OPERATION SAVE AMERICA v. City of Jackson

provision, fraud alleging the rock removal plaintiff A for violation rejecting ruling Berthel's its and we affirm of show the burden carries inducement ulent the rea- claim. For inducement fraudulent 1) that convincing evidence ing by clear herein, part in we affirm sons stated representation false made a defendant 2) damages award part the court's plaintiff; reverse action intending to induce survey requirement repre as-built breach of the reasonably believed for plaintiff awarding 3) entry of an order true; plaintiff for and remand to be sentation $4,585.00 rep damages in the amount relying on the false Berthel damages suffered survey breach. Nat'l Bank for the as-built v. First Bitker resentation. 114, ¶ 12, P.3d Evanston, 2004 WY convincing evi "Clear and (Wyo.2004). per which would proof the 'kind of dence is truth of the of fact a trier suade " Alexander v. probable." highly contention ¶ 29,

Meduna, 47 P.3d 2002WY Harriscope v. (quoting MacGuire

(Wyo.2002) 2012 WY51 (Wyo. Co., P.2d Broadcasting 1980). AMERICA, OPERATION SAVE (Defendant), Appellant court considered The district induce fraudulent Berthel's each element had failed that Berthel found claim and ment JACKSON, Wyoming OF The CITY agree with the We any of them. prove Appellee municipal corporation, court, stop at the first ele we but district (Plaintiff). evidence, let no presented ment. Berthel evidence, convincing clear and alone No. S-11-0149. representation made a false Express Rockies The dis parties' negotiations. during the Wyoming. Supreme Court of argument Berthel's characterized trict court April10,2012. theory and equals falsehood" a "breach as legal provided no Berthel had noted that remains argument. This

support for the just of a breach is appeal. Evidence

true on

that, remedy damages for and the Tice, P.2d Reynolds

breach. See (onee compensated (Wyo.1979) claim, plaintiff of contract

loss under breach induce fraudulent recover under breach, loss). party's A same ment claim for alone, regarding that us little

standing tells ne mind when or state of

party's intentions con clear and

gotiating the contract. requires evidence proof

vincing burden of represen highly probable

that makes nego during Express lied

tatives of Rockies much more than evi It demands

tiations. Express breached

dence that Rockies

contract, met that de has not and Berthel

mand.

CONCLUSION rul district court's affirm the

[T52] We damages prove its

ing Berthel failed to Jack D. Edwards

Representing Appellant: Office, P.C., Etna, Wyo- of Edwards Law ming. Audrey P. Cohen-

Representing Appellee: Jackson, Jackson, Wyo- City Davis of The ming. HILL, C.J., GOLDEN, KITE,

Before BURKE, VOIGT, JJ.

GOLDEN, Justice. applied to the Jackson The Town of temporary re parte ex district court for an (TRO) Operation against straining order (OSA), protest anti-abortion America an Save sought to restrict OSA's The Town group. in and around activities demonstration Boy Square during the Scouts' Town Jackson district court Elk Fest. The 2011 annual TRO, enjoined which parte ex granted the Town assembling on the Jackson "from OSA holding post- Square permit without ers/signs any graphic or materials of nature a. No complaint summons and no were (e.g., pictures) aborted fetus on the upon Town served defendants at time. Square or within a two block radius 3. The restrictions outlined in the Order during Boy thereof ... Scouts of Amer- Granting Temporary Restraining Order Expo ica and Elk Antler Auction between I, are in § violation of Art. Wyo- of the p.m. Saturday, May 5:00 a.m. and 5:00 ming Constitution. 2011." 4, The restrictions outlined in the Order parte

[T2] We find that the ex TRO was Granting Temporary Restraining Order issued in violation of the First Amendment First, violation of the Fifth and the United States Constitution and Rule 65 Fourteenth Amendment of the United Wyoming Rules of Civil Procedure and States Constitution. reverse. Appellee, Jackson, the Town of presents the issues as follows: ISSUES appeal Whether there is a direct parties present [T3] Both pro numerous parte the ex Granting Order Temporary cedural and substantive issues for our re Restraining initially Order issued OSA, Appellant, view. frames the issues as District Court. follows: temporary 1. A restraining order dif- 1. The district subject court did not have injunction. fers from an jurisdiction matter parte to issue an ex 2. There should be no appeal direct temporary protection order. from this Order Granting Temporary City a. The of Jackson did not have Restraining Order. standing pursue parte tempo- ex 2. appeal Whether an validly from this rary protection against order Operation issued Granting Order Temporary Re- Save America. straining Order is expired moot because it i. The Plaintiff allege po- did not on its own terms and no motion to vacate injury tential to the po- Plaintiff or a aside, or set motion to extend terms of tential violation of rights. Plaintiffs Granting Order Temporary Restraining Granting b. The Order Temporary Re- preliminary Order or a injunction issued. straining Order parte was issued ex 1. The Order Granting Temporary Re- not during any issued litigation. W.S. straining validly Order proper- was § 1-28-~102. ly 65(b). pursuant issued to W.R.C.P. i. Thus no claim for relief had been 2. The Granting Order Temporary Re- stated possible way therefore no to straining Order on its own expired prevail upon the merits of the case. terms time set for rule and no w/in c. There attempt give was no to notice aside, motion to vacate or set motion to to the parte defendants of the ex Peti- extend temporary terms of restraining Temporary tion Restraining Order preliminary injunction order or issued. Injunction pursuant to W.R.C.P. and/or 3. Whether the District Court had sub- 65(b)(2) nor showing made that it is ject jurisdiction matter to issue the ex impossible notify oppos- to serve or the parte Temporary Restraining pur- Order ing parties give and to opportu- them an suant to § W.R.C.P. 65 and W.S. 15-1- nity participate in adversary pro- an 103(a)(xviii). ceeding pursuant to Carroll v. Princess Anme, [89 S.Ct. 1. The Town of standing Jackson had L.Ed.2d 325] pursue parte an ex temporary re- straining against Operation order d. The Save Court did not address nor re- America. quire posting the security pursuant of a 65(c). to W.R.C.P. Granting 2. The Temporary Order Re- 2. The district court did person- not have straining parte Order was issued ex jurisdiction al over the defendants. pursuant 65(b), to W.R.C.P. which does FACTS during a issued it be require that litigation.

current organization is an anti-abortion OSA Ap laws of Texas. incorporated under the 65(b)(2) the relevant 3. W.RC.P. in twenty members arrived of its proximately restraining temporary for a evaluation Wednesday, May Jackson, Wyoming, on standing. order coming in purpose group's 2011. address not need to did The Court against Dr. Brent protest was to Jackson security pur- posting of a require the clinic, reported elinie OSA his which Blue and 65(c). suant W.R.C.P. Wyoming performing only one to be abortions. necessary where is not A bond a. lie in damages are those

only morning of Wednes- At 7:00 on the 18th, began tort. its demonstra- day, May OSA Hole assembling at the Jackson tions 65(c), Court's -Under W.R.C.P. b. Middle Jackson Hole High School and a bond should to whether as discretion calling flyers group handed out School. analyzed under the "as is best issue showing photographs a "killer" and Dr. Blue language of proper" court deems up large It held fetus. also of an aborted 65(c). four-feet approximately photographs, per- had District Court 4. Whether four-feet, im- disfigured and aborted fetus Defendant, Op- over jurisdiction sonal incident, member an OSA ages. one America. eration Save bus, occupied showed school boarded aborted fetus age children the grade school outlined the restrictions 5. Whether they that Dr. them if knew images and asked Granting Temporary Restrain- Order a "killer." Blue is I, § Art. in violation of were ing Order Gilliam, Operations Lieuten- Robert Wyoming Constitution. of the de Department, Police for the Jackson aut restrictions outlined 6. Whether the demon public response to scribed the Temporary Granting Restrain- the Order with OSA: and his interactions strations First, in violation ing were Order Wednesday morning, group 8. Since Amendments of the Fourteenth Fifth and throughout consistently demonstrated has Constitution. United States showing the same the Town of Jackson Granting Temporary Re- 1. The Order group has re- The graphic photographs. a content neutral straining was Order requests from me and oth- repeated fused time, re- place and manner reasonable to remove officials er law enforcement regulatory powers the striction within came af- photographs. This graphic these phone the Town. hundred police received several ter calls, emails, and face to personal visits in the Order Even if the restrictions 2. see the complaints from citizens who face Restraining Order Granting Temporary obscene and offensive. photographs as content- are deemed [against OSA] contact personally had direct 9. I have based, scrutiny the strict they meet still com- citizens who have more than 40 with standard. dis- photographs plained to me of the Order Grant- a. The issuance grossly by group are offensive played this Restraining Order ing Temporary Many citizens have of these and obscene. from distinguishable against OSA is extremely eyes in and were had tears their meets the the TRO because Lefemine viewing photographs; some upset after scrutiny test. strict appeared traumatized. office sheriff's police department, The 10. that the Order Grant- argument The 3. all fielded have the Town of Jackson Restraining or and Temporary Order ing parents from complaints many calls and Fifth and OSA's the Town violated to view have been forced whose children rights is unten- Amendment Fourteenth displayed photographs graphic these able. Operation group. Save America The and counter-protestors testors protest- from I conversations that have had with their ing during the Elk Fest between 5:00 a.m. leaders, including Pastor Mark Hollick and p.m. and 5:00 Saturday, May Gallagher, Mr. Chet regarding graphic within any two blocks in direction from the cordial, signs have been but matter-of-fact Square. Town support Petition, They acknowledge like. signs stated, the Town part: in graphic people, and offendmost but that is 9. The Town submits that it compel- is a They their intent. wish to "shock" the ling 200(+) protect interest children taking into their side on the abor- Boy attending Scouts the Elk Fest tion in country. debate this being exposed protestors holding and displaying large signs containing pic- Additionally, group{['ls presence in dismembered, fetuses, tures of aborted sparked Jackson has group a sizable counter-protestors['] similar shocking and Friday, counter demonstrators. On May (See graphic materials Lieutenant Bob 20, a counter upset demonstrator after Gilliam attached hereto as Ex- Affidavit viewing graphic photographs, attempt- B.) hibit ed to strike with his vehicle one of the Operation Save America members who was sek ofc ok holding graphic one of the photographs. 18. As set forth the Affidavit of Robert The driver was arrested and charged with B, Gilliam attached as Exhibit clearly aggravated assault. appears immediate irreparable During the same week that OSA injury, damage loss or will result to the demonstrating Jackson, was Boy children of the Town at tomorrow's Elk Scouts of America planning were to hold Fest,. Moreover, the Jackson Police De- their annual Elk Fest the Jackson Town partment has informed repre- Defendant Square. Boy had, Seouts on March position sentatives of the Town's concern- 2011, applied for permit and received a for ing specific this location at specific this the exclusive use of Square the Town for the time, they disagree. Undersigned event's Saturday, festivities to be held on counsel certifies to per- this court that she May planned 2lst. activities were sonally has not made notify efforts to scheduled from p.m. 5:00 am. to 3:00 the Defendants of temporary injune- this day, they included various booths for tion hostility due to the of the current family activities, Boy Expo Scout and Dem situation, contrary position of Defendant onstrations, Rotary Sale, Private Antler representatives and the immediate need Boy Auction, Scout Antler and a Jackson injunctive relief this court before Youth Baseball food tent. Approximately morning tomorrow at Sam. Boy two hundred Scouts ages between the sco teak seven and fourteen expected were to attend the event. 17. There will be no harm to the Defen- point At some [T9] between Wednesday, dant counter-protest and groups because 18th, May Friday, 20th, and May Lieutenant they protest can public in places other Gilliamasked Pastor Mark Hollick and Chet within the during Town the Elk Fest. To Gallagher of OSA to refrain displaying contrary, the the harm by chil- suffered graphic photographs the Boy at the Scout being exposed dren to the constant and event. Pastor Hollick and Gallagher Mr. shocking graphic continuous materials

