Petition for Writ of Certiorari — Robokoff v. Women's Choice of Bergen County

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garnbe. G6 THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

REVEREND WALTER J. ROBOKOFF, KATHLEEN

BATES, STEVEN NATIELLO and MICHELE STERLACE-

ACCORSI

Petitioners,

V.

WOMEN’S CHOICE OF BERGEN COUNTY, P.A.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF NEW JERSEY

PETITION FOR A WRIT OF CERTIORARI

RICHARD F. COLLIER, JR.(Counsel of Record)

KEITH E. PATERSON

RICHARD J. TRAYNOR

LEGAL CENTER FOR THE DEFENSE OF LIFE, INC.

65. ‘sdison Avenue

Morristown, NJ 07960

(201) 984-0725 -

QUESTIONS PRESENTED

In Madsen v. Women's Health Center, 114 S.Ct. 2516

(1994), this Court replaced the "reasonable time,

place and manner" analysis to be applied to

injunctions with the more rigorous standard of

"whether the challenged provisions of the injunction

burden no more speech than necessary to serve a

significant government interest." In NAACP v.

Claiborne Hardware Co., 458 U.S. 886 (1982) this

Court required "precision of regulation" with regard

to injunctive relief which burdens speech, protecting

and separating peaceful speech from unprotected non-

speech activities. Against this background the first

question asked is:

Whether the decision of the New Jersey

Appellate Division upholding an injunction

which prohibits speech in front of an abortion

clinic, without any showing that the defendant

has violated, or imminently will violate, some

provision of statutory or common law, iS

inconsistent with this Court’s decision in

Madsen.

The second question is:

Whether the decision of the New Jersey

Appellate Division, in upholding an injunction

which prohibits speech by defendants who did

not engage in unlawful acts or violate

preliminary restraints, burdens more speech

than necessary to serve a_ significant

government interest.

~~

PARTIES

The Petitioners are as follows: Reverend Walter J.

Robokoff, Kathleen Bates, Steven Natiello and Michele

Sterlace-Accorsi.

The Petitioners were defendants in the New Jersey

Chancery Division and Appellants in the New Jersey

Appellate Division. They were also petitioners in the New

Jersey Supreme Court.

The Respondent is as follows: Women’s Choice of

Bergen County, P.A. The Respondent was the plaintiff in the

New Jersey Chancery Division and Cross Appellant in the

New Jersey Appellate Division. It was also a cross-petitioner

in the New Jersey Supreme Court.

