SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6020-93T2
OPTIONS,
Plaintiff-Respondent,
v.
MICHAEL LAWSON, DAVID CRIST, EDITH TUCKER
& JANE DOE & JOHN DOE (fictitious names
for all persons and organizations
associated or acting in concert or in
combination with them),
Defendants-Appellants.
___________________________________________________________________
Submitted September 20, 1995 - Decided
February 2, 1996
Before Judges King, Landau and Humphreys.
On appeal from Superior Court, Chancery
Division, Monmouth County.
Richard J. Traynor, attorney for appellants.
Pamela Mandel, attorney for respondent.
The opinion of the court was delivered by
LANDAU, J.A.D.
The above-captioned defendants, who are various persons and
organizations opposed to abortion, appeal from a permanent
injunctive order entered against them and in favor of the plaintiff
"Options." The order enjoins and restrains defendants and all
persons or organizations acting in combination with them from:
(a) Entering upon plaintiff's property
and/or premises, which for the purpose of the
Order and as directed to the rear of the
property means the edge of the dirt road;
(b) Obstructing or stopping vehicular
access to Candlewood Commons;
(c) From picketing and/or demonstrating
on the Salem Hill Road side other than on the
sidewalk - but not beyond the point at which
the curbing forming the driveway on either
side thereof, begins to curve inwards and away
from Salem Hill Road;
(d) Using any artificial means of
amplifying the natural human voice in making
known their message or views;
(e) Shouting from the private dirt road
behind Candlewood Commons at patients and
staff inside plaintiff's premises expressions
such as "You will burn in hell" or "God will
kill you" or the like.
The suit was instituted by plaintiff through an order to show
cause and a verified complaint which asserted that "Options[] is a
medical office established for the practice of general gynecology
and contraception technology" where "[t]ermination of pregnancy is
offered as a surgical alternative for failed contraception."
Plaintiff's offices are located in Howell at the rear of a
condominium professional office development known as Candlewood
Commons. All but four of the eighteen offices in the development
are occupied by health professionals in various disciplines.
According to affidavits submitted in support of the order to
show cause and temporary restraints, the "office" performs first
trimester surgical terminations of pregnancies in its operating
room located on the premises. Physicians, anesthetists and other
health professionals engaged at "Options" submitted affidavits
indicating that picketing defendants harassed or interfered in
various ways with persons seeking to use a common driveway running
from Salem Hill Road, which serves Candlewood. The affidavits also
indicated that a small group of picketers utilized a public dirt
road which abuts the rear of Candlewood Commons to shout messages
such as "Don't kill your baby" and "You're going to burn in hell"
so loudly as to unnerve and upset plaintiff's surgical patients and
compromise the communication among health professionals required
during the course of demanding surgical procedures. Additionally,
unrelated health professionals and other occupants of professional
offices at Candlewood certified to adverse effects upon their
patients and professional interests by reason of the loud volume
and contents of the shouted messages, as well as from intimidation
when they or their patients entered the Candlewood driveway by
automobile from Salem Hill Road.
The extent and nature of the picketing and message shouting
activities were disputed in various details by answering
certifications. Temporary and interlocutory injunctions were
issued in September and October 1993, but after hearing limited
testimony in open court, the trial judge declined to enter an order
of contempt as requested by plaintiff.
A plenary hearing to determine whether the restraints should
be made permanent was scheduled for May 16, 1994. The trial judge
was then in the midst of another trial. He inquired, "if we go
through a full blown trial in a plenary hearing, whether I would
hear anything substantially more than I have already heard in the
case. Anything that changes factually?" Defendants' counsel
replied that extensive depositions (not part of this record) had
been taken, purportedly containing factual differences from the
information contained in earlier affidavits and court testimony.
He requested a plenary hearing in order to challenge plaintiff's
witnesses.
The judge indicated that absent "dramatic change" he probably
would not be inclined to change much of the interlocutory
injunction, which he deemed to be consistent with the Supreme
Court's then recent pronouncement in Horizon Health Center v.
Felicissimo,
135 N.J. 126 (1994). Defendants' attorney persisted
in urging that the facts in the instant matter were materially
different from those in Horizon Health Center, in which well over
a hundred demonstrators were found to have been involved in
blocking access to the clinic, blocking automobile traffic in a
major artery, harassing patients and others, and making noise of a
magnitude that interfered with the clients' medical services. Id.
at 132-34.
The court asked, "What do you expect me to hear from
witnesses?" Counsel replied, "What I expect you to hear and [sic]
there was no impeding of ingress and egress, any car that was
stopped, stopped of their own volition. In the case of Dr. Murray,
he never stopped at all. He was never forced to stop. Nobody was
standing in front of the car."
