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Operation Save America v. the City of Jackson

April 10, 2012

OPERATION SAVE AMERICA, APPELLANT (DEFENDANT),
v.
THE CITY OF JACKSON, A WYOMING MUNICIPAL CORPORATION, APPELLEE (PLAINTIFF).



Appeal from the District Court of Teton County The Honorable Timothy C. Day, Judge

The opinion of the court was delivered by: Golden, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

GOLDEN, J., delivers the opinion of the Court; KITE, C.J., files a dissenting opinion in which HILL, J., joins.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] The Town of Jackson applied to the district court for an ex parte temporary restraining order (TRO) against Operation Save America (OSA), an anti-abortion protest group. The Town sought to restrict OSA's demonstration activities in and around the Jackson Town Square during the Boy Scouts' 2011 annual Elk Fest. The district court granted the ex parte TRO, which enjoined OSA "from assembling on the Jackson Town Square without a permit or holding posters/signs or materials of any graphic nature (e.g., aborted fetus pictures) on the Town Square or within a two (2) block radius thereof . . . during the Boy Scouts of America Expo and Elk Antler Auction between 5:00 a.m. and 5:00 p.m. on Saturday, May 21, 2011."

[¶2] We find that the ex parte TRO was issued in violation of the First Amendment to the United States Constitution and Rule 65 of the Wyoming Rules of Civil Procedure and reverse.

ISSUES

[¶3] Both parties present numerous procedural and substantive issues for our review. Appellant, OSA, frames the issues as follows:

1. The district court did not have subject matter jurisdiction to issue an ex parte temporary protection order.

a. The City of Jackson did not have standing to pursue an ex parte temporary protection order against Operation Save America.

i. The Plaintiff did not allege a potential injury to the Plaintiff or a potential violation of Plaintiff's rights.

b. The Order Granting Temporary Restraining Order was issued ex parte and not issued during any litigation. W.S. § 1-28-102.

i. Thus no claim for relief had been stated therefore no possible way to prevail upon the merits of the case.

c. There was no attempt to give notice to the defendants of the ex parte Petition for Temporary Restraining Order and/or Injunction pursuant to W.R.C.P. 65(b)(2) nor any showing made that it is impossible to serve or notify the opposing parties and to give them an opportunity to participate in an adversary proceeding pursuant to Carroll v. Princess Anne, 393 U.S. 175 (1968).

d. The Court did not address nor require the posting of a security pursuant to W.R.C.P. 65(c).

2. The district court did not have personal jurisdiction over the defendants.

a. No summons and no complaint were served upon the defendants at any time.

3. The restrictions outlined in the Order Granting Temporary Restraining Order are in violation of Art. I, § 21 of the Wyoming Constitution.

4. The restrictions outlined in the Order Granting Temporary Restraining Order are in violation of the First, Fifth and Fourteenth Amendment of the United States Constitution.

[¶4] Appellee, the Town of Jackson, presents the issues as follows:

1. Whether there is a direct appeal from the ex parte Order Granting Temporary Restraining Order initially issued by the District Court.

1. A temporary restraining order differs from an injunction.

2. There should be no direct appeal from this Order Granting Temporary Restraining Order.

2. Whether an appeal from this validly issued Order Granting Temporary Restraining Order is moot because it expired on its own terms and no motion to vacate or set aside, motion to extend terms of Order Granting Temporary Restraining Order or a preliminary injunction issued.

1. The Order Granting Temporary Restraining Order was validly and properly issued pursuant to W.R.C.P. 65(b).

2. The Order Granting Temporary Restraining Order expired on its own terms w/in time set for rule and no motion to vacate or set aside, motion to extend terms of temporary restraining order or preliminary injunction issued.

3. Whether the District Court had subject matter jurisdiction to issue the ex parte Temporary Restraining Order pursuant to W.R.C.P. 65 and W.S. § 15-1-103(a) (xviii).

1. The Town of Jackson had standing to pursue an ex parte temporary restraining order against Operation Save America.

2. The Order Granting Temporary Restraining Order was issued ex parte pursuant to W.R.C.P. 65(b), which does not require that it be issued during a current litigation.