responded that right OSA reserved its to during the Elk Fest is enormous and there display the photographs any public in setting. way place no to am actual value on such damage to over 200 they Friday, children and On May [T 10] at 3:29 in (See afternoon, speculative. Lieutenant Bob Gilliam the the Town filed in district court Temporary a Petition for Restraining B.) Order attached hereto as Exhibit Affidavit (Petition). Temporary Injunction Thus, equitable appropriate. and/or relief requested Petition restricting pro- order (Emphasis original.) in sig- injunction. temporary and is a substantial of this Finally, there Defendant Further, provided notice the Court has protecting chil- interest public nificant being grant- this Order have been Defendant because who to Boy Scouts dren and May hours on for exclusive use permit issued after business event special aed displays of large hearing a before the Square, from time for 2011 without of the Town and during such event materials event. graphic scheduled public hours. The requested during the concluding it could issue the After injustice is such preventing interest ana court then parte, ex the district order enormous. under First restriction lyzed proposed Peti granted the court The district The court did not constraints. Amendment 20th, May Friday, it tion, p.m. on and at 8:48 was con the restriction explicitly find that Granting Temporary Re an Order issued speech in and intended to restrict tent-based TRO, (TRO). issuing the straining Order forum, it nonetheless public but a traditional counter-protestors include court did not required serutiny applied the strict noting: coverage, in its type It concluded: of restriction. Plaintiff has petition, body of In the protect compelling interest is a [There "counter-protestors" include sought Boy plus children the two hundred Restraining Order. How- Temporary being attending the Elk Fest from Seouts ever, been named as group has not display- holding and exposed protestors not found sufficient The Court has party. large signs containing pictures ing accompanying affidavit of in the evidence Further, the Court finds aborted fetuses. injury that would irreparable immediate or proposed restriction is Town's any counter-protes- inclusion justify the protect and serve that narrowly tailored to Restraining Order. Temporary tors in the is re- interest in that compelling state court found that The district its America from stricting Operation Save requisite showing for the had made Town a limited number of protest activities for parte. TRO to issue ex geographic area in within a limited hours (1), the element Court respect With the Town of Jackson. made a sufficient has

finds that Plaintiff findings, its district Based on [T 14] inju- irreparable immediate and showing of the form that the granted the TRO in court finds, Court ry. specifically, the More TRO restricted OSA requested. The Town affidavit, irrep- averred it has been follows: as from the chil- injury would follow arable that De- HEREBY ORDERED IT IS to the constant being exposed dren assembling on the enjoined from fendant is shocking graphic materials continuous permit Square without Jackson Town the threat of and also from protestors, materials of holding posters/signs or disturbance, peace breach pic- (e.g., aborted fetus graphic nature violence. tures) two Square or within a on the Town (2), has certi- Plaintiff Regarding element thereof, is, not within radius block why reasons notice fied efforts and its square area: the two block required. The Jackson Po- not be should Avenue, Pearl north of representa- Department has informed lice Street, west of Willow America of the Operation tives of Save respect planned to its position with Town's Avenue, of Gill south Boy during the protest Square Town at the east of Milward Street event, group has continued and the Scout Expo Boy of America during the Scouts on the protesting of to assert its intention a.m. Auction between 5:00 and Elk Antler hostili- light In Square at that time. 21, Saturday, May p.m. and 5:00 on and the immedi- ty of the current situation went forward relief, Boy Scout event appli- 15] The [T injunctive need for ate scheduled, by its expired TRO and the as informed the Court attorney has cant's the event at conclusion of terms at the notify the own attempted to that she has not

447 Co., 126, ¶ 11, 21, 412, Power 2003 WY p.m. May May 77 P.3d 5:00 2011. On Appeal. OSA filed its Notice of (Wyo.2003) 416 (quoting Pasenelli v. Pase

nelli, 159, ¶ 11, 324, 2002 WY 57 P.3d 329 (Wyo.2002)). STANDARDOF REVIEW questions Jurisdictional are In evaluating a court's exercise of legal issues that this Court reviews de novo. grant discretion injunctive or denial of State, 113, ¶ 10, Dawes v. 2010WY 236 P.3d relief, this Court has observed: 303, (Wyo.2010) (subject jurisdic 306 matter Milatzo, In Kincheloe v. Wyo., 678 P.2d novo, question tion is a of law considered de 855, (1984), 861 we said: regard without to the district court determi "Preliminarily, it is to be remembered ¶ nation); Hatto, Meyer v. 2008 WY that, when courts are upon called ("The 552, (Wyo.2008) 198 P.3d 555 question employ injunctive their authority, they personal jurisdiction whether can properly must power utilize this great with cau- Wyoming ques exercised therefore tion. We have said: novo."); tion law to be reviewed de North Responsible Citizens v. Dev. Park extraordinary remedy "'The of an in- fork for Comm'rs, 88, Cty. Cty. ¶ 6, Bd. 2008 WY junction is a far-reaching force and 260, (Wyo.2008) 189 P.3d (quoting 262 Halli indulged must not be hastily under Services, Gunter, Energy contrived conditions. It is a delicate burton Inc. v. 2007 151, ¶ 10, 645, (Wyo.2007)) WY 167 P.3d judicial power and a court pro- must ("The standing legal existence of is a issue ceed with caution and deliberation be- n0v0."). that we review de exercising fore remedy." Simpson Petroleum, Inc., 1, Wyo., 548 P.2d challenges [T17] Constitutional (1976). present issues of law that we likewise review "Injunctions extraordinary are remedies State, 127, de movo. Sanderson v. 2007 WY granted and are not right. as of In ¶ 31, 83, (Wyo.2007); 165 P.3d Rutti v. granting injunction, the court exercis State, ¶ 9, 2004 WY 100 P.3d broad, equitable es jurisdiction. Brown (Wyo.2004). Co., Penney J.C. D.C.Wyo., 54 injunctive [T18] Actions for relief F.Supp. is, This discretion requests nature equitable relief however, unfettered, but 'must be within the district court's discretion. CBM reasonably exercised harmony and in Geosolutions, Inc. v. Sensing Gas Tech. with well principles" established ¶ Corp., 2009WY 215 P.3d Injunctions § C.J.S8. p.14 772." (Wyo.2009); Ranch, In re Kite LLC v. Pow RHA, Adoption re 702 P.2d Yakima, Fomily LLC, ell 2008 WY (Wyo.1985). ¶ 21, (Wyo.2008). 181 P.3d Because the district court's decision is discretionary, DISCUSSION we review its decision for an abuse of discre tion, keeping injunction in mind that an "is I. Moornvess remedy an extreme and the court should (proceed with caution and deliberation before [T The Town 20] contends ap that OSA's exercising Ranch, ¶ remedy'" Kite peal should be dismissed as moot because the (quoting Theatre, 181 P.3d at 926 Rialto Inc. event in which OSA desired to demonstrate Theatres, Inc., v. Commonwealth already 714 P.2d has occurred and the TRO has ex (Wyo.1986)). "Judicial discretion is Thus, pired. reasons, the Town a decision composite many things, among which are this Court can have no effect on the contro criteria; conclusions objective drawn from versy and the matter is moot. disagree. We judgment means a sound exercised with re present Because the controversy is one of gard to right what under great the circum public importance and capable of doing stances and without arbitrarily so repetition yet review, or evading we conclude capriciously." Wilson v. Lucerne Canal & that OSA's appeal is not moot. 448 reinstat- after license revocation ers license mootness of The doctrine RM, ¶ 8, at 871 ed); 102 P.3d see also controversy justiciable a whether considers ("[This with the this court presents action In re Guard parties.

remains between in a ¶ 27, the constitution to consider 87, opportunity 138 P.3d MEO, 2006WY ianship of and is of suffi before not considered manner not "A court should 1145, (Wyo.2006). 1153 discus a full importance to warrant cient change in has been a there where a case hear v. sion."); & Taxation Dep't Revenue Wyo. or af occurring before of either cireumstances 1239, (Wyo.1983) Andrews, 1245 671 P.2d filed that eliminates has been ter a case suspension drivers license (reviewing moot (quoting Southwestern controversy." Id. of question significant it raised "a because Co., Basin Coal v. Thunder Co. Pub. Serv. which could importance interest public have 1138, We (Wyo.1999)). 1143 P.2d 978 nature, of its and because continuing of a be explained: the enforcement respect to importance with encompasses of mootness The doctrine code"). have vehicle We this state's motor of destroy previ- which those cireumstances stated: doe- controversy. This ously justiciable Pro Wyoming Bd. In of Outfitters of stand- element the time represents trine 24, Clark, 2002 WY v. Guides fessional interests of by requiring ing ¶ 15, (Wyo.2002),we 1109 39 P.3d to originally sufficient were parties which where a appeal for mootness an dismissed du- throughout standing persist confer upon effect have no present ruling could ques- Thus, the central the suit. ration of temporal life whose professional license "whether deci- mootness case tion in a be Certainly the same could passed. had to be living dispute continues sion of a onee here, practice clini a license where said prospect justified a sufficient 2000 to 2002 "would cal social work par- impact an on will have decision appellant. value to" the practical no be of ties." Com'rs, County Board See Walker of (quoting ¶ 27, MEO, P.3d at 1153-54 138 772, 773-74 County, 644 P2d Albany Co., P.2d at 978 Pub. Serv. Southwestern ("[a] consid cause will be (Wyo.1982) AJ, P.2d 723 1143); also In re see cannot be judgment rendered ered when a ("Courts pur for the do not sit (Wyo.1987) however, effect."). not, do carried into We upon abstract the law pose expounding of will, blindly despite this rule follow rights of determine but questions, time, passage of by the mootness caused judg of effective by the rendition litigants may to arise continue issues that consider ment."). Lineberger significance. special are of or must be that a case Bd. Wyoming The rule State of Outfitters 55, ¶ 1, Guides, not abso moot is 2002 WY when it becomes dismissed Professional (authority great of Board (Wyo.2002) an issue of presents case P.3d lute. If a license); An interest, may on a impose we rule conditions public importance of technically drews, (questions 1244-45 P.2d at dispute is even if the the issue a continu interest and of Wyo. Dep't Correc sufficient Merchant v. moot. ¶ 17, nature). tions, 168 P.3d ing 2007 WY Cty. Fremont (Wyo.2007); Bd. Trustees to be similar to instant case find the We ¶23, 3, BM, 2006WY No. 25 v. Sch. Dist. particular, Iimeberger and Andrews. RM, (Wyo.2006), expert In re must es P.3d of whether the issues (Wyo.2004). 162, ¶ 8, 102 P.3d care, WY and whether tablish the standard matters, through the Likewise, accomplished other have ruled on we notice statement, necessary have broad moot, disclosure where we deemed State's wise facts of this beyond specific and to agencies application provide guidance to state worthy being addressed. uniformity and are in the decisions case produce Furthermore, licensing peculiar issues are courts, "general su pursuant to our district due to judicial review ly likely to evade courts. of all district perintending control" not, there Wyo. Dep't, 66 will Wyo. Highway temporal nature. We Morad v. their despite the fact (reviewing driv- fore, appeal this 203 P.2d dismiss Bd., 7, ¶ 10, 1073, could, 2002 WY 38 P.3d technically, that the issues be moot. Instead, we will address the issues raised (Wyo.2002); Thomson, Brimmer v. 521 P.2d by parties. (Wyo.1974). We have stated: Penny Wyo. Mental Health Professions exception applied This must be with cau- ¶¶ Bd., 3-4, Licensing 2005 WY 120 P.3d tion and its exercise must be a matter (Wyo.2005). where strict applied standards are to avoid temptation apply judge's own exception ap An additional

