Opposition Brief — Winfield v. Kaplan

No. 93-1159 i Pike

IN THE

Supreme Court of the Hunited States

OCTOBER TERM, 1993

LINDA WINFIELD, WILLIAM H. WINFIELD, JR., and

LINDA WINFIELD d/b/a the PROLIFE ACTION

LEAGUE OF GREENSBORO,

Petitioners,

V.

RICHARD D. KAPLAN, M.D., MARGUERITE KAPLAN, and

MARGUERITE KAPLAN as guardian ad litem for

JacoB M. KAPLAN and DavipD S. KAPLAN,

Respondents.

On Petition for Writ of Certiorari to the

North Carolina Court of Appeals

RESPONDENTS’ BRIEF IN OPPOSITION

MATTHEW W. SAWCHAK ALAN W. DUNCAN

SMITH HELMS MULUISS & (Counsel of Record)

Moore, L.L.P AMY ZAKRAJSHECK BABB

P. O. Box 27525 SMITH HELMS MULUISS &

Raleigh, NC 27611 MOorE, L.L.P

(919) 755-8700 P.O. Box 21927

Greensboro, NC 27420

(910) 378-5200

Attorneys for Respondents

ey &.

er a AS i «

.

QUESTIONS PRESENTED

After a group appeared twelve times at a doctor’s home, and

after a person associated with that group threatened the doctor’s

life, a state trial court entered a preliminary injunction barring

the group from similar picketing and threats pending trial on the

merits. This temporary injunction bars the group from picket-

ing and similar activities on or within 300 feet of the doctor’s

street, but does not affect the group’s leafletting or other

expressive conduct. On an interlocutory appeal, the state court

of appeals affirmed. The state supreme court- dismissed a

further appeal for lack of a substantial constitutional question

and denied discretionary review.

1. Does a petition for certiorari filed 103 days after entry

of the relevant order fall within this Court’s jurisdiction?

2. Is a state supreme court’s order declining to review an

affirmance of an interlocutory injunction a "final judgment[ } or

decree[ }" under 28 U.S.C. § 1257(a) (1988)?

3. Is an injunction granted to prevent a thirteenth repetition

of targeted picketing by the same group a prior restraint?

4. Is an injunction that makes no reference to the expres-

sive content of any activity, and is justified by the physical

effects of the enjoined activity, content-based?

5. Does the injunction described above violate the federal

constitutional right to free speech?

—~s

ii

PARTIES

The respondents dispute the petitioners’ characterization of

the Prolife Action League of Greensboro (the League) in the

caption of the petition. The respondents have sued the League

as an entity that is separate from Linda Winfield. See infra p.

2 n.2.

After the filing of the petition, the respondents identified the

following people, who had previously been sued as "Doe"

defendants:

Scott Allred

Leigh Allred

Stephen Michael Beall

Karen L. Beane

Virginia Bell

Sharon Steele Clark

Mariana Donadio

Ruth Douglas

Libby Dunsmore

Rhonda Edmonds, a/k/a Rhoda Edmonds

Theresa Farley

Pamela Ford

Yvonne Ford

D. Craig Fox

Hariette Gabriele

Georgia Gaines

Elsie Galan

Karin Grubbe

Deborah Hebestreit

Seth Hinshaw

Albert Hodges

Betty White Kellenberger

Richard Kellenberger

Jeffrey Alexander Kendall

Father Conrad Kimbrough

B.A. Kuhl, a/k/a Bud Kuhl

Carol Kuhl

Kathy Lanham

Joseph Lanham

Dr. Eileen Lopp

Dianne McClamroch

Julian McClamroch

Bernard McHale

Elaine McHale

Rebecca Morrison

Ginny O’Hara

Monica Pollard

Duane Richardson

Marta Richardson

Candido Rosario, a/k/a Candido Rosario Matos

Elizabeth D. Salter, a/k/a Betty Salter

Kimberly Schimme!

Dr. Keith Schimmel

Jane Sechler

Annabelle Simpson

Betty Steinkamp

Ronald Steinkamp

Lynn Thompson

John Thompson

Laurel Treddinick, and

Amber Winfield.

None of these former "Doe" defendants is a party to this

interlocutory appeal.

TABLE OF CONTENTS

Page

ol op Br ee i

SET -s. a y's och wed be 6.2 ok ce Reese ii

_ i. £ | gerry) os vi

I og 6s 5 we 6 OO OS ee l

ED ss 6 doe ¢ a able awe weeks |

DUC GE WEEE bc wc wee ecseceen l

REASONS FOR DENYING THE WRIT: ........... 6

|. THE PETTTION IS UNTIMELY............... 6

ll. THE SUPREME COURT LACKS

JURISDICTION UNDER 28 U.S.C.

§ 1257(a) BECAUSE THE NORTH

CAROLINA SUPREME COURT'S .

ORDER IS NOT A FINAL JUDGMENT. ........ 7

A. The North Carolina Supreme Court's

I 0 nos oo Wc 5 he ko ee a a 8

B. The North Carolina Supreme Court's

Order Is Final for Fewer Than All

the Parties Involved in This Case. ........... 9

C. Even If the Court Deems the North

Carolina Supreme Court's Order Final for

Jurisdictional Purposes, It Should Deny

the Petition in Its Discretion. ....... ..... 10

iv

. OP eee tee ewer. ent

IV.

v

THE DECISION OF THE COURT OF APPEALS

ACCORDS WITH OTHER LOWER COURT

DECISIONS ON RESIDENTIAL PICKETING;

