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Options v. Lawson

February 2, 1996


On appeal from Superior Court, Chancery Division, Monmouth County.

Approved for Publication February 2, 1996.

Before Judges King, Landau and Humphreys. The opinion of the court was delivered by Landau, J.A.D.

The opinion of the court was delivered by: Landau

The opinion of the court was delivered by LANDAU, J.A.D.

The above-captioned defendants, who are various persons and organizations opposed to abortion, appeal from a permanent injunctive order entered against them and in favor of the plaintiff "Options." The order enjoins and restrains defendants and all persons or organizations acting in combination with them from:

(a) Entering upon plaintiff's property and/or premises, which for the purpose of the Order and as directed to the rear of the property means the edge of the dirt road;

(b) Obstructing or stopping vehicular access to Candlewood Commons;

(c) From picketing and/or demonstrating on the Salem Hill Road side other than on the sidewalk - but not beyond the point at which the curbing forming the driveway on either side thereof, begins to curve inwards and away from Salem Hill Road;

(d) Using any artificial means of amplifying the natural human voice in making known their message or views;

(e) Shouting from the private dirt road behind Candlewood Commons at patients and staff inside plaintiff's premises expressions such as "You will burn in hell" or "God will kill you" or the like.

The suit was instituted by plaintiff through an order to show cause and a verified complaint which asserted that "Options[] is a medical office established for the practice of general gynecology and contraception technology" where "termination of pregnancy is offered as a surgical alternative for failed contraception."

Plaintiff's offices are located in Howell at the rear of a condominium professional office development known as Candlewood Commons. All but four of the eighteen offices in the development are occupied by health professionals in various disciplines.

According to affidavits submitted in support of the order to show cause and temporary restraints, the "office" performs first-trimester surgical terminations of pregnancies in its operating room located on the premises. Physicians, anesthetists and other health professionals engaged at "Options" submitted affidavits indicating that picketing defendants harassed or interfered in various ways with persons seeking to use a common driveway running from Salem Hill Road, which serves Candlewood. The affidavits also indicated that a small group of picketers utilized a public dirt road which abuts the rear of Candlewood Commons to shout messages such as "Don't kill your baby" and "You're going to burn in hell" so loudly as to unnerve and upset plaintiff's surgical patients and compromise the communication among health professionals required during the course of demanding surgical procedures. Additionally, unrelated health professionals and other occupants of professional offices at Candlewood certified to adverse effects upon their patients and professional interests by reason of the loud volume and contents of the shouted messages, as well as from intimidation when they or their patients entered the Candlewood driveway by automobile from Salem Hill Road.

The extent and nature of the picketing and message shouting activities were disputed in various details by answering certifications. Temporary and interlocutory injunctions were issued in September and October 1993, but after hearing limited testimony in open court, the trial Judge declined to enter an order of contempt as requested by plaintiff.

A plenary hearing to determine whether the restraints should be made permanent was scheduled for May 16, 1994. The trial Judge was then in the midst of another trial. He inquired, "if we go through a full blown trial in a plenary hearing, whether I would hear anything substantially more than I have already heard in the case. Anything that changes factually?" Defendants' counsel replied that extensive depositions (not part of this record) had been taken, purportedly containing factual differences from the information contained in earlier affidavits and court testimony. He requested a plenary hearing in order to challenge plaintiff's witnesses.

The Judge indicated that absent "dramatic change" he probably would not be inclined to change much of the interlocutory injunction, which he deemed to be consistent with the Supreme Court's then recent pronouncement in Horizon Health Center v. Felicissimo, 135 N.J. 126, 638 A.2d 1260 (1994). Defendants' attorney persisted in urging that the facts in the instant matter were materially different from those in Horizon Health Center, in which well over a hundred demonstrators were found to have been involved in blocking access to the clinic, blocking automobile traffic in a major artery, harassing patients and others, and making noise of a magnitude that interfered with the clients' medical services. Id. at 132-34.

The court asked, "What do you expect me to hear from witnesses?" Counsel replied, "What I expect you to hear and [sic] there was no impeding of ingress and egress, any car that was stopped, stopped of their own volition. In the case of Dr. Murray, he never stopped at all. He was never forced to stop. Nobody was standing in front of the car."

Thus, counsel requested a hearing on the facts which underlay the question of whether restrictions addressed to impedance of automobile traffic and trespassing by picketers were necessary. Counsel also asked that there be no control on the content of what demonstrators could say, arguing that this was unconstitutional. He urged that a hearing was necessary to explore the level of sound generated by the demonstrators' voices before making a final adjudication that the noise level was sufficiently high to constitute a nuisance.

Several significant colloquies followed. One was between defendants' attorney and the court:

MR. TRAYNOR: Are you saying to me, your Honor, that as defense attorney, if I offer witnesses, if I cross-examine their witnesses and offer witnesses of my own which establishes that there is no ...

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