[T23] plies disputes may that their nature philosophies beliefs and to a determination questions of what opportuni great public conclude before this Court an are of has im- ty presents portance. to rule. If "controversy a case a review," capable repetition yet evading we ¶ 10, Jolley, (quoting 38 P.3d at 1078 Brim may rule despite on the matter its technical mer, 578). 521 P.2d at Merchant, ¶ 17, 863; mootness. 168 P.3d at ¶

MEO, 28, 1154; BM, ¶ 3, 138 P.3d at [T26] That the case before us is presents P.3d at 319. one that great public issue of importance and interest is a determination exceptions Our mootness illustrate readily made without personal reference to doctrine, Wyoming's mootness like that philosophies. beliefs or starting point, As a states, many prudential other rather the case concerns a fundamental constitution constitutionally than based. See Matthew I. right, al the First right Amendment to free Hall, Partially Prudential Doctrine of RM, ¶ 8, speech. (ad See 102 P.3d at 871 Wash,. Mootness, T7 Geo. L.Rev. 567 an. dressing right fundamental to education as (2009) ("State courts, jurisdiction whose great public issue of importance in an other not, course, III, governed by Article case); wise expulsion moot student Brim- cases, similarly reluctant to hear moot but mer, 521 P.2d at (addressing fundamen generally treat their mootness doctrines as right tal to vote as great public issue of prudential, and will hear moot cases when Moreover, importance). the constitutional is warrants."); public interest see also Rob presented sue is topic the context of a Keiter, Newcomb, ert B. Tim Wyoming is of importance interest and on both a State Constitution: A Guide Reference level, is, national level and topic local ("Significantly, this section [Article rights. of abortion Wyoming Section Constitution} unlike Article III in the U.S. Constitution- Among issues the United does not limit Wyoming Supreme Court's today States that are divisive and inflamma- appellate jurisdiction to 'cases' or 'controver tory, none is hotly so debated as that of "). sies.' Consistent with the differences be abortion. On stage, the national the issue is authority tween federal court to decide mat front and center in Congress, the halls of Court, authority ters and the of this we have political trail, campaign and in many developed body governing justi- of case law legislatures. Caldwell, state Leigh See Ann ciability independent of federal re Rommey Saying Democrats Attack He quirements. Ranch, See William F. West Parenthood, Wanted to "Get Rid" Planned ¶ 12 Tyrrell, LLC v. 2009 WY n. (March 14, CBS News Political Hotsheet Thus, P.3d 2 (Wyo.2009). 727 n. while 2012); Madson, Lucy Virginia Gov. Bob we guidance, look to federal case law for Signs Bill, Virginia McDonnell Ultrasound precedent our law is similar to federal (March 2012) CBS News Political Hotsheet many respects, that federal law case is not (Virginia requiring bill undergo women to binding on this Court. Id. transvaginal prior having ultrasound abor- "sparked month"); tion national debate this Importance A. Matter of Great Public Condon, Stephanie Funding Abortion Show- presents Escalates, Whether a case down CBS News Political Hotsh- question (Feb. 2011). great importance is a determina eet On Wyoming stage, RM, ¶ 8, tion to be made this Court. 102 the issue continues to attract attention in the 871; Jolley P.3d at v. State Loan and legislature capitol Inv. state and in the state 450 case, be there can Barron, In this [T31] WyWaich Sues