THE CONFLICTS ALLEGED BY THE

LEAGUE ARE ILLUSORY. ............. 12

. Like the Valenzuela Court, the Courts

Below Required That Injunctive Relief Be

Based on a Valid Cause of Action. .......... 12

. There Is No Conflict in the Cases

Involving Injunctions Against

NS sr ic a k's a 6 awe 13

. This Case Is Distinguishable from

EEE A a ee a 15

THE DECISION BELOW FOLLOWS

THIS COURT’S FIRST AMENDMENT

TE TS Tee 16

. The Court of Appeals Correctly Applied

This Court’s Teachings On Prior

oe ee do ee hed bn 0 eee e 16

. The Preliminary Relief Granted Below

Is Consistent with Frisby v. Schultz. ......... 18

. The Record Refutes the League's

Assertion That the Injunction Is

i ec a 8 are tad 20

ee ie oa be ube 22

APPENDIX

vi

TABLE OF AUTHORITIES

Page

Cases

A.E.P. Indus. v. McClure, 308 N.C. 393,

, ER ) f 2 arene aa a a a 8

American Constr. Co. v. Jacksonville,

T. & K.W. Ry., 148 U.S. 372 (1893) ......... 10

American Radio Ass'n v. Mobile S.S. Ass'n,

CR a ee eee ee 17

Asarco, Inc. v. Kadish, 490 U.S. 605 (1989)... .. 7,9

Bering v. SHARE, 106 Wash. 2d 212,

721 P.2d 918 (1986), cert. dismissed,

Ss EES co wecceecesccoesases 17

Bolger v. Youngs Drug Prods. Corp.,

ee ee ae 21

Boos v. Barry, 485 U.S. 312 (1988) ........... 21

Brotherhood of Locomotive Firemen & Enginemen

v. Bangor & Aroostok R.R., 389 U.S. 327

()) 2 se 10

Carroll v. President & Comm'rs,

EE eee 17

Cheffer v. McGregor, 6 F.3d 705

i CD: csae seb wane ot bo 6s és 15, 16

Collins v. Miller, 252 U.S. 364 (1920)......... 8,9

vii

Cox Broadcasting Corp. v. Cohn, 420

I a i i 8,9, 11

Flynt v. Ohio, 451 U.S. 619 (1981) .......... 8,9

Frisby v. Schultz, 487 U.S. 474 (1988) ..... 5, 6, 17,

18, 19, 20, 21

Grayned v. City of Rockford, 408 U.S. 104

I wae COE Bee ie ed 6 owe ¢ 66k K 4 ae 15

a Sab whee Dawe ck hd bo sé oceees 18

DE SUE ded Soa so oko 4 REE AS 17

Kaplan v. Prolife Action League,

111 N.C. App. 1, 431 S.E.2d 828,

appeal dismissed and disc. rev. denied,

335 N.C. 175, 436 S.E.2d 379 (1993) .... 2,4,5,8

12, 13, 14

17, 19, 21

Kaplan v. Prolife Action League,

335 N.C. 175, 436 S.E.2d 379

te eae be i eo a ee 7

Market Street Ry. Co. v. Railroad Comm'n,

ro aaa as wig St hs 6 wx 8,9

Meagher v. Minnesota Thresher Mfg. Co.,

i ad ew ta cus 8,9, 10

Milk Wagon Drivers Union, Local 753 v.

Meadowmoor Dairies, 312 U.S. 287 (1940) ..... 18

viii

Minnick v. California Dep’t of

Corrections, 452 U.S. 105 (1981) .......... 9,11

Missouri v. Jenkins, 495 U.S. 33 (1990)... ...... 6,7

Northeast Women’s Cir., Inc. v. McMonagle,

939 F.2d 57 (3d Cir. 1991)............. 13, 16

Near v. Minnesota ex rel. Olson,

i ee ee sb ea 5 es ob we ee 17

Operation Rescue v. Women’s Health Cir.,

Inc., 626 So. 2d 664 (Fla. 1993),

cert. denied, 62 U.S.L.W. 3491

(U.S. Jan. 24, 1994) (No. 93-833),

cert. granted sub nom. Madsen v.

Women’s Health Ctr., Inc., 114

S. Ct. 907 (1994) (No. 93-880) ............. 15

Organization for a Better Austin v. Keefe,

ee I <2 o's sg bb 06S b00.0 0p 60 6 17

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ....... 8

Pittsburgh Press Co. v. Pittsburgh Comm'n

on Human Relations, 413 U.S 376 (1973) ....... 18

Radio Station WOW, Inc. v. Johnson,

ee as Cee 8, 10

Republic Natural Gas Co. v. Oklahoma,

ED ae ae ae eee 7

Rescue Army v. Municipal Court,

ee es ED 5% bene woe 6 eee oes 10, 11

Texas v. Mead, 465 U.S. 1041 (1984) .......... 14

ee eee

ix

Town of Barrington v. Blake, 568 A.2d 1015

IRENE a ei ac a 15

United States v. Johnson, 268 U.S. 220

EG ESE a a SR 14

Valenzuela v. Aquino, 853 S.W.2d 512

I a a a 12, 13

Virginia Military Inst. v. United States,

SE ED kee i evcviccenr 10

Ward v. Rock Against Racism, 491 U.S. 781

A a a ie a 16

Welsh v. Johnson, 508 N.W.2d 212

I ey 13

Constitutional Provisions

U.S. Const. amend.I ........... 1, 6, 12, 16, 18

OE ee er 1, 18

Statutes

ae U.S. © ERIS) CGT) ww ccc cee 10

eee i, 1, 6,

7, 8,9, 10

ge Ee ee 1, 6

l

JURISDICTION

The North Carolina Court of Appeals announced its decision

on 20 July 1993. The North Carolina Supreme Court entered

its order dismissing the petitioners’ appeal and denying discre-

tionary review’ on 7 October 1993. The petition was filed 103

days later, on 18 January 1994.

The petition was filed out of time. See 28 U.S.C. § 2101(c)

(1988). In addition, this case does not involve a "final judg-

ment[ ] or decree[ ]" by the North Carolina courts. 28 U.S.C.

§ 1257(a). For both of these reasons, this Court lacks jurisdic-

tion. See infra pp. 6-10.

STATUTES INVOLVED

The respondents disagree that this Court should reach the

merits of the petition under the First and Fourteenth Amend-

ments. See Pet. at 2; infra pp. 6-11. The text of 28 U.S.C. §§

2101(c) and 1257(a) appears in the appendix to this brief.

STATEMENT OF THE CASE

Facts

Richard Kaplan is an obstetrician and gynecologist who

practices primarily in Greensboro, North Carolina. Dr. Kaplan,

his wife Marguerite, and their two sons live in a quiet

residential neighborhood in Greensboro. Dr. Kaplan provides

- » abortions as one part of his practice.

In November 1990, the Kaplans became aware that Dr.

