuals were found to be in contempt, some for multiple

violations of the court's order. All the contempt adjudications

concemed intentional violations of the place restrictions.

(Pet. at 8-9a, 64a).

2 As argued in Part II, below, the fact that no contempt

adjudications arose from the content restriction is material to this Court's _

exercise of jurisdiction under 28 U.S.C. § 1257. Pet. 64a.

a

On review the Washington State Supreme Court

upheld the place restriction against claims that the prohibition

violated federal? and state* constitutional provisions.

The high court further held that the content restriction,

while not a classic prior restraint, was overbroad in

application. (Pet. 55a). The court stayed enforcement of the

content restriction? and remanded this portion of the decision

for further hearings at the trial court level to set guidelines and

narrow the prohibition. (Pet. 56a, 61a, 63a).

REASONS WHY THE PETITION SHOULD BE DENIED

Respondents oppose the petition for writ of certiorari

on the grounds that (1) the decision below upholds the place

restriction in scrupulous accord with traditional federal

standards regarding speech restrictions, and (2) the content

restriction does not present a final judgment susceptible to

review.

3 Pet. 11-36a (First Amendment, speech clause).

4 Pet. 36-40a (Wash. Const., art 1 $5) ("Every person may

freely speak, write and publish on all subjects, being responsible for the

abuse of that right").

5 As the court noted, the enforcement of the injunction through

contempt proceedings was valid only where picketers intentionally

violated the upheld place restrictions. Pet. 64a. The court considered the

remanded content restriction unenforceable in its present form.

= s

Ij. The place restrictions upheld below strictly

follow this Court's established time, place,

and manner analysis.

Contrary to petitioners’ assertions, the decision below

does not represent a break from the traditional framework

mandated by this Court in adjudicating reasonable time, place,

or manner restrictions on expression. The decision analyzed

the unique facts and circumstances presented to the trial court

and determined that the place restriction was content neutral,

narrowly tailored to serve two significant government

interests, and fashioned to allow ample alternative channels of

expression within a section of the original® picket site itself.

Compare, Grayned v. City of Rockford, 408 U.S. 104, 115-

17 (1972); and see generally, Pet 11-40a.

To advance their overbreadth argument before this

Court, petitioners understandably characterize the injunction as

having broad application. Thus the petition states in its first

Question Presented that the injunction prohibits "all persons"

from engaging in expressive conduct in front of the medical

6 The characterization that picketers were moved "down the street

and around the corner" is grossly misleading. (Pet. 12). The injunction

moved picketers away from the portion of sidewalk bordering the narrow

pathway to the single public entrance (see diagram, Pet. 2a), but allowed

picketing adjacent to the building, in full view of all who entered the

facility and alongside the four lane thoroughfare (Pet. 35-36a) where

picketers had been patrolling for months prior to the injunction.

ye

building. Pet. at 3. Nevertheless, the decision and record

below in no way support such an interpretation.’ The

injunction is quite properly restricted to those individuals

acting in concert with the named parties who had engaged in

activity found to be dangerous to patients and incompatible

with the health care function of the medical building. Further,

the decision specifically rejects any notion that individuals

other than parties to the cause should come under the place

restriction. Applying the restriction to “all picketers of any

persuasion, regardless of their conduct, would have been

overly broad.” (Pet. 16a).

Mischaracterizing the record and decision below in

order to cause the injunction to appear broader cannot qualify

the petition as worthy of review by this Court. Sup. Ct. R.

19.5.

The petition also fails to accurately characterize the

State supreme court's identification of the compelling state

interests served by the injunction. The court identified two

compelling state interests: unfettered access to health facilities

q Apparently petitioners recognize this fact; the peution later

States that the injunction impermissibly singles out only abortion

protesters. (Pet. 8). The response to petitioners’ overstatement in the

first Question Presented serves equally to address the objection that the

place restrition is content-sensitive: "[t}he trial court imposed the place

restricuon in order to regulate the conduct of a particular group of people

before the court.”. (Pet. 16a) (emphasis added).

+P

by all individuals, and the privacy right existing between

women and their physicians concerning reproductive issues.

(Pet. 20-21a). Petitioners state that the court's power to enjoin

speech activities along 6th Avenue should have been limited to

restrictions on aggressive, disorderly, or coercive conduct.

(Pet. 7). The assertion ignores the high court's finding that,

under the unique circumstances of the case,® the presence of

the particular gathering of picketers by the one public entrance

was itself sufficiently threatening to warrant the limited place

restriction. (Pet. 34a). The assertion also ignores the court's

concern that the injunction provide relief beyond solely

abstract restrictions or semantic protections: the court

specifically fashioned a bright line demarcation so as to be

enforceable on a practical basis. (Pet. 34a). These

considerations are highly individualized and fact-bound,

making the decision a poor candidate for review.

Finally, petitioners predict that dire consequences will

flow from the place restriction. They warn that the privacy

claim, if left in place, raises the possibility that others engaging

in private activities, such as voting, will seek special place

8 Including such diverse factors as the recent violent attacks and

bombings at other medical facilities in the state (Pet. 28a), the ice and

snow conditions prevalent on sidewalks in northcastern Washington State

(Pet. Sa), and the privacy rights existing between women and their

physicians in reproductive matters.

x

restrictions on speech and expression aimed at influencing

private decisions. (Pet. 11). In fact, special place restrictions

have existed to protect the voting public for many years. State

v. Black, 54 NIL 446, 24 A. 489, aff'd, 65 NJL 688, 51 A.

1109 (1892) (election day ban on electioneering within 100

feet of polls); and see, e.g., Piper v. Swan, 319 F.Supp.

908, 911 (E.D. Tenn. 1970) (100-foot ban valid to protect

against "last chance” efforts to change voters’ decisions).