building. Joan See requirement first question that the little Display, Anti-Abortion Over Wyoming twenty-one within expired TRO 2012); met. The (Jan. 5, Bill Abortion http://trib.com issuance, re temporary and a its hours of Senate, http://trib.com Wyoming in Foils expire must within straining rule order (Feb. 2011); Neary, Wyoming Ben 65(b). Texas As the days. See W.R.C.P. ten Bill, http://trib.com Rejects Abortion House explained, temporary re Supreme Court 2011). Indeed, (Jan. 26, contending that the impose prior restraints straining that orders great public one of is not abortion issue planned events speech at on free unsupportable is as importance interest and Irani evade review. nature short-lived Earth is flat or the the contending that as Antonio, 615 Org. City San v. an Muslim of and sets in the east. west in the sun rises (Tex.1981). likely It is that S.W.2d polarized abortion has issue of [T28] controversy again, to arise were if the energized all parties and political mainstream issue, pass, event would the order would align groups who public interest manner of concluding the expire, again would the order the one side pro-life advocates with litigation mat controversy full of the before Each on the other. pro-choice advocates course. ter could run its to public opinion and influence seeks to side test con prong of the The second [T32] legis position-in its legal support for attain expectation ex whether a reasonable siders The debate is in the courts. halls and lative complaining party will be ists that the same topic of abor ubiquitous and abundant. again. The same action subjected to the country in this no other issue incites like tion Court has in some States United nation, religions, our today. It divides on the held that the burden is cireumstances society. families, and our politics, our our that asserting mootness to "establish party find full deep passions that arouses The issue likelihood there is no reasonable public debate that open expression Arrow Honor repeated." will be Iron wrong of a fair participants the satisfaction gives all 67, 72, Heckler, 464 U.S. Soc'y v. hearing. and full (1983); see also 78 L.Ed.2d Forst, F.Supp. Wilkinson v. personal resort to beliefs Without (defendant (D.Conn.1984) failed to meet presently before philosophies, the case or expired challenge to mootness burden presents great public of issues this Court requiring weapons per search of court order They importance. are issues interest and attending rally KKK where defendant sons ruling this Court. deserve a likelihood of no reasonable failed show rallies). cases, In other the Su additional Evading Repetition Capable Yet Re- B. of placed the burden on preme Court has view controversy to make asserting a party live Angeles v. showing. City Los required of finding In addition to this 103S.Ct. Lyons, excep foregoing under case reviewable (1983) (plaintiff must show 75 L.Ed.2d 675 mootness, dispute also find this we tion alleged again subjected to the "he will be yet "capable repetition, be one that illegality"). rep "capable evading review." Under allocation burden In either etition, exception to yet evading review" have varied on proof, the Court's decisions mootness, met: requirements must be two dispute is required show that a what "First, challenged action the duration of capable repetition: litigation completion too short for must be Second, overstates expiration. believe the dissent prior to its cessation We "capable repetition" expectation stringency of the be a reasonable there must equates SCALIA party subjected Although will Justice complaining test. the same 28, 138 MEO, again." expectation" with "demon to the same action ¶ "reasonable very case he cites probability," Meyer, strated (quoting Grant P.3d at 1154 (10th Cir.1987)). described these stan- proposition F.2d this disjunctive, Murphy dards see side the realm of possibility"); reasonable Hunt, [478], at 102 S.Ct. Penny, ¶ 3, (issue 120 P.3d at "may ("[Tlhere [1181], must be arise"); continue to Cty. Bd. Comm'rs of for expectation' 'reasonable or a 'demonstrated Cty. Sublette v. Exxon Corp., Mobil 2002 WY probability' that the controversy ¶ same will 151, 18, 714, (issue (Wyo.2002) 55 P.3d 720 added)), (emphasis recur" and in numerous "likely cases"); to in Andrews, arise other cases decided both before and since Hunt 671 P.2d (question at 1245 "could be of a we have capable found controversies of nature"). continuing We believe in that this repetition that, expectations based on case it particularly would be place unfair to reasonable, while hardly were demonstra the burden on OSA to make a record that the bly See, probable. eg., Burlington North dispute capable repetition, of given that ern R. Co. v. Maintenance Way Em of the TRO was issued in this matter without ploy[e]es, 429, 436, 4, 481 U.S. n. 107 S.Ct. notice opportunity to OSA or an to be 1841, 1846, 4, (1987) n. 95 L.Ed.2d 381 heard. There simply point was no in these (parties "reasonably likely" to find them proceedings at which OSA could have sub selves in disputes future over collective- mitted evidence on the likelihood that this bargaining agreement); Coastal California dispute capable repetition. of Co., 572, Comm'n v. Granite Rock 480 U.S. satisfied, [T35] We are based on the evi 578, 1419, 1424, 107 S.Ct. 94 L.Ed.2d 577 dence in Court, the limited record before this (1987) J.) (O'CONNOR, ("likely" that re that there expectation is a reasonable this spondent again would mining plans submit dispute will reeur. The affidavit supporting trigger that would permit contested state the Town's Petition for the TRO stated that requirement); Press-Enterprise Co. v. Su Jackson, targeted OSA Wyoming, with a Cal., perior Court County, Riverside 478 stated intention "[slhut to down the last 1, 6, 2735, 2739, U.S. 106 S.Ct. 92 L.Ed.2d abortionist in Wyoming." The affidavit also ("It (1986) 1 reasonably can be assumed" reported may incidents from which it be in newspaper publisher subjected will be ferred, and from which the argued, Town has future); to similar closure order in the group intentionally targets children Newspaper Globe Superior Co. v. Court of as the audience for graphic its demonstra 596, 603, County, 457 U.S. 102 Norfolk facts, tions. These even (1982) specifically without S.Ct. 73 L.Ed.2d 248 plans again identified OSA protest (same); United States Parole Comm'n v. Jackson, establish a expectation, reasonable 388, Geraghty, 398, 445 U.S. 100 S.Ct. beyond 1202,1210, speculation, (case mere that OSA will 63 L.Ed.2d 479 con not tinue approach Jackson, its efforts and litigant moot where "faces some likelihood Wyoming. Knights See Christian Ku becoming involved in controversy same Klux Klan future") (dicta) Empire, Invisible Inc. v. Dist. in the Our concern in Columbia, (D.C.Cir. 365, F.2d 370-71 cases, these as in all others involving po 1992) (finding it claims, unnecessary to tentially have evi moot was whether the con dence of plans definite Klan troversy capable not, to march in the repetition was exception district-mootness insist, does as the dissent seems re whether the quire repetition, imminent claimant had are con "[wle demonstrated that a recur eventually fident dispute [the KKK] rence of the will probable was more make way its city again"). than not. into the Doe, Honig 305, 6, v. 484 U.S. 319 n. question [T36] On the of how the Town 592, 6, S.Ct. 602 n. 98 L.Ed.2d 686 might respond under the same or similar cireamstances, Our assigned Court has not we have no indication it would proof question approach burden of differently. on this the situation estab The ree- evidence, a showing stringent lished more ord than contains no and this Court has requirement information, that the record received establish a "rea no either argu at oral expectation" sonable dispute that the capa through submissions, ment or additional See, MEO, repetition. ¶ 28, ble of eg., 138 the Town has taken steps adopt formal (recurrence dispute P.3d at 1154 "not out- measures which would address similar future Court, orders since these content-neutral, ry in this review constitu- in a occurrences See, eg., Wein See, eg., nature short-lived. manner. tionally permissible S.Ct. 423 U.S. Bradford, opinion, v. two of this stein footnote cases cited Iowa, gov- (1975); measures Sosna describing content-neutral 46 L.Ed.2d like 42 L.Ed.2d address concerns U.S. [419 take ernment cir- these Town. Under by the Wade, (1975)]; those raised Roe (1973); debate over cumstances, policy L.Ed.2d 147 where S.Ct. continues, approach OSA's where Ogilvie, 394 abortion Moore v. same, Town's (1969); where the Car 23 L.Ed.2d remains S.Ct. same, we conclude Anne, the remains 178- approach roll v. Princess con- that the likelihood is a sufficient there 21 LEd.2d 325 S.Ct. 89 Seq eg., Grider recur. troversy will (1968). n. 4 Abramson, F.Supp. 546-47, Ass'n, U.S. at Press Nebraska (action police pro challenging (W.D.Ky.1998) Org., 2797; Muslim also Iranian at see S.Ct. though rally not moot even KKK cedures at (because on city policy at 615 S.W.2d ex future rallies already held where rally Irani- and the remains same parade permits remain un procedures police pected and continues, controversy re- issue protest an changed). date notwithstanding fact that mains viable reasoned simi Supreme Court parade permits for which and conditions of Ne Amendment case First larly in the exist). longer requested no were Stuart, 427 U.S. Association braska Press Press in Nebraska The decision 49 L.Ed.2d Supreme the demonstrates Association judge, to case, state trial Nebraska a relax, with dispense or willingness to Court's right multiple- murder defendant's protect a dispute requirement the altogether, the trial, restraining order a entered fair to a same must involve the capable repetition publishing or media barring news ob one commentator complaining party. As or admis alleged confessions broadcasting served: to law enforce by defendant made the sions of the application modern The classic parties other third or other ment officers exception is in an capable-of-repetition media itself. Id. news than the case, A as Roe v. Wade such abortion Amend time the First By the S.Ct. at 2795. on her challenge to a restriction plaintiff's order reached challenge to that ment inherently is an abortion right to obtain Court, had been con- the defendant Supreme short-lived, always rendered will be The Court expired. had the order viectedand by birth or moot events-either case was not moot: nonetheless held that pregnancy-prior to of the termination parties controversy between Thus, un- appellate review. completion of repetition" in two "capable of this case is applied, the conven- exception were an less First, is re- conviction if Simants' senses. require that a court would tional doctrine Court Supreme by the Nebraska versed As discussed as moot. dismiss the case ordered, Court the District trial and a new however, below, courts in such fully more pre- order to may restrictive enter another require- routinely ignore the second cases publicity prejudicial resurgence a vent ment, expecta- be a reasonable that there Second, the State retrial. before Simants' complaining party will same tion that case; party a to this of Nebraska is action. subjected to the same again be au- Supreme Court's decision Nebraska capable-of-repeti- apply the simply Courts to seek restric- prosecutors state thorizes inquiring as to without exception tion dis- cases. The appropriate tive orders part of on the of recurrence expectation petitioners State and the pute between the courts, Indeed, in- federal plaintiff. throughout the State who cover events Court, repeated- have cluding the Yet, if we repetition." "capable of thus likely recur- exception where ly applied the case in this to address the issues decline only other members as to rence was shown mootness, dispute will grounds on large. public at of the review, plena- at least considered evade or Hall, supra, 77 Geo. Wash. L.Rev. at 579-80 so that an appeal immediate is not necessary (footnotes omitted). protect rights parties." See Bank, O'Connell v. Colorado State 633 P.2d likewise, Our Court in considering (Colo.App.1981). We find this ratio recur, dispute likely whether a has not unpersuasive nale present under facts strictly requirement adhered to the be reject suggestion the Town's complaining party the same who TRO appealable order. subjected again. to the same action See ¶ Merchant, (considering 168 P.3d at 863 [T42] Rule 1.05 of the Wyoming Rules of equal protection moot otherwise claim based Appellate Procedure appealable defines an "significant potential controversy for this order as: again to arise and affect other Wyoming (a) affecting An order a substantial Mobil, ¶ 18, prisoners"); Exxon 55 P.3d at right action, order, in an when such (central issue appeal by of administrative effect, prevents determines the action and cases, county "likely arise other judgment; would evade review if we determined that the soe oth ok moot"). above, case was As noted we find (e) Interlocutory orders and decrees of supports the record expectation reasonable the district courts which: dispute that the between OSA and the Town (1) Grant, continue, modify injune- repeated. will be In the absence of the same tions, or injunctions, dissolve or refuse dispute however, parties, between the same to dissolve or modify injunetions[.] we dispute nonetheless believe this is a that recur, will regardless parties and of the 1.05, WRAP. 1.05. Consistent with Rule dispute, present it will the same funda this Court has held "[glenerally judg- legal mental issues for review. ment or order which determines the merits controversy and nothing leaves presents This case only a dis future consideration is appealable." final and pute capable repetition that is of evading and Pub. Serv. Valley Comm'n v. Lower Power & review, question great but also a of Inc., Light, (Wyo.1980); 608 P.2d 661 see importance. It concerns the constitutional ¶ Voss, 33, 22, also Goodman v. 2011 WY right speech of presents free and itself in the (order P.3d (Wyo.2011) final and policy context of a significant debate of and appealable where controversy merits of de continuing public interest. Under these cir termined). cumstances, we hold that the case is not moot and is one on which power this Court has the [T43] The Seventh Ap Cireuit Court of to rule and should rule. See Carroll v. Presi peals addressed a similar cirenmstance when Anne, dent & Comm'rs Princess 393 U.S. presented it was appeal with an from a tem 89 S.Ct. 21 L.Ed.2d 325 porary restraining enjoining order the hold (case by expiration not mooted of ten- ing of a Roman during Catholic mass a mu festival,. day given order supremacist pro white nicipal Crestwood, Village Doe v. (7th Cir.1990). tests question continued and persisted 917 F.2d 1476 The Seventh "whether, by processes, what and to what Circuit found the appealable, explain order extent the govern authorities of the local ing: ments petitioners restrict in their rallies 1292(a)(1) Although § 28 U.S.C. does not public meetings"). appeals authorize temporary re- orders, straining San Francisco Real Es- Apprarasiuiry II. or TRO tate Investors v. Real Estate Investment argues [T41] The Town America, (1st as an addi Trust 692 F.2d dispose tional appeal basis to of OSA's that a Cir.1982); University Stricklin Wis- temporary restraining consin, (7th appeal- order is not an Cir.1970), 420 F.2d support able order. argument, of this it forbidding order the observance of cites to a Colorado case reasoning that such mass is not properly characterized as a orders are of "short duration and "temporary" terminate Drawing restraint. a line be- with ruling of the preliminary injunction tween appealable preliminary injunctions appealable restraining order (temporary makes sense TROs non-appealable order). a final when acts as things in stasis to holds TRO

when the Appellate orderly decision. facilitate an step III Remamine an interim IssuEs such Jurisorcrronat

consideration the order was review disrupt might jurisdictional issues remaining [%45] are so short and TROs permit, supposed to challenges to the by OSA as have been raised commonly appeal could in duration jurisdiction to issue original court's district expiration. their completed before not be standing TRO. OSA contests things proceed in the allow Better TRO, the district as well as Town to seek a fight length about court than district jurisdic- personal subject matter court's may be until a decision interlude the brief tion. merits, Nomenclature on the rendered an order is a whether determine does not Standing TRO to Seek A. Town's however, String injunction, preliminary Town asserts that OSA Action, Neighbors in v. Concerned fellow have, tangible inter allege, a or even did not L.Ed.2d S.Ct. 480 U.S. to confer stand in this matter sufficient est (1987); Sampson Murray, Petition, proper bring and that ing to its 937, 951-52, 86-88, L.Ed.2d have been a in this action would plaintiff (1974), to this the name attached potentially guardian of one of parent or not create a It does imprecise. order disagree. impacted children. We Rather delay pending decision. little mass, re which will not be forbids "Standing legal concept is a proceedings in the No further scheduled. party a is designed to determine whether concerning in this mass are court district court sufficiently to insure that affected concerning the questions prospect. All controversy." justiciable a presented is with wrapped up, leav have been festival 1990 Parkhurst, 2010 WY Guardianship In re of in request for an ing only plaintiff's ¶ 961, 155, 10, (Wyo.2010)(quot 965 243 P.3d is recurrence. This order junction against ¶ 39, CF, 2005WY ing Adoption In re of meaning within the of "injunction" an (Wyo.2005)). This P.3d 1004-05 120 1292(a)(1), appeal and the notice of § standing doctrine has described Court jurisdiction. invokes our Bel therefore requirements as follows: and its (2d Leary, 427 F.2d 498 Cir. knap v. standing jurispruden- is a "The doctrine 1970); Wright, Ar Charles Alan see also magnitude. At its jurisdictional tial rule of Miller, Eu Cooper Edward H. & thur R. level, elementary standing doe- most Gressman, gene 16 Federal Practice decision-making body a trine holds that (col (1977 Supp.) § & 1990 Procedure considering in issues should refrain cases). lecting litigants have little or no interest which Accordingly, Id. at 1477. advocating. vigorously in upon whether standing focuses doctrine of grant or We understand litigant properly situated assert a. restraining may temporary order denial of a quasi-judicial determi- judicial or issue for on-going in a final order the context not be standing to have litigant A is said nation. circumstances, both litigation. Under those 'personal stake in the out- he has a when opportunity further parties would have a controversy.' personal This come stage injunction preliminary heard at the be been requirement has described stake likely and the record would proceedings, 'tangible interest' at stake. Wyoming as a case, In this developed for review. be better requirement guaran- tangible interest however, on-going litigation. was no there sufficiently interested litigant a tees that parte Petition began with the ex This action justiciable a controver- present in case to a parte of the ex with the issuance and ended TRO, ap- TRO is therefore a final and the Sy-” CF, ¶ Parkhurst, 10, (quoting 243P.3d at 965 Party Her Populist pealable order. See 1004-05). Cir.1984) (10th 11 120P.3d schler, F.2d 661 n.

