Kaplan v. Prolife Action League of Greensboro

Page 828

431 S.E.2d 828

111 N.C.App. 1

Richard D. KAPLAN, M.D., Marguerite Kaplan, and Marguerite Kaplan as guardian ad litem for Jacob M. Kaplan and David S. Kaplan, Plaintiffs, v. PROLIFE ACTION LEAGUE OF GREENSBORO, William H. Winfield Jr., Linda Winfield, Ronald W. Benfield, John Does I through XXV, and Jane Does I through XXV, Defendants.

No. 9218SC459.

Court of Appeals of North Carolina.

July 20, 1993.

Smith Helms Mulliss & Moore by Alan W. Duncan and Matthew W. Sawchak, Raleigh, for plaintiffs-appellees.

Arthur J. Donaldson, Greensboro, and Walter M. Weber, Washington, DC, for defendant-appellants Prolife Action League of Greensboro, William H. Winfield, Jr., and Linda Winfield.

William G. Simpson, Jr., Legal Director, North Carolina Civ. Liberties Union Legal Foundation, Raleigh, and Tharrington, Smith & Hargrove by Burton Craige, Raleigh, for amicus curiae, North Carolina Civil Liberties Union Legal Foundation.

Brooks, Pierce, McLendon, Humphrey & Leonard by Hubert Humphrey, Greensboro, and Ann E. Allen, Gen. Counsel, The American College of Obstetricians & Gynecologists, Washington, DC, for amicus curiae, The American College of Obstetricians & Gynecologists.

EAGLES, Judge.

I. Background

This appeal arises from the trial court's grant of a preliminary injunction which restrained the manner and place in which defendants could protest in the streets adjoining plaintiffs' home. Defendants bring forward eleven assignments of error challenging several of the trial court's findings and the constitutionality of the order granting the preliminary injunction. Upon careful consideration of the briefs, transcript, and record, we affirm.

Initially, we note that this case presents a direct confrontation of fundamental Constitutional principles. On the one hand, it is well established that "a bedrock principle underlying the First Amendment ... is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 2544, 105 L.Ed.2d 342, 360 (1989) (citations omitted); U.S. Const.Amend. I ("Congress shall make no law ... abridging the freedom of speech"); U.S. Const.Amend. XIV (providing that the provisions of the First Amendment are applicable to the states); N.C. Const. Art. I, § 14 ("Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse"); Carey v. Brown, 447 U.S. 455, 460, 466-67, 100 S.Ct. 2286, 2290, 2293, 65 L.Ed.2d 263, 269, 273 (1980) ("There can be no doubt that in prohibiting peaceful picketing on the public streets and sidewalks in residential neighborhoods, ... expressive conduct that falls within the First Amendment's preserve [is regulated]"; and noting that public issue picketing "has always rested on the highest rung of the hierarchy of First Amendment values"); Corum v. University of North Carolina, 330 N.C. 761, 781, 413 S.E.2d 276, 289, cert. denied, 506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992) ("The words 'shall never be restrained' [in N.C. Const. Art. I, § 14] are a direct personal guarantee of each citizen's right of freedom of speech"). On the other hand, "[t]he Constitution extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, child rearing, and education." United States v. Orito, 413 U.S. 139, 142, 93 S.Ct. 2674, 2677, 37 L.Ed.2d 513, 517 (1973) (citations omitted); Carey, 447 U.S. at 471, 100 S.Ct. at 2295, 65 L.Ed.2d at 276 ("Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value.... The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society"); Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 2502, 101 L.Ed.2d 420, 432 (1988) ("[W]e have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom").

