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

• Decision Date: 19 August 1992
• Docket Number: No. 920005,920005
• Citation: 488 N.W.2d 401
• 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; Darold Larson; 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 and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 401

488 N.W.2d 401

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; Darold Larson; 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 and Appellants.

Civ. No. 920005.

Supreme Court of North Dakota.

Aug. 19, 1992.

William Kirschner, Fargo, for plaintiffs and appellees.

Richard D. Varriano, Moorhead, Minn., for defendants and appellants.

Peter B. Crary, Fargo, for defendants and appellants; appearance only.

VANDE WALLE, Justice.

In this appeal from an order granting a preliminary injunction, we must decide whether the district court properly balanced the rights of anti-abortion protestors to assemble and speak, on the one hand, against the rights of a clinic, its doctors, and its patients to be free from trespass, assault, and other tortious acts done by the protestors in advancing their message, on the other hand. We affirm in part, reverse in part, and remand.

This action began when the Fargo Women's Health Organization, Inc., its doctors, and volunteers (collectively, "the clinic") sought injunctive relief, on their own behalf and on behalf of their present and future patients, against several unincorporated associations and named individuals (collectively, "the protestors") who were alleged to have committed criminal and tortious acts against those seeking the injunction. The plaintiffs submitted, with their complaints, a motion for temporary restraining order and preliminary injunction supported with affidavits from the clinic administrator, a doctor, the coordinator of volunteers, and a volunteer who had also been hired to provide security for the clinic and its employees. The defendants answered the complaint, denying many of the specific allegations of misconduct contained in the complaint. The defendants did not, however, offer any affidavits in support of their denial of specific allegations of misconduct and in opposition to the motion for temporary restraining order and preliminary injunction. The district court issued a temporary restraining order, superseded by the preliminary injunction from which the defendants now appeal. Because this matter has not yet been submitted to a full evidentiary hearing, with testimony and cross examination of witnesses, the record of the events is contained solely in the affidavits submitted on behalf of the plaintiffs in support of their application for a preliminary injunction. No opposing affidavits were submitted. Thus the circumstances we relate and the factual basis for the injunction are taken exclusively from those affidavits.

Since 1981, the Fargo Women's Health Organization has operated a clinic which provides a full range of gynecological medical services including first trimester abortions. Approximately 75 demonstrations by anti-abortion protestors have been held in the vicinity of the clinic. It appears that most of these demonstrations were peaceful, consisting of picketing, leafleting, and speaking to people in the area near the clinic. Beginning March 29, 1991, the character of the protests changed. On that day, 26 people stormed the clinic, broke down a door, occupied its rooms, and locked themselves together using bicycle locks. The demonstrators refused to leave, were arrested, and were removed by Fargo police after their locks were removed by a locksmith.

On nine other occasions in the ensuing seven months, demonstrators were arrested for criminal acts committed in conjunction with anti-abortion protests. As a result of these actions, patients were confronted and jostled as they attempted to walk to the clinic. Some patients were able to reach the clinic only with the assistance of volunteer "escorts" or professional security officers who walked them through groups of hostile, screaming protestors that surrounded them, stood in their way, forced leaflets into patients' hands and otherwise impeded patients' access to the clinic. Protestors struck, pushed, and threatened escorts and guards with physical harm. One protestor was arrested trying to climb the clinic's fence in order to reach a patient using the clinic's rear entrance.

Patients who attempted to drive to the clinic were confronted at the entrance to the clinic parking lot. Protestors stood in the way of the cars, climbed onto the vehicles' hoods or under the cars. Some protestors attempted to fasten themselves to the frames of cars in order to delay their removal from the site. On one occasion, protestors placed blocks against the tires and attempted to cut a cable in order to disable a car after they succeeded in stopping it in the clinic's driveway. On another occasion, protestors waited across the street from the clinic for a car to approach the parking lot at which point they rushed into the street, stopped the car, and blocked the public road. As a result of these tactics, the clinic was effectively blockaded; patients and staff could not enter or leave the clinic for hours at a time.

The protestors called these blockades "rescues." At anti-abortion rallies held after the "rescues" began, spokesmen for the associations asked volunteers to participate by being jailed for rescuing babies. The rescues were to be part of a two-year campaign to force the clinic to close.

Away from the clinic, protestors followed clinic staff members in cars, and into grocery stores, airports, and other public buildings. Their activities were particularly intense against one of the clinic's doctors. During a five month period, groups as large as 30 demonstrated at the gate of her home, congregating in pre-dawn hours, shouting and honking car horns, and attempting to block the departure of the doctor and her family members. Some protestors roamed on the doctor's property, leaving a banner draped over a car, a baby stroller and basket on her porch. During times when the protestors were near the site, the doctor's house and garage were vandalized. Protestors followed the doctor in cars as she drove to Fargo or to the airport. Groups waited for the doctor in airport parking ramps and rushed at her, yelling and flashing cameras. They leafleted cars at the school of the doctor's daughter, and two protestors were asked to leave the school building when they attempted to obtain a photo of her daughter. A car full of protestors also followed the daughter of one of the clinic's volunteers.

Relying on this record, the district court granted a preliminary injunction. The protestors challenge on appeal the need for an injunction and, in the alternative, argue that several specific provisions are unduly restrictive of their constitutional rights to free speech and assembly.

I. APPEALABILITY

This is an appeal from a preliminary injunction. Neither party has raised the issue of appealability but we may consider that issue upon our own motion. Ceartin v. Ochs, 479 N.W.2d 863 (N.D.1992). Section 28-27-02(3), NDCC, provides, in part, that "[a]n order which grants, refuses, continues, or modifies a provisional remedy, or grants, refuses, modifies, or dissolves an injunction ..." may be "carried" to the Supreme Court. In the past, consistent with the doctrine of finality and "our expanding appealability jurisprudence," Ceartin, 479 N.W.2d at 865, we have required compliance with the provisions of Rule 54(b), NDRCivP, at least when the injunctive features of the order were incidental and "serve[d] no active purpose," e.g., Regstad v. Steffes, 433 N.W.2d 202, 204 (N.D.1988). The absence of a Rule 54(b) certification has not, however, kept us from reviewing "interim relief [which] affects fundamental interests of the litigants." See Vorachek v. Citizens State Bank of Lankin, 461 N.W.2d 580, 584 (N.D.1990).

In this case, the preliminary injunction attempts to balance the rights of a clinic, its doctors and staff, and its patients, to the delivery and receipt of medical care against the protestors' fundamental constitutional rights of speech and assembly. The injunctive features of this order serve an active rather than incidental purpose. We therefore conclude that review of this interim order is proper.

II. PROPRIETY OF INJUNCTION

A court may enjoin conduct which, unrestrained, would produce injury to the plaintiff "when it shall appear by the complaint that the plaintiff is entitled to the relief demanded...." NDCC Sec. 32-06-02(1). The factors appropriate to determining whether injunctive relief should be granted are: (1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; (4) effect on the public interest. F-M Asphalt, Inc. v. North Dakota State Hwy. Dept., 384 N.W.2d 663 (N.D.1986). "The decision to grant or deny a preliminary injunction is within the discretion of the trial court, and its determination will not be disturbed on appeal unless it appears that the court clearly abused its discretion." Schauer v. Jamestown College, 323 N.W.2d 114, 115 (N.D.1982).

The protestors argue, without citing any authority, that the preliminary injunction is improper because it constitutes the substitution of a civil remedy for the criminal process. In particular, they argue that North Dakota criminal law provides an adequate remedy at law and that the purpose of the injunction is to impermissibly substitute a single judge for the protections provided defendants by...