3. W.R.C.P. 65(b)(2) is the relevant evaluation for a temporary restraining order and standing.

4. The Court did not need to address or require the posting of a security pursuant to W.R.C.P. 65(c).

a. A bond is not necessary where the only damages are those that lie in tort.

b. Under W.R.C.P. 65(c), the Court's discretion as to whether a bond should issue is best analyzed under the "as the court deems proper" language of 65(c).

4. Whether the District Court had personal jurisdiction over the Defendant, Operation Save America.

5. Whether the restrictions outlined in the Order Granting Temporary Restraining Order were in violation of Art. I, § 21 of the Wyoming Constitution.

6. Whether the restrictions outlined in the Order Granting Temporary Restraining Order were in violation of the First, Fifth and Fourteenth Amendments of the United States Constitution.

1. The Order Granting Temporary Restraining Order was a content neutral reasonable time, place and manner restriction within the regulatory powers of the Town.

2. Even if the restrictions in the Order Granting Temporary Restraining Order [against OSA] are deemed content-based, they still meet the strict scrutiny standard.

a. The issuance of the Order Granting Temporary Restraining Order against OSA is distinguishable from Lefemine because the TRO meets the strict scrutiny test.

3. The argument that the Order Granting Temporary Restraining Order or the Town violated OSA's Fifth and Fourteenth Amendment rights is untenable.

FACTS

[¶5] OSA is an anti-abortion organization incorporated under the laws of Texas. Approximately twenty of its members arrived in Jackson, Wyoming, on Wednesday, May 18, 2011. The group's purpose in coming to Jackson was to protest against Dr. Brent Blue and his clinic, which clinic OSA reported to be the only one in Wyoming performing abortions.

[¶6] At 7:00 on the morning of Wednesday, May 18th, OSA began its demonstrations by assembling at the Jackson Hole High School and Jackson Hole Middle School. The group handed out flyers calling Dr. Blue a "killer" and showing photographs of an aborted fetus. It also held up large photographs, approximately four-feet by four-feet, of disfigured and aborted fetus images. In one incident, an OSA member boarded an occupied school bus, showed the grade school age children the aborted fetus images and asked them if they knew that Dr. Blue is a "killer."

[¶7] Robert Gilliam, Operations Lieutenant for the Jackson Police Department, described the public response to the demonstrations and his interactions with OSA:

8. Since Wednesday morning, the group has consistently demonstrated throughout the Town of Jackson showing the same graphic photographs. The group has refused repeated requests from me and other law enforcement officials to remove these graphic photographs. This came after police received several hundred phone calls, emails, personal visits and face to face complaints from citizens who see the photographs as obscene and offensive.

9. I have personally had direct contact with more than 40 citizens who have complained to me that the photographs displayed by this group are grossly offensive and obscene. Many of these citizens have had tears in their eyes and were extremely upset after viewing the photographs; some appeared traumatized.

10. The police department, sheriff's office and the Town of Jackson have all fielded many calls and complaints from parents whose children have been forced to view these graphic photographs displayed by the Operation Save America group. The conversations that I have had with their leaders, including Pastor Mark Hollick and Mr. Chet Gallagher, regarding the graphic signs have been cordial, but matter-of-fact like. They acknowledge the signs are graphic and offend most people, but that is their intent. They wish to "shock" the public into taking their side on the abortion debate in this country.

13. Additionally, the group[']s presence in Jackson has sparked a sizable group of counter demonstrators. On Friday, May 20, a counter demonstrator upset after viewing the graphic photographs, attempted to strike with his vehicle one of the Operation Save America members who was holding one of the graphic photographs. The driver was arrested and charged with aggravated assault.

[¶8] During the same week that OSA was demonstrating in Jackson, the Boy Scouts of America were planning to hold their annual Elk Fest in the Jackson Town Square. The Boy Scouts had, on March 30, 2011, applied for and received a permit for the exclusive use of the Town Square for the event's festivities to be held on Saturday, May 21st. The planned activities were scheduled from 5:00 a.m. to 3:00 p.m. that day, and they included various booths for family activities, a Boy Scout Expo and Demonstrations, a Rotary Private Antler Sale, the Boy Scout Antler Auction, and a Jackson Youth Baseball food tent. Approximately two hundred Boy Scouts between the ages of seven and fourteen were expected to attend the event.