Thus, counsel requested a hearing on the facts which underlay
the question of whether restrictions addressed to impedance of
automobile traffic and trespassing by picketers were necessary.
Counsel also asked that there be no control on the content of what
demonstrators could say, arguing that this was unconstitutional.
He urged that a hearing was necessary to explore the level of sound
generated by the demonstrators' voices before making a final
adjudication that the noise level was sufficiently high to
constitute a nuisance.
Several significant colloquies followed. One was between
defendants' attorney and the court:
MR. TRAYNOR: Are you saying to me, your
Honor, that as defense attorney, if I offer
witnesses, if I cross-examine their witnesses
and offer witnesses of my own which estab-lishes that there is no prohibition, there is
no impediment of ingress and egress ....
THE COURT: I would keep it in my order
any way.
MR. TRAYNOR: You would keep it in your
order?
THE COURT: Yes, if that makes it clear
for you, absolutely, yes.
MR. TRAYNOR: It does make it clear.
That's what I intend to prove.
THE COURT: I wouldn't change that one
wit because I don't think that .... I don't
believe that they are doing it but I think
it's a very positive thing that it's in my
order because if someone new came along, they
might think of doing it unless someone said
oh, gee Judge McGann thought about that and
ahead of time, he told you don't do that.
Another colloquy was between plaintiff's attorney and the
court:
MS. MANDEL: Thank you, your Honor. I
would like to address two issues. First of
all, the shouting from the dirt road. I do
believe that in view of the recent cases, both
the Murray and Boffard decision. Horizon,
there may be a problem with attributing the
specific prohibition to being content neutral.
I believe we can withstand the standard
in examining whether it's permissible to
prohibit content neutral speech but I would
ask the court to avoid that problem by merely
stating that they may not shout in such a
manner as to be heard inside.
THE COURT: I was asked to do that before
and I said no and I won't change that.
Defendants' counsel made the following offer of proof which
would have been presented had a plenary hearing been held:
MR. TRAYNOR: That the defendants
picketed on public property peacefully at the
front entrance of Candlewood Commons, Howell,
one.
Two, that [they] did not obstruct ingress
to or egress from plaintiff's separate
premises or any of premises by anyone at or in
Candlewood Commons by picketing and offering
counseling at the entrance of Candlewood
Commons.
Three, that the defendants made and
sought communication with tenants of
Candlewood and patrons and employees of the
plaintiff Options by offers of help and
counseling, by displaying signs, by speaking
and by preaching the word of God and by
distribution of literature to pregnant women
seeking abortions.
Four, that the defendants never
interfered with any medical procedure of
plaintiff or any other activity of plaintiff.
Five, that the defendants never
trespassed on plaintiff's premises.
Six, that the defendants conveyed
messages to staff and patrons of the
plaintiff's clinic accurately from scripture.
Those would be the .... that would be the
content of the testimony under oath that
defendant would offer which would contradict
the proofs of the plaintiff. The defendant
seeks that opportunity.
Essentially, the judge determined to rely on the records made in
prior proceedings, concluding that, save for some limited
additional testimony and videotape evidence in clarification of the
configuration of the Candlewood driveway, the record was sufficient
for appellate review. "If I make a permanent injunction, you can
go right up without a whole bunch of testimony. The testimony
doesn't change what I've said based on prior testimony." The judge
also explained further the order in subparagraph (e) which
prohibits "Shouting from the private dirt road behind Candlewood
Commons at patients and staff inside plaintiff's premises
expressions such as `You will burn in hell' or `God will kill you'
or the like." He said:
With regard to the quoting from
scripture, I have already indicated, and it's
contained in Paragraph (e) of the order which
I've entered, certain statements which I don't
believe ought to be made just because they
appear in scripture.
I said that they should not be made in
the context of privacy, right of the
individual who's going through a very
difficult time in going to this abortion
clinic, if that's the correct term.
And that the individual should not have
imposed additional guilt which some people
truly believe is there. But in making that
decision, I just think it's improper to use
terms like that which are pejorative and which
many people would think are not a correct
expression of the will of the Almighty; but I
understand what you're saying but I'm not
changing Paragraph (e).
As to the restraints against trespassing and obstructing
access, the judge said:
As far as the others are concerned that
they didn't trespass, I never made a finding
that they did trespass but the order is there
to make sure they do not trespass because
without the order and in the heat of the
moment, things can occur and I don't want
those things to occur because it will escalate
the problem beyond that which the First
Amendment protects vitally. And you can argue
your belief to the Appellate Court.
And so it is with regard to their denial
that they have ever blocked entrance by their
importuning people or by their picketing, they
have ever denied entrance, exit to the
complex, my order makes sure that doesn't
happen.
If I believe them, I want to make sure
that it doesn't happen in the future. That's
why it's a permanent injunction. So having
said all of that and I having said all of
that, this order becomes the permanent
injunction.