- iii -

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............0005. I

a il

REE ee 1

EE a a a er ar 2

CONSTITUTIONAL AND STATUTORY

RESEND og Oh 2

SIEATEMEN!T OF THE CASE.................. 3

STAGE AT WHICH, AND MANNER IN

WHICH FEDERAL QUESTIONS WERE

RE OS re ad 4

I. The State Court has Decided Two Federal

Questions of Constitutional Importance In A Manner

Inconsistent With Applicable Decisions of This Court. . .. 5

A. THE MADSEN CASE PROHIBITS THE NEW

JERSEY COURTS FROM ENJOINING FREE SPEECH

WITHOUT SHOWING THAT THOSE ENJOINED HAVE

VIOLATED OR WILL VIOLATE APPLICABLE LAW . 7

B. THE MADSEN CASE PROHIBITS THE NEW

JERSEY COURTS FROM ENJOINING FREE SPEECH

WITHOUT SHOWING THAT THOSE ENJOINED HAVE

TY «

VIOLATED OR WILL VIOLATE APPLICABLE LAW. . 8

CAPE 6 6 nb 0'obe bo ew os 0660 wee A ee 9

APPENDIX

ORDER TO SHOW CAUSE WITH TEMPORARY

ESSA AMEU ED 5 Gasbee By CMU os 06 0 6 ER Ss ca een A-1

INTERLOCUTORY INJUNCTION,

RE GE PO ES CER CERER Gs 0 oe eae A-5

CHANCERY DIVISION OPINION,

PEE. By A en's CRE 608 tae eS OK A-10

CHANCERY DIVISION ORDER

2k ee | Pe ee ee ee ee ee. A-32

APPELLATE DIVISION OPINION

8 2 | ee ee ee ee ee eee A-36

NEW JERSEY SUPREME COURT ORDER

CHANCERY DIVISION SUPPLEMENTAL OPINION

DE Os kk ee ek Veep oes ea A-40

CHANCERY DIVISION ORDER

Pg Re eek eee eee A-49

APPELLATE DIVISION OPINION

De ee eee ee eee ee A-53

-V-

CHANCERY DIVISION ORDER

Ps RE ah he Sk oe ee ae ere aa A-64

NEW JERSEY SUPREME COURT ORDERS

Se ROD os o'og 04 ae heh ak oN A-68

- Vi -

TABLE OF AUTHORITIES

CASES

City of Houston v. Hill,

482 U.S. 451, 462 n.11 (1987)

Madsen v. Women's Health Center,

U.S. __, 114 S.Ct. 2516,

129 L.Ed.2d 593(1994) ....

Railway Express Agency v. New York,

336 U.S. 106,112-113 (1949) .

United States v. Eichman,

496 U.S. 310, 317-18 (1990) . .

United States v. W. T. Grant Co.,

345 U.S. 629,632-633 (1953)

CONSTITUTION AND STATUTES

Memes Ms PU. Bw ck te

“3 PL oy oss: Sen

No. 95 -

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

REVEREND WALTER J. ROBOKOFF, KATHLEEN

BATES, STEVEN NATIELLO and MICHELE STERLACE-

ACCORSI,

Petitioners,

v.

WOMEN’S CHOICE OF BERGEN COUNTY, P.A.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF NEW JERSEY

DECISIONS BELOW

By Order to Show Cause and Complaint, the

Respondents commenced an action in the Superior Court of

New Jersey, Chancery Division, Bergen County on July 13,

1989 seeking injunctive relief against all First Amendment

activity on the sidewalk in front of their place of business.

The Chancery Division issued an Order to Show Cause with

Temporary Restraints on July 13, 1989 and an Interlocutory

Injunction on August 8, 1989, all on an ex parte basis.

éS.

Petitioners intervened in the action on December 1, 1989 to

contest the validity of the injunction. After trial in December

1991, the Chancery Division issued an opinion on February

19, 1992, which was embodied in an order on March 27,

1992.

An appeal was taken by Petitioners. On July 1, 1993,

the New Jersey Appelate Division affirmed. Petitioners then

filed a Petition for Certification in the New Jersey Supreme

Court, which granted certification on April 7, 1994 and

summarily remanded the matter to the Chancery Division for

reconsideration.

On remand, the Chancery Division issued a

supplemental opinion on March 14, 1995 and issued an order

on April 7, 1995 which retained all provisions of the earlier

order. Petitioners again appealed to the New Jersey Appellate

Division. On April 25, 1996, the Appellate Division issued

an opinion which affirmed in part and reversed in part, and

remanded the matter to the Chancery Division for entry of an

order consistent therewith. The modified order was entered

on June 25, 1996.

Petitioners filed another petition for certification in the

New Jersey Supreme Court, and Respondents filed a cross-

petition. Both the petitions were denied September 25, 1996.

JURISDICTION

This Court has jurisdiction, under 28 U.S.C. Section

1257 (3) to review the final judgment of the highest court of

a State “where any title, right, privilege or immunity is

specially set up or claimed under the Constitution... .” The

jurisdiction of the New Jersey Supreme Court was properly

invoked and it declined to review the judgment of the

Appellate Division.

~ =

CONSTITUTIONAL AND STATUTORY PROVISIONS

The United States Constitution Amendment I provides

in pertinent part: "Congress shall make no law .. . abridging

the freedom of speech... ".

STATEMENT OF THE CASE

In this case the Supreme Court of New Jersey has

permitted an injunction which (inter alia) forbids peaceful

picketing, leafleting, and conversation by Petitioners on

public sidewalks and rights of way. There was a specific

finding by the trial court that the Petitioners have not engaged

in any behavior which is unlawful or otherwise prohibited.

Moreover, there was no finding that the Petitioners

contemplated any future behavior which is unlawful or

otherwise prohibited. The very foundation of the First

Amendment is severely damaged by this decision.

This is not a "rescue" case. There were no pro-life

sit-ins or blockades at the plaintiff abortion facilities before

the order to show cause with temporary restraints was issued.

