Murray v. Lawson

• Decision Date: 12 April 1993
• Citation: 624 A.2d 3,264 N.J.Super. 17
• Parties: Belinda MURRAY and Elrick A. Murray, M.D., Plaintiffs-Respondents, v. Michael Andrew LAWSON, David Crist, Jane Doe (a fictitious name) and John Doe (a fictitious name), Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 17

264 N.J.Super. 17

624 A.2d 3

Belinda MURRAY and Elrick A. Murray, M.D., Plaintiffs-Respondents, v. Michael Andrew LAWSON, David Crist, Jane Doe (a fictitious name) and John Doe (a fictitious name) Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Submitted Feb. 18, 1993.

Decided April 12, 1993.

Richard F. Collier, Jr., Somerset, for defendants-appellants (Mr. Collier, on the brief).

Pamela Mandel, Millburn, for plaintiffs-respondents (Ms. Mandel, on the brief).

Before Judges KING, BRODY and LANDAU.

The opinion of the court was delivered by

KING, P.J.A.D.

In this case plaintiffs sought damages and injunctive relief against defendants for picketing in an harassing manner in front of their home in Westfield on January 20, 1991. Plaintiff Elrick A. Murray, M.D., is a physician who performs abortions. Defendants are anti-abortionists. The Chancery Division judge dismissed the damages claim but entered a permanent injunction against pickets or demonstrations by defendants and their cohorts within 300 feet of plaintiffs' residence. Defendants appeal from the injunctive order. We affirm.

I

The verified complaint filed in February 1991 by Dr. Murray and his wife against Michael Andrew Lawson, David Crist, and the fictitiously-named defendants, alleged: (1) trespass, (2) disruption of use and enjoyment of property, (3) intrusion on seclusion, (4) damage to Dr. Murray's professional reputation and pecuniary interests, and (5) deprivation of the right to privacy guaranteed by the federal and State constitutions. After a hearing on February 14, 1991 Judge Boyle entered a temporary order sharply restricting picketing near plaintiffs' home. ¹ Defendants removed the case to federal court on February 26, 1991. Federal Judge Barry returned the matter to State court because of lack of federal jurisdiction. We then denied defendants' request for interlocutory review on April 26, 1991.

Judge Boyle held a final hearing on May 21, 31 and July 25, 1991. He dismissed the damages claims but on July 26, 1991 permanently enjoined picketing within 300 feet of plaintiffs' residence.

II

The final hearing presented this factual picture. Dr. Murray is an obstetrician and gynecologist with a private practice in Plainfield. He also serves at several area clinics, including the Women's Medical Center in Howell, where he and other doctors perform abortions. He does not perform abortions at his Plainfield office. He lives in a typical suburban residential neighborhood in Westfield. He maintains no office and treats no patients there. He lives there with his wife, plaintiff Belinda Murray, and three children, who in 1991 were age six, eleven and fifteen. Defendants, who live near the Howell Clinic, regularly demonstrated against abortion by picketing at the Howell Clinic for about two years before January 1991.

Defendant Lawson discovered the Plainfield and Westfield addresses of Dr. Murray. He visited the Westfield home address on about December 14, 1990 and was surprised to see a residence rather than an office. He rang the doorbell, which was answered by plaintiffs' son, then age fourteen, and on confirming it was the Murray residence, told the lad to tell his father to stop doing abortions. Mrs. Murray then appeared at the door and told Lawson not to talk to her children, to leave and not to come back. He immediately left. Mrs. Murray was upset and frightened by this visit.

Defendants then planned a demonstration at the Murray residence for January 20, 1991, a Sunday. On January 18 Lawson informed the Westfield police that a peaceful protest picket was planned by about fifty people. In the afternoon of January 20 two policemen met the fifty-seven picketers at the nearby Edison School, instructed them on basic picketing rules, and escorted them to the sidewalk in front of plaintiffs' house and about ten surrounding homes. They walked in a single-file loop on the sidewalk past plaintiffs' house, usually two abreast but sometimes four or five abreast.

Dr. Murray had been warned of the impending demonstration by the administrator of the Medical Care Center in Woodbridge, another clinic where he served. Westfield police had confirmed this and advised Dr. Murray to send his family away for the day and remain inside the house himself. Mrs. Murray and the children spent the day at her sister's home. Dr. Murray observed the pickets from his windows. He heard singing, shouting and chanting; he saw several neighbors, including two teenage boys, converse with the picketers. One of the boys videotaped a short portion, in which picketers loudly questioned whether the boy knew there was a killer in the neighborhood. Picketers carried placards describing Dr. Murray as: a vagabond abortionist, a killer of unborn babies who scars women, and a child murderer. One sign stated that if Dr. Murray got out of Howell, the picketers would get out of Westfield. Another placard showed a decapitated infant labeled "Elrick Murray, abortionist."

