McCullen v. Coakley
| Citation | 573 F.Supp.2d 382 |
| Decision Date | 22 August 2008 |
| Docket Number | Civil Action No. 08-10066-JLT. |
| Parties | Eleanor McCULLEN, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, and Eric Cadin, Plaintiffs, v. Martha COAKLEY, in her capacity as Attorney General for the Commonwealth of Massachusetts, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Benjamin W. Bull, Alliance Defense Fund, Scottsdale, AZ, Kevin H. Theriot, Alliance Defense Fund, Leawood, KS, Michael J. DePrimo, Hamden, CT, Philip D. Moran, Salem, MA, Timothy D. Chandler, Alliance Defense Fund, Folsom, CA, for Plaintiffs.
Kenneth W. Salinger, Massachusetts Attorney General's Office, Anna-Marie L. Tabor, Office of the Attorney General, Boston, MA, for Defendant.
Plaintiffs challenge the facial constitutionality of a recently revised Massachusetts statute, Mass. Gen. Laws ch. 266, § 120E 1/2 ("Act"), which establishes a 35foot fixed buffer zone around driveways and entrances of reproductive health care facilities ("RHCFs").1 Following a Bench Trial held on May 28, 2008, this court finds that the Act survives First Amendment, Equal Protection and Due Process challenges.
Plaintiffs Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell and Eric Cadin are Massachusetts residents who regularly engage in pro-life counseling outside RHCFs.2 Defendant Attorney General Martha Coakley is the chief lawyer and law enforcement officer of the Commonwealth of Massachusetts. As such, Attorney General Coakley bears responsibility for enforcing the Act. She is sued in her official capacity only.3
On January 16, 2008, Plaintiffs filed the Complaint, advancing eight counts under 42 U.S.C. § 1983: (1) Free Speech—Time, Place and Manner; (2) Free Speech—Substantial Overbreadth; (3) Free Speech— Prior Restraint; (4) "Free Speech—Free Association—Free Exercise Hybrid;" (5) Free Speech—Viewpoint Discrimination; (6) Due Process—Vagueness; (7) Due Process—Liberty Interest; and (8) Equal Protection.4
Plaintiffs seek that this court: (1) declare that the Act is unconstitutional on its face; (2) declare that the Act is unconstitutional as applied at the Allston-Brighton Planned Parenthood and Women's Health Service; (3) preliminarily5 and permanently enjoin Defendant from enforcing the Act; (4) award costs and attorneys fees; and (5) grant any other relief that this court deems necessary and proper.6
Following Defendant's Answer, and briefing on Plaintiffs' preliminary injunction motion, this court held a Case Management Conference on April 23, 2008. Without objection from the Parties, this court ordered that the matter proceed on the merits in two stages:7 (1) a Bench Trial on Plaintiffs' facial challenge; and (2) a Bench Trial on Plaintiffs' as-applied challenge.8
In early May 2008, the Parties stipulated to the content of the Trial Record for the facial challenge,9 and filed a Joint Trial Record with this court.10 On May 14, 2008, the Parties filed Proposed Findings of Fact and Conclusions of Law.11 Also on May 14, 2008, four individuals filed an Amicus Brief in support of Plaintiffs' facial and as-applied challenges.12
On May 28, 2008, this court held a Bench Trial on Plaintiffs' facial challenge. The Parties presented extensive oral argument, and this court took the matter under advisement.13
The following findings of fact derive from the Joint Trial Record submitted by the Parties. Additionally, this court takes notice of the findings of the First Circuit with respect to the legislative justification for the original statute enacted in 2000 ("2000 Act").14
Plaintiffs urge this court to adopt various findings of fact relating to, among other things, the following: Plaintiffs' activities at certain RHCFs; specific incidents at certain RHCFs; and the operation of the buffer zone at certain RHCFs.15 Additionally, Defendant asks this court to adopt certain findings of fact relating to the effects of the Act, to date, at certain RHCFs.16 While this information may be important to Plaintiffs' as-applied challenge, it is largely irrelevant to the facial challenge. Moreover, because the as-applied challenge will be tried separately, this court does not have a complete record from which to make such findings.