[¶9] At some point between Wednesday, May 18th, and Friday, May 20th, Lieutenant Gilliam asked Pastor Mark Hollick and Chet Gallagher of OSA to refrain from displaying the graphic photographs at the Boy Scout event. Pastor Hollick and Mr. Gallagher responded that OSA reserved its right to display the photographs in any public setting.

[¶10] On Friday, May 20, 2011, at 3:29 in the afternoon, the Town filed in district court a Petition for Temporary Restraining Order and/or Temporary Injunction (Petition). The Petition requested an order restricting protestors and counter-protestors from protesting during the Elk Fest between 5:00 a.m. and 5:00 p.m. on Saturday, May 21, 2011, within two blocks in any direction from the Town Square. In support of the Petition, the Town stated, in part:

9. The Town submits that it is a compelling interest to protect the 200() children and Boy Scouts attending the Elk Fest from being exposed to protestors holding and displaying large signs containing pictures of dismembered, aborted fetuses, or counter-protestors['] similar shocking and graphic materials. (See Lieutenant Bob Gilliam Affidavit attached hereto as Exhibit B.)

13. As set forth in the Affidavit of Robert Gilliam attached as Exhibit B, it clearly appears that immediate and irreparable injury, loss or damage will result to the children of the Town at tomorrow's Elk Fest. Moreover, the Jackson Police Department has informed Defendant representatives of the Town's position concerning this specific location at this specific time, and they disagree. Undersigned counsel certifies to this court that she personally has not made any efforts to notify the Defendants of this temporary injunction due to the hostility of the current situation, contrary position of Defendant representatives and the immediate need for injunctive relief by this court before tomorrow morning at 5am.

17. There will be no harm to the Defendant and counter-protest groups because they can protest in other public places within the Town during the Elk Fest. To the contrary, the harm suffered by children being exposed to the constant and continuous shocking graphic materials during the Elk Fest is enormous and there is no way to place an actual value on such damage to over 200 children and they are speculative. (See Lieutenant Bob Gilliam Affidavit attached hereto as Exhibit B.) Thus, equitable relief is appropriate. (Emphasis in original.)

18. Finally, there is a substantial and significant public interest in protecting children and Boy Scouts who have been granted a special event permit for exclusive use of the Town Square, from large displays of graphic materials during such event and during the requested hours. The public interest in preventing such injustice is enormous.

[¶11] The district court granted the Petition, and at 8:43 p.m. on Friday, May 20th, it issued an Order Granting Temporary Restraining Order (TRO). In issuing the TRO, the court did not include counter-protestors in its coverage, noting:

In the body of the petition, Plaintiff has sought to include "counter-protestors" in the Temporary Restraining Order. However, the group has not been named as a party. The Court has not found sufficient evidence in the accompanying affidavit of immediate or irreparable injury that would justify the inclusion of any counter-protestors in the Temporary Restraining Order.

[¶12] The district court found that the Town had made the requisite showing for the TRO to issue ex parte.

With respect to element (1), the Court finds that Plaintiff has made a sufficient showing of immediate and irreparable injury. More specifically, the Court finds, and it has been averred by affidavit, that irreparable injury would follow from the children being exposed to the constant and continuous shocking graphic materials of the protestors, and also from the threat of public disturbance, breach of peace and violence.

Regarding element (2), Plaintiff has certified its efforts and reasons why notice should not be required. The Jackson Police Department has informed representatives of Operation Save America of the Town's position with respect to its planned protest at the Town Square during the Boy Scout event, and the group has continued to assert its intention of protesting on the Square at that time. In light of the hostility of the current situation and the immediate need for injunctive relief, the applicant's attorney has informed the Court that she has not attempted to notify the Defendant of this temporary injunction. Further, the Court has not provided notice to Defendant because this Order is being issued after business hours on May 20, 2011 without time for a hearing before the scheduled event.

[¶13] After concluding it could issue the order ex parte, the district court then analyzed the proposed restriction under First Amendment constraints. The court did not explicitly find that the restriction was content-based and intended to restrict speech in a traditional public forum, but it nonetheless applied the strict scrutiny required for that type of restriction. It concluded:

[T]here is a compelling interest to protect the two hundred plus children and Boy Scouts attending the Elk Fest from being exposed to protestors holding and displaying large signs containing pictures of aborted fetuses. Further, the Court finds that the Town's proposed restriction is narrowly tailored to protect and serve that compelling state interest in that it is restricting Operation Save America from its protest activities for a limited number of hours within a limited geographic area in the Town of Jackson.

