Jane L. v. Bangerter, Civ. No. 91-C-345G.

• Decision Date: 22 May 1992
• Docket Number: Civ. No. 91-C-345G.
• Citation: 794 F. Supp. 1537
• Parties: JANE L., et al., Plaintiffs, v. Norman BANGERTER, et al., Defendants.
• Court: U.S. District Court — District of Utah

794 F. Supp. 1537

JANE L., et al., Plaintiffs, v. Norman BANGERTER, et al., Defendants.

Civ. No. 91-C-345G.

United States District Court, D. Utah, C.D.

May 22, 1992.

Janet Benshoof, Eve Gartner, Rachel Pine, New York City, Jeffrey Oritt, Wilkins, Oritt & Headman, Salt Lake City, Utah, Howard Lundgren and Simon Heller, for plaintiffs.

Mary Anne Wood, Wood & Wood, Anthony Quinn, James Soper, Chief, Litigation Div., Asst. Atty. Gen., Paul Durham, Durham & Evans, Salt Lake City, Utah, and Kay Balmforth, for defendants.

MEMORANDUM DECISION AND ORDER IN RE DEFENDANTS' MOTION TO DISMISS AND CERTAIN ISSUES IN DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

J. THOMAS GREENE, District Judge.

This matter came regularly before the court on March 13, 1992, on defendants' Motion for Summary Judgment and defendants' Motion to Dismiss. Janet Benshoof, Eve Gartner, Rachel Pine, Jeffrey Oritt, Howard Lundgren and Simon Heller appeared for plaintiffs, and Mary Anne Wood, Anthony Quinn, James Soper, Paul Durham and Kay Balmforth appeared for defendants. Extensive oral argument was heard, after which the court took the matter under advisement. On April 10, 1992, after further argument addressed to the motions and other related matters, this court entered orders vacating trial, granting the motion to dismiss, and granting the motion for summary judgment as to certain issues, reserving the right to expand the bench rulings and to issue follow up written opinions.

Now being fully advised, and in furtherance of previous rulings, the court enters its memorandum decision and order with regard to defendants' Motion to Dismiss and certain issues raised in defendants' Motion for Summary Judgment.¹

Motion to Dismiss Converted to Motion for Summary Judgment

When ruling on a Rule 12(b)(6) motion, the court reviews the allegations in the complaint. Jackson v. Integra, 952 F.2d 1260, 1261 (10th Cir.1991). On that basis, it is doubtful whether the plaintiffs implicated in the motion to dismiss have standing, and it is doubtful whether the amended complaint states claims for which relief can be granted in a facial challenge case such as this.²

If the court considers matters outside the complaint such as affidavits, depositions, or other exhibits, the motion to dismiss should be converted to a motion for summary judgment. At the hearing on April 10, 1992, the court advised counsel at the beginning of day long argument of its determination to convert the motion to dismiss into a motion for summary judgment and requested argument addressed to the motion as such.

The usual requirement of notice to the parties of the changed nature of the proceeding, as in Nichols v. United States, 796 F.2d 361, 365 (10th Cir.1986), is not applicable when the nonmovant introduces evidence beyond the pleadings. Plaintiffs in this action submitted several exhibits attached to their Memorandum in Opposition to defendants' motion to dismiss, including portions of six depositions, two declarations, three news clippings, an affidavit, portions of testimony before the Abortion Task Force, six resolutions on abortion made by various religious groups, and a statement by plaintiff Julie S. In addition, plaintiffs in several instances referenced or quoted from depositions and other materials submitted by the parties in connection with the pending motion for summary judgment and the previously submitted materials in support of plaintiffs' Motion for Preliminary Injunction. Manifestly, plaintiffs intended in opposing the motion to dismiss to "speak" beyond the pleadings. Plaintiffs have triggered the summary judgment standard of review, and cannot be heard to complain of prejudice as a result.

