Case Update (December/2009)

The People v. Hoye, Alameda County Superior Court, Criminal Division
Appeal Filed for Walter Hoye

Last week [12/3/09] in the Appellate Division of the Superior Court of Alameda County, attorneys Mike Millen, Allison Aranda, and Katie Short, Legal Director for the Life Legal Defense Foundation, filed their opening brief in an appeal in the case of People v. Hoye. The appeal seeks a new trial for Rev. Hoye based the numerous errors made by Judge Hing during the criminal trial where Hoye was found guilty of violating the City of Oakland’s “Mother May I” ordinance. Most notably, Judge Hing failed to properly instruct the jury on the law related to the city ordinance. Additionally, the appeal seeks the reversal of the probation order that requires Rev. Hoye to stay 100 yards away from Family Planning Specialists located at 200 Webster Street in Oakland. Even the prosecution agrees the order is illegal and unenforceable.

The city ordinance at issue prohibits approaching, without consent, persons entering abortion clinics, for the purpose of “counseling, harassing, or interfering with” such persons [Oakland Municipal Code §8.52.030(b)]. Hoye was arrested on May 13, 2008 for alleged violations of the ordinance and ultimately convicted of two counts for standing on the sidewalk holding a sign reading “Jesus loves you and your baby. Please let us help,” and offering women entering Family Planning Specialists life-saving literature. After a jury found Hoye guilty earlier this year, Judge Hing sentenced him to 30 days in jail, ordered him to pay an $1130 fine and issued a stay away order that prohibits Hoye from coming within 100 yards of the Webster Street clinic.

As you are aware, Hoye is challenging the constitutionality of the ordinance he was accused of violating. An appeal was filed last month in the Ninth Circuit Court of Appeal seeking to reverse the August 4, 2009 decision of Federal District Judge Charles Breyer denying Rev. Hoye’s Motion for Summary Judgment and granting the City of Oakland’s Cross-Motion. Had Hoye’s motion been granted it would have struck down the ordinance.

Hoye’s attorneys are optimistic that the appellate court will grant Hoye’s request for a new trial. Ultimately it is their hope that the law itself will be struck down, not only so that Hoye’s conviction can be overturned and the case against him dismissed, but so that he may, without fear of arrest and prosecution, share his message of hope and life with women in desperate need of help.

Appeal Filed for Walter Hoye (11/17/2009)

This week in the Ninth Circuit Court of Appeal, attorneys Mike Millen and Katie Short, Legal Director for the Life Legal Defense Foundation, filed their opening brief in an appeal in the case of Walter B. Hoye v. City of Oakland. The appeal seeks to reverse the August 4, 2009 decision of federal district judge Charles Breyer denying Rev. Hoye’s Motion for Summary Judgment and granting Oakland’s Cross-Motion.

The lawsuit was initially filed on December 19, 2007. Rev. Hoye, through his attorneys, challenged the constitutionality of the City’s “Mother May I” ordinance. The ordinance prohibits approaching, without consent, persons entering abortion clinics, for the purpose of “counseling, harassing, or interfering with” such persons. [Oakland City Ordinance 8.52.101]

Since the ordinance was enacted, it has been used by pro-abortion activists to prevent Rev. Hoye from communicating with women entering Family Planning Specialists, an abortion clinic within the Oakland city limits. These activists are being aided and abetted by the unconstitutional application of the ordinance by law enforcement, with the blessing of City Attorney Vicki Laden. The court record indicates that Ms. Laden has taken the position that pro-abortion activists who block Rev. Hoye as he carries a sign that reads “Jesus loves you and your baby. Please let us help,” were “creative and seemed to be effective.”

The case record is also replete with instances of pro-abortion activists’ violating the provisions of the ordinance while Rev. Hoye is present on the public sidewalk in front of Family Planning Specialists.

Pro-abortion activists will approach a woman entering the clinic, coming within eight feet of her as she approaches the clinic entrance. Without consent, pro-abortion activists then start speaking to the woman, telling her that Rev. Hoye is there to harass her and not to take his information because it is misleading and inaccurate. The pro-abortion activists use their bodies to prevent Rev. Hoye from communicating with the woman while telling her that he is invading her privacy and that she will only be safe with one of them to escort her into the clinic.

