Right to Life Advocates, Inc. v. Aaron Women's Clinic

• Decision Date: 21 May 1987
• Docket Number: No. B14-85-794-CV,B14-85-794-CV
• Citation: 737 S.W.2d 564
• Parties: RIGHT TO LIFE ADVOCATES, INC., etc. et al., Appellants, v. AARON WOMEN'S CLINIC, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 564

737 S.W.2d 564

RIGHT TO LIFE ADVOCATES, INC., etc. et al., Appellants, v. AARON WOMEN'S CLINIC, Appellee.

No. B14-85-794-CV.

Court of Appeals of Texas Houston (14th Dist.).

May 21, 1987.

Rehearing Denied Sept. 10, 1987.

Concurring Opinion Sept. 10, 1987.

Thomas C. Sanders, Houston, Richard W. Schmude, Tomball, for appellants.

Patricia Hancock, Timothy Henderson, John W. Berkel, Houston, for appellee.

Before PAUL PRESSLER, SEARS and CANNON, JJ.

OPINION

SEARS, Justice.

This is an appeal from a final judgment granting a permanent injunction against "right to life" demonstrators at a women's clinic. Appellants (Right to Life Advocates, Inc., Craig K. Andersen, J. (Jim) Bailey, Lee P. Helmke, Gary Loth, Barbara A. Martone, John A. Martone, Kathy Mathems, Sheila McIntosh and Joseph J. Pesl) raise ten points of error on appeal. Appellants allege that they had rights under the Texas Constitution to conduct their activities; that appellee failed to establish either irreparable injury or the lack of an adequate remedy at law; that the judgment and related writ of injunction are unconstitutionally vague and overbroad and that the judgment is not supported by the evidence; that appellee is precluded by the doctrine of unclean hands from receiving equitable relief; and that the trial court abused its discretion in awarding costs to appellee and in failing to dismiss appellee's severed action for damages. Appellants also collaterally attack the constitutionality of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). We affirm the trial court's judgment.

Appellee Aaron Women's Clinic (an assumed name of Orient Sales Corporation) rents approximately one-tenth of the total office space in a building located at 6420 Hillcroft, Houston, Texas. Appellee provides pregnancy-related services, including birth control services, pregnancy testing and pregnancy terminations. Pregnancy terminations are generally scheduled on Saturday mornings. In mid-May 1985, and on each Saturday thereafter, appellants began assembling at the clinic. Some appellants carried picket signs on the public sidewalk in front of the building while others distributed literature and attempted to engage in "sidewalk counseling" with persons arriving at the building. The latter activities took place on the building's parking lot, on the interior sidewalks and near the doors to the building. Testimony varied as to the degree of obstruction, harassment and disorderliness. However, no one disputes the fact that appellants' purpose was to prevent the termination of the pregnancies of the women attempting to enter the clinic. Following unsuccessful efforts by building and clinic personnel to get the demonstrators to leave the premises, the clinic filed suit for a temporary restraining order, a temporary injunction, a permanent injunction and damages.

The trial court held a hearing on the temporary injunction on July 30 and 31, 1985. On August 14th the court issued a Memorandum of Opinion, ruling that appellee was entitled to a temporary injunction. The parties then stipulated that the evidence presented at this hearing would be incorporated at the trial on the merits of the cause for injunctive relief. The injunction issue was severed from the damage issues by agreement of the parties. The trial was held on August 16th with each side presenting some additional evidence and argument. At the conclusion of the trial the court rendered judgment enjoining appellants from the following:

[E]ntering or trespassing onto any portion of the private property of Plaintiff located at 6420 Hillcroft, Houston, Harris County, Texas, specifically including, but not limited to, the private parking lot of the office building at 6420 Hillcroft, the three doorways to the office building at 6420 Hillcroft, and the interior of the office building at 6420 Hillcroft, in order (1) to conduct any demonstrating, picketing, or counseling; (2) to physically confront, intimidate, or harass any customer, potential customer, employee, invitee, or tenant of the office building at 6420 Hillcroft; or, (3) to distribute or broadcast any information, in written or oral form, specifically including, but not limited to, pamphlets and leaflets.

