Bering v. Share
| Decision Date | 19 June 1986 |
| Docket Number | No. 51533-6,51533-6 |
| Citation | 721 P.2d 918,106 Wn.2d 212 |
| Court | Washington Supreme Court |
| Parties | , 55 USLW 2030 Stacie C. BERING, M.D., individually and as a Washington professional corporation; Pamela G. Silverstein, M.D., individually and as a Washington professional corporation; Howard Johnson, individually and as a general partner of Stevens Medical-Dental Limited Partnership; Michael McCarthy, M.D., individually, Respondents, v. SHARE; Michael Walters, individually and in his representative capacity as co- director of Share; Grace A. Gerl, individually and in her representative capacity as co-director of Share; Teresa R. Lindley, individually and as a member of Share; "John" and "Jane Doe" and all other persons acting in concert with any or all of the above named defendants, Appellants. |
Van Camp, Bennion & Kelleher, W. Russell Van Camp, Kelleher, O'Shaughnessy, Brown & Newell, Kevin O'Shaughnessy, Spokane, for appellants.
Stiley & Kodis, Patrick Stiley, Jeffrey Finer, Spokane, for respondents.
Wichwire, Lewis, Goldmark & Schorr, John Phillips, Wolfe & Cullen, James Lobsenz, Geraghty, Geraghty, VanDerhoef & Sawyer, Kenneth D. VanDerhoef, Seattle, Catholic League for Religious and Civil Rights, Steven Frederick McDowell, Milwaukee, Wis., Gary Preble, Tumwater, William W. Messer & Assoc., Monica LaBeck, Walla Walla, Tanksley, Padden, Derr, Reeves & Hanley, Mark J. Hanley, Sara B. Derr, Spokane, amicus curiae for appellants.
National Lawyers Guild--Seattle Chapter, Janet Varon, Franklin W. Shoichet, Fred Diamondstone, Nancy Hawkins, Marilyn Endriss, Seattle, amicus curiae for respondents.
No judicial task is more difficult than balancing the constitutional rights and freedoms of citizens of this country against conflicting rights and freedoms of their fellow citizens. In accepting this delicate task, we recognize there can be few absolutes under the constitutions of a state and country boasting of such a diverse people. The magnificence of the documents under which we have consented to governance lies in their flexibility to accommodate the conflicting views and lifestyles of the governed. In our role as arbiter, we cherish such flexibility.
This appeal presents two principal constitutional issues requiring the accommodation of conflicting rights. First, whether a place restriction in a permanent injunction, ordering anti-abortion picketers to refrain from picketing directly in front of a medical clinic in which abortions are performed, violates either state or federal free speech protections? Second, whether a content restriction in a permanent injunction, enjoining picketers' oral use of the words "murder", "kill", and their derivatives, violates either state Respondent-physicians Michael McCarthy, Pamela Silverstein, and Stacie Bering practice medicine in offices located in the Sixth Avenue Medical Building (Medical Building) at W. 508 Sixth Avenue, Spokane, Washington, situated at the corner of Sixth and Stevens Avenues. See illustration. Respondent Howard Johnson is a general partner/owner of the Medical Building. The Medical Building is nine stories tall, with a single public entrance, a side door, and a rear door. The side door is locked in winter, and its stairway blocks handicapped visitors.
Over two dozen medical offices are located in the building, offering a wide range of services including family oriented health care, pediatrics, prenatal care, laboratory procedures, geriatrics, internal medicine, outpatient surgery, weight loss counseling, dentistry, psychological counseling, and elective abortions.
In December 1984, members of SHARE, an informal organization opposed to abortion, began picketing and sidewalk "counseling" in front of the Medical Building. At times, other anti-abortion picketers who were not members of SHARE were present with placards at the Medical Building. Picketing occurred generally on Fridays, with a morning group usually consisting of 2 or 3 picketers, and an afternoon group of as many as 8 to 13.
The respondent-physicians became concerned for their patients' welfare following face-to-face encounters between picketers and patients. Respondents filed suit in Spokane County, in part requesting a temporary restraining order. On March 7, 1985, the trial court issued a temporary restraining order, which was superseded on March 18, 1985 following a day-long show cause hearing. The court entered a permanent injunction on March 22, 1985.