As noted by the First Circuit, "[b]y the late 1990s, Massachusetts had experienced repeated incidents of violence and aggressive behavior outside RHCFs."17 These included a shooting that occurred on December 30, 1994, in which two people were killed and several others injured.18 Massachusetts courts also issued numerous injunctions prohibiting certain individuals from engaging in violent, harassing or intimidating activity at RHCFs.19
Responding to these concerns, "the Massachusetts legislature, confronted with an apparently serious public safety problem, investigated the matter thoroughly."20 "That investigation yielded solid evidence that abortion protesters are particularly aggressive and patients particularly vulnerable as they enter or leave RHCFs."21
Part of the investigation included a state senate hearing on the matter in April of 1999.22 At the hearing, the "received testimony chronicled the harassment and intimidation that typically occurred outside RHCFs."23 In addition, "numerous witnesses addressed the emotional and physical vulnerability of women seeking to avail themselves of abortion services, and gave accounts of the deleterious effects of overly aggressive demonstrations on patients and providers alike."24
The senate, "[biased in part on this testimony, . . . concluded that existing laws did not adequately protect public safety in areas surrounding RHCFs," and the Legislature began considering new laws to address the problem.25 Initially, in Senate Bill 148, the senate considered a 25-foot fixed buffer zone around RHCF entrances and driveways. The First Circuit explained:
To remedy this situation, the senate favored the creation of fixed buffer zones. The sponsors of the bill left no doubt that they intended the proposed law to "increase public safety in and around [RHCFs]" while "maintaining the flow of traffic and preventing congestion" there. S.B. 148 . . . § 1. In the bargain, the sponsors expected the law to provide "reasonable time, place and manner restrictions to reconcile and protect both the First Amendment rights of persons to express their views near reproductive health care facilities and the rights of persons seeking access to those facilities to be free from hindrance, harassment, intimidation and harm." It thereby would "create an environment in and around reproductive health care facilities which is conducive towards the provision of safe and effective medical services . . . to its patients." Id.
Skeptics worried that the proposed law might offend the Constitution. To stave off these gloom-and-doom predictions, the senate, on November 3, 1999, asked the Massachusetts Supreme Judicial Court (SJC) for an advisory opinion on the bill's constitutionality.
On January 24, 2000, the SJC concluded that the Constitution presented no obstacle to enactment. Opinion of the Justices to the Senate, 430 Mass. 1205, 1211-12, 723 N.E.2d 1 (2000). The SJC advised that the bill, as framed, was unrelated to the content of protected expression. Id. at 1209, 723 N.E.2d 1 Moreover, the restrictions imposed had a rational basis in view of the heightened governmental interest that arises when "advocates of both sides of one of the nation's most divisive issues frequently meet within close proximity of each other in the areas immediately surrounding the State's clinics, in what can and often do become congested areas charged with anger." Id. at 1210, 723 N.E.2d 1.26
Following the SJC's opinion, the state senate adopted the bill on February 29, 2000.27 On June 28, 2000, however, the Supreme Court decided Hill v. Colorado,28 There, the Court considered the constitutionality of a Colorado statute that regulated speech-related conduct around RHCFs.29 The statute created a "floating" buffer zone within a 100-foot "fixed" buffer zone.30 Plaintiffs challenged the "floating" zone, which "ma[de] it unlawful within the regulated areas for any person to `knowingly approach' within eight feet of another person, without that person's consent, `for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person. . . .'"31
The Court upheld the Colorado statute as a valid time, place and manner regulation, finding that the law was "narrowly tailored" and "serve[d] governmental interests that are significant and legitimate and that the restrictions are content neutral."32 This court will address Hill in more detail below.
Subsequently, the Massachusetts Legislature decided to follow the Court-approved Colorado model of a "floating" buffer zone within a "fixed" buffer zone. The state house redrafted Senate Bill 148 accordingly, and on July 28, 2000, adopted an Act Relative to Reproductive Health Care Facilities, Chapter 217 of the Acts of 2000 ("2000 Act").34 The senate approved on July 29, 2000, and Governor Celluci signed the bill on August 10, 2000.35
The 2000 Act created an 18-foot fixed buffer zone around RHCFs, within which a 6-foot floating buffer zone existed around any person or occupied motor vehicle:
(b) No person shall knowingly approach another person or occupied motor vehicle within six feet of such person or vehicle, unless such other person or occupant of the vehicle consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person in the public way or sidewalk area within a radius...
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McCullen v. Coakley
...district court rejected the facial challenge in all its iterations and refused to enjoin enforcement of the new law. McCullen v. Coakley, 573 F.Supp.2d 382 (D.Mass.2008). After careful consideration of the record, the parties' briefs, some helpful friend-of-the-court briefs, and the argumen......
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