Fargo Women's Health Organization, Inc. v. Lambs of Christ

• Decision Date: 01 July 1993
• Docket Number: No. 920334,920334
• Parties: FARGO WOMEN'S HEALTH ORGANIZATION, INC., George Miks, M.D., Susan Wicklund, M.D., Jane Bovard, Administrator, and on behalf of the staff of Fargo Women's Health Organization, Inc., and Jane Doe(s), being fictitious names intended to designate present and prospective patients of the Fargo Women's Health Organization, Plaintiffs and Appellees, v. LAMBS OF CHRIST, Focus on Fargo, Help and Caring Ministries, Community Praise Center, Jody Clemens, Tim Lindgren, Kathy Beneda Lindgren, Chet Gallagher, Chris Venkelese, Ron Maxon, Operation Rescue, and all other individuals, associations, and organizations whose names or legal identities are otherwise unknown to Plaintiffs at this time, with whom they have conspired and acted in concert with to deprive Plaintiffs of their rights, Defendants, Darold Larson, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 536

502 N.W.2d 536

FARGO WOMEN'S HEALTH ORGANIZATION, INC., George Miks, M.D.,

Susan Wicklund, M.D., Jane Bovard, Administrator, and on

behalf of the staff of Fargo Women's Health Organization,

Inc., and Jane Doe(s), being fictitious names intended to

designate present and prospective patients of the Fargo

Women's Health Organization, Plaintiffs and Appellees, v. LAMBS OF CHRIST, Focus on Fargo, Help and Caring Ministries,

Community Praise Center, Jody Clemens, Tim Lindgren, Kathy

Beneda Lindgren, Chet Gallagher, Chris Venkelese, Ron Maxon,

Operation Rescue, and all other individuals, associations,

and organizations whose names or legal identities are

otherwise unknown to Plaintiffs at this time, with whom they

have conspired and acted in concert with to deprive

Plaintiffs of their rights, Defendants,

Darold Larson, Defendant and Appellant.

Civ. No. 920334.

Supreme Court of North Dakota.

July 1, 1993.

Kirschner Law Office, Fargo, for plaintiffs and appellees, argued by William Kirschner. Appearance by Laurie Miller Kirschner.

Darold Larson (argued), pro se.

MESCHKE, Justice.

On review after remand, we affirm a temporary injunction as amended to reinstate a 100-foot protected zone that excludes protestors around an abortion clinic.

In Fargo Women's Health Organization, Inc. v. Lambs of Christ, 488 N.W.2d 401 (N.D.1992) (Lambs I ), we approved a temporary injunction, pending trial, to restrain abortion protestors from using physical obstruction to injure, intimidate, and interfere with persons seeking access to a Fargo clinic for abortion services. We concluded that, "[g]iven the protestors' actions ..., a place restriction may be an appropriate method of regulating the protestors' conduct." Id. at 409.

Nevertheless, we lifted one of six restraining clauses that prohibited "going within 100 feet of the property line" of the clinic because we had "no description of the physical layout of the clinic in relation to its property line, the property line in relation to public sidewalks and roads, or the features of the neighborhood." Id. at 407, 409. Since we had no way to judge the fit of the place restriction to the circumstances of the case, we remanded, giving the trial court permission to take more evidence and to revise the stricken clause to set the dimensions necessary for a protected zone.

On remand, the clinic moved, with supporting affidavits and a scale drawing of the area, to reinstate the 100-foot protected zone. After receipt of some opposing affidavits for the defendants and after oral arguments, the trial court was persuaded by the affidavit of Fargo police Lieutenant Sanderson that "law enforcement has a need for [this 100-foot] distance to effectively react to the crowds" and "to effectively control the area and maintain peace and order and ... access to the premises." The trial court reinstated the identical clause, with the same exception for two people at a time to "quietly and peacefully picket such facility ...," to restrain protestors from "going within 100 feet of the property line of [the clinic] during such times as they are open for business."

Only one defendant, Darold Larson, appeals. He presents his arguments in this case, Lambs II, without the assistance of counsel. He does not contest the affidavit testimony of Lieutenant Sanderson, the dimensions shown in the scale drawing, or the fit of the zone of protection with the public areas surrounding the clinic. Rather, Larson argues that the clinic has "unclean hands," that the court evidenced a "prejudicial bias" for the clinic's affidavits, and that the court exhibited a pattern of prejudice by failing to differentiate adoption counselors and non-rescuers from active protestors and "rescuers" in structuring the injunction.

Ordinarily, a temporary injunction before trial is not reviewable by an interlocutory appeal. Sargent County Bank v. Wentworth, 434 N.W.2d 562 (N.D.1989). Consistent with the doctrine of finality, we usually require an acceptable certification under NDRCivP 54(b) before we will consider reviewing an interlocutory order. Regstad v. Steffes, 433 N.W.2d 202 (N.D.1988). However, as cases like Garrison Memorial Hosp. v. Rayer, 453 N.W.2d 787 (N.D.1990), Vorachek v. Citizens State Bank of Lankin, 461 N.W.2d 580, 584 (N.D.1990), and Lambs I illustrate, when "interim relief affects fundamental interests of the litigants," we may choose to review a temporary injunction.

This temporary injunction, pending trial on the merits, is meant to...