[¶14] Based on its findings, the district court granted the TRO in the form that the Town requested. The TRO restricted OSA as follows:

IT IS HEREBY ORDERED that Defendant is enjoined from assembling on the Jackson Town Square without a permit or holding posters/signs or materials of any graphic nature (e.g., aborted fetus pictures) on the Town Square or within a two (2) block radius thereof, that is, not within the two square block area: north of Pearl Avenue, west of Willow Street, south of Gill Avenue, and east of Milward Street during the Boy Scouts of America Expo and Elk Antler Auction between 5:00 a.m. and 5:00 p.m. on Saturday, May 21, 2011.

[¶15] The Boy Scout event went forward as scheduled, and the TRO expired by its own terms at the conclusion of the event at 5:00 p.m. on May 21, 2011. On May 27, 2011, OSA filed its Notice of Appeal.

STANDARD OF REVIEW

[¶16] Jurisdictional questions are legal issues that this Court reviews de novo. Dawes v. State, 2010 WY 113, ¶ 10, 236 P.3d 303, 306 (Wyo. 2010) (subject matter jurisdiction is a question of law considered de novo, without regard to the district court determination); Meyer v. Hatto, 2008 WY 153, ¶ 14, 198 P.3d 552, 555 (Wyo. 2008) ("The question of whether personal jurisdiction can properly be exercised in Wyoming is therefore a question of law to be reviewed de novo."); Northfork Citizens for Responsible Dev. v. Park Cty. Bd. of Cty. Comm'rs, 2008 WY 88, ¶ 6, 189 P.3d 260, 262 (Wyo. 2008) (quoting Halliburton Energy Services, Inc. v. Gunter, 2007 WY 151, ¶ 10, 167 P.3d 645, 649 (Wyo. 2007)) ("The existence of standing is a legal issue that we review de novo.").

[¶17] Constitutional challenges present issues of law that we likewise review de novo. Sanderson v. State, 2007 WY 127, ¶ 31, 165 P.3d 83, 92 (Wyo. 2007); Rutti v. State, 2004 WY 133, ¶ 9, 100 P.3d 394, 400 (Wyo. 2004).

[¶18] Actions for injunctive relief are by nature requests for equitable relief within the district court's discretion. CBM Geosolutions, Inc. v. Gas Sensing Tech. Corp., 2009 WY 113, ¶ 10, 215 P.3d 1054, 1058 (Wyo. 2009); In re Kite Ranch, LLC v. Powell Family of Yakima, LLC, 2008 WY 39, ¶ 21, 181 P.3d 920, 926 (Wyo. 2008). Because the district court's decision is discretionary, we review its decision for an abuse of discretion, keeping in mind that an injunction "is an extreme remedy and the court should 'proceed with caution and deliberation before exercising the remedy.'" Kite Ranch, ¶ 21, 181 P.3d at 926 (quoting Rialto Theatre, Inc. v. Commonwealth Theatres, Inc., 714 P.2d 328, 332 (Wyo. 1986)). "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Wilson v. Lucerne Canal & Power Co., 2003 WY 126, ¶ 11, 77 P.3d 412, 416 (Wyo. 2003) (quoting Pasenelli v. Pasenelli, 2002 WY 159, ¶ 11, 57 P.3d 324, 329 (Wyo. 2002)).

[¶19] In evaluating a court's exercise of discretion in the grant or denial of injunctive relief, this Court has observed:

In Kincheloe v. Milatzo, Wyo., 678 P.2d 855, 861 (1984), we said:

"Preliminarily, it is to be remembered that, when courts are called upon to employ their injunctive authority, they must utilize this power with great caution. We have said:

" 'The extraordinary remedy of an injunction is a far-reaching force and must not be indulged in under hastily contrived conditions. It is a delicate judicial power and a court must proceed with caution and deliberation before exercising the remedy.' Simpson v. Petroleum, Inc., Wyo., 548 P.2d 1, 3 (1976).

"Injunctions are extraordinary remedies and are not granted as of right. In granting an injunction, the court exercises broad, equitable jurisdiction. Brown v. J.C. Penney Co., D.C.Wyo., 54 F.Supp. 488 (1943). This discretion is, however, not unfettered, but 'must be exercised reasonably and in ...


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