Sabelko v. City of Phoenix

• Decision Date: 11 February 1994
• Docket Number: No. CIV 93-2229-PHX-SMM.,CIV 93-2229-PHX-SMM.
• Citation: 846 F. Supp. 810
• Parties: Katherine SABELKO and Nancy Barto, Plaintiffs, v. The CITY OF PHOENIX, et al., Defendants.
• Court: U.S. District Court — District of Arizona

846 F. Supp. 810

Katherine SABELKO and Nancy Barto, Plaintiffs, v. The CITY OF PHOENIX, et al., Defendants.

No. CIV 93-2229-PHX-SMM.

United States District Court, D. Arizona.

February 11, 1994.

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Benjamin W. Bull, Nikolas T. Nikas, Phoenix, AZ, for Katherine Sabelko and Nancy Barto.

Marvin A. Sondag, City of Phoenix Law Dept., Civ. Div., Roderick Gregory McDougall, Office of City Atty., Asst. City Atty., Phoenix, AZ, for City of Phoenix, Paul Johnson, Thelda Williams, Frances Emma Barwood, Skip Rimsza, Craig Tribken, John Nelson, Kathy Dubs, Salomon F. Leija and Calvin C. Goode.

Lawrence Jay Rosenfeld, Helen Rubenstein Holden, Sacks Tierney & Kasen, PA, Phoenix, AZ, Roger K. Evans, Legal Action for Reproductive Rights, Planned Parenthood Federation of America, New York City, for Planned Parenthood of Central and Northern Arizona, Inc.

MEMORANDUM OF DECISION AND ORDER

McNAMEE, District Judge.

INTRODUCTION

On November 17, 1993 Phoenix City Ordinance No. G3705 was enacted and made immediately effective. The Ordinance, codified as Phoenix City Code § 23-10.1, provides:

WHEREAS unimpeded access to health care services is critically and uniquely important to the public health, safety, and welfare; and

WHEREAS persons attempting to access health care facilities are subject to harassing or intimidating activity tending to impede their access to those facilities by demonstrators approaching within extremely close proximity; and

WHEREAS such activity near health care facilities creates a "captive audience" situation where persons seeking services cannot avoid the area outside the facilities, and their physical and emotional conditions may make them especially vulnerable to the adverse physiological and emotional effects of such harassing or intimidating activities directed at them from extremely close proximity; and

WHEREAS such activity in extremely close proximity tends to undermine a person's right to privacy and interfere with a person's right to seek legitimate health care treatment and counseling; and

WHEREAS this ordinance does not preclude all protesting, picketing, demonstrating, leafletting, or educational activities near a health care facility but is a necessary time, place, and manner restriction intended to reconcile and protect the First Amendment rights of demonstrators and the rights of persons using health care facilities to be free from direct confrontation, hindrance, harassment, intimidation, and harm; and

WHEREAS existing law does not adequately protect such access to health care facilities; NOW THEREFORE,

BE IT ORDAINED by the Council of the City of Phoenix as follows:

SECTION 1. Chapter 23, Article 1, Phoenix City Code is amended by adding section 23-10.1 to read:

Sec. 23-10.1 IMPEDING ACCESS TO HEALTH CARE FACILITIES

A. It is unlawful for any person, in the course of demonstration activity within the access area of a health care facility, to fail to withdraw upon a clearly communicated request to do so to a distance of at least eight (8) feet away from any person who has made the request.

B. For the purposes of this section:

1. "Access area" means any portion of a public street or other public place or any place open to the public within one hundred (100) feet of an exterior wall or entryway of a health care facility.

2. "Demonstration activity" includes but is not limited to protesting, picketing, distributing literature, attempting to impede access, or engaging in oral protest, education, or counseling activities.

3. "Health care facility" means any hospital, clinic, office, building or other place used to provide medical, psychological, nursing, or other health care services, including family planning counseling and pregnancy-related services.

4. For purposes of this section, distance shall be measured from that part of the closest demonstrator's body that is nearest to the closest part of the requesting person's body. The term "body" includes any natural or artificial extension of a person's body including an outstretched arm or hand-held sign.

SECTION 2. WHEREAS the immediate operation of the provisions of this ordinance is necessary for the preservation of the public peace, health, and safety, an EMERGENCY is hereby declared to exist, and this ordinance shall be in full force and effect from and after its passage by the Council as required by the City Charter and is hereby exempted from the referendum clause of said Charter.

