Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action

• Decision Date: 10 June 1977
• Docket Number: Nos. 76-1761,76-1762 and 76-1855,s. 76-1761
• Citation: 558 F.2d 861
• Parties: PLANNED PARENTHOOD OF MINNESOTA, INC., Appellee, v. CITIZENS FOR COMMUNITY ACTION et al., Appellants. PLANNED PARENTHOOD OF MINNESOTA, INC., Appellee, v. Rosalie BUTLER et al., Appellants. PLANNED PARENTHOOD OF MINNESOTA, INC., Appellee, v. Patrick J. ROEDLER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 861

558 F.2d 861

PLANNED PARENTHOOD OF MINNESOTA, INC., Appellee, v. CITIZENS FOR COMMUNITY ACTION et al., Appellants.

PLANNED PARENTHOOD OF MINNESOTA, INC., Appellee, v. Rosalie BUTLER et al., Appellants.

PLANNED PARENTHOOD OF MINNESOTA, INC., Appellee, v. Patrick J. ROEDLER, Appellant.

Nos. 76-1761, 76-1762 and 76-1855.

United States Court of Appeals,

Eighth Circuit.

Submitted March 16, 1977.

Decided June 10, 1977.

Pierre N. Regnier, St. Paul, Minn., for appellants, Citizens for Community Action.

D. D. Wozniak, St. Paul, Minn., for appellants, Butler, Levine and Tedesco.

Patrick H. O'Neill, St. Paul, Minn., for appellant, Patrick J. Roedler.

Harriet Lansing, St. Paul, Minn., for City of St. Paul, etc.

Franz P. Jevne, III, Minneapolis, Minn., for appellee, Planned Parenthood of Minnesota.

Before GIBSON, Chief Judge, and WEBSTER and HENLEY, Circuit Judges.

GIBSON, Chief Judge.

The plaintiff, Planned Parenthood of Minnesota, Inc. (Planned Parenthood), has operated a comprehensive family planning clinic in St. Paul, Minnesota, since 1932. ¹ In January 1976, it decided to offer first trimester abortion services to its patients in conjunction with its other activities. To accommodate its expanded activities Planned Parenthood in March of 1976 finalized its plan to purchase a building at 1965 Ford Parkway in St. Paul to house its administrative offices, training facilities, research center and a medical clinic for furnishing family planning services including first trimester abortions. The prospective establishment of the abortion clinic met a hostile reception from a number of the residents of the area involved. In response to public protests, the St. Paul City Council temporarily frustrated the construction and operation of the abortion clinic by enacting an ordinance which imposed a six-month moratorium on the construction of "separate abortion facilities and other like facilities within the City of St. Paul" pending a study to determine whether special zoning restrictions should be imposed on such facilities. Planned Parenthood filed the present action challenging the constitutionality of the ordinance and seeking injunctive and monetary relief. The District Court, perceiving serious questions as to the constitutionality of the City Council's action, issued a preliminary injunction against the enforcement of the ordinance. On this appeal, we determine only whether or not the trial judge abused his discretion in granting the preliminary injunction and also review the propriety of his disposition of certain pretrial motions.

I

Planned Parenthood's Ford Parkway medical clinic, which will offer first trimester abortion services, is situated in an area zoned B-3. This zoning classification permits the construction and operation of medical offices, clinics and laboratories. The record indicates that there are doctor's offices and medical clinics within a few blocks of Planned Parenthood's Ford Parkway medical clinic. No one seriously disputes that Planned Parenthood's medical clinic is the type of facility that can be maintained in an area zoned B-3.

After the purchase of the building on Ford Parkway, the St. Paul City Council, actuated in part by clamorous public opposition to the construction of the abortion facility, entertained a resolution which proposed a six-month moratorium on the construction of separate abortion facilities in St. Paul. Public hearings on this resolution were conducted during the ensuing three weeks. The City Council, after securing the legal advice of the City Attorney, adopted the following ordinance by a 5 to 2 vote on June 8, 1976:

(A) moratorium is hereby placed on the construction, reconstruction, adaption and modification of separate abortion facilities and other like facilities within the City of Saint Paul, and a moratorium on the issuance of permits for same; and * * * this moratorium shall be in effect for a period of six months from the effective date of this resolution (June 12, 1976);

(T)he Planning Commission is hereby directed to conduct a study of the effects of such facilities on the integrity of existing land use controls within the City, including proposed amendments to existing ordinances, the relationship of such facilities to the comprehensive plan, and any additional considerations the Planning Commission deems appropriate, and make recommendations thereon to the City Council within five months of the effective date of this resolution * * *.

