Saint John's Church in the Wilderness v. Scott

• Decision Date: 02 August 2012
• Docket Number: No. 11CA0508.,11CA0508.
• Citation: 296 P.3d 273
• Parties: SAINT JOHN'S CHURCH IN THE WILDERNESS, Charles I. Thompson, and Charles W. Berberich, Plaintiffs–Appellees, v. Kenneth Tyler SCOTT and Clifton Powell, Defendants–Appellants.
• Court: Colorado Court of Appeals

296 P.3d 273

SAINT JOHN'S CHURCH IN THE WILDERNESS, Charles I. Thompson, and Charles W. Berberich, Plaintiffs–Appellees,

v.Kenneth Tyler SCOTT and Clifton Powell, Defendants–Appellants.

No. 11CA0508.

Colorado Court of Appeals, Div. IV.

April 26, 2012.

Rehearing Denied Aug. 2, 2012.

Faegre Baker Daniels LLP, Russell O. Stewart, Denver, Colorado, for Plaintiffs–Appellees.

Hackstaff Law Group, LLC, Rebecca Messall, Denver, Colorado, for Defendants–Appellants.

Opinion by Judge WEBB.

¶ 1 This appeal follows the remand ordered in St. John's in the Wilderness v. Scott, 194 P.3d 475 (Colo.App.2008)(St. John's I), which contains a detailed description of the evidence and procedural history. Because no new evidence was introduced on remand,¹ this opinion provides only limited background. The order on remand restricting demonstrations in six buffer zones around the Church is modified and, as modified, affirmed.

I. Introduction

¶ 2 Following the initial bench trial, the court resolved claims for private nuisance and conspiracy to commit private nuisance brought by plaintiffs, St. John's Church in the Wilderness and two parishioners, Charles I. Thompson and Charles W. Berberich, against defendants, Kenneth Tyler Scott and Clifton Powell. Defendants had demonstrated their opposition to abortion and homosexuality on the public street and sidewalk across the street from the Church, during an outdoor Palm Sunday service that began on Church property, by shouting and carrying signs, some of which included images of aborted fetuses.

¶ 3 As relevant here, the court's factual findings included: Scott's voice was so loud that it substantially interfered with the outdoor services; ² the volume and nature of the demonstration, together with the graphic and gory nature of defendants' posters, caused several of those attending services to show “crying, trembling, fear, and anger”; children present were frightened by defendants' posters; and because of defendants' actions, 85 to 100 parishioners declined to participate in a second outdoor service.

¶ 4 The court issued a permanent injunction prohibiting defendants from engaging in the following acts:

(i) At all times on all days, from entering the premises and property of St. John's Cathedral.

(ii) During worship and preparation for worship, from a period beginning one-half hour before and ending one-half hour after a religious event or series of events, including but not limited to worship services on Sundays between the hours of 7:00 a.m. and 1:00 p.m., from focused picketing, congregating, patrolling, demonstrating or entering that portion of the public right-of-way shown on [the checkered portions a map of the Church and its surroundings; see St. John's I, 194 P.3d at 486].

(iii) During worship and preparation for worship, from a period beginning one-half hour before and ending one-half hour after a religious event or series of events, including but not limited to worship services on Sundays between the hours of 7:00 a.m. and 1:00 p.m., from whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds in areas [in checkered portion of map of the Church and its surroundings; see id.].

(iv) At all times on all days, from blocking, impeding, inhibiting, or in any other manner obstructing or interfering with access to, ingress into and egress from any building or parking lot owned by St. John's.

(v) At all times on all days, from encouraging, inciting, or securing other persons to commit any of the prohibited acts listed herein.

¶ 5 Following a lengthy discussion of government restrictions on “communicative activity” that occurred “[i]n public forums,” St. John's I, 194 P.3d at 482–85, the division affirmed the judgments against defendants, and affirmed the injunction in part, vacated it in part, and remanded for further findings. It concluded that the threshold requirements for imposing injunctive relief had been met and that sufficient findings supported the prohibitions against obstructing access to the Church, violating the injunction through surrogates, and the time restrictions on defendants' picketing and noise-making. However, because the record did not show that defendants' “mere presence” on Church property would cause irreparable harm, it vacated the prohibition against defendants' entry onto Church premises and property “at all times on all days.” Finally, it concluded that further findings were necessary to determine whether the restrictions on action in the buffer zones burdened no more speech than necessary to serve a significant government interest.