There was substantial conflict between the witnesses' testimony at the show cause hearing. Respondents' evidence included live, eyewitness testimony; numerous affidavits from patients, nurses, and visitors to the Medical Building 1; and dozens of photographs of picketers at the Respondent-physicians and a nurse testified that picketers interfered with ill patients, placing a pregnant woman possibly suffering from toxemia in acute medical danger, and delaying a patient who was miscarrying a wanted pregnancy and bleeding heavily. This last patient had to force her way through a group of picketers in order to reach her nurse and wheelchair.
picket site. The evidence detailed episodes of picketers (1) grabbing patients and staff, (2) patrolling the sidewalk in groups, (3) blocking the sidewalk, (4) causing patients to cut across the lawn--which at times was covered with ice and snow, (5) threatening or screaming at patients who refused to take literature, (6) accusing patients or their doctors of killing babies, (7) telling one patient that she would go to hell for seeing particular doctors, (8) interfering with parents bringing young patients to see their respiratory allergist, and (9) interfering with patients in advanced stages of pregnancy.
A pediatric nurse asked picketers to please refrain from bothering Dr. McCarthy's young patients because his office did not provide abortion-related services. The picketers told the nurse to "move out" of the building. In addition to their sidewalk activity, the evidence showed that picketers entered the Medical Building, and even physicians' offices, to advocate their views on abortion.
In issuing its order, the trial court considered the live testimony from both parties, all the affidavits, diagrams, and numerous photographs depicting picketers arrayed in groups along the sidewalk in front of the Medical Building. Based on this evidence, the court issued its findings and the permanent injunction.
The court found that: (1) it had jurisdiction over the parties and subject matter; (2) picketers positioned themselves The resulting injunction prohibits picketers from (1) picketing, demonstrating, or "counseling" at the Medical Building, except along the public sidewalk north of the bus stop on Stevens Avenue; (2) threatening, assaulting, intimidating or coercing anyone entering or leaving the Medical Building; (3) interfering with ingress or egress at the building or parking lots to the south or southeast of the premises; (4) trespassing on the premises; (5) engaging in any unlawful activity directed at respondent-physicians or their patients; (6) referring, in oral statements while at the picket site, to physicians or patients, staff, or clients as "murdering" or "murderers", "killing" or "killers"; or to children or babies as being "killed" or "murdered" by anyone in the Medical Building.
on the public sidewalks along Sixth Avenue and at the only walkway to the main entrance; (3) picketers had obstructed the passage of visitors and staff at the Medical Building; (4) picketing had caused the physicians and patients emotional distress, created a substantial risk of physical and mental harm, and "counseling" had been forced upon persons attempting to enter or leave the premises; (5) picketing had been conducted in an aggressive, disorderly, and coercive manner, and in instances gave rise to a clear and present danger to patients; (6) picketing had been conducted in a manner incompatible with the character and function of the Medical Building; and (7) picketers had repeatedly referred to physicians practicing in the Medical Building as killers or murderers in the presence of young children.
Subsequent to entry of the permanent injunction, the court found that picketing and counseling activities continued at the Medical Building in violation of the court order. On June 7, 1985 the court entered an order of contempt against picketers Steven Fuhrman, Richard Van Dyke, Daniel Scalf, and Alfred Derby. The findings regarding contempt of court by these individuals specifically state that the contemnors violated paragraph 1 of the March 22, 1985 order. Paragraph 1 is a geographic limitation.
On June 7, 1985, the court also assessed attorney fees of $7,000 and costs of $1,200 against Grace Gerl and Teresa Lindley for their contempt of the permanent injunction. The court imposed the order regarding fees and costs as a result of repeated contempts by Grace Gerl and Teresa Lindley. The trial court found that contemnors Gerl and Lindley had "knowingly and intentionally violated the [geographic restriction] of the permanent injunction" on at least seven occasions between the order's issuance and the date of the original contempt proceeding. Based on these findings, the trial court issued its order to impose coercive fines and confinement upon contemnors Gerl and Lindley.
We granted appellants' request to join review of these orders with the appeal of the permanent injunction in order to dispose of the case in its entirety.
SHARE assigns error to many of the trial court's findings of fact, and argues the permanent...
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