From the Director

Dana Cody

Occasionally as LLDF’s executive director I am called upon to handle a legal case. Since the case of Feminist Women’s Health Center v. Blythe is in my own back yard, so to speak, this was one I took. Have you ever heard the expression “beating a dead horse?” That describes this case.

It is yet another instance of an injunction entered against any pro-lifer being used against all pro-lifers. One California Court of Appeal just upheld People v. Conrad (1997) 55 Cal.App.4th 896, in LLDF Legal Director Katie Short’s case, Planned Parenthood Golden Gate v. Foti (2003) 107 Cal.App.4th 345,(1) both cases clearly rejecting such a contention. Even so, Sacramento County Superior Court Judge James Long has modified a twelve-year-old injunction to include a buffer zone preventing pro-lifer sidewalk counselors from entering a 35-foot area on each side of, and including the driveway to the Feminist Women’s Health Center clinic (FWHC). The driveway is the only entrance to the clinic and the zone extends across the street to the curb on the other side.

Did Judge Long have access to the above decisions, you ask? They were cited in LLDF’s opposition to the FWHC motion to modify the existing injunction to add a buffer zone.

If Judge Long had condescended to read the case law he would have found that “acting in concert” was the proper legal standard and granted LLDF’s motion in limine to exclude any evidence proffered by FWHC until they made a showing that the defendants were violating the existing injunction, or that other individuals were violating the injunction because they were acting in concert with the defendants. Instead, the motion in limine was denied and the hearing took on a circus-like atmosphere, with the ring-leader local media championing the rights of the child-killers.

What did the defendants, or for that matter, any pro-lifer do to justify such an action by the court? This puzzling decision is best “understood” by looking at its factual history.

Three of the five defendants have not been to the clinic since 1991, when the original injunction was granted at what was then FWHC on J Street in Sacramento. Shortly after the injunction took effect, FWHC moved to Folsom Boulevard in Sacramento, where two of the five defendants continued to sidewalk counsel; one frequently, the other occasionally. On occasion, a FWHC employee would approach the sidewalk counselors, waving the injunction at them. The sidewalk counselors would direct that individual to the J Street address in the text of the injunction and continue with their peaceful, lawful sidewalk counseling. Even when the city police were summoned they would not enforce an injunction meant for J Street at the Folsom Boulevard address. (2)

Then in August of 2002, FWHC, now doing business as Women’s Health Specialists (WHS), moved to Wright Street in Sacramento. In November Judge Long granted WHS’s motion to modify the injunction to apply to the new address. (3) In his order after the November hearing, the judge stated he considered no evidence submitted by either party pursuant to the motion but instead based his order on the evidence by which he granted the original injunction—over 11 years earlier, which according to the defendants was trumped up. LLDF attorneys are not privy to that evidence because the court cannot find the file, but, oh well.

The order after hearing also stated that a buffer zone was not warranted, but that the defendants could not videotape or write down license numbers, as prohibited in the original injunction. This was a small victory in that the original injunction did include a buffer zone.

Disheartened with the process, the remaining two defendants/sidewalk counselors have not been back to the WHS clinic on Wright Street. Instead they direct their efforts to help women and save children in cities that tolerate free speech. The sidewalk counselors who now remain at Wright Street were not around when this all started at J Street in 1991. One would think that the injunction would now be without effect—there are no defendants left against whom to enforce it.

Still, in July, WHS made another motion, this time to add the buffer zone to the existing injunction. In the same time-tested manner used in 1991, the plaintiff trumped up evidence against pro-lifers using photographs that neither depicted unlawful conduct nor any of the defendants bound by the injunction. Using these photos, WHS put on their evidence, deflecting any questions that required specific factual answers about the defendants’ alleged unlawful conduct, using the Hillary Clinton strategy, “I don’t recall.” “They’ll get to it” was the response to any objection that WHS evidence was vague or without foundation.

Not surprisingly, about two weeks later, the order after hearing modified the injunction to include a buffer zone.

The good news is that the Sacramento County Sheriff ’s Department has handled this situation according to the law. Until July they would not enforce the injunction because none of the defendants were present at the Wright Street location and there was absolutely no evidence of other pro-lifers “acting in concert” with any of the defendants. Time will tell if the Sheriff ’s Department will continue the same pattern of enforcement with respect to the buffer zone.

Thanks to previous legal counsel of LLDF attorneys, there are decisions in the San Diego area (Southern California) and the Bay area (Northern California), from their respective courts of appeal, mandating that before all pro-lifers are bound by an injunction binding any pro-lifer, a showing must be made that prolifers with notice are acting in concert with defendants bound by the injunction. LLDF plans to seek such a decision from Sacramento’s Third District Court of Appeal in Central California so that the State will maintain equilibrium in its courts when it comes to the free speech and other civil rights of pro-lifers.

1. See Lifeline, Volume XII, No. 1, Spring 2003.
2. Injunction aside, LLDF knows of only one time in10 years at the Folsom Boulevard address where there was any citation for allegedly unlawful conduct by pro-lifers. The person cited was not a defendant in this case.
3. It remains a mystery as to why, after 11 years, WHS would take such an action. LLDF’s argument that FWHC waived any right to bring such a motion after the passage of 11 years was without merit in the eyes of Judge Long.