Hill v. Thomas, 97SC630

• Citation: 973 P.2d 1246
• Decision Date: 16 February 1999
• Docket Number: No. 97SC630,97SC630
• Parties: 1999 CJ C.A.R. 975 Leila Jeanne HILL; Audrey Himmelmann; and Everitt W. Simpson, Jr., Petitioners, v. David J. THOMAS, in his official capacity as District Attorney for the First Judicial District of the State of Colorado; City of Lakewood, Colorado; Ken Salazar, in his official capacity as Attorney General of the State of Colorado; and the State of Colorado, Bill Owens, Governor, Respondents.
• Court: Supreme Court of Colorado

Page 1246

973 P.2d 1246

1999 CJ C.A.R. 975

Leila Jeanne HILL; Audrey Himmelmann; and Everitt W.

Simpson, Jr., Petitioners, v. David J. THOMAS, in his official capacity as District

Attorney for the First Judicial District of the State of

Colorado; City of Lakewood, Colorado; Ken Salazar, in his

official capacity as Attorney General of the State of

Colorado; and the State of Colorado, Bill Owens, Governor,

Respondents.

No. 97SC630.

Supreme Court of Colorado,

En Banc.

Feb. 16, 1999.

Roger W. Westlund, Thornton, Colorado, The American Center for Law & Justice Jay Alan Sekulow, Lawrenceville, Georgia, James Matthew Henderson, Sr., Washington, D.C., Attorneys for Petitioners.

No appearance on behalf of David J. Thomas, District Attorney for the First Judicial District of the State of Colorado.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Patricia S. Bangert, Director of Legal Policy, Carol D. Angel, Senior Assistant Attorney General, Natural Resources Section, Denver, Colorado, Attorneys for Ken Salazar and State of Colorado.

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

Planned Parenthood of the Rocky Mountains, Inc., Kevin C. Paul, Denver, Colorado, Attorneys for Amici Curiae Planned Parenthood of the Rocky Mountains, Inc., and the Center for Reproductive Law & Policy, Inc.

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

Justice SCOTT delivered the Opinion of the Court.

In this case we must decide whether a legislative enactment designed to protect the privacy rights of citizens entering and leaving Colorado health care facilities unduly burdens the First Amendment rights of other citizens. We conclude that it does not.

We granted certiorari in Hill v. City of Lakewood, 949 P.2d 107 (Colo.App.1997), to determine whether a Colorado statutory provision, in particular, section 18-9-122(3), 6 C.R.S. (1998), can withstand scrutiny under a facial First Amendment challenge. Section 18-9-122(3) provides "[n]o person shall knowingly approach another person within eight feet of such person, unless such other person consents, for the purpose of ... 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." In light of the order of remand by the United States Supreme Court to the Colorado Court of Appeals, our review is necessarily informed by the Supreme Court's opinion in Schenck v. Pro-Choice Network, 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997). ¹ Nonetheless, we rely upon the standard announced in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). In doing so, while recognizing that the statute creates a limited floating buffer zone, we hold that, on its face, the statute does no more than place reasonable restrictions on speech that (1) are content-neutral; (2) are narrowly tailored to serve a significant government interest; and, (3) leave open ample alternative means for the communication of information petitioners seek to place into the marketplace of ideas. We so conclude because the standard announced in Ward permits greater deference for legislative enactments regulating speech than does the Schenck standard, which places greater limitations upon the judicial regulation of speech through injunctive proceedings. We therefore uphold the statute against petitioners' facial attack and affirm the judgment of the court of appeals.

I.

Petitioners, Leila Jeanne Hill, Audrey Himmelmann, and Everitt W. Simpson, Jr. (petitioners) filed a declaratory judgment action and requested injunctive relief in Jefferson County District Court (trial court) under a facial challenge ² to section 18-9-122(3), alleging that it violated the First Amendment and was therefore unconstitutional. Respondents, David J. Thomas, in his official capacity as District Attorney for the First Judicial District of the State of Colorado, the City of Lakewood, and other officials of the State of Colorado, ³ (collectively, the State) filed a motion for summary judgment, asserting that section 18-9-122(3) was lawful as a constitutional time, place, and manner regulation of speech under the First Amendment to the United States Constitution. Petitioners filed a cross-motion for summary judgment alleging that section 18-9-122(3) was (1) facially unconstitutional as a prior restraint; (2) a content-based restriction lacking justification; and (3) unconstitutionally overbroad and vague.