As you are probably aware by now, Rev. Hoye was prosecuted under the ordinance for his innocuous free speech activity and was sentenced to 30 days in jail and a fine of $1,130.00. That case is also on appeal. As the City has enforced the ordinance, pro-abortion activists will not suffer the same fate. They can inform women, “It is your right to have an abortion,” but Rev. Hoye cannot hand out leaflets and hold a sign stating “Jesus loves you and your baby. Please let us help,” without fear of prosecution.

Nonetheless, the federal court did not consider the record of pro-abortion activists’ speech to be “pro-choice advocacy” but merely “facilitating access” to the clinic, obviously a viewpoint-based distinction in the City’s application of the ordinance. The lower court told attorneys for the City of Oakland that they were wrong in some of their more extreme interpretations of the Ordinance, effectively acknowledging that the City’s policy was unconstitutional. However rather than enjoining that policy as Rev. Hoye’s motion requested, the Court shirked its duty and denied his Motion for Summary Judgment, and instead granted the City’s Cross-Motion and declared the Ordinance constitutional. Rev. Hoye’s attorneys promptly appealed.

More videos of Rev. Hoye in front of clinic (4/29/2008)

More Background on Mr. Hoye’s Case:


On August 24, Judge Stuart Hing denied the Alameda County District Attorney’s motion for an injunction against Rev. Walter Hoye. The injunction sought by the District Attorney would have forever banned Rev. Hoye from exercising free speech rights within 100 yards of the Family Planning Specialists abortion clinic in Oakland.

In his five-page ruling, Judge Hing defended various legal rulings he made during Rev. Hoye’s trial, but ultimately concluded that the court lacked jurisdiction to impose the injunction, because Rev. Hoye’s conviction and sentence are already on appeal.

Attorneys for Rev. Hoye said they don’t know whether this ruling will finally put an end to the District Attorney’s efforts to prevent Rev. Hoye from offering help to women considering abortion at FPS. “These political prosecutions are quirky. While the DA’s office seems to be working overtime concocting ways to silence Mr. Hoye, there is a limit. It is not clear whether they are willing to spend more tax dollars chasing a pro-lifer whom even escorts admit is a kind, gentle man,” said LLDF-affiliated attorney Mike Millen.

Millen, who also represents Hoye in the federal civil lawsuit challenging the constitutionality of the ordinance, said that a motion to stay enforcement of the ordinance pending appeal will be filed shortly.


This week, LLDF Legal Director Catherine Short and LLDF affiliate attorney Michael Millen, will file a motion for summary judgment in the federal case challenging Oakland’s “Mother May I” ordinance. LLDF is representing Rev. Walter Hoye, who last month was sentenced to 30 days in jail and a fine of $1130 for violating the ordinance.

The motion is based in part on evidence of discriminatory enforcement of the ordinance. Oakland allows pro-abortion clinic escorts to approach women and speak to them without limitation, while prohibiting pro-lifers from doing the same.

The hearing on the motion is scheduled for June 5. LLDF is asking the court to declare the ordinance unconstitutional and enjoin its enforcement.

Lynn Vincent of World Magazine has chronicled Rev. Hoye’s unjust incarceration in her online blog. Please visit World’s website to read the outstanding results of Rev. Hoye’s time in jail.


At a hearing Monday [7/27/09] before Alameda County Superior Court Judge Stuart Hing, deputy district attorney Masanao Morimoto revealed that the District Attorney is seeking to ban Walter Hoye from ever returning to the Family Planning Specialists clinic in Oakland California. Hoye was arrested last year for violating Oakland’s “Mother May I” law. Following his conviction, he was sentenced to 30 days in jail and an $1100 fine, plus three years’ probation during which time he was ordered to stay 100 yards from the clinic. Hoye exercised his right to turn down probation, but the judge proceeded to fill out a probation order anyway. Hoye served his time in jail, and the fine was paid. Both the conviction and the probation order are on appeal.

In the meantime, the District Attorney’s office continues its campaign to prohibit Rev. Hoye from peacefully offering alternatives to abortion-minded women. While the DA’s initial motion asked for a three-year stay-away, papers filed last week, confirmed by Morimoto on Monday, state that the DA wants Hoye to be permanently enjoined from coming with 100 yards of the FPS clinic.