The decision in Clean-Up ‘84 v. Heinrich, 759 F.2d

1511 (11th Cir. 1985) overturning a 100-foot limit at a polling

Site in no way conflicts with the decision below. In Clean-Up

‘84, the court held that the ban was overbroad because it could

be read to prohibit electioneering in a hypothetical private

home situated within 100 feet of a polling place. The place

restriction prohibiting respondents from picketing along the

portion of 6th Avenue fronting the medical building is not

similarly flawed. Nor does the decision below involve a total

prohibition on written expression such as the election-day

newspaper editorial ban overturned in Mills v. Alabama, 384

U.S. 216 (1966). Writing for the majority, Justice Black noted

that the decision in Mills “in no way involves the extent of a

-®.

state's power to regulate conduct in and around the polls in

order to maintain peace, order, and decorum there."?

Thus, courts have long recognized the vaiidity of place

restrictions used to protect significant privacy rights from even

peaceful, non-governmental disruptions.

The high court's adherence to traditional time, place,

and manner analysis, and the petitioners’ failure to identify any

conflict between the place restriction and federal law

demonstrate that Question 1, however phrased, is not worthy

of review.

Il. The state high court stayed and remanded the

content restrictions for further hearings;

thus, the decision is not final judgment under

28 U.S.C. § 1257.

In accordance with 28 U.S.C. § 1257, this Court's

jurisdiction on certiorari is limited to final judgments.

California Bankers Association v. Schultz, 416 U.S. 21

(1974); Wheeler v. Barrera, 417 U.S. 402 (1974). Thus,

where the decision below contemplates further proceedings,

jurisdiction does not normally attach. Uphaus v. Wyman, 360

U.S. 72 (1959). In the First Amendment context, the Court

makes exceptiors to the general rule above where the remand

9 384 U.S. at 218.

s 10

essentially contemplates only ministerial acts, the facts are not

likely to be resolved differently after rehearing, and the

contested provisions have substantially affected speech rights.

Organization for a Better Austin v. Keefe, 402 U.S. 415, n.1

at 418 (1970); and see, Food Employees v. Logan Valley,

391 U.S. 308, n.5 at 312 (1967).

In sharp contrast to the traditional body of cases where

jurisdiction was reached for formal or policy reasons, the

decision below has none of the established characteristics of

finality. Compare, Cox Broadcasting Corp. v. Cohn, 420

U.S. 469, 479-85 (1975).

Petitioners are not now subject to a content restriction.

Unlike the parties in Organization for a Better Austin ,

petitioners here are not burdened by any injunction, permanent

or temporary, affecting the content of speech. No picketers

have been charged with contempt for prior violation of the

content portion, and the decision below permanently stayed

enforcement pending remand. (Pet. 64; and see note 5,

above).

The outcome of the hearing is not preordained. Unlike

the proceedings ordered in Mills v. Alabama, 384 U.S. at 217-

18, the proceedings ordered below are intended to establish

procedures and guidelines to be used in determining the

a

application of the content restriction. This hearing may result

in a finding that the age limits are inappropriate, that the

restriction is no longer necessary, or, as suggested in the

dissent below (Pet. 85a), that the determination of guidelines

is impossible.

Federal rights will not be harmed by allowing the trial

court to proceed subject to review and final judgment by the

Washington State Supreme Court. Any determination

regarding nature and terms of the injunction will be reviewable

on First Amendment grounds. Compare, Cox Broadcasting,

420 U.S. at 480-81. The petitioners’ overbreadth issue will

then be ripe if they wish to seek review.

Denying certiorari on finality grounds is especially

appropriate in view of the circumstances underlying the second

Question Presented. Petitioners challenge the content

restriction for overbreadth: yet the court below agreed that the

content restriction was overbroad; respondents’ counsel

conceded the point in their Brief in Response to Amici and

during oral argument before the state's supreme court.

As a practical matter, the issue is not ripe. The court

below has requested guidelines and a narrowed restriction.

The parties have not had an opportunity to develop the record

regarding the extent of harm to young children and the least

intrusive means to protect this group. Without a more fully

developed record we cannot say how the injunction will

ultimately be drawn. As this Court stated,

It would be wholly inappropriate for us to

attempt to render an opinion on the First

Amendment issue when no specific plan is before

us. A federal court does not sit to render a

decision on hypothetical facts...

Wheeler v. Barrera, 417 U.S. at 427-27 (Blackmun, J.).

Granting a writ of certiorari at this stage in the proceeding will

place this Court in the position of issuing an advisory opinion

on the abstact contours of the doctrines of prior restraint and

"fighting words”.

The holding in Construction Laborers v. Curry, 371

U.S. 542 (1962) does not compel jurisdiction in this case. In

Curry, this Court held that the state court remand was a final

judgment within the meaning of 28 U.S.C. § 1527 in part

because the state's very act of asserting jurisdiction over a

labor claim established jurisdiction. In such an instance,

federal jurisdiction was appropriate, "if a refusal immediately

to review the state-court decision might sentously erode federal

policy"! such as the exclusive jurisdiction of the National

Labor Relations Board. Curry, 371 U.S. at 548.

10 Cox Broadcasting, 420 U.S. at 482.

aes

Finally, this Court shout deny certiorari in view of the

petitioners' compounded failure to accurately set forth the

record and issues raised by the decision below. In addition to

the mischaracterizations set forth in Part I, above, petitioners

fail to mention in their Questions Presented, Statement of the

Case, or argument that the Washington State Supreme Court

remanded the content restriction on the very issue presented in

the petition.

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CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

PATRICK K. STILEY

Attorney of Record

JEFFRY K. FINER

210 Rookery Building

North 14 Howard

Spokane, Washington 99201

(509) 747-8181