Robert Wein, a colleague of Dr. Kaplan, had been accosted at

his home by a group of picketers. The picketers had vowed to

‘For brevity, the rest of this brief will refer to this order as the order

dismissing the petitioners’ appeal.

2

continue appearing at the Weins’ home until Dr. Wein stopped

providing abortions. Dr. Wein had quickly complied with the

picketers’ demands.

On 15 January 1991, a group of fifteen to twenty people,

apparently associated with the Prolife Action League of

Greensboro (the League),’ picketed on the street outside the

Kaplans’ house. The League’s members walked back and forth

on the Kaplans’ short street, but the Kaplans’ house was their

unmistakable target. They targeted the Kaplans’ house by

centering their route on it and by carrying signs that named Dr.

Kaplan. Compare Pet. at 4 (asserting that the League simply

“walked through the Kaplan{s’] neighborhood") with Pet. App.

at 45a (finding that "[a]lthough these moving pickets go beyond

the frontage of the Kaplans’ house, they remain largely in —

of the Kaplans’ house").

In the year before the Kaplans filed this lawsuit, the League

came back to the Kaplans’ house and repeated this picketing at

least eleven times. The League’s repeated appearances fright-

ened and intimidated the Kaplans, virtually imprisoning them in

their house. Facing this abuse in their own home, and knowing

that it could recur at any time, caused lasting distress for the

Kaplan family. In addition, the League often used small

children in its picket lines; as a result, the Kaplans and their

neighbors had to drive in fear of hitting one of these children by

*The Kaplans have sued all of the activists who have harassed them, but

as of the time of the preliminary injunction, they had identified only William

and Linda Winfield, Ronald Benfield, and the League by name. Only the

Winfields and the League have appealed the preliminary injunction. Since the

unidentified defendants, as well as the Winfields, have carried out the

picketing in question, this brief will use "the League” to refer to any relevant

group that includes these people. Compare Pet. at 5 (asserting that the

League is a mere title or banner for Linda Winfield) with Kaplan v. Prolife

Action League, 111 N.C. App. 1, 36, 431 S.E.2d 828, 847, Pet. App. at la,

40a (rejecting League's argument that it is not an organization), appeal

dismissed and disc. rev. denied, 335 N.C. 175, 436 S.E.2d 379 (1993).

3

accident. The picketing disconcerted the Kaplans’ neighbors,

making them stay indoors to avoid a confrontation.

The League compounded che effect of its picketing by

dropping off gruesome leaflets in the Kaplans’ and other

neighborhoods. It also picketed at Dr. Kaplan’s medical office

and at an abortion clinic where he sometimes works,

disseminated private facts about the Kaplans, and made false

public statements about Dr. Kaplan.

Near the beginning of the League’s campaign, William

Winfield accosted Dr. Kaplan and asked what he had to do to

make Dr. Kaplan stop providing abortions. This statement

showed that Winfield intended to achieve his goal by any means

necessary.

Defendant Ronald Benfield has made less subtle threats. On

8 August 1991, about midway through the League’s picketing

campaign, Benfield came to the clinic where Dr. Kaplan some-

times works. After talking with the Winfields. Mr. Benfield

approached Dr. Kaplan and said: “You're mine. You killed

my baby. I’m going to kill you. Don’t fear God, fear me. °

This statement led Mr. Benfield to be convicted of communicat-

ing a threat. In light of all the other ways the League has

harassed the Kaplans, as well as Benfield’s evident connection

with the League, see L. Winfield Aff. {4 27-30 (admitting that

_ the Winfields have met three times with Benfield, including two

meetings after 8 August 1991), Benfield’s threats magnified the

Kaplans’ fear for their safety and made them feel! constantly

tense, even at home.

The League’s harassment campaign reached a peak in mid-

November 1991, when the League appeared at the Kaplans’

home for three straight days. On the third day, at the Kaplans’

request, counsel spoke with the picketers, asking them simply

to leave the Kaplans alone at their home, and informing them

that if they picketed the Kaplans’ home again, the Kaplans

would be forced to pursue legal remedies. William Winfield

4

replied that the picketing would continue until! Dr. Kaplan

stopped providing abortions.

On 21 November 1991, the day after being asked to leave,

the League’s members picketed at the public entrance to the

Kaplans’ neighborhood, rather than the Kaplans’ home itself.

On 11 January 1992, however, the League returned to the

Kaplans’ home, once again destroying the Kaplans’ privacy and

sense of security.

On 14 January 1992, the Kaplans filed this action for

injunctive relief and damages. They sought a preliminary

injunction limited to the League’s residential picketing and in-

person threats. The superior court granted a preliminary

injunction, restraining only these acts pending trial. The

injunction does not cover any other expressive conduct of the

League, such as its residential leafletting. In this interlocutory

appeal, the League seeks to have this injunction vacated, and,

presumably, to resume its picketing campaign at the Kaplans’

home.

Proceedings

The Kaplans do not contest the League’s statement of the

proceedings below, except for the League’s summary of the

reasoning of the court of appeals. See Pet. at 6-7. That

summary is inaccurate in three respects.

First, the League errs by asserting that the court of appeals

"identified no basis -- other than the peaceful residential

marching itself -- for holding petitioners’ marching to be a

nuisance." Jd. at 6. In fact, after considering the entire record,

the court agreed that the League had interfered with the

Kaplans’ use and enjoyment of their property in a substantial,

nontrespassory way. See Kaplan v. Prolife Action League, 111

N.C. App. 1, 11, 21-23, 431 S.E.2d 828, 832, 838-39, Pet.

App. at la, 7a, 20a-22a, appeal dismissed and disc. rev.

denied, 335 N.C. 175, 436 S.E.2d 379 (1993). It specifically

noted the “substantial disruption of plaintiffs’ residential privacy

5

due to defendants’ actions." Jd. at 25, 431 S.E.2d at 840, Pet.

