U. C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory

Decision Date27 April 1984
Citation201 Cal.Rptr. 837,154 Cal.App.3d 1157
PartiesU.C. NUCLEAR WEAPONS LABS CONVERSION PROJECT, et al., Plaintiffs and Respondents, v. LAWRENCE LIVERMORE LABORATORY, et al., Defendants and Appellants. A013062. Civ. 51950.
CourtCalifornia Court of Appeals

Donald L. Reidhaar, Glenn R. Woods, Gary Morrison, Melvin W. Beal, Berkeley, for defendants and appellants.

Mitchell Zimmerman, Fenwick, Stone, Davis & West, Palo Alto, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Foundation of Northern California, Inc., Joseph Remcho, Remcho, Johansen & Purcell, San Francisco, for defendants and respondents.

WHITE, Presiding Justice.

Introduction

This is an appeal by the Lawrence Livermore Laboratory and certain officials of the Laboratory and of the University of California, from an order granting a preliminary injunction which requires the Laboratory to allow the U.C. Nuclear Weapons Labs Conversion Project to use the Laboratory's Visitors Center to display literature and show slideshows, and to apply to use a certain auditorium to present programs.

The question on review of an order granting a preliminary injunction is whether the trial court abused its discretion. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527, 67 Cal.Rptr. 761, 439 P.2d 889; City of Torrance v. Transitional Living Centers for Los Angeles, Inc. (1982) 30 Cal.3d 516, 519, 179 Cal.Rptr. 907, 638 P.2d 1304.)

Since a preliminary injunction is a provisional remedy (see Code Civ.Proc., §§ 526, 527), its granting or denial cannot be based on a final determination of the merits of the case. (Continental Baking Co. v. Katz, supra, 68 Cal.2d at p. 528, 67 Cal.Rptr. 761, 439 P.2d 889.) Rather, the trial court is required to weigh the harm to the plaintiff which would probably result from denying the preliminary injunction, as against the harm to defendant which would probably result from its granting. (Ibid.) And a necessary consideration in this balancing process is whether there is a reasonable probability that the plaintiff will succeed on the merits. (Ibid.)

In the instant case the trial court decided that the Conversion Project was likely to succeed ultimately in obtaining a permanent injunction, and that a balancing of equities justified issuance of the preliminary injunction. The question before this court is whether these assessments " 'exceeded the bounds of reason or contravened the uncontradicted evidence.' " (Id., at p. 527, 67 Cal.Rptr. 761, 439 P.2d 889, citations omitted.)

We conclude that the trial court's judgment was sound and affirm the order granting a preliminary injunction.

Background

Plaintiffs and respondents are the U.C. Nuclear Weapons Labs Conversion Project and three of its members (the Project or respondents). The Project is an unincorporated association which opposes the work of the Lawrence Livermore Laboratory in the area of developing nuclear weapons and nuclear power.

Defendants and appellants are the Lawrence Livermore Laboratory itself (the Laboratory); its director; and the supervisor of its Visitors Center; as well as the president and the Regents of the University of California. The Laboratory is owned by the federal government and run by the University of California under contract with the U.S. Department of Energy. The Laboratory is one of two places in the country where nuclear weapons are developed, and it also does non-weapons-related research.

The Conversion Project was founded in 1976. It is unclear at exactly what point its activities in the immediate vicinity of the Laboratory began, but the record does show that in 1979 and 1980 the Laboratory allowed Project members to distribute literature near two cafeterias during three different time periods. In May 1979, the Project held a "rally and conversion fair" on University property adjoining the Laboratory site, with the cooperation of the Laboratory.

In February of 1979 the Project requested permission to place literature and to give periodic slideshows in the Visitors Center at the Laboratory, to which the public has virtually unrestricted access. This request was refused, and the Laboratory offered instead to allow the project to distribute literature in the parking area next to the Visitors Center.

In October 1979 a Project member employed at the Laboratory requested the use of the Building 123 Auditorium (the auditorium) for the presentation of a program by the Project. The auditorium is located within a fenced area of the Laboratory grounds to which the public does not have open access. The request was refused.

