949 P.2d 107 (Colo.App. 1997), 94CA0856, Hill v. City of Lakewood

Docket Nº:94CA0856.
Citation:949 P.2d 107
Opinion Judge:RULAND Judge.
Party Name:Leila Jeanne HILL, Audrey Himmelmann, and Everitt W. Simpson, Jr., Plaintiffs-Appellants, v. CITY OF LAKEWOOD, Colorado; Gale A. Norton, in her official capacity as Attorney General of the State of Colorado; and the State of Colorado, Roy Romer, Governor, Defendants-Appellees.
Attorney:The American Center for Law & Justice, Jay Alan Sekulow, James Matthew Henderson, Sr., Washington, D.C.; Roger W. Westlund, Thornton, for Plaintiffs-Appellants., Gorsuch Kirgis L.L.C., Roger W. Noonan, Maureen Herr Juran, Denver, for Defendant-Appellee City of Lakewood, Colorado., Gale A. Norton,...
Judge Panel:STERNBERG, C.J., and ROTHENBERG, J., concur.
Case Date:June 26, 1997
Court:Court of Appeals of Colorado, Fifth Division

Page 107

949 P.2d 107 (Colo.App. 1997)

Leila Jeanne HILL, Audrey Himmelmann, and Everitt W. Simpson, Jr., Plaintiffs-Appellants,

v.

CITY OF LAKEWOOD, Colorado; Gale A. Norton, in her official capacity as Attorney General of the State of Colorado; and the State of Colorado, Roy Romer, Governor, Defendants-Appellees.

No. 94CA0856.

Court of Appeals of Colorado, Fifth Division

June 26, 1997

Rehearing Denied July 24, 1997. Certiorari Granted Jan. 12, 1998.

The American Center for Law & Justice, Jay Alan Sekulow, James Matthew Henderson, Sr., Washington, D.C.; Roger W. Westlund, Thornton, for Plaintiffs-Appellants.

Page 108

Gorsuch Kirgis L.L.C., Roger W. Noonan, Maureen Herr Juran, Denver, for Defendant-Appellee City of Lakewood, Colorado.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Carol D. Angel, Assistant Attorney General, Denver, for Defendants-Appellees Gale A. Norton and State of Colorado, Roy Romer, Governor.

Fairfield and Woods, P.C., Howard Holme, Denver; Legal Action for Reproductive Action, Celeste Lacy Davis, Roger K. Evans, New York City; Kevin C. Paul, Denver, for Amicus Curiae Planned Parenthood of the Rocky Mountains and The Center for Reproductive Law & Policy, Inc.

Joseph N. de Raismes, III, City Attorney, Boulder, for Amicus Curiae City of Boulder.

OPINION

RULAND Judge.

In Hill v. City of Lakewood, 911 P.2d 670 (Colo.App.1995) (Hill I ), we affirmed the judgment of the district court determining that § 18-9-122, C.R.S. (1996 Cum.Supp.) did not violate the First Amendment. Thereafter, the United States Supreme Court announced Schenck v. Pro-Choice Network, 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997).

The Supreme Court then granted a petition for certiorari to review Hill I. Hill v. Colorado, --- U.S. ----, 117 S.Ct. 1077, 137 L.Ed.2d 213 (1997). In disposition of that certiorari petition, the court has remanded the case to us for reconsideration in light of Schenck.

We requested supplemental briefs from the parties relative to the impact of Schenck on § 18-9-122. Having reviewed and considered those submissions, we again affirm the district court's judgment.

Section 18-9-122 provides:

(1) The general assembly recognizes that access to health care facilities for the purpose of obtaining medical counseling and treatment is imperative for the citizens of this state; that the exercise of a person's right to protest or counsel against certain medical procedures must be balanced against another person's right to obtain medical counseling and treatment in an unobstructed manner; and that preventing the willful obstruction of a person's access to medical counseling and treatment at a health care facility is a matter of statewide concern. The general assembly therefore declares that it is appropriate to enact legislation that prohibits a person from knowingly obstructing another person's entry to or exit from a health care facility.

....

(3) No person shall knowingly approach another person within eight feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person in the public way or sidewalk area within a radius of one hundred feet from any entrance door to a health care facility. Any person who violates this subsection (3) commits a class 3 misdemeanor.

(emphasis supplied)

As noted in Hill I, the statute was adopted by the General Assembly out of concern for public safety issues presented by the conduct of some protestors at various medical clinics that is directed both at patients and staff. These concerns include access for persons with various disabilities who lack the physical capability to move through crowds of protestors.

In Schenck, the Supreme Court addressed a First Amendment challenge to an injunction issued by the United States District Court in response to the conduct of protestors at abortion clinics in the Western District of New York. As pertinent here, the injunction banned "demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances" to a clinic. This part of the injunction is referred to as the "fixed buffer zone."

In addition, the...

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