App. at 25a. In the end, the court found ample evidence to

support the trial court’s overall conclusion that the Kaplans

would likely prevail on their private nuisance claim. /d. at 24,

431 S.E.2d at 840, Pet. App. at 24a.

Second, when the court decided that the League’s residential

picketing was targeted at the Kaplans, it noted the coercive

purpose of the picketing, but it did not rely on the picketing’s

message or other expressive content. See id. at 25-26, 431

S.E.2d at 841, Pet. App. at 26a (analysis of targeting); Pet. at

6 (League’s argument); see also Kaplan, 111 N.C, App. at 29,

431 S.E.2d at 843, Pet. App. at 30a ("We conclude that the

trial court did not focus on the effect or impact of defendants’

message on potential listeners, but rather on defendants’

physical presence having a deliberate intimidating effect on

plaintiffs while at their home."); infra p. 21 (showing how

Frisby v. Schultz, 487 U.S. 474 (1988), refutes the League's

argument that the court could not rely on the purpose of the

picketing).

Finally, the League superimposes its arguments on the

reasoning of the court of appeals when it asserts that the court

“applied the time, place, and manner test for statutes,

ordinances, and regulations." Pet. at 6 (emphasis added). The

League argued below that the time, place, and manner test is

limited to these types of measures, but the court of appeals did

not accept that argument. See Kaplan, 111 N.C. App. at 27-

28, 431 S.E.2d at 842, Pet. App. at 28a-29a; see also infra pp.

17-18 (noting that this argument lacks support in this Court’s

decisions).

6

REASONS FOR DENYING THE WRIT

The League’s petition has two fatal jurisdictional defects.

First, the petition was filed out of time, 103 days after the

North Carolina Supreme Court entered its order dismissing the

League’s appeal. Second, the order at issue does not qualify

for review under 28 U.S.C. § 1257(a) (1988), because it is

interlocutory, not final.

Even aside from these jurisdictional problems (and their

prudential implications), there is no reason for the Court to

review the state courts’ interlocutory orders in this case.

Contrary to the League’s assertions, there is no conflict among

the lower courts on the federal constitutional principles applied

below. In situations like the one faced by the Kaplans, the

lower courts have consistently granted and upheld injunctive

relief against residential picketing. In addition, the courts in

this case have faithfully followed this Court’s decisions under

the First Amendment, including Frisby v. Schultz, 487 U.S. 474

(1988).

I. THE PETITION IS UNTIMELY.

The Court lacks jurisdiction to grant the petition, which was

filed out of time. Section 2101(c) of title 28 requires that a

petition for certiorari be filed within ninety days after the entry

of the relevant judgment or decree. 28 U.S.C. § 2101(c);

accord Sup. Ct. R. 13.1 (requiring petitioners to file petitions

within ninety days after entry of orders denying discretionary

review). In Missouri v. Jenkins, 495 U.S. 33, 45 (1990), the

Court held that this ninety-day time limit is mandatory and

jurisdictional.

Although the North Carolina Supreme Court entered its

order dismissing the appeal on 7 October 1993, the League

waited until 18 January 1994 to file its petition. The League

thus missed the ninety-day deadline for the petition by almost

two weeks.

7

The text of the state supreme court’s order makes clear that

the order was entered on 7 October 1993. The order states:

"The following order was entered and is hereby certified to the

North Carolina Court of Appeals." Pet. App. at 57a (emphasis

added). The order goes on to state that the appeal was dis-

missed and the petition for discretionary review was denied on

7 October 1993. Id. at 57a-58a. The only other date on the

order comes at the very bottom, where the clerk of court states,

“Witness my hand and the seal of the Supreme Court of North

Carolina, this the 18th day of October 1993." /d. at 58a. The

verb tenses in the italicized portion of the order above make

clear that the order was entered by the court on one date (7

October 1993) and certified by the clerk on another (18 October

1993).

Confirming this plain meaning, both the official North

Carolina Reports and West’s Southeastern Reports show the

sole date of the order as 7 October 1993. See Kaplan v. Prolife

Action League, 335 N.C. 175, 436 S.E.2d 379 (1993). Since

the petition for certiorari was filed more than ninety days after

the order was entered, the Supreme Court should deny the

petition for lack of jurisdiction. Cf Jenkins, 495 U.S. at 45

(noting that the Court dismisses untimely petitions).

Il. THE SUPREME COURT LACKS JURISDICTION

UNDER 28 U.S.C. § 1257(a) BECAUSE THE NORTH

CAROLIN., SUPREME COURT’S ORDER IS NOT A

FINAL JUDGMENT.

Under 28 U.S.C. § 1257(a), the Supreme Court can review

"[flinal judgments or decrees rendered by the highest court of

a State in which a decision could be had." This finality

requirement in section 1257(a) is jurisdictional. See, e.g.,

Asarco, Inc. v. Kadish, 490 U.S. 605, 611 (1989). A petitioner

has the burden of establishing the Supreme Court's jurisdiction,

and any doubts should be resolved against jurisdiction.

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 70-71

(1948).

The North Carolina Supreme Court's dismissal of the appeal

from the preliminary injunction lacks finality for two reasons.

First, that court’s order is interlocutory, and does not fall within

any of the special categories recognized in Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469, 477 24 (1975). Second, the state

supreme court’s order is not fina! fe~ all the parties involved in

this case. See, e.g., Collins v. Miller, 252 U.S. 364, 370

(1920); Meagher v. Minnesota Thresher Mfg. Co., 145 U.S.

608, 611 (1892).

A. The North Carolina Supreme Court’s Order Is Not

Final.

Neither a dismissal of an appeal from a preliminary

injunction nor a related denial of discretionary review is a final

judgment or decree under 28 U.S.C. § 1257(a). An order lacks

finality, after all, unless it is "an effective determination of the

litigation and not of merely interlocutory or intermediate steps

therein." Market Street Ry. Co. v. Railroad Comm'n, 324 US.

548, 551 (1945). More recently, this Court has reiterated that

“the final-judgment rule has been interpreted "to preclude

reviewability . . . where anything further remains to be

determined by a State court, no matter how dissociated from the

only federal issue that has finally been adjudicated by the

highest court of the State.’" Flynt v. Ohio, 451 U.S. 619, 620

(1981) (quoting Radio Station WOW, Inc. v. Johnson, 326 U.S.

120, 124 (1945)); accord Pennsylvania v. Ritchie, 480 U.S. 39.

47 (1987).

