# Opposition Brief — SHARE v. Bering

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2315%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 479 U.S. 1050

## Text

‘.. 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

———~ *
) a

SHARE, et al.,
Petitioners,
ws
STACIE BERING, M.D., et al.,

Respondents.

— *
Ww

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.

~ ie

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2315%3A3. Public record. Not legal advice.