It is urged on appeal that defendants' due process rights were denied because the trial judge entered a permanent injunction, but declined to conduct a full plenary hearing with opportunity for them to present evidence and to confront and cross-examine witnesses, while relying largely upon the affidavits submitted by plaintiff in support of the order for preliminary restraints. Citing traditional equitable authorities such as Crowe v. De Gioia, 90 N.J. 126, 132, 134 (1982), and Citizens Coach Co. v. Camden Horse R.R., 29 N.J. Eq. 299, 303 (E. & A. 1878), defendants contend that because there were material factual disputes on the affidavits and certifications submitted, even the application for preliminary
and interim restraints should have been denied pending plenary
trial and, a fortiori, restraints should not have been made
permanent absent a plenary proceeding.
Defendants argue further that there was no proof of
trespassing nor of any other unlawful behavior and that the "sole
basis for plaintiff's complaint was that defendants' peaceful,
expressive activities on pubic property annoyed it."
Our review of the transcripts and certifications submitted
satisfies us that in light of the health and safety interests
involved, there was sufficient reason to issue and continue,
pending plenary hearing, temporary and interlocutory injunctions to
prevent obstruction or stopping of vehicles entering the Candlewood
driveway from Salem Hill Road, to limit picketing on the sidewalk
to the point where the driveway curbing curves inward and away from
the road, and to impose reasonable volume restraints on shouted
messages. We agree, however, with defendants' argument that in
light of the extreme gravity of imposing injunctions against
expressive conduct, defendants should have been given the
opportunity to dispute plaintiff's factual allegations and to
confront plaintiff's witnesses, and that the court should have made
specific findings thereon, before entry of permanent injunction.
Because of the governmental interest in preservation of
health, courts may impose injunctive restrictions to protect health
and patient safety in appropriate circumstances, balancing such
restrictions even against some citizens' constitutional rights.
Horizon Health Center, supra, 135 N.J. at 143-45. There must,
however, be evidentially based findings that health and safety have
been threatened.
As we understand decretal subparagraph (d) of the order,
concerning artificial voice amplification, it was directed at the
adverse impact of distracting noise upon doctors and their
assistants during the course of surgery, with consequent risks to
patients. Defendants wished to contest and explore by cross-examination during a plenary proceeding the facts underlying a
finding that this occurred, but were effectively refused that
right. The order in decretal paragraph (e) appears to have been
based upon the court's sense that words such as "You will burn in
hell" might well produce medically harmful emotional reactions in
some patients, and further, that the words constituted an invasion
of patient privacy. Neither issue was explored by plenary hearing.
While our Supreme Court has recognized health and access-ibility of medical services as rights protectable through
injunctive restrictions, it has declined to approve an injunction
on the basis of protecting the privacy right in abortion. See
Horizon Health Center, supra, 135 N.J. at 144 (disapproving
rationale in Planned Parenthood v. Carrizzaro,
204 N.J. Super. 531
(Ch. Div. 1985), aff'd,
217 N.J. Super. 623 (App. Div. 1987)).
The absence of an adequate evidential hearing and detailed
findings of fact to support the permanent injunction alone requires
that we reverse and remand the permanent order pending a full
plenary hearing. In light of the several colloquies quoted above,
however, we are constrained to comment further on the law
applicable to such injunctions.
First, as the United States Supreme Court has cautioned,
"[u]nder general equity principles, an 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.'" Madsen v.
Women's Health Center, U.S. , ,
114 S.Ct. 2516, 2525 n.3,
129 L.Ed.2d 543, 607 n.3 (1994)(quoting United States v. W.T. Grant
Co.,
345 U.S. 629, 633,
73 S.Ct. 894, 898,
97 L.Ed. 1303, 1309
(1953)). Here, the trial judge indicated that irrespective of
whether the picketings could be shown by defendants to have been
conducted benignly in this non-residential setting, without
intimidation or trespass, a permanent injunction would issue
against conduct which might in the future occur. On remand, we
trust that the quoted cautionary footnote from Madsen will be given
weight. Compare Murray v. Lawson,
138 N.J. 206, 234 (1994), cert.
denied, U.S. ,
115 S.Ct. 2264,
132 L.Ed.2d 269 (1995), in
which a residential picketing injunction, as modified, was
sustained absent previous disorderly or unlawful conduct. See also
Horizon Health Center, supra, 135 N.J. at 152, in which the court
recognized that the factual history of protestors' conduct must be
considered when crafting an injunctive order. We do not rule out
consideration of prior conduct of these defendants at other
abortion protest sites, but if such conduct is considered, it
should be on findings and a record supporting the findings.