In this case, the court of appeals expressly recognized the

lack of finality of the preliminary injunction proceedings. It

stated that a preliminary injunction’s “impact is temporary and

lasts no longer than the pendency of the action. Its decree bears

no precedent to guide the final determination of the rights of the

parties. In form, purpose, and effect, it is purely

interlocutory." Kaplan, 111 N.C. App. at 14, 431 S.E.2d at

834, Pet. App. at lla (quoting A.E.P. Indus. v. McClure, 308 —

N.C. 393, 400, 302 S.E.2d 754, 759 (1983) (in turn quoting

9

earlier decision)). When the state supreme court dismissed the

League’s interlocutory appeal from such an injunction, that

court’s order was a merely interlocutory or intermediate step in

this litigation, not a final determination of it. Marker Street

Railway, 324 U.S. at 551.

In Cox Broadcasting, 420 U.S. at 477-86, this Court

identified four categories of cases in which a state court’s

decision regarding federal issues can be treated as final, even

though additional proceedings in the state court are expected.’

The dismissal of the appeal from the preliminary injunction does

not fit within any of these categories. See id. Since the

supreme court’s order is an interlocutory order that falls outside

these categories, this Court lacks jurisdiction. See Minnick v.

California Dep’t of Corrections, 452 U+S. 105, 127 (1981);

Flynt, 451 U.S. at 623.

B. The North Carolina Supreme Court's Order Is Final for

Fewer Than All the Parties Involved in This Case.

The North Carolina Supreme Court's order is not a final

judgment under section 1257(a) for a second, independent

reason: even if it were final for the League entity and the

Winfields, it would still be final for fewer than all the individual

defendants in this lawsuit. See Collins, 252 U.S. at 370;

Meagher, 145 U.S. at 611; ee also Minnick, 452 U.S. at 126-

27 (holding that state court judgment lacked finality, in part

because additional plaintiffs might have presented claims and

new evidence on remand). Not all of the “Doe” defendants in

this case have been identified. Others have been so recently

named that they have not yet answered the complaint, or even

although Cox Broadcasting involved a nondiscretionary appeal, the

Court has used the Cox Broadcasting categories to decide whether it has

certiorari jurisdiction. See, ¢.g., Asarco, 490 U.S. at 612; Minnick v.

California Dep't of Corrections, 452 U.S. 105, 120-27 (1981); Flynt, 451

U.S. at 620-23.

10

received service of process. In fact, only two of the fifty-three

people who were defendants on the date of the preliminary

injunction have pursued this interlocutory appeal.

In Meagher, 145 U.S. at 608, ‘this Court faced a similar

situation. The Court noted that the appellants were “only a

portion of the defendants who were proceeded against” and held

that “[t}he case should have been determined as to all, before

our interposition, if justifiable in any view, could be invoked.”

Id. at 611. Here, likewise, the North Carolina courts have not

decided even the most preliminary issues regarding many of the

individual defendants. For these defendants at least, the North

Carolina Supreme Court's order cannot be final. On this basis

alone, the Court lacks jurisdiction to grant certiorari.

C. Even If the Court Deems the North Carolina Supreme

Court's Order Final for Jurisdictional Purposes, It

Should Deny the Petition in Its Discretion.

Jurisdictional concerns aside, a state court’s interlocutory

order makes a poor candidate for discretionary review. See,

e.g., Rescue Army v. Municipal Court, 331 U.S. 549, 568

(1947) (declining to hear an interlocutory appeal from the

highest court of California, despite jurisdiction to do so). Even

under the statute governing certiorari to federal courts, which

does not expressly require final judgments as section 1257(a)

does, the Court generally refuses to review interlocutory orders,

absent extraordinary circumstances. See, e.g., 28 U.S.C. §

1254(1); Virginia Military Inst. v. United States, 113 S$. Ct.

2431, 2432 (1993) (Scalia, J., concurring); Brotherhood of

Locomotive Firemen & Enginemen v. Bangor & Aroostok R.R.,

389 U.S. 327, 328 (1967) (per curiam); American Constr. Co.

v. Jacksonville, T. & K.W. Ry., 148 U.S. 372, 384 (1893).

This policy of requiring finality applies to state court

decisions with even greater force. See Radio Station WOW,

326 U.S. at 124. When a state court decision is challenged, the

finality requirement not only promotes judicial economy and

11

expedites final decisions, but also recognizes that the state

courts have concurrent jurisdiction with the federal courts on

federal issues. This Court recently stated that when it considers

reviewing state court decisions, it keeps federalism in mind and

gives proper consideration to “the judgment of other repositories

of constitutional power concerning the scope of their authority."

Minnick, 452 U.S. at 122 n.30 (quoting Rescue Army, 331 U.S.

at 571).

Denying the petition would have the vital additional benefit

of allowing the North Carolina courts to develop the record

fully before this Court decides any federal issues presented.

See Cox Broadcasting, 420 U.S. at 478 n.7 (noting that the

inconvenience and costs of piecemeal appellate review are

among the key considerations that govern finality). As stated

earlier, this petition comes before some of the defendants have

even been identified. At a trial on the merits, those defendants

will have an opportunity to present evidence that might change

the course of the litigation, or at least change the facts underly-

ing some of the federal issues. See infra pp. 13-14 (noting that

the League’s claims regarding the scope of injunctive relief turn

on case-specific facts).

This disadvantage of interlocutory review is especially acute

here, given the provisional nature of the fact findings supporting

the preliminary injunction. The trial court granted the prelimi-

nary injunction before any discovery, relying mostly on

affidavits filed by the Kaplans and the League. See Pet. App.

at 44a-45a. Before a permanent injunction could issue, much

more evidence would become part of the state court record.

When all this evidence is in, the Court will be in a far better

position to decide any federal issues presented by this case.

2 ee ee

12

Il. THE DECISION OF THE COURT OF APPEALS

ACCORDS WITH OTHER LOWER COURTS’

DECISIONS ON RESIDENTIAL PICKETING; THE

CONFLICTS ALLEGED BY THE LEAGUE ARE

ILLUSORY.

Even if one looks past the jurisdictional and prudential

problems with the petition, the petition still should fail, because

it raises no legal issues worthy of this Court’s review. The

lower-court conflicts portrayed in the petition, for example,

cannot withstand analysis. The lower courts have unanimously

accepted the principle that injunctions against focused residential

picketing comport with the First Amendment. The minor

variations among the lower-court cases reflect differences in

factual records, not conflicts in legal reasoning.