Summary Judgment is Appropriate in this Case — No Need for Trial

Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). An important mission of the summary judgment procedure is "to assess the proof in order to see whether there is a genuine need for trial." Fed. R.Civ.P. 56(e) advisory committee's note. In this case, the court has assessed and evaluated the proof and determined that there is no need for trial. In this regard, the Supreme Court has made it clear that only factual disputes which relate to matters of consequence are pertinent in summary judgment proceedings:

Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Similarly, the Tenth Circuit has said, "Only material factual disputes preclude summary judgment; factual disputes about immaterial items are irrelevant." Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991) (emphasis in original) (citation omitted). The Supreme Court has also stressed that summary adjudication rather than trial is often the best avenue even in complex cases:

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy, and inexpensive' determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1).

The posture of this case is that fully briefed and extensively argued motions to dismiss and for summary judgment were submitted for decision and taken under advisement. As a prelude to those motions, the parties engaged in extensive discovery. Various affidavits, deposition testimony and voluminous other materials were submitted in direct support of and in opposition to the pending motions, so that both motions in substance are presented as summary judgment motions. In addition, the parties have prepared and lodged with the court summaries of all depositions which have been taken, as well as the depositions themselves, verified summaries of the testimony of persons whose depositions were not taken, verified statements of direct testimony of the persons who were deposed and all exhibits which the parties rely upon.

All of the aforesaid materials were referred to the Magistrate Judge for review as to whether these constitute adjudicative facts³ related to an actual factual dispute between the parties. The magistrate classified virtually all of the materials as nonadjudicative background facts.

The court has examined the depositions, written summaries, exhibits and other documents which have been submitted, and has determined that such can be and are of assistance in determining the legal issues presented. These materials present extensive historical and medical facts about abortions, pregnancies, professional and expert opinions, statistics, social and economic data, information concerning religious, family and psychological impacts, research, child rearing, adoption, and many other helpful things. These all bear upon such things as balancing the liberty interest of women in making the choice to have an abortion against the state's interest in protecting unborn children, and the validity or invalidity of statutory exceptions in which the state has determined that abortions should not be prevented.

The court determines that for the most part the materials presented do not relate to controversies of the sort to be decided at a trial. Rather, these are the type of materials from which inferences may be made by the court in arriving at legal conclusions on the issues presented. Some of the materials would not be admissible under the rules of evidence, such as those that are conclusory, based upon hearsay, or not relevant to the issues. Some are more helpful and pertinent than others. However, a sufficient record exists by reason of the many materials which have been submitted by the parties for the court to determine the legal issues in this case. Accordingly, the court determines that a trial at this time is not necessary and that the issues presented can and should be determined by summary judgment.⁴

The court now supplements some of the bench rulings and orders which were issued on April 10, 1992, and makes additional rulings as follows:

VAGUENESS

Plaintiffs allege in their First Cause of Action that certain provisions of the Utah anti-abortion statute are void for vagueness. Specifically, plaintiffs claim that there are no commonly accepted meanings for the terms: "necessary to save the mother's life," "grave damage to the woman's medical health," and "grave defects." Utah Code Ann. § 76-7-302(2)(a), (d), (e) (Supp.1991).⁵

In the analysis of a criminal law, the basic test for vagueness is whether "men of common intelligence must necessarily guess at its meaning and differ as to its application." Baggett v. Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377 (1964). If the statute in question does not implicate First Amendment rights, to prevail in a facial challenge on grounds of vagueness, plaintiffs must demonstrate that the statute is "impermissibly vague in all of its applications." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 1192, 71 L.Ed.2d 362 (1982).⁶ The statute must be "utterly devoid of a standard of conduct so that it `simply has no core.'" High Ol' Times, Inc. v. Busbee, 673 F.2d 1225, 1228 (11th Cir.1982).

It is undeniable that terms such as "grave" and "health" cannot be definitively defined to account for every woman and every fetus in all conceivable circumstances. The Utah Legislature recognized the impossibility of this task, and instead of attempting further definition, in enacting the Utah statute it permitted the "professional judgment" of the attending physician to constitute the measure of determining the...