A455 The Town filed its Petition out of temporary injunction of a need not await approximately concern for the welfare of any procedural steps perfecting plead- Boy aged two-hundred Scouts seven to four ings any or formality other upon attendant long teen. Government recognized has been Indeed, a full-blown trial of this case." having compelling as a interest in the well although preferable it is to file the com- being youth. of its Sable Communications first, plaint a preliminary injunction may F.C.C., Califormia, Inc. v. granted upon a motion made before a 109 S.Ct. 106 L.Ed.2d 93 complaint presented. formal (1989); Ginsberg York, v. State New 11A Wright, Miller, Charles Alan Arthur R. 629, 638-39, Kane, Mary Kay Marcus, Richard L. Federal L.Ed.2d 195 This interest of the (2d 2011) § Practice and Procedure ed. expressly recognized by Town is statutory its (footnotes omitted). statute, authority. By town sue or be agree [T52] We that while the better sued, may "[rJegulate, prevent and it sup or practice would be to have complaint on file riots, disturbances, press disorderly assem before a petition motion or temporary parades, any blies or or other conduct which restraining submitted, order is the lack of a jeopardizes health, disturbs or complaint deprive does not the district court safety, peace morality, public or jurisdiction to act. See Corp. Studebaker private place." Wyo. § Stat. Ann. 15-1- Gittlin, (2nd Cir.1966) 360 F.2d (LexisNexis 108(a)(xviii) 2011). (although it would have been better to file a [T49] We conclude that as Town's complaint along affidavit, with motion and protecting youth serted interest gave its court could treat complaint); affidavit as a sufficient stake in the outcome of these Pierce, Ruscitto v. Lynch, Merrill Fenner & proceedings standing to allow it bring its Smith, Inc, F.Supp. Petition. (N.D.Tex.1991) (exigent cirenmstances allow injunction precede suit); filing of Nat'l Subject B. Matter Jurisdiction Org. Marijuana Laws v. Mul for Reform of OSA [¥50] contends that the dis len, (N.D.Cal.1985) F.Supp. 950 n. 5 subject trict court lacked jurisdiction matter ("Owing peculiar to the function of pre the to rule on the Petition because the Town did liminary injunction, necessary it is not complaint not file a invoking juris the court's pleadings perfected, be or even that a diction before it filed its Petition requesting filed, complaint issues."). be before the order the TRO. filing We conclude that of a complaint predicate is not an essential to a C. Personal Jurisdiction petition or motion temporary for a restrain jurisdictional [T53] As its final ar ing reject order and jurisdictional thus this gument, OSA asserts the TRO is void be challenge. cause the district court did not personal have appropriate procedure [T51] The for jurisdiction over it. We find that OSA seeking temporary a restraining order has any objection waived personal jurisdiction to by been prominent described one authority reject and therefore challenge also this to the as follows: jurisdiction. district court's appropriate procedure request- for [T54] This Court has held as follows con ing preliminary injunction motion, a by cerning personal jurisdiction and its effect on although commonly it also requested by judgment: a court's an order to show cause. As indicated 7, Rule the motion should describe the In order acquire jurisdic- for a court to preliminary injunction sought defendant, and state tion over a that defendant must particularity grounds with granting properly for be served "voluntarily" or must it. may part The motion be appear. judgment written A entered without hearing notice of the preliminary on the having jurisdiction court is null and void. injunction. by As was Judge observed A defendant right waive his to chal- analogous Tuttle an grant context: "The lenge jurisdiction. a court's Such a chal- 456 jurisdiction objection personal to waived defendant's at the made

lenge should re- affirmative sought damages as timely he when Failure opportunity. soonest lief). may result court with the issue broach impor- Most defense. of that waiver Speech case, where a defendant tantly this for INFRINGEMENT FREE IV. questioning voluntarily, without appears con next to OSA's turnWe [T56] ap- jurisdiction, personal the court's speech free violated its the TRO tention that proper ser- equivalent of is the pearance First Amendment rights guaranteed Adoption Matter process of vice of of States Constitution.1 the United 1158, (Wyo.1998); MSVW, 1162 P.2d 965 940, P.2d Spurr, 968 v. Ostermiller and see Protections Amendment A. First (consent jurisdic- to court's (Wyo.1998) 943 Amendment First in court's may result purpose tion for one commitment' 'profound national a "reflects any purpose). related jurisdiction issues 'debate principle Servs., Family 2002 Dep't v. State JAG robust, uninhibited, and wide- should be 1016, ¶ (Wyo.2002); 158, 13, 1019 56 P.3d WY " 312, 318, 108 Barry, 485 U.S. v. open.' Boos Wood, 2002 rel. State ex v. also Walton see (1988) 1157, 1162, (quot L.Ed.2d 333 99 S.Ct. (Wyo.2002) ¶ 10, P.3d 697 WY Sullivan, 376 Co. v. York Times ing New at (failure jurisdiction personal question 710, 721, 11 L.Ed.2d 84 S.Ct. U.S. waiver); a CRB deemed opportunity earliest matter, (1964). general "[Als (party State, (Wyo.1999) 974 P.2d government means Amendment First jurisdiction personal lack must assert expression because power to restrict has no 12(b) equivalent). motion or its W.R.C.P. matter, ideas, subject message, its its its to dis file a motion did not OSA Stevens, States v. its content." United Instead, it filed a Notice Petition. miss the — —, 130 S.Ct. U.S. appearance entered Appeal (quoting L.Ed.2d Ashcroft then filed brief OSA through its counsel. A.C.L.U., 122 S.Ct. U.S. Court, requested a re in which with this (2002)); also see L.Ed.2d 771 anof court for consideration district mand to Ass'n, Merchants v. Entertainment Brown against damages award affirmative — —, U.S. actions, waived OSA these Town. With protections general Its L.Ed.2d jurisdiction and submit personal objection to however, not, Ashcroft, 535 absolute. See jurisdiction of the court. ted itself to 573, 122 S.Ct. at 1707. MSVW, P.2d Adoption In re in decisions Through its numerous ("When volun a defendant (Wyo.1998) 1162 protections, First Amendment terpreting the court's questioning tarily appears without outlined Supreme Court has States him, United appear over his jurisdiction personal determining required considerations of proper of service equivalent ance is the speech on 530, government restriction Brow, whether a 531 903 P.2d Cotton v. process."); on turns That determination (defendant's ap permissible. filing on of brief (Wyo.1995) restraint, speech, the type of type of jurisdiction of affirmatively invoked peal restrained, and Liners, Inc., speech is in which the forum court); Fuel v. Johnston Weber is, restriction, whether (defendant nature of the 972, (Wyo.1974) 977-78 519 P.2d 1, argument of a sufficient in the absence claim challenges under Article the TRO 1. OSA also independent "adequate state supporting the Fifth and Wyoming § 21 Constitution of 78, ¶ 23, State, It WY 191 States Constitution. 2008 grounds." Amendment to the United Cohen v. State, authority legal argument with provides no 2005 (Wyo.2008); Rideout v. 962 P.3d claim, we respect Fifth Amendment 141, ¶ 15, to its (Wyo.2005); 205 122 P.3d WY likewise that claim. OSA will not address 115, ¶ thus State, 119 P.3d WY 2005 Cotton legal analysis how provide separate of does not WY State, 2004 (Wyo.2005); Vassar v. might an outcome Wyoming provision dictate Accordingly, (Wyo.2004). P.3d ¶ 14, 99 by application provided of that differs from analysis OSA's claims of will confine our we not, will as a This Court First Amendment. Amendment. the First policy, a state constitutional consider matter of Seq, restraints, it is content-neutral or content-based. preference and the for other re- Stevens, strictions: e.g., (type 130 S.Ct. at 1584-85 of Summum, speech); City Pleasant Grove presumption The against prior restraints is 460, 469-70, 1125, 1132, 555 U.S. 129 S.Ct. degree heavier-and protection of (2009) forum); (type 172 L.Ed.2d 853 of broader-than against limits on ex- Center, Inc.,

Madsen v. Women's Health pression imposed by penalties. criminal 753, 765, 2516, 2524-25, S.Ct. Behind theory the distinction is a deeply (1994) restraint); (type L.Ed.2d 593 For etched in society prefers our law: a free syth County Movement, v. The Nationalist punish the rights few who abuse speech 123, 134-35, 2395, 2403-04, 505 U.S. they break the law than to throttle after (1992) (content L.Ed.2d regulation). them and all others beforehand. It al- ways difficult to know in advance what an [T59] These considerations dictate the say, individual will and the line between serutiny level of that must be used in deter- legitimate illegitimate speech is often mining government whether a restriction on finely so drawn that the risks of freewheel- constitutional, speech is and we thus consider ing censorship are formidable. they apply each in turn as to the TRO issued Vance, 445 U.S. at 316 n. 100 S.Ct. at this case. (citations omitted). 1161 n. 13 Along these lines, the Court has further Application commented: Scrutiny B. Factors TRO A criminal penalty judgment or a in a defamation subject case is to the whole Type 1. of Restriction: Prior Restraint panoply protections by afforded defer- ring impact prior The term judgment restraint until all judi used to describe "administrative and appellate avenues of review have been ex- forbidding cial orders certain communica Only hausted. judgment after has become tions when issued in advance final, of the time that otherwise, correct or does the law's such communications are to occur." Alexan sanction fully operative. become States, der v. United restraint, prior A contrast and S.Ct. 125 L.Ed.2d 441 definition, has an immediate and irrevers- Nimmer, (quoting M. Nimmer on Freedom ible sanction. If it can be said that a (1984)). Speech § tempo 4.03 at 4-14 A threat of criminal or civil sanctions after rary restraining order example is a classic publication speech, prior "chills" restraint prior restraint. Id. "freezes" it at least for the time. Ass'n, Nebraska Press 427 U.S. at [T61] Court has de (footnote omitted); S.Ct. at 2803 see also prior scribed speech restraints on as "the Madsen, 512 U.S. at 114 S.Ct. at 2524 most serious and the least tolerable infringe (injunctions carry greater censorship risk of rights." ment on First Amendment Nebras ordinances). and discrimination than do Ass'n, ka Press 427 U.S. at 96 S.Ct. at Any prior expression restraint TRO issued in this case acted heavy bears "a presumption against its con prior as a speech, restraint on OSA's validity." stitutional New York Times Co. v. there heavy presumption is thus a against its States, 713, 714, United 403 U.S. 91 S.Ct. constitutionality. 2140, 2141, (1971); 29 L.Ed.2d 822 see also CBS, Davis, 1315, 1317, Inc. v. 510 U.S. 114 Type Speech: 2. Speech of Public Issue 912, 914, (1994); S.Ct. 127 L.Ed.2d 358 For [T64] The First Amendment syth County, 130, 505 U.S. at 112 at S.Ct. speech does not offer all degree the same of 2401; Co., Vance v. Universal Amusement Ceballos, protection. Garcetti v. 547 U.S. Inc., 308, 13, 1156, 445 U.S. 316 n. 100 S.Ct. 410, 444-45, 1951, 1973, 126 S.Ct. 164 13, (1980). 1161n. 63 L.Ed.2d 413 J., L.Ed.2d (Breyer, 689 dissenting). The Supreme explained

[T62] Court has degree protection The of depending differs presumption against validity prior speech on whether political inter- 458 is a tion, obscenity, unless there as such speech or commercial speech, issue est/public American longstanding aof Additionally, certain demonstration Id. speech. government expres- speech or forbidding such tradition afforded limited speech categories of Stevens, at 1585. 130 S.Ct. obscenity, fighting conduct. sive as such protection, no decision, Stevens, Stevens, declined the Court defamation, 130 a 2010 fraud.