A. Like the Valenzuela Court, the Courts Below Required

That Injunctive Relief Be Based on a Valid Cause of

Action.

The League’s assertion that “the decision below treats

residential demonstrations as per se unlawful and enjoinable” is

false. Pet. at 9. The North Carolina courts demanded, as a

prerequisite to the preliminary injunction, that the Kaplans show

themselves likely to prove a tort or another cause of action. See

Pet. App. at 46a (finding the Kaplans likely to prevail on the

merits of their claims for private nuisance and intentional

infliction of emotional distress); Kaplan, 111 N.C. App. at 16-

25, 431 S.E.2d at 835-41, Pet. App. at 13a-25a (analyzing both

these preliminary findings in detail; accepting only the finding

On private nuisance).

Valenzuela v. Aquino, 853 S.W.2d 512, 513-14 (Tex.

1993), which the League cites as conflicting, actually reflects

the same approach. Reviewing a permanent injunction, the

Texas Supreme Court searched the record for evidence of a

civil wrong under Texas law. See id. at 513 (noting that the

Aquinos had prevailed only on negligent infliction of emotional

13

distress, and that the Texas Supreme Court had disapproved this

tort after the Valenzuela trial). The court found no such

evidence,‘ but it still remanded to allow the Aquinos to assert

new tort claims. See id. at 514. By doing so, it confirmed that

an injunction against residential picketing could be upheld if

supported by a cause of action. Thus, the only relevant

difference between Valenzuela and this case is that the Kaplans

have shown the tortious conduct that the Valenzuela court found

missing under Texas law.

B. There Is No Conflict in the Cases Involving Injunctions

Against Residential Picketing.

Contrary to the League’s argument that the scope of the

preliminary injunction conflicts with certain decisions, see Pet.

at 10-11, there is no legal conflict in the cases involving

injunctions against residential picketing. In determining whether

the geographical scopes of residential picketing injunctions

comply with the Constitution, the courts have consistently

applied the same legal standards. They have upheld injunctions

of varying geographical scopes, but they have done so in

response to facts that have varied from case to case. See, ¢.g.,

Northeast Women’s Ctr., Inc. v. McMonagle, 939 F.2d 57, 67

(3d Cir. 1991) (stating that additional facts might justify a

residential picketing injunction with a radius as great as 2500

feet); Welsh v. Johnson, 508 N.W.2d 212, 216 (Minn. Ct. App.

1993) (holding that a two-block restriction was constitutional in

light of the facts).

Like the courts in these and many other cases, cited by the

League elsewhere in its petition (see Pet. at 7 n.1), the courts

below allowed injunctive relief that was narrowly tailored to the

harm shown in this case. See Kaplan, 111 N.C. App. at 34-35,

“The Texas court made its observation that residential picketing is “not

unlawful per se” as it rejected a second tort theory of the Aquinos, invasion

of privacy. See Valenzuela, 853 S.W.2d at 513-14. |

14

431 S.E.2d at 846-47, Pet. App. ai 36a-39a; Pet. App. at 47a

({ 9). The following are some of the facts relevant to the scope

of the present injunction:

@ The League picketed at the Kaplans’ home as often as once

a day.

@ The League’s picket line contained as many as twenty-five

people, making one or more picketers constantly visible

from the Kaplans’ home.

@ The picketing involved people who had carried out a year-

long campaign of harassment against the Kaplans, and who

were in league with a person who had directly threatened

Dr. Kaplan’s life.

@ The Kaplans live on a short, dead-end street in a quiet

residential neighborhood. See, e.g., Pet. App. at 59a.

@ The League has innumerable alternatives to picketing at the

Kaplans’ house, including leafletting or soliciting on the

Kaplans’ street, picketing in other parts of the Kaplans’

neighborhood, picketing at Dr. Kaplan’s medical office, and

picketing at abortion clinics.

The scope of the injunction cannot be analyzed without detailed

review of these and other facts. See Kaplan, 111 N.C. App. at

34, 431 S.E.2d at 846, Pet. App. at 37a (analyzing additional

facts on this issue).

This Court does not ordinarily grant certiorari to weigh

case-specific facts such as these. See, e.g., Texas v. Mead, 465

U.S. 1041, 1043 (1984); United States v. Johnson, 268 U.S.

220, 227 (1925). On the present petition, the Court should

hesitate doubly before agreeing to sift facts, since the present

record relates only to interlocutory relief. That record will be

far better developed after a trial on the merits.

To create an apparent conflict in the cases on residential

picketing, the League relies on decisions that construe anti-

residential-picketing ordinances. See Pet. at 10-11. Those

15

cases are not comparable to this one. Anti-picketing ordinances

are construed narrowly because, unlike injunctions, they operate

in advance of any demonstrated harm, and they prohibit anyone

from picketing in front of amy individual’s residence. See, ¢.g.,

Town of Barrington v. Blake, 568 A.2d 1015, 1021 (R.1. 1990).

C. This Case Is Distinguishable from Cheffer.

The conclusion that the present injunction is content-neutral

does not conflict with the conclusion in Cheffer v. McGregor,

6 F.3d 705, 710 (11th Cir. 1993), that a different injunction

was "viewpoint-based."

Cheffer turns on an issue absent from this case: how the

persons bound by an injunction have been identified. See id. at

710-11. The plaintiff in Cheffer alleges that Florida courts and

police are applying an injunction to anti-abortion protesters

exclusively and indiscriminately, on the view that all anti-

abortion protesters must be acting in concert. See id. at 707.

In the passage quoted by the League and in other places, the

Cheffer decision focuses on viewpoint-specific application of

this injunction. See id. at 707, 708, 710, 711 & n.6; see also

Grayned v. City of Rockford, 408 U.S. 104, 113 (1972)

(discriminatory use of a neutral regulation to punish people "for

merely expressing unpopular views" violates First

Amendment).‘

5A case related to Cheffer involves similar allegations. In Operation

Rescue v. Women's Health Center, Inc., 626 So. 2d 664 (Fla. 1993), cert.

denied, 62 U.S.L.W. 3491 (U.S. Jan. 24, 1994) (No. 93-833), cert. granted

sub nom. Madsen v. Women’s Health Ctr., Inc., 114 S. Ct. 907 (1994) (No.