On November 23, 1993, Plaintiffs Katherine Sabelko and Nancy Barto filed CIV 93-2229-PHX-SMM. The named Defendants are the City of Phoenix, the Mayor of Phoenix, and all members of the Phoenix City Council. The Complaint seeks declaratory and injunctive relief from Phoenix City Code § 23-10.1 hereinafter, "the Ordinance" which, according to Plaintiffs, "restricts the exercise of pristine First Amendment rights in traditional public fora."

In their Complaint, Plaintiffs challenge the Ordinance as: (1) Count One: a violation of the right to freedom of speech under the First Amendment to the U.S. Constitution; (2) Count Two: a violation of the right to freedom of the press under the First Amendment to the U.S. Constitution; (3) Count Three: a violation of the right to peaceable assembly under the First Amendment to the U.S. Constitution; (4) a violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; (5) Count Five: a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; and (6) Counts Six through Nine: violations of applicable parallel sections of the Arizona State Constitution.

Plaintiffs applied for a Temporary Restraining Order ("TRO") pursuant to Federal Rule of Civil Procedure 65. The Court granted the TRO, thereby temporarily restraining and enjoining the Defendants and any and all persons acting in concert with them, including the Phoenix Police Department, from enforcing the Ordinance. Pursuant to the stipulation of the parties, the TRO has been continued pending a determination by the Court on Plaintiffs' application for a preliminary injunction.

On December 8, 1993, Planned Parenthood of Central and Northern Arizona, Inc. hereinafter "Petitioner" filed (1) a Motion for Leave to Intervene in the above captioned matter, and (2) an ex parte Motion for Order Expediting Hearing on its Motion to Intervene. That same day, the Court granted the ex parte Motion for Expedited Hearing and set oral argument on the Motion to Intervene for 1:00 p.m. on Monday, December 13, 1993. The Court denied the Motion to Intervene but granted Petitioner permission to file a brief, amicus curiae.

The Court has reviewed the briefs submitted by the parties and the amicus. Both an evidentiary hearing and oral argument on the application for preliminary injunction were held on Friday, December 17, 1993. After careful consideration of relevant precedent, the evidence submitted, and the arguments presented, the Court herein rules on Plaintiffs' application for a preliminary injunction.

SCOPE OF FIRST AMENDMENT JUDICIAL REVIEW

"The First Amendment reflects a `profound national commitment' to the principle that debate on public issues should be uninhibited, robust, and wide-open ... and the Supreme Court has consistently commented on the central importance of protecting speech on public issues." Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988) (citations omitted).

Judicially defining the parameters of free speech is difficult. The United States Supreme Court and the lower federal courts have wrestled with this issue since the adoption of the First Amendment. The analysis is even more difficult when, as in this case, First Amendment rights clash with other competing constitutional rights. While the case law is replete with scholarly analyses of the issue concerning conflicting constitutional rights, the courts that attempt to synthesize and harmonize the conflicting viewpoints expressed in literally hundreds of pages of precedent are faced with a formidable task. More importantly, though, the citizens who must apply the holdings of these cases to the exercise of their rights in everyday life must be overwhelmed by the legal resolution of these conflicts that sometimes seem to provide conflicting practical guidance.

At this juncture, it should be noted that on January 21, 1994, the Supreme Court granted certiorari in Madsen v. Women's Health Center, Inc., ___ U.S. ___, 114 S.Ct. 907, 127 L.Ed.2d 98 (1994). By granting this review, the Supreme Court will hear arguments stemming from the Florida Supreme Court's decision in Operation Rescue v. Women's Health Center, Inc., 626 So.2d 664 (Fla.1993), which upheld the provisions of an injunction that the Eleventh Circuit Court of Appeals declared unconstitutional in Cheffer v. McGregor, 6 F.3d 705 (11th Cir.1993).¹ While this Court anticipates the decision in Madsen will address some of the issues raised in this case, it is important to note that the procedural development of the cases is quite different. This case involves an ordinance of general applicability which imposes criminal penalties for violations. In contrast, the Florida case involves the provisions of a court-ordered injunction with limited applicability to the parties in the case, the provisions of which are only civilly enforceable.² Thus, the Court issues this opinion rather staying the case pending the decision in Madsen.

STANDARD OF REVIEW

The purpose of a preliminary injunction is to preserve the status quo among the parties pending the outcome of the action. Regents of the University of California v. A.B.C., Inc., 747 F.2d 511, 515 (9th Cir.1984). Under the Ninth Circuit's traditional test for determining whether to issue a preliminary injunction, the moving party must demonstrate the following:

1. The moving party will suffer irreparable injury if the injunctive relief is not granted;

2. The moving party

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