words, and given protection to be level of S.Ct. at to decrease the cruelty. more Id. Even animal depictions of public issues or on Speech [T65] 2011, rejected argu Court recently, in "are classic forms concern public matters of games video protection of decreased ment for of the First at the heart lie speech that commercially young children available Net v. Pro-Choice Schenck Amendment." as- including sexual images, contain violent 357, York, U.S. 519 New Western work of Brown, S.Ct. at 2734. 181 and murder. sault (1997). 867, 855, L.Ed.2d 1 377, 137 117 S.Ct. explained: Court The Stevens consistently ob has Court guarantee of free Amendment's The First importance protecting the central served only categories speech does not extend issues, led it to which has public speech on balancing ad hoe that survive an speech public on carefully any restrictions serutinize benefits. costs and of relative social Boos, at 108 485 U.S. picketing. issue judg- reflects a itself First Amendment Grace, 1162; 461 States v. S.Ct. at United people that American ment 1702,1708-09, 180-81, 103 S.Ct. U.S. the Govern- of its restrictions benefits (1983); Dep't Chicago Police L.Ed.2d 736 outweigh costs. Our Constitu- ment 92 S.Ct. Mosley, U.S. any attempt to revise that tion forecloses L.Ed.2d that some simply on the basis judgment at abortion Speech directed not worth it. The Constitution speech is speech. limits, Hill v. See public issue policy "prescribing not a document 703, 714-15, 120 S.Ct. Colorado, 530 U.S. passed be declaring those limits (2000); 2488-89, 147 L.Ed.2d 597 pleasure." at 867; Schenck, at at S.Ct. 519 U.S. Stevens, Marbury (quoting 130 S.Ct. at 1585 762-64, at Madsen, 114 S.Ct. Madison, 2 L.Ed. 60 1 Cranch messages con "The fact 2523-25. (1803)). may be of veyed by those communications Analysis: Traditional Public deprive 3. Forum recipients does to their fensive Hill, protection." them of constitutional Forum "As a at 2488-89. 120 S.Ct. U.S. at Streets, parks have sidewalks matter, indicated that we have general fora for to be the traditional long been held tolerate citizens must our own public debate gov protected speech, and Amendment First outrageous, speech or insulting, even strictly limited in their entities are ernment "breathing space" to 'adequate provide der to speech in those areas. ability to restrict Amend the First protected the freedoms ago recognized that mem- long This Court Boos, 108 S.Ct. at 485 U.S. at ment.'" speech strong retain free public bers Magazine, Inc. v. Fal (quoting Hustler public they into rights when venture well, "which 'have immemori- parks, streets (1988)). L.Ed.2d the use of the held in trust for ally been mind, and, have been time out of protected public speech is OSA's assembly, communi- purposes prec these used and based on speech, issue citizens, and dis thoughts cating between edents, speech must on that restriction Perry Ed. questions'" cussing public find that this carefully serutinized. We Assn., 460 Perry Local Educators' Assn. v. be extended protection must likewise level of 948, 37, 45, 74 L.Ed.2d 794 103 S.Ct. U.S. OSA chooses graphic photographs to the (1983) Hague v. Committee (quoting The in its demonstrations. use for 496, U.S. Organization, Industrial expand the cate it will not Court has stated 954, 515, 83 L.Ed. 59 S.Ct. protec- that receive limited gories speech J.)). Roberts, tion, (opinion is, pre- In order to that whether the TRO is content- freedom, government serve this entities neutral or content-based. Content-neutral strictly ability regu- are limited their restrictions are justified those that are with- private speech late in such "traditional out reference to the regulated content of the public fora." Legal Cornelius v. NAACP Boos, 320, speech. 485 U.S. at 108 S.Ct. at Fund, Inc., 788, & Ed. 473 U.S. 1163. A restriction that protect Defense seeks to (1985). 800, 3439, 105 S.Ct. 87 L.Ed.2d 567 shield an disturbing audience from or dis- time, place, Reasonable and manner re- tressing aspects speech is content-based. allowed, Asan, Perry strictions are see Ed. 821, 1164; Brown, Id. at 108 S.Ct. at see also 948, supra, at 108 S.Ct. but restric- Likewise, 131 S.Ct. at 2733-34. a restriction tion based speech on the content of the is based on an audience's hostile re is, satisfy serutiny, must strict sponse speech to the regula is content-based narrowly restriction must be tailored to Forsyth 134-35, tion. County, 505 U.S. at interest, serve a compelling government 112S.Ct. at 2403-04. Cornelius, supra, see at 105 S.Ct. The sought Town the TRO viewpoint restrictions based on and the district court issued the TRO to prohibited, Brown, are Carey see 455, 463, protect children images U.S. 100 S.Ct. from the 65 LEd.2d contained in OSA's demonstration materials and to ad dress the concern that there be a hostile Grove, Pleasant 555 U.S. at 129 S.Ct. at response to the OSA demonstrations. restrictions were thus content-based. [T69] The TRO in this case re [¥73] Because imposes the TRO content- speech stricted OSA's Square-a the Town based restrictions on speech OSA's in a tradi- park, and on the surrounding streets and forum, public tional subject the TRO is sidewalks. The Town nonetheless contends serutiny. strict apply TRO did not to a traditional public forum because it has enacted a resolu imposes Because the Act a restriction on tion that allows it to permits regulating issue protected speech, content of it is inval- Square's the Town larger use for events. government] id [the unless can demon- disagree We regulation Town's passes strate that serutiny-that strict changed, or change, could is, nature of the justified by unless it is a compelling park as a public traditional forum. See Unit government narrowly interest and is ed Marcavage, States v. drawn to serve that interest. RAY. [v. 609 F.3d 278 n. (3rd ("The Cir.2010) City Paul], [377], permit issuance of a St. 505 U.S. at public (1992)]. use a forum does not 112 S.Ct. transform its [120 L.Ed.2d 305 forum."); public status as a see also Arkan specifically identify State must an "ac Forbes, sas Educ. Television Comm'n v. problem" tual solving, need of [United 118 S.Ct. Playboy States v.] [Entertainment Group, (1998) ("[TJraditional Inc.], L.Ed.2d 875 [803], 822-823, public at fora open expressive (2000)], activity regardless of L.Ed.2d [146 and the intent."). government's speech curtailment of actually free must be solution, necessary R.A.YV., to the see su Square [T70] The Town and the sur pra, at 112 S.Ct. 2538. That is a rounding streets and sidewalk are traditional demanding standard. "It is rare that a fora, and the TRO's restrictions are regulation restricting speech because of its subject therefore heightened scrutiny to the permissible." content will ever Play be applicable to that fora. boy, supra, 120 S.Ct. 1878. 4. Nature of Restriction: Content-Based Brown, 131 S.Ct. at 2738. The final consideration in Application Scrutiny C. of Strict to TRO

determining serutiny the level of that must in determining used the TRO's constitu We understand the Town of tionality is the nature of the TRO's restric- Jackson faced a difficult situation with the 460 a restric- seeking to sustain body mental toward directed OSA