93-880), the petitioners apparently contend that the trial court has enjoined

them through a similar viewpoint-based technique. See Petition for Writ of

Certiorari at 3, Madsen, No. 93-880 (U.S. Dec. 3, 1993)

("Petitioners . . . were not associated with those protesters blocking the

clinics or with Operation Rescue.").

Mi

16

In contrast, neither Cheffer nor any other case accepts the

League’s argument here, that an injunction with content-neutral

terms is content-based simply because it applies to named

defendants. See Pet. at 12-13. This proposition does conflict

with the decision below, but it has been soundly rejected by this

Court and by the lower courts. See, e.g., Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989) ("A regulation that

serves purposes unrelated to the content of expression is deemed

neutral, even if it has an incidental effect on some speakers or

messages but not others."); Northeast Women’s Center, 939

F.2d at 63 ("It is true that this injunction applies only to

McMonagle and his codefendants, but that is because it is only

those persons who the Center has proved have created and are

continuing to create a threat of violence and intimidation."). If

the persons affected by the present injunction turn out to be

“pro-life demonstrators and no one else," Pet. at 12, it will be

because only "pro-life demonstrators" have invaded the

Kaplans’ privacy. The League has identified no court willing

to condemn this sensible outcome.

IV. THE DECISION BELOW FOLLOWS THIS COURT'S

FIRST AMENDMENT TEACHINGS.

Throughout this case, and again in its petition, the League

has argued that this Court’s First Amendment decisions

categorically protect the League’s campaign to break the

Kaplans. These arguments misread the decisions of this Court

and misstate the facts of this case.

A. The Court of Appeals Faithfully Applied This Court’s

Teachings on Prior Restraints.

The League argues that the court of appeals erred by not

automatically applying prior restraint analysis to the preliminary

injunction. See id. at 13. Contrary to the League’s argument,

not all injunctions that relate to expressive conduct are prior

restraints.

17

As the court of appeals correctly noted, an injunction to

remedy a private wrong, such as tortious picketing, is not a

prior restraint. See, e.g., Organization for a Better Austin v.

Keefe, 402 U.S 415, 418-19 (1971); Near v. Minnesota ex rel.

Olson, 283 U.S. 697, 709 (1931); Kaplan, 111 N.C. App. at

30-31, 431 S.E.2d at 844, Pet. App. at 32a-33a. This Court

and the lower courts have consistently upheld injunctions against

tortious picketing without condemning those injunctions as prior

restraints. See, e.g., American Radio Ass’n v. Mobile S.S.

Ass'n, 419 U.S. 215, 229-30 (1974); Hughes v. Superior Court,

339 U.S. 460, 467-69 (1950); Bering v. SHARE, 106 Wash. 2d

212, 235-37, 721 P.2d 918, 932-33 (1986), cert. dismissed, 479

U.S. 1050 (1987).

Two of the Supreme Court cases cited by the League, in

fact, show that an injunction to regulate specific, tortious,

expressive conduct stands on a different footing from

injunctions that suppress speech generally. See Pet. at 13-14.

In Keefe, this Court condemned an injunction because it

operated "not to redress alleged private wrongs, but to suppress

. . . distribution of literature ’of any kind’ in a city of 18,000."

Keefe, 402 U.S. at 418-19 (quoting injunction).* Likewise, in

Carroll v. President & Commissioners, 393 U.S. 175 (1968),

the injunction did not redress a private wrong, but was a

government’s naked attempt to suppress a public rally anywhere

within a county. See id. at 177 n.3.

The present injunction, in contrast, has not cut off the

League’s expression before its occurrence. Instead, it has

regulated the place and manner of the League’s expressive

*In Keefe, this Court did not consider whether injunctions against

residential picketing are prior restraints. See Keefe, 402 U.S. at 417 (noting

that the record lacked any evidence of residential picketing). Rather, the

Court condemned an injunction against leafletting, which the Court later

expressly distinguished from residential picketing as a “more generally

directed means of communication.” Frisby v. Schultz, 487 U.S. 474, 486

(1988); see Keefe, 402 U.S. at 417-20.

18

conduct, redressing torts already experienced by the Kaplans

twelve times. The injunction is thus more analogous to a

subsequent punishment than to a prior restraint. See Pittsburgh

Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S.

376, 390 (1973) (noting that commission’s order was based on

a continuing course of repetitive conduct by defendants, and

stating that the Court "has never held that all injunctions are

impermissible"); Milk Wagon Drivers Union, Local 753 v.

Meadowmoor Dairies, 312 U.S. 287, 294-95 (1941) ("Nor can

we Say that it was written into the Fourteenth Amendment that

a state through its courts cannot base protection against future

coercion on an inference of the continuing threat of past

misconduct. ").

In sum, the courts below did not stray from established

First Amendment doctrine by applying time, place, and manner

analysis to this injunction. See, e.g., Hirsh v. City of Atlanta,

495 U.S. 927, 927 (1990) (Stevens, J., concurring in denial of

Stay) (expressing approval of injunctions that impose time,

place, and manner regulations based on protesters’ prior

conduct). This Court has not prohibited courts from using time,

place, and manner analysis to review a content-neutral injunc-

tion like this one. The League has failed to point out any

conflict between the appeals court’s analysis and this Court’s

teachings regarding prior restraints.

B. The Preliminary Relief Granted Below Is Consistent with

Frisby v. Schultz.

In comparing the present injunction with this Court’s

authoritative decision on residential picketing, the League has

inaccurately portrayed both of the items being compared. See

Pet. at 15 (discussing Frisby v. Schultz, 487 U.S. 474 (1988)).