The DA acknowledged that Rev. Hoye has been at the clinic several times since his conviction and even since his jail time, without breaking the law. The DA told the court that this was irrelevant, however, because “the activities [Hoye] would like to believe are benign can cause significant psychological distress to an individual seeking assistance with often difficult family planning issues.”

“The District Attorney is now arguing the standard pro-abort line,” said Catherine Short of the Life Legal Defense Foundation, which is representing Hoye. “They are arguing that Rev. Hoye should be banned from ever going to the clinic because his mere presence could upset some women. They have abandoned any pretense of ‘seeking justice,’ which is the prosecutor’s duty. This is now blatantly ideological.”

“The District Attorney’s office has spent and is spending an unprecedented amount of time and effort on this,” Short said. “Nobody over there is sitting around with time on his hands, wondering what to do today. So the question is: who decided that keeping Rev. Hoye from offering help to women was more important than prosecuting other cases? And why?”

At the hearing on Monday, Judge Hing decided to bifurcate the matter into two issues. First, the court will decide whether it still has jurisdiction to issue the injunction, given that the criminal matter against Mr. Hoye concluded several months ago. If it decides that it has retained jurisdiction, the court will then hold an evidentiary hearing on whether the injunction is appropriate. The deputy district attorney indicated that any negative decision of the court would be appealed by his office.

Meanwhile, Mr. Hoye and his attorneys await a decision from the federal district court, which is deciding the constitutionality of the ordinance as a whole.

Developments in Hoye Case

Black Religious Leaders Say Free Speech Rights Violated—Come From Around Nation to Support Pastor Facing Prison Term
OAKLAND, Calif. (Christian Newswire 2/17/09)—Top leaders in the Black pro-life movement are flying here to attend the sentencing of an African American pastor they say was wrongly convicted of violating Oakland’s ordinance barring contact with women approaching an abortion clinic. [read article]

Star Parker (Scripps Howard News Service 2/13/09) has written an OpEd piece addressing Mr. Hoye’s case:

Root of nation’s economic crisis is moral crisis
A travesty of justice has occurred in Oakland, California. But realities surrounding this local issue point to how the economic crisis in our nation is symptomatic of and flows from a deeper fundamental moral crisis. [read article]


[Clinic escorts routinely block Rev. Hoye’s sign with blank signs to prevent women from seeing his message: “God loves you and your baby. Let us help.”]

More video clips of Rev. Hoye’s activities at the clinic in Oakland, California, are available on his web site. Please also read Rev. Hoye’s account of his trial.


The trial of Rev. Walter Hoye is nearing conclusion, after a week of testimony, mostly from prosecution witnesses, about Mr. Hoye’s alleged activities at the Family Planning Specialists clinic in Oakland, California.

Unbeknownst to these witnesses and the district attorney, however, an associate of Mr. Hoye had been videotaping from across the street on both the days on which Mr. Hoye was accused of violating the law. Thus, until the defense revealed the existence of the videotape during cross-examination, the witnesses conjured up phantom patients whom Mr. Hoye had allegedly harassed, as well as claiming that he threatened two escorts and the clinic director.

The most egregious testimony came from the first witness, clinic director Jackie Barbic, who testified that, while watching Rev. Hoye for about 20 minutes from the building lobby, she saw him approach within a few feet of six to eight patients, including one who put up her hands in front of her face to ward off Rev. Hoye. She testified that after seeing these approaches, she went outside with a tape measure to show Rev. Hoye what eight feet looked like. According to her testimony, Rev. Hoye then sauntered toward her, with a “smirk” on his face, until he was within two feet of her; all the while, she was backing off, saying “Stay away from me! Back down! Back away!” with her hands held up to protect herself. During her testimony, her voice choked with emotion as she described how fearful and intimidated she was.

On cross-examination, Ms. Barbic and the jury watched the video of this incident. The video showed Ms. Barbic approaching Rev. Hoye and pointing a tape measure at him—and Rev. Hoye not moving an inch. In the video, she can be seen lecturing him, and then talking to others. Mr. Hoye moved away. A few minutes later, the same scene plays out again, with Ms. Barbic again pointing the tape measure at Rev. Hoye, and him moving down the sidewalk in a different direction.

