Operation Save Am. v. City of Jackson, Mun. Corp.

275 P.3d 438

OPERATION SAVE AMERICA, Appellant (Defendant),

v.The CITY OF JACKSON, a Wyoming municipal corporation, Appellee (Plaintiff).

No. S–11–0149.

Supreme Court of Wyoming.

April 10, 2012.

Representing Appellant: Jack D. Edwards of Edwards Law Office, P.C., Etna, Wyoming.

Representing Appellee: Audrey P. Cohen–Davis of The City of Jackson, Jackson, Wyoming.

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

GOLDEN, Justice.

[¶ 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 [89 S.Ct. 347, 21 L.Ed.2d 325] (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...