This was the motion we made in Cult v. Minton that obtained the reciprocal injunction. The motion was argued by Bruce Howie, the first amendment attorney we hired to handle the first amendment issues on the TRO, in court on November 29, 1999 in front of Judge Penick. Details of the arguments were included in the long transcript of the hearing posted on 12-02-99.
The Defendant, ROBERT S. MINTON, JR. (hereinafter "the Respondent"), by and through his undersigned counsel, pursuant to Rule 1.610, Florida Rules of Civil Procedure, hereby requests this Honorable Court to modify the temporary injunction issued in this cause by the Court on November 4, 1999, and as grounds therefor would state:
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA
RICHARD W. HOWD, JR.,
VS. Case No. 99-7430-CI-008
ROBERT S. MINTON, JR., Defendant.
DEFENDANT'S MOTION TO MODIFY TEMPORARY INJUNCTION FOR PROTECTION AGAINST HARASSMENT AND VIOLENCE AND PETITION FOR TEMPORARY INJUNCTION
1. On November 4, 1999, the Petitioner, ROBERT W. HOWD, JR., filed his Petition for injunction Prohibiting Harassment and Violence and on that same date obtained a temporary injunction against the Respondent, ordering the Respondent to refrain from committing any acts of violence against the Petitioner or any staff member of parishioner of the Church of Scientology Flag Service Organization or its facilities in Pinellas County, to stay away from these same persons, and to stay at least 150 yards away from 17 specified locations owned or leased by the Church of Scientology in the City of Clearwater, Florida.
2. The Court at a hearing in this cause on November 15, 1999,
extended the time for this temporary injunction to permit the Respondent to make his response to the petition.
3. The Respondent wishes to maintain and exercise his rights under the First Amendment of the United States Constitution, Article I, Section 4, of the Florida Constitution, and the laws of the United States and the State of Florida to publicly communicate, demonstrate and make known his position concerning the Church of?Scientology and its conduct and activities.
4. The public, particularly the Clearwater community, has an interest in receiving and accessing the Respondent's position concerning the Church of Scientology and its conduct and activities which have been the subject of substantial public interest in the Clearwater community over the past several years.
5. To effectively communicate, demonstrate and make known his position to the public, particularly the Clearwater community, the Respondent requires appropriate access to the traditional and designated public fora in reasonable proximity to the locations where the conduct and activities of the Church of Scientology take place in Clearwater.
6. In conjunction with his efforts to communicate, demonstrate and make known his position to the public, and despite intervention by agents on behalf of the Church of Scientology, the Respondent contracted for a property interest in a facility located in downtown Clearwater.
7. This same facility and all means of access to it are
located or come within 150 yards of one or more of the 17 locations specified in the temporary injunction which are owned or leased by the Church of Scientology in Clearwater, and therefor the temporary injunction, by its order directing the Respondent to stay at least 150 yards away from these specified locations, effectively prevents the Respondent from the lawful exercise of his property rights.
8. The Petitioner in his petition states that he is a member of the Church of Scientology and its staff, but does not state whether he represents the Church of Scientology, its staff and its parishioners in any official capacity or with any legal standing or authorization.
9. The Petitioner, in support of his petition, alleges an incident on October 31, 1999, at approximately 10:30 p.m. in the vicinity of the Fort Harrison Hotel in Clearwater, in which he claims physical injuries from the Respondent's activities.
10. The Petitioner alleges that prior to this same incident on October 31, 1999, he had personal knowledge of alleged acts and communications by the Respondent: (a) in Boston, Massachusetts, on September 10, 1998; (b) in Clearwater on November 30, 1998; (c) on the internet on December 15, 1998; and (d) in Clearwater on October 18, 1999, as well as other alleged incidents.
11. Notwithstanding his personal knowledge of the Respondent's prior alleged acts and communications, and purportedly with the purpose "to discourage violence" by the
Respondent, the Petitioner on multiple occasions during the day and evening of October 31, 1999, continually, deliberately and voluntarily followed, videotaped, contacted, communicated with and came in extremely close physical proximity to the Respondent while the Respondent was traveling in the Clearwater area and attempting to picket in a public place next to a location owned or leased by the Church of Scientology.