¶ 6 On remand, the trial court modified the injunction as follows:

• In paragraph 3(i), the prohibition on defendants' entry onto Church premises or property “at all times on all days” (originally paragraph i) was deleted and replaced with a prohibition against entry “ on days on which [defendants] engage in any conduct proscribed by this injunction.”

• Paragraphs (ii) and (iii), proscribing focused picketing and noise-making, were deleted and replaced with a new paragraph 3(ii), prohibiting defendants from:

(a) shouting or yelling at or using any noise amplification device(s) in a manner reasonably calculated to: (1) disturb parishioners' ability to worship; (2) interfere with the plaintiff church's ability to use its property for worship services and/or worship related events; (3) cause parishioners to become physically upset; and (4) deter parishioners from participating in worship services and/or worship-related events on plaintiff church's property; and (b) displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age attending worship services and/or worship-related events at plaintiff church.

(Emphasis added.) The three italicized phrases are the primary thrust of defendants' current appeal.

II. Law of the Case

¶ 7 Defendants first contend St. John's I wrongly abridged their First Amendment rights, and because controlling law has changed since St. John's I was decided, this division need not follow it as law of the case. We decline defendants' invitation to revisit matters resolved in the trial court's initial order and upheld in St. John's I.

A. The Law of the Case Doctrine

¶ 8 “Conclusions of an appellate court on issues presented to it as well as rulings logically necessary to sustain such conclusions become the law of the case.” Super Valu Stores, Inc. v. Dist. Court, 906 P.2d 72, 78–79 (Colo.1995). The law of the case doctrine protects parties from relitigating settled issues, on the grounds that courts generally “refuse to reopen what has been decided.” People ex rel. Gallagher v. Dist. Court, 666 P.2d 550, 553 (Colo.1983) (internal quotation marks and citation omitted). It recognizes that “litigation must end somewhere.” People v. Roybal, 672 P.2d 1003, 1005 n. 6 (Colo.1983) (internal quotation marks and citation omitted).

¶ 9 In proceedings on remand, a trial court must follow the pronouncements of the appellate court. Kuhn v. State, 897 P.2d 792, 795 (Colo.1995). In a later appeal, however, when the decision in question issued from the same appellate court, a different division of that court may exercise its discretion and decline to apply the law of the case doctrine, but only “if it determines that the previous decision is no longer sound because of changed conditions or law, or legal or factual error, or if the prior decision would result in manifest injustice.” ³Vashone–Caruso v. Suthers, 29 P.3d 339, 342 (Colo.App.2001); see Mitchell v. Ryder, 104 P.3d 316, 323 (Colo.App.2004).

B. Analysis

1. Change in Controlling Law

¶ 10 Defendants argue that Snyder v. Phelps, ––– U.S. ––––, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011), and Brown v. Entertainment Merchants Ass'n, –––U.S. ––––, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011), changed the controlling law in this case. Because these cases follow established precedent, they do not warrant reexamining St. John's I.⁴

a. Snyder v. Phelps

¶ 11 Snyder held that demonstrators' speech at the funeral of a military service member was protected by the First Amendment from state tort liability in an action brought by the deceased's father. At the funeral, the demonstrators carried signs with statements such as “God Hates the USA/Thank God for 9/11,” “Thank God for Dead Soldiers,” “God Hates Fags,” and “America is Doomed.” 131 S.Ct. at 1214. They stood on public land, behind a temporary fence, approximately 1,000 feet from the church where the funeral was held and separated from the church by several buildings. Id. For about thirty minutes before the service began, they sang hymns and recited Bible verses while holding their signs, but “did not yell or use profanity.” Id. Although the funeral procession passed within 200 to 300 feet of the demonstrators, the father could see only the tops of their signs, and could not read what was written on them. Id.

¶ 12 The Supreme Court reviewed the court of appeals' decision setting aside a jury verdict in the father's favor for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. It concluded that the speech “was at a public place on a matter of public concern,” and “is entitled to ‘special protection’ under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.” Id. at 1219. Therefore, it held that the speech would not support liability for intentional infliction of emotional distress, where the protest had not interfered with the funeral. Id. at 1220. And because the protest was well away from the funeral, neither could liability for intrusion upon seclusion be upheld. Id.

¶ 13 Snyder's statement that speech cannot be sanctioned merely for offending its listeners follows existing precedent. See, e.g., Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 29 L.Ed.2d 284 (197...