There was no finding that the Petitioners ever engaged in any

illegal activity. On the contrary, the Chancery Division

Stated in its opinion:

The named defendants will be bound by the

injunction in the same manner as others

having notice of the restraints. They were

not shown to have engaged in the unlawful

1989 acts nor to have violated the

preliminary restraints. (Emphasis supplied)

The principal question in this case is whether the New

2 a

sis

Jersey Supreme Court erred by suspending the Petitioners'

right to engage in speech on public sidewalks and streets.

As a matter of evidence and constitutional law, the

answer is Clear. The injunction unconstitutionally restricts

and discriminates against Petitioners' free speech rights.

Furthermore, the injunction is in direct violation of the

principles set forth in this Court’s Madsen decision.

This Court should grant this petition for certiorari and

correct this manifest attack on the core of the First

Amendment: the protection of disfavored speech in the

traditional public forum of public sidewalks and streets.

Speech that is popular or pleasant has little need for

constitutional protection. City of Houston v. Hill, 482 U.S.

451, 462 n.11 (1987). The true test of the rmght to free

speech, under the First Amendment to the United States

Constitution, is the strength of the protection that right

affords to speech that is unpopular, unpleasant, disturbing, or

even despised. E.g., United States v. Eichman, 496 U.S. 310

(1990) (flag burning).

The most important reason to grant this petition is to

restrain the manifestly improper application of the Madsen

decision. Without correction by this Court, the free speech

rights of persons who “were not shown to have engaged in .

. . unlawful . . . acts nor to have violated . . . preliminary

restraints .. . .” will be severely curtailed.

STAGE AT WHICH, AND MANNER IN WHICH,

FEDERAQUESTIONS WERE RAISED BELOW

The federal questions raised here were first raised by

_

Petitioners at the time of trial. Petitioners presented six

witnesses, in addition to themselves, during the course of the

trial which took place in December 1991. All agreed that the

conduct of Petitioners has been exemplary. The Petitioners

have been so considerate and well behaved that three former

patients of respondent came forward, without compulsion, to

testify on behalf of Petitioners. Each testified that the

sidewalk counselors outside the premises were calm, quiei

and peaceful, and that they had been treated courteously by

the Petitioners.

The absence of the required showing of illegality and

the excessiveness of the injunction were raised at summation

on December 4, 1991, in the brief filed with the Appellate

Division on September 17, 1992, at oral argument before the

Appellate Division on May 25, 1993, in the petition for

certification filed with the New Jersey Supreme Court on July

28, 1993, in five supplemental briefs filed with the Chancery

Division on May 26, 1994, June 2, 1994, August 25, 1994,

December 2, 1994 and December 9, 1994. They were also

raised in the brief filed with the Appellate Division on

September 30, 1995 and the petition for certification filed

with the New Jersey Supreme Court on May 28, 1996.

ARGUMENT

I. The State Court has Decided Two Federal

Questions of Constitutional Importance In A Manner

Inconsistent With Applicable Decisions of This Court

This petition for a writ of certiorari presents

significant and compelling constitutional issues. In Madsen,

this Court required precision of regulation by courts in

issuing injunctions which burden speech. In determining the

Standard to apply to injunctions against protected First

_

Amendment conduct, the Court in Madsen examined the

differences between an injunction and a generally applicable

ordinance. Those differences were set forth as follows:

There are obvious differences, however,

between an injunction and a generally

applicable ordinance. Ordinances represent

a legislative choice regarding the promotion

of particular societal interests. Injunction,

by contrast, are remedies imposed for

violations (or threatened violations) of a

legislative or judicial decree. (See United

States v. W.T. Grant Co., 345 U.S. 629,

632-633 (1953).) Injunctions also carry

greater risks of censorship and

discriminatory application than do general

ordinances. “[T]here is no more effective

practical guarantee against arbitrary and

unreasonable government than to require that

the principles of law which officials would

impose upon a minority must be imposed

generally.” (Railway Express Agency, Inc.

V. New York, 336 U.S. 106, 112-113

(1949).)

The Court held “that these differences require a

somewhat more stringent application of general First

Amendment principles in this context.” Madsen. In other

words, injunctions are to be more closely scrutinized than

generally applicable ordinances. “Accordingly, when

evaluating a content-neutral injunction, we think that our

standard time, place and manner analysis is not sufficiently

rigorous. We must ask instead whether the challenged

provisions of the injunction burden no more speech than

a.

necessary to serve a significant government interest.” Since

this Court sets forth a stricter test than that previously applied

by the highest court of New Jersey, the injunction at issue

here must meet that standard.