This appeal followed.

"Right to life" vs. "Pro-Choice" is the underlying issue notwithstanding the fact that the legal issue presented is freedom of speech vs. freedom of personal choice, right to property and freedom to conduct a lawful business. Here, appellants seek access to privately-owned commercial property to impress their views on adult females who are exercising their lawful right to terminate pregnancy, and to prevent the clinic from operating a lawful business. We will not comment on the morality of the parties or the issues, as that is not our function. However, we will protect the lawful rights of the parties as the law directs us.

Appellants' points of error one through four and six through eight complain that the district court's judgment and related writ of injunction are erroneous and unlawful. Appellants base this complaint on several arguments. In their first point of error, appellants claim they have the right under the Texas Constitution to engage peacefully in free expression activities on the parking lot and interior sidewalks involved in this suit. They contend that right is predicated upon art. I, § 8, which provides in part:

Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.

The United States Supreme Court has determined that a state may adopt in its own constitution individual liberties more expansive than those conferred by the federal constitution. PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980).

Although private property is involved in this case, it is not determinative of the appeal as more and more states provide access to private property (primarily shopping malls and private universities) for peaceful speech, assembly, pamphleting or petitioning purposes. See Robins v. PruneYard Shopping Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979), aff'd, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980); Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981); Alderwood Associates v. Washington Environmental Council, 96 Wash.2d 230, 635 P.2d 108 (1981). Appellants assert that a balancing of the competing constitutional interests, private property versus free expression, should have been considered by the trial court. We note, however, that although the court expressed doubts during the permanent injunction hearing that balancing is required unless property is characterized as quasi-public, in its Memorandum of Opinion the court did cite three factors to consider when balancing and it applied those factors to the facts in this case.

As set out by the New Jersey Supreme Court (and adopted with slight variation by other state courts) the factors include (1) the nature, purposes, and primary use of the property (i.e., its "normal" use); (2) the extent and nature of the public's invitation to use that property; and (3) the purpose of the expressional activity undertaken upon it in relation to both the private and public use of the property. State v. Schmid, 423 A.2d at 630. In an amicus curiae brief filed in this case, counsel for the Greater Houston Chapter of the American Civil Liberties Union and the Texas Civil Liberties Union contends that the district court placed a burden on the protestors to justify the extension of free speech onto private property. Instead, it is argued, the language of the Texas Constitution should be construed as creating a presumption in favor of free speech, even on private property, unless competing interests outweigh the constitution's preference for free speech. Before undertaking our own balancing of the three factors, we emphasize that we are looking at a set of facts specific to this case. Their weight is highly subjective. While we may be guided by other cases in reaching our decision, those cases are guidelines only. As the ACLU so aptly phrased it, "Different fact situations will produce a different balance."

We first examine the nature, purposes and primary use of the property. The five-story structure at 6420 Hillcroft is a general use office building with a variety of tenants, including a construction company, accountants, doctors and a VISA center. A major thoroughfare and a public sidewalk front the building, while a parking lot and sidewalks surround it on three sides. According to the Rules and Regulations attached to appellee's lease, the parking lot is for the use of tenants and their employees, agents and invitees.

In considering the use of the property, it is important to note that all the building's tenants have the right to conduct their businesses lawfully without interference and to travel to and from their workplaces without obstruction or harassment. More specifically, the clinic has the legal right to practice medicine and its patients the legal right to consult with their doctors and choose to terminate pregnancies, also without interference or harassment.

Our next focus is the extent and nature of the public's invitation to use the property. There is no question that the tenants, including the clinic, conduct business with the public and, indeed, solicit that business. The clinic director testified that the clinic advertises in the local Yellow Pages. We find that this public solicitation differs, however, from that of shopping malls or private universities (the foci of the more recent cases seeking access to private property). The shopping mall has been said to have "assumed all of the characteristics of the downtown business district or town center." Shad...