disturbing materials must demon- speech on commercial tion children, decision with our and of audiences real it recites are to be dis- harms not intend that does strate Court today, this in fact alleviate will restriction and that its concerns legitimate the Town's of missive degree"); Board to a material in a them concerns those to address efforts of and Fox, v. 492 N.Y. Nonetheless, State Univ. Trustees the TRO timeframe. limited of of 3028, 480, 469, 106 L.Ed.2d 109 S.Ct. U.S. by the issued and by the Town requested ("[The (1989) the burden bears State 388 on prior restraint imposed a district court ..."); Tinker its restrictions justifying traditional in a speech public issue the OSA's Community Independent v. Des Moines forum, content of on the based 503, 509, Dist., 89 S.Ct. 393 U.S. School presumptive- Any restriction speech. such (1969) ("In 733, order 21 L.Ed.2d 731 demanding level most faces the ly invalid and prohibition of a justify ... State find the serutiny. We Amendment of First must be opinion, it expression of particular burden under meet its did not Town was caused that its action to show able rigorous constitutional Amendment's First desire to a mere something more than standards. unpleasantness and avoid the discomfort scrutiny level The strict unpopular view always accompany an the restriction analysis requires that seeks to the Government point"). When govern compelling by a justified speech be content, its speech based on restrict narrowly drawn to interest and be ment constitutionality af presumption of usual Brown, at 131 S.Ct. interest. serve is re congressional enactments forded Ass'n, 555 2738; Educ. v. Pocatello Ysursa regulations are "Content-based versed. 1093, 1098, 358-59, 172 353, 129 S.Ct. U.S. Paul, invalid," R.A.V. v. St. presumptively (2009), City v. St. R.A.V. 770 L.Ed.2d 2538, 120 112 S.Ct. 505 U.S. 2538, 395-96, 377, 112 S.Ct. Paul, 505 U.S. (1992), Government and the L.Ed.2d 305 (1992). gov The 2549-50, 120 L.Ed.2d 305 presump the burden to rebut bears establishing its the burden ernment bears tion. interest and that government compelling Inc., Group, Entm't Playboy States United in a less restrictive be served interest cannot 1888, 1878, 816-17, 120 S.Ct. U.S. 529 Espirita Be v. O Centro manner. Gonzales (2000). L.Ed.2d 865 Vegetal, 546 U.S. do Uniao neficente 428-29, 163 L.Ed.2d S.Ct. Compelling Interest Government ex Supreme Court has the need to The Town cites follows: burden as government's plained Boy Elk attending the Seout children protect speech, restricts Government When disturbing images of aborted Fest prov the burden bears the Government compelling gov as its dismembered fetuses constitutionality its actions. ing the It of the TRO. support interest ernment Assn., Broadcasting Orleans New Greater preserving an interest further asserts States, 527 U.S. Inc. v. United order, safety tranquility of peace, (1999) 144 L.Ed.2d 119 S.Ct. Elk Boy Scout Fest. ("[The the burden of bears Government psychologi protect the The need to justi interest identifying a substantial recog has been being well of children cal restriction"); challenged fying government interest. compelling nized as [844], Reno, at v.] [A.C.L.U. Communications, 492 U.S. at Sable (1997)] 2329[, LEd.2d 874 S.Ct. 2836; U.S. at Ginsberg, S.Ct. ("The re content-based breadth of this however, Court, S.Ct. at 1280. especially speech imposes an striction of is not without that that interest has declared to ex heavy the Government burden on boundary. provision would plain why a less restrictive significant to a entitled ..."); "[Mlinors be as effective Edenfield 770-771, Fane, protection, First Amendment measure of and well- ("[A] relatively narrow only in govern- 123 LEd.2d 543 1827, 1829, (1969). 23 L.Ed.2d 430 may government defined cireumstances protected dissemination of Court bar ma- has observed: them." terials to Erznoznik v. Jackson therefore, position, State's amounts 205, ville, 212-213, 2268, 422 U.S. 95 S.Ct. to a claim that an audience that takes (1975) (citation omitted). L.Ed.2d 125 particular expression serious offense at possesses a legitimate No doubt State necessarily likely peace to disturb the harm, power protect to children from expression may that prohibited be 640-641, 1274; Ginsberg, supra, precedents 88 S.Ct. this basis. Our do not counte- Massachusetts, 158, 165, Prince v. 321 U.S. nance such a presumption. On the con- 438, (1944), 64 S.Ct. 88 L.Ed. 645 but that trary, they recognize principal that free-floating power speech does not include a "function of free system under our government may dispute. may restrict the ideas to which children is to invite It indeed exposed. "Speech high purpose best serve its that is neither when it obscene unrest, youths induces a condition of subject as to nor creates to some other dis- are, legitimate they satisfaction with conditions proscription as or sup cannot be people anger." even stirs Terminiello solely pressed protect young 1, 4, Chicago, 894, 896, 337 U.S. images or S.Ct. legislative body ideas that a (1949). L.Ed. See also Erznoznik, Cox v. thinks unsuitable for them." 213-214, Louisiana, 536, 551, supra, at 453, 95 S.Ct. 2268. 379 U.S. 85 S.Ct. (1965); 13 L.Ed.2d 471 Tinker v. Des Brown, 131 S.Ct. at 2735-36. Independent Moines Community School Our concern in present case is Dist., 508-509, 393 U.S. at 89 S.Ct. at 737- general proposition not with the protect that 38; Cincinnati, Coates v. 402 U.S. youth ing compelling government is a inter 1686, 1689, 91 S.Ct. 29 L.Ed.2d 214 est, but is instead with the record. The (1971); Magazine, Falwell, Hustler Inc. v. concerning record contains no evidence 46, 55-56, 881-882, 108 S.Ct. injury potential injury or to children from 99 L.Ed.2d 41 It would be odd OSA, viewing images displayed by and of indeed to conclude both "if it is the particular importance in the context of the speaker's offense, opinion gives relief, request injunctive for evidence of ir consequence is a according reason for reparable harm to the children. The affida protection," constitutional FCC v. Pacifica vit of Lt. Gilliam describes the contact OSA Foundation, 726, 745, 438 U.S. 98 S.Ct. youth community had with in the and de 3026, 3038, (1978) (opinion 57 L.Ed.2d 1073 scribes the materials OSA showed to the STEVENS, J.), govern and that audience, young but it does not describe how ment ban expression of certain them, impacted those materials or could im disagreeable unsupported ideas on the pre pact evidence, them. In the absence of such sumption very disagreeableness that their government required has not made its provoke will violence. showing problem" of an "actual in need of Thus, permitted we govern- have not Brown, 2738; solving. 131 S.Ct. at Playboy, every expression ment to assume that of a 529 U.S. at 120S.Ct. at 1888. riot, provocative idea will incite a but have We turn then to the Town's con required instead careful consideration of cerns with a peace. breach of the While a the actual surrounding cireumstances such government recognized does have a interest expression, asking expression whether the in maintaining peace community in its and at "is inciting directed to producing or immi- events, its Court has held that nent likely lawless action and is to incite or proseribe this is speech, not a basis to unless produce such action." Brandenburg Ohio, 444, 447, speech inciting produc is "directed to 395 U.S. 89 S.Ct. ing imminent likely lawless action and (reviewing L.Ed.2d 430 cir produce incite or such action." Texas v. surrounding rally cumstances Johnson, Klan). 491 U.S. 109 S.Ct. speeches by Ku Klux accept To (1989); 105 LEd.2d 342 see also Bran arguments Texas' only that it need demon Ohio, denburg v. potential strate "the breach of the picketing personal though targeted and that even for Petitioner Brief peace," govern- the protected and is less necessarily possesses residences burning flag every privacy of a protecting the interest our ment's be to eviscerate would potential, order). highest we decline is an interest Brandenburg. 'This residence holding in do. Eighth Circuit decision find an We [T83] 408-09, 109 S.Ct. at 2542 Texas, U.S. at a or holding content-neutral unconstitutional omitted). (footnote fifty protesting within that banned dinance thirty minutes before property submitted the Town of church The evidence feet or events to be breach of services for a or after scheduled concerning potential the Lincoln, 19 demonstrations the OSA City a result of peace as Olmer instructive. counter-protestor Cir.1999). case, (8th a in which the an incident In that was F.3d 1176 member with his an OSA run over tried to reasoned as follows: court reported that affidavit Lt. Gilliam's vehicle. the ordinance is question The is whether charged. and arrested was this individual protect "narrowly tailored" effort to a that OSA no evidence contains The record Dis- identified legitimate interest inciting at speech that is directed engages in plainly no. The answer is trict Court. likely produce imminent or is violence carry- purports to make the The ordinance action, of such in the absence and lawless indicated times ing signs at evidence, prohibiting OSA's conclude we unlawful, signs no matter what places supported. speech is not much depict, prohibition and this is say or protect psy- necessary to broader than Tailoring 2. Narrow young children as chological interest of Assuming Moreover, the Town had es Court. the District found protec in the compelling interest prohibits tablished a communication the ordinance maintaining youth and While tion of its as well as with children. with adults find the TRO nonetheless peace, attending would the Westmin- we most of the adults not met its The Town has do not Presbyterian probably Church unconstitutional. ster them, was establishing that the TRO ban signs disagree burden of with like the basis, interest and the Town's necessary to serve under the First hardly a sufficient have Amendment, would not City restrictive measures justify that less what adequate. Expressive com- attempting been to do here. frequently upsetting, even munication is geo is with the first concern Our protection of such robust abrasive. The prohibited the TRO. It graphical seope of Amend- the core of the First debate is at graphic posters not displaying its OSA from Finally, bans certain the ordinance ment. on the Square, but also just in the Town even if all of those forms of communication in each two blocks and sidewalks streets in fact wish to hear it is directed to whom is a broader park. This direction of sum, speech bans it. the ordinance has Supreme Court than the "buffer zone" adults, narrowly and is directed creating when the restriction approved even only speech prohibit that sort tailored to and thus content-neutral the buffer zone is damaging to psychologically that would demanding level of seruti- subjected to a less elaboration, [Ol see children. For further Schenck, S.Ct. 855 ny. See Lincoln], F.Supp.2d City mer fif buffer zone of (upholding content-neutral (D.Neb.1998) [1091], ]. [ at 1100-1102 pa clinic entrance to allow teen feet from legiti- clinic, City claims that it has also but freely enter and exit tients to right of its preserving interest mate floating buffer zone overturning fifteen-foot freely. religion exercise their citizens to of free patients around as too restrictive 769-75, abstract, Madsen, interest, un- 512 U.S. at in the speech rights); Such If, important. doubtedly substantial 86-foot con (upholding at 2527-30 were protestors clinic, example, anti-abortion but around tent-neutral buffer zone per- a church without attempt to enter buffer content-neutral overturning 300-foot mission, interrupt church services or to too broad residences as zone around staff with their speech, city own could abused its in issuing discretion the TRO prosecute general doubtless them under a providing without OSA notice oppor- and an trespass disturbing-the-peace provision, heard, tunity to be requiring and without or, necessary, if adopt specific pro- a more security bond. against disturbing hibition directed or in- terrupting worship. pres- services of A. Notice goes way beyond ent ordinance that. It goes beyond building the church 65(b) [T87] Rule of the Wyoming property, church and seeks to forbid Rules of governs Civil Procedure the issu peaceful property communication on be- temporary ance of restraining orders. It longing public, though to the even the com- allows the issuance of an order without notice truthful, may munication completely be to party the adverse under limited cireum- and though absolutely even there is no stances: physical interference with access to the temporary A restraining order be church. granted without written or oral notice to Olmer, 192 F.3d at 1180-81. the party adverse party's or that attorney Olmer, As in the Town has not (1) only clearly if: it appears specific from TRO, shown that the prohibit breadth of the by facts shown by affidavit or the verified ing displays by the the OSA within two complaint irreparable immediate and any blocks in direction from the Town loss, injury, damage will result to the Square, necessary was to serve the Town's applicant before the party adverse or that protecting interest of its children from dis party's attorney can be opposi- heard in turbing images. The same is true of the tion; applicant's and the attorney certi- Town's interest in maintaining peace. the fies to writing efforts, the court in the if The Town has not shown that intervention any, which have been give made to the enforcement,

law as was used in the one notice and the reasons supporting the Town, instance of violence cited the is not claim that notice should not required. be adequate peace. to maintain the See Grider Abramson, v. 994 F.Supp. (W.D.Ky. 65(b). W.R.C.P. 1998) (employing police procedures to ad Supreme [T88] The Court has con dress concerns of compet violence between demned the parte issuance of ex orders re rallies). ing straining speech, stating: In the required absence of this showing, place Town has not There is jurisprudence met its burden a in our for under serutiny analysis.2 the strict issuance, notice, parte ex without tempo- rary restraining duration; orders of short amp Bonp Require- V. Ruir 65 Norice: but there place is no within the area of MENTS guaranteed by basic freedoms the First matter, [T86] As a final we Amendment for such address orders where no OSA's contentions the district showing court is made that impossible it is to 640, 649-52, right The Town 2565-66, has noted that it has the time, impose place reasonable manner (1981) (state's and re- L.Ed.2d 298 protecting in interest speech strictions on activities in the Town safety persons and using pub- convenience of Square. We do not take issue with this state- orderly lic forum and need to maintain move- imposed ment where such restrictions are in a content-neutral, justified ment of crowd first time, content-neutral manner. The reasonable come, process allocating designated first-serve place analysis manner and restriction does not space limiting dissemination of written ma- apply where the restriction at issue is content- area); Mosley, terials to that 408 U.S. based. Grove, Pleasant 555 U.S. at ("Conflicting S.Ct. at 2292 demands on the same S.Ct. at 1132. place may compel the State to make choices agree We likewise with the Town that it has uses."); among potential users and Sanders right, through the use of content-neutral re- States, (D.D.C.1981) F.Supp. United subject strictions to the time, reasonable (government may impose content-neutral restric- place requirement, manner and speech to restrict speech tion on in an area reserved for another in areas reserved for other uses. See Heffron use). Consciousness, Inc., Soc'y Int'l Krishna for explained its con- tice, Court parties and opposing notify the or to serve restraining free parte orders with ex participate. cerns opportunity an give them speech. S.Ct. at 351.

