Olmer v. City of Lincoln

• Decision Date: 04 November 1998
• Docket Number: No. 4:98CV3311.,4:98CV3311.
• Citation: 23 F.Supp.2d 1091
• Parties: Marilyn OLMER, an Individual, John Kelly, an Individual, Theresa Lane, an Individual, and Michelle Mann, an Individual, Plaintiffs, v. CITY OF LINCOLN, a Municipality, William Austin, in his Official Capacity as Lincoln City Attorney, and Thomas Casady, in his Capacity as Chief of the Lincoln Police Department, Defendants.
• Court: U.S. District Court — District of Nebraska

23 F.Supp.2d 1091

Marilyn OLMER, an Individual, John Kelly, an Individual, Theresa Lane, an Individual, and Michelle Mann, an Individual, Plaintiffs, v. CITY OF LINCOLN, a Municipality, William Austin, in his Official Capacity as Lincoln City Attorney, and Thomas Casady, in his Capacity as Chief of the Lincoln Police Department, Defendants.

No. 4:98CV3311.

United States District Court, D. Nebraska.

November 4, 1998.

COPYRIGHT MATERIAL OMITTED

Jefferson Downing, Gary L. Young, Keating, O'Gara Law Firm, Lincoln, NE, Vollis E. Summerlin, Jr., Krista L. Kester, Osborn, Summerlin Law Firm, Lincoln, NE, for Plaintiffs.

Daniel E. Klaus, Rembolt, Ludtke Law Firm, Lincoln, NE, Mark S. Shelton, David Donovan, Wilmer, Cutler Law Firm, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

KOPF, District Judge.

Plaintiffs — four individuals who have engaged in protests and demonstrations opposing abortion in the vicinity of a Presbyterian church in Lincoln, Nebraska — seek a preliminary injunction prohibiting enforcement of a Lincoln city ordinance that makes it unlawful for any person to intentionally or knowingly engage in "focused picketing" of a "scheduled religious activity" at certain times and within certain boundaries of a religious premises.

The plaintiffs claim that the ordinance violates the Free Speech, Establishment, and Free Exercise Clauses of the First Amendment,¹ as well as the Equal Protection and Due Process Clauses of the Fourteenth Amendment.² Further, the plaintiffs claim that the ordinance is unconstitutionally vague, ambiguous, and overbroad. (Filing 1, Compl. for Declaratory & Inj. Relief ¶ 31.) The defendants — the City of Lincoln and its city attorney and chief of police³ — assert, among other things, that the ordinance is a constitutional time, place, and manner restriction upon expressive activity that does not violate the First Amendment.

After an evidentiary hearing on the plaintiffs' preliminary injunction motion, I conclude that a preliminary injunction should issue because the ordinance is not narrowly tailored to serve the government interest that prompted the ordinance, in violation of the Free Speech Clause of the First Amendment.⁴ Given the court's resolution of the plaintiffs' Free Speech Clause argument, and because federal courts are required to avoid unnecessary and broad adjudication of constitutional issues, I do not reach the merits of the plaintiffs' other constitutional claims.⁵ See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ("The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of."); American Foreign Serv. Ass'n v. Garfinkel, 490 U.S. 153, 161, 109 S.Ct. 1693, 104 L.Ed.2d 139 (1989) (district court should not pass on constitutional question unless it was "imperative" on remand in case involving statute which precluded use of appropriated funds to implement or enforce nondisclosure agreements signed by Executive Branch employees; "courts should be extremely careful not to issue unnecessary constitutional rulings"); Carhart v. Stenberg, 972 F.Supp. 507, 509 (D.Neb.1997) (court declined to reach merits of alternative constitutional argument regarding state's "partial-birth" abortion law because federal courts are to avoid unnecessary and broad adjudication of constitutional issues, and court resolved request for preliminary injunctive relief on another constitutional ground).