The plaintiffs said the demonstration deprived them of their usual Sunday family time and threatened Dr. Murray's practice by forcing him to remain home out of fear for his property while two of his patients were in labor. Since the picketing, Mrs. Murray has been nervous and depressed; Dr. Murray has felt compelled to curtail his professional work so he can be at home more often.

In response to the January 20 demonstration, plaintiffs filed this suit. On the day of the first scheduled hearing date, February 8, defendants Lawson and Crist picketed on the sidewalk in front of plaintiffs' residence, and along the block, for about fifteen minutes.

On February 26 defendants removed the case to federal district court based on the assertion of a federal constitutional claim of deprivation of privacy rights. After several motions in that court, Federal Judge Barry remanded to State court for lack of federal jurisdiction on April 24, 1991. Jurisdiction was declined when Judge Barry dismissed that portion of count five alleging violation of a right to privacy guaranteed by the United States Constitution because the requisite state action was absent. She found that, because of Fed.R.Civ.P. 65(b), Judge Boyle's temporary restraining order had expired on March 12, 1991, ten days after the February 26 removal. On April 26, 1991 Judge Boyle reimposed the earlier temporary restraints.

There was no further residential picketing until May 4, 1991. In the interim, Dr. Murray's apprehension about the conduct of anti-abortionists heightened. On April 22 Dr. Murray discovered, on arriving at work at the Medical Care Center in Woodbridge, that the building had been burned. The police chief and fire marshal attributed the fire to arson. Sometime between April 22 and May 4 Lawson picketed at the Howell clinic, and later that same day picketed at Dr. Murray's Plainfield office. On May 2 the Howell police received a telephone bomb threat to the Howell clinic.

On the morning of May 4 Lawson and Edith Tucker began to picket in front of plaintiffs' home. Dr. Murray was annoyed by the timing, both because this came on the heels of the Woodbridge clinic arson and because he had misinterpreted the preliminary injunction to mean that defendants could picket only the third week of every month, as opposed to every three weeks. He called the police, who reminded him of the injunction permitting such picketing and came to the scene. After the police arrived, Dr. Murray went out to confront Lawson, expressed certain "expletives," and asked why he was there. Lawson replied that he would continue to come to the doctor's home as long as the doctor continued to go to the Howell clinic.

According to Dr. Murray, he returned to his house at the urging of police, who told him shortly afterwards that the picketers' hour was up. This was in error; the picketers actually had a few minutes left before their hour was up. Dr. Murray rushed out and "took a swing" at Lawson, but a police officer reacted quickly to intercept it. Dr. Murray and a neighbor also attempted to remove a sign strapped to Tucker. Although Dr. Murray had no proof linking defendants with the arson or bomb threat, he was scared by those events; he found defendants' presence threatening, and feared the demonstrators and their colleagues.

According to Lawson, Dr. Murray talked to him for about ten minutes before the police arrived, and also yelled, cursed and told him to leave. He grabbed and tore Lawson's "Stop Abortion Now" sign. After police arrived, one officer ushered Dr. Murray away from the picketers. When Dr. Murray returned to the sidewalk accompanied by an officer, Lawson felt a punch to the back of his head. After picketing a bit longer, Lawson told the police that he wanted Dr. Murray arrested, and was advised to file a complaint. He later did so and Dr. Murray was convicted of simple assault in the Westfield Municipal Court and fined $100.

At the conclusion of the February 14, 1991 plenary hearing, Judge Boyle enjoined defendants from picketing within 300 feet of plaintiffs' residence. He dismissed the claim for interference with Dr. Murray's profession, which he interpreted as a claim for interference with contractual relations, based on lack of evidence of the required malice or intent. He subsumed the claim for interference with use and enjoyment of the home under the claim for tortious invasion of privacy. He found the December 14, 1990 trespass by defendant Lawson to have occurred "before this case was instituted," presumably meaning that it was not relevant to the picketing. He characterized plaintiffs' common-law tort claims as an invasion of privacy and intentional infliction of emotional distress. He found insufficient evidence to justify money damages for either. Plaintiffs do not cross-appeal from these adjudications.

Judge Boyle found that plaintiffs had a privacy interest in their home, independent of any tort claim, and...