On April 10, 1980, the Conversion Project filed a complaint for injunction and declaratory relief, alleging that the Laboratory's refusal to allow the Conversion Project to display materials in the Laboratory's Visitors Center and to use the auditorium, constituted a violation of article I, sections 2 and 7 of the California Constitution, and of the First and Fourteenth Amendments of the United States Constitution, and of 42 United States Code, section 1983.

On June 10, 1980, a hearing was held on the request for a preliminary injunction. On June 17, 1980, the superior court granted the preliminary injunction and ordered that respondents were to be granted access to the Building 123 auditorium without regard to their views, opinions, policies or goals, and without the necessity of sponsorship by a Laboratory employee; and that appellants were to be allowed to place literature in the Visitors Center. It also ordered respondents to designate space in the Visitors Center where the Conversion Project could place two 4' by 6' posters, and to designate two times a month when respondents could use the auditorium-projection room to present a slide show or film.

On June 17, 1980, respondents filed a notice of appeal from the preliminary injunction.

Discussion

As discussed above, this is a case which technically involves only the question of whether the trial court's opinion that plaintiffs would probably succeed on the merits was reasonable. Actually, however, this determination cannot be made without an analysis of the relevant law which amounts to a discussion of the merits.

Both parties rely on the same federal cases in reaching dramatically opposite conclusions. This is due largely to divergent approaches based on different philosophies--a schism made possible by what has been described as "generally inchoate first amendment theory ..." evident in the federal cases. (Note, The Public Forum: Minimum Access, Equal Access, and the First Amendment 28 Stan.L.Rev. (1975) 117, fn. omitted.)

Appellants argue essentially that the Laboratory's Visitors Center is not a "public forum" as are streets, sidewalks and parks which have "immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." (Hague v. CIO (1939) 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423.)

In addition, appellants assert that the Visitors Center is not even analogous to streets and parks, as bus and airport terminals and waiting rooms in public assistance offices have been found to be. (Wolin v. Port of New York Authority (2d Cir.1968) 392 F.2d 83; Kuszynski v. City of Oakland (9th Cir.1973) 479 F.2d 1130; Albany Welfare Rights Organization v. Wyman (2d Cir.1974) 493 F.2d 1319; Unemployed Workers Union v. Hackett (D.R.I.1971) 332 F.Supp. 1372.) There are two bases for the distinction appellants make: first, that the Visitors Center is not a place where people mingle freely and gather to exchange viewpoints on public questions, and second, that it is an end destination in itself and the people in it are not on their way to any place else.

Appellants conclude that since no groups or individuals outside the Laboratory have been allowed to use the Visitors Center for "the sorts of expressive activities demanded by plaintiffs", the Conversion Project has been treated the same as all other outside groups and has no equal protection claim with regard to it.

Respondents, on the other hand, insist that the label "public forum" cannot be applied mechanically. They argue that the right to engage in expressive activity in a place open to the public must depend on the nature of the proposed expressive activity, and the nature of the particular place. (Grayned v. City of Rockford (1972) 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222. See also Shiffrin, Government Speech, 27 UCLA L.Rev. (1980) 565, 574.) Thus, the central question posed by respondents is not whether the Visitors Center is analogous to a park or street. Rather, it is whether the display of literature and occasional presentation of slideshows by the Project would be basically incompatible with the primary purpose of the Visitors Center.

Keeping in mind that the free speech and petitioning provision in the California Constitution does not mirror the First Amendment either in form or content (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910, 153 Cal.Rptr. 854, 592 P.2d 341), we draw on both provisions for the analysis required in this state. And as our Supreme Court has observed, for state constitutional analysis "[f]ederal principles are relevant but not conclusive so long as federal rights are protected." (Id., at p. 909, 153 Cal.Rptr. 854, 592 P.2d 341.)

The Laboratory is located in California and run by the Regents of the University of California, most of whom are appointed by the governor or are elected officials. We assume that the vast majority of its employees are California taxpayers and citizens. Certainly any risk of harm which may exist because of the nature of the Laboratory's work (e.g., explosions or other accidents involving radioactive materials) is borne most immediately by residents of surrounding areas. Clearly the policies and...

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