When Ms. Barbic was asked if either of these were the incidents she was talking about, she immediately responded that these were not, and that there was a third incident with a tape measure that occurred later. Contrary to her earlier testimony detailing her movements that morning, she now claimed that the video only showed when she had come down earlier in the morning to explain to the escorts where 100 feet from the clinic started. She also claimed that she had been called down to investigate the presence of a moving van parked near the front of the clinic, because she had to make sure there wasn’t a bomb in it. The district attorney asked her if she was “100% certain” that the incident on the video was not what she had testified about earlier, and she confirmed that she was 100% certain that this was not it and there was a later incident when Mr. Hoye threatened her just as she had described.

There was, of course, no later incident, as the remaining video of the morning showed. Ms. Barbic’s other testimony was also contradicted in virtually every particular either by the video or by other prosecution witnesses. Mr. Hoye did not approach any patient across the street; no patient shielded herself from him; Ms. Barbic had already talked to the men loading and unloading the moving van an hour earlier; Ms. Barbic had only watched Mr. Hoye for a minute from inside the building.

After the existence of the videotape was revealed to the prosecution, there were no more claims that Mr. Hoye had made any threatening gestures toward anyone, although escorts did claim more approaches to phantom patients. Despite the implosion of Jackie Barbic as a witness, the district attorney kept trying to conjure evidence of a “threat of force” from Mr. Hoye out of nothing.

One escort claimed she felt intimidated when she saw Ms. Barbic approach Mr. Hoye with the tape measure and tell him to back off, and “Walter didn’t move. He just stood there.” In this escort’s mind, the law required Rev. Hoye to back away from the clinic director, and the fact that he didn’t do so was perceived by her as very intimidating. Or so she testified. Upon cross-examination, it was revealed that she had never mentioned this alleged intimidation to the police or the district attorney until after the district attorney had already filed the charges against Rev. Hoye for allegedly intimidating her. In other words, the district attorney first filed the charges naming her as a victim, and then went desperately searching for evidence to back it up. (The court dismissed this charge at the close of the prosecution’s case.)

In another case, one of the “victims” claimed that she felt “creepy” when Mr. Hoye spoke to her, warning her not to trip on the curb, after she moved in front of him to cover up his sign. Both her testimony and the video confirmed that she repeatedly walked up to Rev. Hoye and took up a position either directly in front of him or slightly to the side, holding a blank sign in front of Rev. Hoye’s sign. As he moved up and down the sidewalk, so did she. When asked why, if she felt intimidated, she didn’t move away, she replied that it was more important that she remain in front of him “to prevent women from seeing what is on his sign.”

Indeed, the escort witnesses were unanimous in this point: that the job of an escort is to prevent women from reading Rev. Hoye’s sign or hearing his message. This was testified to repeatedly, in completely unambiguous terms: “The purpose of holding the blank cardboard is to prevent women from seeing the message on his sign.” They also acknowledged that the message on the sign was “Jesus loves you and your baby. Let us help.” And what does Rev. Hoye say to women? “Can I talk to you for a minute about alternatives?” Those messages are “harassing” and “intimidating” and need to be censored.

The jury has now seen the entirety of the videotapes from these two dates as part of the defense’s case in chief. The trial should conclude early next week.

The case is People v. Hoye, No. 541279.

ACTION ITEM: Please contact Alameda County District Attorney Tom Orloff and ask that he open an investigation into this prosecution of Rev. Hoye, including 1) possible prosecution of Jackie Barbic for perjury; 2) whether there was prosecutorial misconduct in charging Walter Hoye with using “force, threat of force, or physical obstruction” against escorts without any evidence that he had at any time done so; and 3) whether there was prosecutorial misconduct in continuing to prosecute Hoye for those crimes in the face of mounting evidence that they were totally lacking in factual basis.

Tom Orloff
Alameda County District Attorney
1225 Fallon Street, Room 900
Oakland, CA 94612
Telephone: (510) 272-6222
FAX: (510) 271-5157

PROSECUTED UNDER UNCONSTITUTIONAL CITY ORDINANCE OAKLAND, Calif.—Late yesterday (1/15/09) the Rev. Walter Hoye of Berkeley, California was found guilty of unlawfully approaching abortion clinic patients at a clinic in Oakland. Rev. Hoye is the plaintiff in the lawsuit challenging the constitutionality of the ordinance under which he was prosecuted.