A. THE MADSEN CASE PROHIBITS THE NEW

JERSEY COURTS FROM ENJOINING FREE SPEECH

WITHOUT SHOWING THAT THOSE ENJOINED

HAVE VIOLATED OR WILL VIOLATE APPLICABLE

LAW

In Madsen, this Court stated that injunctions “are

remedies imposed for violations (or threatened violations) of

a legislative or judicial decree.” This Court continued “[A]n

injunction issues only if there is a showing that the defendant

has violated, or imminently will violate, some provision of

statutory or common law, and that there is a ‘cognizable

danger of recurrent violation.’”

In Madsen, this Court explained that “[t]he state Court

imposed restrictions on petitioners incidental to their anti-

abortion message because they repeatedly violated the Court’s

original order.” This Court also noted “[t)he failure of the

first injunction to protect access,” the fact that “petitioners

themselves studiously refrained from challenging the factual

basis for the injunction,” and “for purposes of this appeal

[petitioners] are assuming arguendo that a factual basis exists

to grant injunctive relief.”

The context is far different in the within matter. The

Chancery Division specifically found, after more than two

years of discovery and three days of trial, that the Petitioners

“were not shown to have engaged in the unlawful 1989 acts

nor to have violated the preliminary restraints.” Accordingly,

* ?

Madsen prohibits any injunction against these Petitioners,

who have not “violated, or imminently will violate, some

provision of statutory or common law.”

B. THE INJUNCTION HEREIN, BY RESTRICTING

THE SPEECH OF INNOCENT PARTIES, BURDENS

MORE SPEECH THAN NECESSARY TO SERVE A

SIGNIFICANT GOVERNMENT INTEREST.

The decision in Madsen requires “the injunction

burden no more speech than necessary to serve a significant

government interest.” This Court held that a 36 foot buffer

zone was necessary because of “the failure of the first order

to accomplish its purpose,” and found that the petitioners

“repeatedly violated the Court’s original order.”

None of these circumstances are present here. The Chancery

Division found that the Petitioners engaged in no illegal

activity, and never violated any provision of the preliminary

restraints. None of the four named defendants or six

witnesses observed any such acts or violations. The

Respondent admitted that it could not identify any specific

individual who had complained about Petitioners, and that no

patients had ever expressed a desire to participate in the case

on behalf of the Respondent. On the contrary, three of

Respondent’s former patients were so impressed by the

Petitioners’ exemplary conduct that they asked to testify on

Petitioners’ behalf.

The New Jersey courts have never identified any

significant government interest which would be served by

prohibiting Rev. Robokoff, Ms. Bates, Ms. Sterlace-Accorsi

and Mr. Natiello from using a public sidewalk. On the

contrary, the trial court specifically found that the Petitioners

x»

are innocent of any wrongdoing. They are being persecuted

and deprived of their right of free speech merely because they

are pro-life. It should be obvious that the New Jersey courts

are burdening “more speech than necessary to serve a

significant government interest.”

The New Jersey Appellate Division dismissed this

argument in their opinion dated April 25, 1996, saying:

“we believe that Judge Lesemann acted

correctly and reasonably in enjoining

defendants-appellants. He concluded that it

would be unfair and unworkable for purposes

of the injunction to create two classes of

demonstrators, based upon distinguishing

those identified as having engaged in the

harassing and disruptive conduct from those

who were not known to have done so.”

This reasoning fails to measure up to the Madsen standard for

two reasons. First, the New Jersey court has decided to

ignore the Constitutional rights of the Petitioners merely

because the protection of those rights would be “unfair and

unworkable.” Second, the court ignores the fact that no

“demonstrator” was ever “identified as having engaged in the

harassing and disruptive conduct.”

CONCLUSION

The highest court of New Jersey has declined to vacate an

injunction which impairs one of the most precious rights,

privileges and immunities provided by the Constitution. Its

decision is inconsistent with applicable decisions of this

Court. The State of New Jersey has deprived the Petitioners

in

of their rights under the United States Constitution

Amendment I without the required showing that Petitioners

have violated or imminently will violate, some provision of

statutory or common law. The State has burdened more

speech than necessary to serve a significant government

interest. The Petitioners respectfully request this Court to

grant this Petition and correct the manifest injustice caused by

the State of New Jersey.