In granting the State's motion for summary judgment, the trial court applied the standard set forth by the United States Supreme Court in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Applying that standard, the trial court found that section 18-9-122(3) was content-neutral, was narrowly tailored to serve a significant governmental interest, and left open ample alternative means of communication.

Petitioners appealed to the court of appeals, and the court of appeals affirmed the trial court's ruling. See Hill v. City of Lakewood, 911 P.2d 670 (Colo.App.1995) (Hill I ). They then sought review in this court, which we denied. After the United States Supreme Court announced its decision in Schenck v. Pro-Choice Network, 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997), petitioners obtained review by petition to our nation's high court. Without an opinion, however, the United States Supreme Court vacated the judgment of the court of appeals in Hill I, and remanded the case to the court of appeals for reconsideration in light of Schenck. See Hill v. Colorado, 519 U.S. 1145, 117 S.Ct. 1077, 137 L.Ed.2d 213 (1997).

On remand, the court of appeals determined that the test announced in Schenck was not applicable, and applied the standard announced by the Supreme Court in Ward. "Applying the Ward rationale here, we conclude that the statute meets constitutional muster." Hill v. City of Lakewood, 949 P.2d 107, 109-10 (Colo.App.1997) (Hill II ). Thus, the court of appeals once again held that section 18-9-122(3) did not violate petitioners' First Amendment rights. See id. at 110.

We granted certiorari to review the important First Amendment issues raised by the judgment of the court of appeals. We now affirm that judgment.

II.

Shortly before 1993, many citizens seeking medical counseling and treatment at Colorado health care facilities were openly subjected to verbal abuse and on occasion, were physically assaulted while entering or leaving health care facilities. Confronted by these threats to public safety and open, hostile, and sometimes violent confrontations in public places, the Colorado General Assembly held public hearings to determine the nature and extent of the danger posed by such acts to public safety. As a consequence of the testimony of several witnesses that revealed widespread, violent confrontations, the General Assembly developed a statute intended to acknowledge a citizen's "right to protest" or counsel against certain medical procedures while also assuring that government protects a "person's right to obtain medical counseling and treatment." § 18-9-122(1), 6 C.R.S. (1998).

A.

In 1993, the General Assembly enacted section 18-9-122, entitled "Preventing passage to and from a health care facility--engaging in prohibited activities near facility" as part of Colorado's criminal code. ⁴

In subsection 18-9-122(1), the General Assembly set forth the public health considerations of "access to health care facilities," which it characterized as "imperative" for Colorado's citizens. "Balanc[ing]" the right to protest or counsel against certain medical procedures with another person's right to obtain medical counseling and treatment, the Colorado legislature sought to prohibit anyone from "knowingly obstructing another person's entry to or exit from a health care facility." § 18-9-122(1). Subsection 18-9-122(2) expressly classifies conduct by which a person "knowingly obstructs, detains, hinders, impedes or blocks another person's entry to or exit from a health care facility" as a "class 3 misdemeanor." ⁵ § 18-9 122(2).

Subsection 18-9-122(3), which is at issue here, creates a 100-foot radius zone around a health care facility, as a "fixed buffer zone." Within that fixed buffer zone only, no person may knowingly approach another within eight feet for the purpose of displaying a sign, engaging in oral protest, educating, counseling, or passing leaflets or handbills, unless the other person consents to such an approach. This eight-foot radius zone we call a "limited floating buffer zone." ⁶

Section 18-9-122 was enacted by the General Assembly in response to concerns regarding open access to health care counseling and treatment at Colorado health care facilities. While the legislation was pending, the Colorado House and Senate Judiciary Committees heard testimony regarding abortion opponents' conduct at abortion clinics, including physically blocking entrances, intimidation, and harassment of individuals seeking services. A nurse practitioner who works at a clinic which provides, in part, abortion counseling and services, testified that anti-abortion protestors:

yell, thrust signs in faces, and generally try to upset the patient as much as possible, which makes it much more difficult for us to provide care in a scary situation anyway ... We have had to place security doors where there is [sic] double locks. People have to be rung in. Each of the doors, we have magnetic locks that slide because we have had our locks glued shut. We have had bicycle locks placed over handles so that we have had to remove some of the handles on the doors.

Hearings on H.B. 93-1209 Before the House Judiciary Committee, 59th General Assembly, 1st Reg. Sess. (Audio Tape 93-8, Feb. 12, 1993, at 7:42 a.m.). Another witness, a...