I. FINDINGS OF FACT

The Ordinance

1. On September 14, 1998, the Lincoln City Council passed Ordinance No. 17413, which created Lincoln Municipal Code § 9.20.090. Lincoln Mayor Mike Johanns vetoed the ordinance on September 16, 1998, but the Lincoln City Council voted to override the mayor's veto on September 21, 1998. Section 9.20.090 provides as follows:

9.20.090 Disturbing the Peace by Focused Picketing at Religious Premises

(a) Definitions. As used in this ordinance, the following terms shall have the meanings here set forth:

(1) The term "religious premises" shall mean "the property on which is situated any synagogue, mosque, temple, shrine, church or other structure regularly used for the exercise of religious beliefs, whether or not those religious beliefs include recognition of a God or other supreme being";

(2) The term "scheduled religious activity" shall mean "an assembly of five or more persons for religious worship, wedding, funeral, memorial service, other sacramental ceremony, religious schooling or religious pageant at a religious organization's premises, when the time, duration and place of the assembly is made known to the public, either by a notice published at least once within 30 days but not less than 3 days before the day of the scheduled activity in a legal newspaper of general circulation in the city or in the alternative by posting the information in a reasonably conspicuous manner on the exterior premises for at least 3 days prior to and on the day of the scheduled activity."

(3) The term "focused picketing" shall mean "the act of one or more persons stationing herself, himself or themselves outside religious premises on the exterior grounds, or on the sidewalks, streets or other part of the right of way in the immediate vicinity of religious premises, or moving in a repeated manner past or around religious premises, while displaying a banner, placard, sign or other demonstrative material as a part of their expressive conduct." The term "focused picketing" shall not include distribution of leaflets or literature.

(b) It shall be deemed an unlawful disturbance of the peace for any person intentionally or knowingly to engage in focused picketing of a scheduled religious activity at any time within the period from one-half hour before to one-half hour after the scheduled activity, at any place (1) on the religious organization's exterior premises, including its parking lots; or (2) on the portion of the right of way including any sidewalk on the same side of the street and adjoining the boundary of the religious premises, including its parking lots; or (3) on the portion of the right of way adjoining the boundary of the religious premises which is a street or roadway including any median within such street or roadway; or (4) on any public property within 50 feet of a property boundary line of the religious premises, if an entrance to the religious organization's building or an entrance to its parking lot is located on the side of the property bounded by that property line. Notwithstanding the foregoing description of areas where focused picketing is restricted, it is hereby provided that no restriction in this ordinance shall be deemed to apply to focused picketing on the right of way beyond the curb line completely across the street from any such religious premises.

2. Ordinance No. 17413, which created Lincoln Municipal Code § 9.20.090, contains a severability clause that states: "If any part of this ordinance shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of this ordinance as a whole, or any part thereof not adjudged invalid or unconstitutional." City of Lincoln Ordinance No. 17413 § 3 (Sept. 21, 1998).

3. Ordinance No. 17413 contains a section entitled "Legislative Intent and Findings," which characterizes the focused-picketing law as a "time, place and manner restriction[ ] ... intended to provide narrowly tailored, reasonable, common[-]sense limitations on focused picketing." City of Lincoln Ordinance No. 17413 § 1(f) (Sept. 21, 1998). The statement of legislative intent further provides:

It is the intent of this ordinance to preserve the peace at religious premises in order to protect and secure several significant and compelling interests of this city. Those interests include the health, safety and welfare of all the citizens and especially of children, all citizens' freedoms of expression assembly, association and religion, and the ordinary, good public order of the community.

City of Lincoln Ordinance No. 17413 § 1(a) (Sept. 21, 1998). The statement of intent contains a finding that the focused picketing to be regulated disrupts religious activities, hinders reasonable access to religious activities by families with young children, disturbs the peace of those seeking to participate in such activities, and interferes with the use and safety of public sidewalks and streets that provide access to religious premises. City of Lincoln Ordinance No. 17413 § 1(b) (Sept. 21, 1998). According to the statement of legislative intent, "This ordinance is intended only to prohibit a certain specified form of disturbance of the peace which arises when one form of expressive conduct, focused picketing, tends to override another form of expressive conduct, namely free exercise of religion." City of Lincoln Ordinance No. 17413 § 1(c) (Sept. 21, 1998). The statement goes on to describe the specific injury targeted by the legislation:

The mechanism of such injury to individual freedom of religion operates as follows: infants and young children are emotionally vulnerable to focused picketing in close proximity to them, which is a typical characteristic of focused picketing at religious premises, and many of these children tend to react with fear, unhappiness, anxiety and other emotional disturbance when such activity is imposed on them. Families with infants and young children who must pass through the ring of focused picketing in order to attend or leave religious activities are for the time of entrance to the time of departure, captive audiences. Their option of foregoing their worship or other religious activity on the one hand, or risking pain and injury to their children on the other, amounts to a substantial and intolerable burden on their personal religious freedom. The technique of using focused picketing to...