"Separate abortion service facility" was defined as "any facility in which any abortion is performed, but which is not a hospital * * *."

After passage of the ordinance, Planned Parenthood requested a building permit for its proposed Ford Parkway facility. The request was denied by the issuing authority, the City Architect, who stated that he could not issue a building permit for a separate abortion service facility until the moratorium expired.

Planned Parenthood instituted the present action against the City of St. Paul, all City Council members and the Mayor, City Attorney, City Architect and Supervisor of Inspectors of St. Paul. ² Planned Parenthood sought a declaratory judgment that the moratorium ordinance was unconstitutional and an injunction against its enforcement. The complaint also requested $25,000 compensatory damages, $20,000 punitive damages and attorney's fees from the Mayor of St. Paul and the five council members voting in favor of the ordinance.

Soon after the complaint was filed, a motion to intervene was filed by the Citizens for Community Action, a neighborhood association expressing an interest in preserving property values and assuring that abortion facilities do not adversely affect the health, welfare and safety of citizens in St. Paul. Joining in the motion to intervene were two couples residing in the vicinity of the proposed clinic.

In a pretrial memorandum opinion, the District Court ruled on the motion to intervene and the request for a preliminary injunction. The court overruled the motion to intervene, concluding that the applicants for intervention had failed to establish their right to intervene under Fed.R.Civ.P. 24(a)(2). The applicants were also denied permissive intervention under Fed.R.Civ.P. 24(b). In regard to the request for a preliminary injunction, the trial judge stated that Planned Parenthood demonstrated a likelihood that it would prevail on the merits of its claims against defendants. The court found that Planned Parenthood would in all probability establish that the ordinance impinged upon the constitutional rights of women to obtain first trimester abortions and was unsupported by compelling governmental interests. Also, the court observed that Planned Parenthood would probably prove that the ordinance was discriminatory and adopted in bad faith and thus contravened state zoning law. Therefore, as Planned Parenthood had proved that implementation of the ordinance would irreparably injure its operations, the preliminary injunction was issued. ³

II

On this appeal, we are confronted with the threshold question of mootness. The assailed ordinance expired by its own terms on December 12, 1976. The preliminary injunction against the enforcement of the ordinance has no present effect since there is nothing against which it can operate. Planned Parenthood has received a building permit to construct its abortion clinic on Ford Parkway and is in the process of renovating its building for that purpose. At first blush, these factors would seem to compel a finding of mootness on this appeal. However, other factors are present which militate against this finding.

In its present form, this case is at a very preliminary stage. The spirited dispute between the parties did not expire with the moratorium ordinance. Remaining unresolved are the issues of permanent injunctive relief and damages, which await disposition of this appeal and further proceedings in the trial court. Therefore, a decision by us on the District Court's action would not be nugatory or merely advisory. The District Court has expressed its views on the merits of this case and, if we affirm the grant of preliminary injunctive relief, our disposition will bear directly on the District Court's resolution of the remaining contested issues. If we reverse the court's granting of injunctive relief, defendants have intimated that they will consider other zoning legislation that may restrict Planned Parenthood's abortion operations at the Ford Parkway site. Therefore, our decision "will have a concrete effect upon the rights of the parties." Mahavongsanan v. Hall, 529 F.2d 448, 449 (5th Cir. 1976). We conclude that this appeal is not moot. Hedberg v. State Farm Mutual Automobile Insurance Co., 350 F.2d 924 (8th Cir. 1965). ⁴

III

Defendants argue that the District Court's issuance of the preliminary injunction was legally unsupportable. In order to secure a preliminary injunction, Planned Parenthood must prove that (1) there is a substantial probability that it will succeed at trial on the merits of its claims and (2) it will suffer irreparable injury if injunctive relief is not forthcoming. Minnesota Bearing Co. v. White Motor Corp., 470 F.2d 1323, 1326 (8th Cir. 1973); see Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1974). In determining whether or not preliminary injunctive relief is necessary and appropriate, the District Court must carefully balance the interests of the litigants and the public, Doran v. Salem Inn, Inc., supra at 931, 95 S.Ct. 2561; Inland Steel Co. v. United States, 306 U.S. 153, 157, 59 S.Ct. 415, 83 L.Ed. 557 (1939), and consider the extent to which these respective interests will be injured by the grant or denial of injunctive relief. Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834 (1944); Inland Steel Co. v. United States, supra, 306 U.S. at 157, 59 S.Ct. 415; Minnesota Bearing Co. v. White Motor Corp., supra at 1326. We acco...