Carroll, U.S. at case and present as proceeding, contends judicial Town The value of each other wholly police, is substan- self-help by distinct against Carroll be control parte, ex process therefore tially should diluted where the and Carroll great cites the the Town particular, have available ling. does not the Court because had to in Carroll town judicial of time the er amount fundamental instrument activities adversary proceeding to the demonstration respond judgment: Be issued. injunction that length of the may participate. parties both which contentions, helpful we find of these involving public cause demon- case facts detail some facts of Carroll forth the to set even are difficult ascertain stration holding case's whether to determine Judgment as to difficult to evaluate. more applied here. should justify the use of the facts whether necessarily injunction power of Carroll, supremacist drastic white a In [T89] consider- steps and controversial turns on subtle rally the courthouse near group held Anne, upon a delicate assessment Maryland. 398 and ations of Princess in the town speeches light legal at 349. 89 S.Ct. in particular U.S. at situation the imprecise. militantly inescapably and which are aggressively standards described as were argument the provocation to and absence of evidence and "as both In the racist partic- to by an incitement and of their and both sides Negroes in the crowd offered speeches, judg- one During the of value Id. in the formulation ipation whites." the rally would con ments, the insufficient assurance speaker announced there is he called for the evening, and careful conclu- analysis the next and tinue the balanced return: in the area of audience to essential which are sions said, you adjudication. 'I want to Amendment First Petitioner Norton * * * place here at the same be back fashioning of the the The same is true of you every friend night, bring tomorrow in the area of An order issued order. * * *, easy to take it going have We're couched rights must be Amendment First * * *" bring 'You white folks tonight will accom- terms that in the narrowest friends, night. tomorrow come back your objective permitted plish pin-pointed the * * * night, let's Come on back tomorrow and the essential mandate constitutional race.' the white little bit of hell for raise a In this sensitive public of the order. needs at 349 n. 1. n. 89 S.Ct. Id. at 176 employ "means field, may not the State broadly personal fundamental stifle day, ap town officials That next [T90] nar- end can be more when the restraining liberties parte an ex and received plied for Tucker, 364 informally rowly Shelton v. order, achieved." notify or no effort to with 5 L.Ed.2d 81 S.Ct. at defendants. Id. with the communicate words, the order In other The order restrained at 349. 89 S.Ct. possible to days precisely as group for ten be tailored as must supremacist the white partic meetings in the coun of the case. holding rallies or the exact needs from necessary this endanger for of both sides is ty ipation will tend to disturb "which result, to invite County." Certainly, the failure Id. As a purpose. citizens of the the seeking to exer party After a rally participation not held. Id. was the scheduled the rights reduces trial, for another First Amendment injunction was extended cise order, narrowly drawn re of a appellate possibility court Id. A state ten months. upheld protection which injunction substantially imperils versed the ten-month order, which the seeks to assure. restraining the Amendment ten-day Supreme Court. appealed to the group then injunction which of an ... The issuance at 850. Id. at meeting, rally a scheduled aborts duration, is of short if the restraint ten-day even reversing entry of the In consequence importance and a matter of required no- provide failure to order for imperative. view of the First notify Amendment's serve or opposing parties to and to procedural right The denial of a basic give opportunity them an participate." these circumstances is not exeused Carroll, See 393 U.S. at 89 S.Ct. at 351. availability post-issuance procedure case, In showing this cannot possibly which could not serve to rescue be made. Based on the affidavit of Lieuten but, best, August meeting, could Gilliam, ant apparent period have shortened the that he was in peti- which prevented holding tioners were contact with a ral- and able to reach members of ly. necessary. OSA when And the Town's Peti suggest tion Carroll, does not 183-84, otherwise. Counsel for 393 U.S. at 89 S.Ct. at 352- (footnotes omitted). allege the Town did not impossi that it was ble to serve or notify otherwise OSA of the finding In sup no factual basis Instead, Town's Petition. counsel stated that port the issuance parte restraining of an ex order, attempt she made no notify Court in Carroll stated: OSA due to hostility situation, "the case, the current present con the record discloses why trary position petitioners

no reason representatives were not noti- Defendant application injunction. They fied of the and the injunctive immediate need for relief." apparently present were in Princess Anne. reject We this as a basis to avoid the obli They rally night had held a there on the gation notify First, OSA. the record con preceding application for and issuance hostility tains no evidence of by OSA or its injunction. They of the were scheduled to Indeed, members. Lt. Gilliam described the rally very evening have another on the of representatives demeanor OSA's as cordial day injunction the when the was issued. and matter-offact. Additionally, in every actually And some of them were served application for a temporary restraining order injunction with the writ of at 6:10 that going there is disagreement be a between cireumstances, evening. In these there is parties the and a need for immediate relief. justification no parte for the ex character facts, alone, These standing justify cannot proceedings of the in the sensitive area of notify failure to party.3 the adverse First rights. Amendment 182-83, (footnote above, Id. 89 S.Ct. at 352 omit [T95] As we noted we are not ted). unsympathetic to the Town's concerns or the limited time within which it had to address We any [T93] are unable to discern Amendment, those concerns. The First how holding reason that the in Carroll should not ever, fiercely protective speech of free apply to this suggestion case. The Town's rights that the town of Princess Anne demands close adherence to had more its time to react to the situation pro procedural safeguards and thus government when a vide notice to the defendants is not borne out case, seeks to restrict rights. those In this by the facts of Supreme the case or the efforts, the Town's while commendable in analysis Court's of those facts. Nor was the attempting cooperatively to work and courte analysis Court's length affected the of the OSA, ously with fell short of the First restraining order. We thus conclude that Amendment's strict requirements. the rule announced in apply Carroll does [T96] We thus hold that the district is, court

this case. That a temporary restraining abused its issuing discretion in operates order that the speech to restrict TRO free rights may only without parte opportunity issue ex notice to OSA and where a "showing impossible is made that to OSA to be heard. timeframe, respect

3. With period to the the record is not time at issue in Carroll was less than hours, clear as to when Lt. Gilliam had the conversation twenty-four restraining with the order and concerning Boy with OSA members the Scout occurring the scheduled event both on the same specify event. The lieutenant's affidavit does not day, persuaded and the Court was not date, only so we know that the conversation impossible provide required it was Wednesday, occurred sometime between opportunity notice and to be heard. 18th, and the 20th. event, Friday, B. W.R.C.P. Town court also erred post ^[197] security for 65(c) OSA failing to Bond contends Requirement any damages OSA require that the district fore ming Rules of and the TROA.4 must reverse requirements of Rule 65 Civil Procedure. We the decision of the issuing the there- Wyo- of the TRO. a result as might incur GOLDEN, J., opinion delivers 65(c) should that Rule responds Town KITE, C.J., Court; dissenting opinion files a only if the district require a bond read to HILL, J., joins. in which the defen of harm to likelihood finds a court dant. Justice, KITE, dissenting, in which Chief HILL, J., joins. agree with the Town We 65(c), court finds no I separately if the district because dis- I write under Rule defendant, no bond that this majority's harm to conclusion agree with the likelihood find error be necessary. nonetheless it falls within We not moot because case is "capable the district requires disputes that are special category rule cause the discretion, ex I court, evading its yet exercise of review." Were repetition, in the likelihood majority opinion, there is a I would con- writing whether pressly consider security post must be no show- harm and whether the case is moot because clude that case, court did not ed, special the district in this that it falls within ing was made See Co to these matters. give category. consideration Pipeline Corp. v. Transwestern quina Oil — Rogers, In Turner v. Cir.1987)(cit (10th Co., F.2d (2011), —, 180 L.Ed.2d Bird E. Sales Bros. v. Rain ing Reinders petition for writ of cer- granted a the Court (7th Cir.1980); Roth v. F.2d 44 Corp., 627 right whether a to counsel to consider tiorari Commonwealth, 583 F.2d

Bank to en- contempt proceedings in civil existed (6th Cir.1978); Operations, Inc. v. System respondent, support orders. The foree child Corp., 555 F.2d Dev. Games Scientific mother, was moot because asserted the case (court (3rd Cir.1977)) must consider 1145-46 father, completed his sen petitioner, had findings make required and bond is whether seeking contempt prior to the writ. tence for also "unsupportable"); see order is otherwise was concluded the case Court Co., Refining v. Frontier Oil Co. Continental special it fell within a not moot because (10th Cir.1964) (if court F.2d "capable of disputes that are category defendant, harm to likelihood of finds no evading review." Id. at repetition, while required). bond is not special catego dispute A falls into this "(1) unlikely stated, that OSA suffered It live if ry, the Court and remains TRO damages a result of the twelve-hour as too challenged action in its duration [is] court, during oral and the district fully litigated prior issued to its cessa to be short Court, (2) OSA was unable to argument to this a reason expiration, [is] there tion or damage it have any particular complaining articulate expectation that the same able court was nonetheless The district subjected suffered. the same action party be to [will] findings to the likelihood Id., make as required Bradford, citing again." Weinstein OSA, S.Ct. it abused its discretion 423 U.S. harm to required (1975) curiam). TRO without those issuing (per L.Ed.2d 350 findings. prong first of this Applying the test, challenged ac the Court concluded

CONCLUSION tion, imprisonment, was in its dura father's fully litigated through the to be tion too short court issued a TRO The district in the United States well-intentioned, and arrive that, state courts violated however completed the he had Supreme Court before Amendment protections of the First strict authority analysis, we therefore de- legal or requested remand to the that this Court 4. OSA proceedings. an award of for further for consideration of cline to remand district court request damages. support with did not this OSA Applying prong, sentence. the second "evidence that prospect this is a of "imme- diacy Court concluded there was more than a reality'" rea- Zwickler, Golden v. 394 U.S. 109[89 S.Ct. again 22 L.Ed.2d sonable likelihood that father would be Maryland 113] subjected Casualty Co. v. to the same action. In reaching conclusion, the latter Co., Court said: Coal & Oil Pacific S.Ct. [61 85 L.Ed. 826] frequently [father] has failed to make his support payments. child He has been the presented No evidence was in this case that subject of contempt proceed- several civil Operation Save America will return to Jack- ings. imprisoned He has been on several attempt son and display post- assemble or of those occasions. Within months of his during ers another scheduled event such as imprisonment release from the here at is- Boy expo or, Scouts and auction in the sue he again subject was of civil con- does, event it that the again town will file for tempt proceedings. again And he was im- temporary restraining order pro- without prisoned, this time for six months. As of viding notice and an opportunity to be heard. $13,814.72 December [father] was capable repetition prong necessary for arrears, contempt and another hearing dispute to fall within special category of was May scheduled for 2011. These cases has not been satisfied. I would con- bring facts squarely this case within the clude, therefore, that the case is moot. special category of cases that are not moot underlying dispute because the "capable repetition, yet evading review.

Turner, 131 S.Ct. at 2515. Turner,

[T104] Unlike where the Court

had before it showing numerous facts again father subjected would be imprison 2012 WY57 ment contempt, civil showing no was Hailey REMMICK, Jacobsen reasonably made here that it likely Opera Appellant (Defendant), tion Save again subjected America will a court restraining order assembling displaying posters capa Jackson. "The Wyoming, The STATE of repetition ble-of applies only doctrine in ex (Plaintiff). Appellee situations, ceptional and generally only No. S-11-0015. plaintiff where the named can make a rea showing sonable again that he will be sub Wyoming. Court of jected alleged illegality." to the L.A. v. 95, 109, Lyons, 1660,1669, 461 U.S. 103 S.Ct. April (1983), 75 L.Ed.2d citing DeFunis v. Odegaard, 416 U.S. 94 S.Ct. 40 L.Ed.2d 164 For there to be expectation" party "reasonable that a will subjected again, the same action

event must abe "demonstrated probability." Hunt,

Murphy 455 U.S. Weinstein, (1982); 71 L.Ed.2d 353 3 U.S. at 96 S.Ct. at 348. As 42 DeFunis,

the Court said in 416 U.S. at 320 n. 94 S.Ct. at 1707 n.

"Speculative contingencies afford no basis passing our on the substantive issues petitioner] decide,"

[the would have us Beals,

Hall v. 49 [90 S.Ct. (1969),

24 L.Ed.2d 214] in the absence of

Case Details

Case Name: OPERATION SAVE AMERICA v. City of Jackson

Court Name: Wyoming Supreme Court

Date Published: Apr 10, 2012

Citation: 275 P.3d 438

Docket Number: S-11-0149

Court Abbreviation: Wyo.