Next, while modified injunctions respecting the manner and
place of anti-abortion picketing have been upheld in casesSee footnote 1 like
Madsen, Murray, and Horizon Health Center, these were all decided
only after an initial determination that the injunctions were
content-neutral, i.e., "without reference to the content of the
regulated speech." See Clark v. Community for Creative Non-Violence,
468 U.S. 288, 293,
104 S.Ct. 3065, 3069,
82 L.Ed.2d 221,
227 (1984).
Heightened scrutiny by a reviewing court is necessary when an
injunction is not content-neutral. Perry Educ. Ass'n v. Perry
Local Educators' Ass'n,
460 U.S. 37, 45
103 S.Ct. 948, 955,
74 L.Ed.2d 794, 804 (1983); Madsen, supra, U.S. at , 114 S.Ct.
at 2518, 129 L.Ed.
2d at 605; Horizon Health Center, supra, 135 N.J.
at 140. Plaintiff's attorney herself wisely suggested during a
hearing below that subparagraph (e) of the injunction be modified
to delete the prohibition against shouting expressions such as "You
will burn in hell" or "God will kill you," in favor of a reasonable
noise-level prohibition, which would avoid a content-based
injunction issue.
It appears to us that the risk of emotional distress and
consequent adverse medical consequences of the prohibited shouted
phrases ordinarily could be more narrowly addressed by a simple
volume restriction. Should evidence adduced upon remand be deemed
sufficient to venture again into restrictions upon content of the
messages, we caution that such restrictions "must pass muster under
the strictest scrutiny." Horizon Health Center, supra, 135 N.J. at
140. Moreover, as noted above, privacy of the patient has not been
deemed a valid basis for such an injunction. Id. at 144.
Pending the remand here ordered, we direct that the permanent
injunction be deemed interlocutory, but that operation of sub-paragraph (e) be suspended.
On appeal, defendants have reasserted their pleaded defense that plaintiff "Options" lacks standing to sue, "as it does not legally exist," and that in consequence the complaint and order to show cause should not have been entertained.
We requested further briefs from the parties on the ability of the court to enter a judgment for or against Options, as plaintiff's complaint asserted only that "Options[] is a medical office established for the practice of general gynecology and contraception technology" where "[t]ermination of pregnancy is offered as a surgical alternative for failed contraception." Our concern was not really with the question of standing. The person who operates an office like that described in the complaint clearly has standing to assert its own interests and the related interests of its patients. See, e.g., In re Quinlan, 70 N.J. 10, 34-35 (1976), cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976); Planned Parenthood, supra, 204 N.J. Super. at 535-36. However, the absence of an identified juridical entity, i.e., a
legal person, was evident.
Following our inquiry, plaintiff moved to supplement the
record with documentation showing that "Options" is a duly
registered corporate alternate name for Gyne Surgical Associates of
Candlewood, P.A. Plaintiff also moved to amend the pleadings to
reflect Options' corporate status.
The existence of a proper legal entity is not, as originally
argued by plaintiff, a mere matter of form rather than substance.
In any suit, particularly one in which equitable relief is
requested, the plaintiff must subject itself to orders enforceable
against itself, as well as availing itself of favorable orders.
Without the presence of a plaintiff who is capable of both suing
and being sued, relief cannot be afforded, nor should a complaint
by a non-legal entity be entertained.
In this case, however, the documents submitted show that Gyne
Surgical Associates of Candlewood, P.A. was incorporated shortly
before institution of the within action, and its alternate name of
"Options" was registered several days later. In consequence, we
grant the motion to supplement the record, and the motion to amend
the pleadings nunc pro tunc to include as plaintiff Gyne Surgical
Associates of Candlewood, P.A., nunc pro tunc the date of filing of
the complaint.
In the course of reviewing all of the pleadings and moving
papers, we sought to ascertain whether Options had a juridical
existence. We noticed repeated reference to Options being a
"medical office," although there were also references to its
"operating room" and to first-trimester terminations of pregnancy
at that facility. Upon the remand, and as part of the
consideration of plaintiff's entitlement to equitable relief, the
Chancery judge may wish to explore whether Options requires a
license as an abortion facility under N.J.S.A. 26:2H-1 to -26;
N.J.A.C. 8:43A-21 to -23; and N.J.A.C. 13:35-4.2(f)3-4.
We reverse and remand the final injunctive order, pending further proceedings consistent with this opinion. We direct, however, that the injunctive order, as amended to suspend operation of subparagraph (e), be continued on an interlocutory basis pending completion of the proceedings on remand.
We do not retain jurisdiction.
Footnote: 1We note that in 1994, Congress enacted the Freedom of Access to Clinic Entrances Act, 18 U.S.C.A. §248, giving authority to the Attorneys General of the United States and of all the states to seek injunctive relief against injury from conduct violative of the act.