It is significant that plaintiff Dr. Kaplan neither maintains a medical office at his residence nor treats any patients there. See Frisby, 487 U.S. at 488, 108 S.Ct. at 2504, 101 L.Ed.2d at 434. "[T]he North Carolina General Assembly has made a 'clear and deliberate choice' regarding the competing values at issue by choosing to make those abortions performed in accordance with the provisions of N.C.Gen.Stat. § 14-45.1 lawful." State v. Thomas, 103 N.C.App. 264, 267, 405 S.E.2d 214, 216, disc. rev. denied, 329 N.C. 792, 408 S.E.2d 528 (1991); see Azzolino v. Dingfelder, 315 N.C. 103, 113, 337 S.E.2d 528, 535 (1985), cert. denied, 479 U.S. 835, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986), reh'g denied, 319 N.C. 227, 353 S.E.2d 401 (1987). As the trial court correctly noted, our General Assembly has provided that abortions are lawful medical procedures when "performed by a physician licensed to practice medicine in North Carolina ..." G.S. 14-45.1(a), (b). See Planned Parenthood v. Casey, 505 U.S. 833, ----, ----, 112 S.Ct. 2791, 2803, 2821, 120 L.Ed.2d 674, 694, 716 (1992). Dr. Kaplan is a licensed physician engaged in a lawful occupation under the laws of our State. The freedom to engage in a lawful occupation comes within those liberties protected by the Fourteenth Amendment to the United States Constitution. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923); Nova University v. The Board of Governors, 305 N.C. 156, 164, 287 S.E.2d 872, 878 (1982); Presnell v. Pell, 298 N.C. 715, 724, 260 S.E.2d 611, 617 (1979). In sum, here we are presented with a situation in which

[c]onflicts in the exercise of rights arise and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of ... speech ... guaranteed by the Fourteenth Amendment, and on the other the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment to ensure orderly living, without which constitutional guarantees of civil liberties would be a mockery. Courts, no more than Constitutions, can [sic] intrude into the consciences of men ... but courts are competent to adjudge the acts men do under color of a constitutional right, such as that of freedom of speech ... and to determine whether the claimed right is limited by other recognized powers, equally precious to mankind.

Jones v. Opelika, 316 U.S. 584, 593-94, 62 S.Ct. 1231, 1237, 86 L.Ed. 1691, 1699-1700 (1942) (footnotes omitted), vacated on other grounds, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290 (1943); see Casey, 505 U.S. at ----, 112 S.Ct. at 2806, 120 L.Ed.2d at 697 ("Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code"); see also Hague v. C.I.O., 307 U.S. 496, 515-16, 59 S.Ct. 954, 964, 83 L.Ed. 1423, 1436-37.

With these important competing principles in mind, we proceed with an examination of the preliminary injunction before us.

II. Appealability of the Order Granting a Preliminary Injunction

On 20 February 1992, the trial court issued an order granting plaintiffs' motion for a preliminary injunction. Defendants appealed from that order. Since defendants elected to appeal before the ultimate questions raised by the pleadings are decided at a trial on the merits, the sole question before us is whether the trial court erred in its issuance of the preliminary injunction.

"As a general rule, a preliminary injunction 'is an extraordinary measure taken by a court to preserve the status quo of the parties during litigation.' " A.E.P. Industries v. McClure, 308 N.C. 393, 401, 302 S.E.2d 754, 759 (1983) (quoting Investors, Inc. v. Berry, 293 N.C. 688, 701, 239 S.E.2d 566, 574 (1977)). G.S. 1-485 provides:

A preliminary injunction may be issued by order ...:

(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and this relief, or any part thereof, consists in restraining the commission or continuance of some act the commission or continuance of which, during the litigation, would produce injury to the plaintiff....

G.S. 1-485. See G.S. 1A-1, Rule 65. Regarding the appealability of preliminary injunctions, our Supreme Court has stated:

A preliminary injunction is interlocutory in nature, issued after notice and hearing, which restrains a party pending final determination on the merits. G.S. § 1A-1, Rule 65. Pursuant to G.S. § 1-277 and G.S. § 7A-27, no appeal lies to an appellate court from an interlocutory order or ruling of a trial judge unless such order or ruling deprives the appellant of a substantial right which he would lose absent a review prior to final determination. As we recently stated in State v. School, 299 N.C. 351, 357-58, 261 S.E.2d 908, 913, appeal dismissed, 449 U.S. 807 [101 S.Ct. 55, 66 L.Ed.2d 11] (1980):

The purpose of a preliminary injunction is ordinarily to preserve the status quo pending trial on the merits. Its issuance is a matter of discretion to be exercised by the hearing judge after a careful balancing of the equities. Its impact is temporary and lasts no longer than the pendency of the action. Its decree bears no precedent to guide the final determination of the rights of the parties. In form, purpose, and effect, it is purely interlocutory. Thus, the threshold question presented by a purported appeal from an order granting a preliminary injunction is whether the appellant has...