First, the injunction at issue creates nothing like a “speech-

free zone." Jd. Even on the Kaplans’ short street, the injunc-

tion does not bar the League from proselytizing door-to-door,

distributing or mailing handbills, or contacting residents by

19

phone. See Kaplan, 111 N.C. App. at 36, 431 S.E.2d at 847,

Pet. App. at 39a; see also Frisby, 487 U.S. at 484 (stating that

these alternatives, plus one other, justified a citywide ban on

residential picketing). The League can also picket in other parts

of the Kaplans’ neighborhood, as it did at least once before this

lawsuit began. See, e.g., Pet. App. at 46a ({ 7); see also

Frisby, 487 U.S. at 484 (noting final alternative channel:

"Protesters have not been barred from the _ residential

neighborhoods. They may enter such neighborhoods, alone or

in groups, even marching .. . .") (emphasis added). Thus,

even if one accepts the League’s view that the Kaplans’

neighborhood is the only expressive venue worth discussing, the

injunction is not silencing the League. See Pet. at 15; see also

Kaplan, 111 N.C. App. at 36, 431 S.E.2d at 847, Pet. App. at

39a (noting the many other outlets available for the League’s

expression, including medical facilities).

Second, the League’s argument that Frisby v. Schultz bars

any regulation of picketing that extends beyond the frontage of

one house, Pet. at 15, has no support in that Supreme Court

decision or any other. In Frisby, the Court held it constitutional

to ban targeted residential picketing in the interest of residential

privacy, and it defined targeted picketing by its intended and

actual effects on its targets. See Frisby, 487 U.S. at 486-87.

The Frisby Court did assume that the challenged ordinance

banned “only focused picketing taking place solely in front of

a particular residence." Jd. at 483. This factual assumption

does not mean, however, that no picketing that goes beyond one

house can be targeted picketing. The Court’s legal reasoning,

indeed, disproves this assertion. The Court emphasized "(t]he

devastating effect of targeted picketing,” not just one-house

picketing, "on the quiet enjoyment of the home." /d. at 486.

The present case illustrates how picketers can move beyond

the frontage of one house, yet still target a family in its home

and cause the “unique and subtle impact" condemned in Frisby.

Id. at 487. Appearing as often as daily, the League’s members

20

walked back and forth in front of the Kaplans’ home in groups

as large as twenty-five, carrying signs that named Dr. Kaplan

as the object of their picketing. In no meaningful sense was this

picketing "transient." Pet. at 15. Indeed, when the League

obliquely complains that the injunction keeps it away from "a

given residence," id., it admits that its picketing is "narrowly

directed at [that] household, not the public," Frisby, 487 U.S.

at 486.

In sum, the Frisby Court’s reasoning applies a fortiori to the

remedial injunction in this case. In Frisby, the devastating

effects of residential picketing justified a citywide ban on that

picketing. Here, these same effects amply justify a ban that

focuses on one short street. See Pet. App. at 47a-48a, 59a.

The Frisby Court asked whether the ordinance “protect[ed] only

unwilling recipients of the [picketers’] communications." 487

U.S. at 485. In this case, this requirement is readily satisfied,

because only these unwilling recipients are seeking injunctive

relief.

C. The Record Refutes the League's Assertion That the

Injunction Is Content-based.

Finally, the League argues that the injunction fails two of

this Court’s tests for content-neutrality. The record cortradicts

both of these arguments.

First, the League has no basis for asserting that the injunc-

tion “singles out only those bearing a particular message." Pet.

at 15. The injunction does not use the messages of any

enjoined activities to identify those activities. It applies to all

picketing, threats, and similar actions within its scope, stating

no exceptions. See Pet. App. at 44a-48a; see also supra p. 16

(showing that the fact that the injunction applies to named

defendants does not make it content-based).

The League’s second argument, that the injunction was

entered “precisely because of the impact of the petitioners’

message of protest upon the respondents," is equally baseless.

Pa

21

Pet. at 17. Both courts below made express findings that refute

this argument. Pet. App. at 47a ("An injunction to stop

targeted residential picketing in the Kaplans’ neighborhood is

based not on the content of any would-be picketers’ speech, but

on the effects caused by the picketers’ physical presence.");

accord Kaplan, 111 N.C. App. at 29, 431 S.E.2d at 843, Pet.

App. at 30a-3la. Nor did the courts use content-based

reasoning when they decided that the League’s picketing was

targeted at the Kaplans. See id. at 25-26, 431 S.E.2d at 841,

Pet. App. at 26a; Pet. at 17. In Frisby, the Court cited similar

evidence of targeting, see 487 U.S. at 486-87, but turned aside

claims that the related regulation was content-based, see id. at

482.’

The injunction rests not on the League’s message, but on the

coercive, physical way the League has repeatedly delivered that

message. See Kaplan, 111 N.C. App. at 29, 431 S.E.2d at

843, Pet. App. at 30a-3la; Pet. App. at 45a, 47a; see also

Frisby, 487 U.S. at 487 (characterizing the ordinance in that

case as a “’regulation{ | of form and context,’” rather than a

“regulation of communications due to the ideas expressed")

(quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 84

(1983) (Stevens, J., concurring in the judgment)).

"The passages that the League has extracted from Boos v. Barry, 485

U.S. 312 (1988), played no role in the later Frisby decision. They have no

role to play here. See Frisby, 487 U.S. at 481-82; Pet. at 16-17.

22 Resp. App. la

CONCLUSION APPENDIX

The Kaplans respectfully request that the Court deny the

petition. —— ad Subsection (c) of 28 U.S.C. § 2101 provides:

Respectfully submitted, Any other appeal or any writ of certiorari intended

to bring any judgment or decree in a civil action, suit or

proceeding before the Supreme Court for review shall

MATTHEW W. SAWCHAK ALAN W. DUNCAN i ithin ni

SMITH HELMS MULLISS & (Counsel of Record) a Gide kia ede

Moore, L.L.P. AMY ZAKRAJSHECK BABB 0 judgment or . A justice 0 Supreme

P.O. Box 27525 SMITH HELMS MULLISS & Court, for good cause shown, may extend the time for

Raleigh, NC 27611 Moore, L.L.P. applying for a writ of certiorari for a period not exceed-

(919) 755-8700 P.O. Box 21927 ing sixty days.

Greensboro, NC 27420

(910) 378-5200

Subsection (a) of 28 U.S.C. § 1257 provides:

Attorneys for Respondents Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court by writ of certiorari

where the validity of a treaty or statute of the United

States is drawn in question or where the validity of a

statute of any State is drawn in question on the ground

of its being repugnant to the Constitution, treaties, or

laws of the United States, or where any title, right,

privilege, or immunity is specially set up or claimed

under the Constitution or the treatises or statues of, or

any commission held or authority exercised under, the

United States.

22 February 1994