12. As a result of the Petitioner's above?described continual, deliberate and voluntary activities on October 31, 1999, the Petitioner knowingly and willfully placed himself in a physical position in relation to the Respondent and as a bar against the Respondent's progress, from which the physical contact complained of was a necessary and foreseeable result.
13. The Respondent is prepared to present evidence that during certain of the incidents referred to in paragraph 10 above as well as during other incidents, a pattern has been established. in which persons identified as members of the Church of Scientology have used the same technique of knowing and willful physical positioning in relation to the Petitioner to cause physical contact with the Respondent and to physically bar the Respondent's progress in a public place while the Respondent was engaged in his demonstrations concerning the Church of Scientology, resulting in physical contact which served as a pretext for feigned injuries and misrepresentations to authorities to obtain injunctive relief and to press criminal charges against the Respondent.
14. There is no evidence that the Respondent has barred or prevented the entrance or egress of persons at any location owned or leased by the Church of Scientology.
15. The Respondent is also prepared to present evidence that persons identified as members of the Church of Scientology have repeatedly approached the Respondent, the Respondent's residences and the Respondent's associates, at places substantially removed from and unrelated to any locations owned or leased by the Church of Scientology, with the purpose to confront, harass, intimidate and annoy the Respondent concerning his activities.
16. The physical proximity complained of by the Petitioner in support of the injunction against the Respondent to stay away from the Petitioner and members of the Church of Scientology was in fact effectuated by the Petitioner's own knowing and willful acts, in which the Petitioner deliberately used means previously utilized by other persons identified as members of the Church of Scientology to physically confront, harass, intimidate and annoy the Respondent and to bar the progress of the Respondent in public places.
17. The injunctive order of the Court requiring the Respondent to stay at least 150 yards away from the 17 specified locations in Clearwater is not appropriately tailored with sufficient precision to serve government and public interests, as the injunction unreasonably prevents the Respondent from the lawful exercise of his constitutional and legal right to free
speech as well as his property interest rights and burdens more speech than is necessary to serve a significant government interest.
18. The injunctive order requiring the Respondent to stay at least 150 yards away from the 17 specified locations in Clearwater does not comport with considerations of public interest or public policy.
19. For purposes of continuing the injunctive relief, the Petitioner has not sufficiently pleaded or proved irreparable harm, the unavailability of an adequate remedy at law, or a clear legal right to the relief sought for the Petitioner or for other persons and the 17 specified locations.
20. The Petitioner has also attempted to enjoin the commission of anticipated criminal offenses or illegal acts, which is not the proper application of the equity powers of the Court.
21. The Court's order in the temporary injunction for the Respondent "to stay away from the Petitioner, any staff members or parishioners of the Church of Scientology" is not sufficiently clear to advise the Respondent of the prohibited conduct, which is an undue detriment to the Respondent.
22. The Court has not had sufficient opportunity to hear evidence and argument, to consider the detriment of its injunction to the Respondent and the public, and to balance the concerns and interests of all involved persons. ?
23. In balancing the interests of the Church of Scientology
in its members, free exercise of their individual rights and the interests of the Respondent in the free exercise of speech, association, petition and property rights, the Court is justifiably concerned with the prevention of future harm to all persons and the public interest in safety and order.
24. The Respondent would submit that a modification of the Court's temporary injunction by rescinding the provision that the Respondent stay at least'150 yards away from the 17 specific locations, would contribute to this balancing of interests.
25. The Respondent would further submit that the order directing the Respondent "to stay away from" the Petitioner and staff and parishioners of the Church of Scientology be modified to order that the Respondent have no intentional and willful physical contact with the Petitioner or staff and parishioners of the Church of Scientology, and that the Respondent not harass or commit acts of violence against these same persons, which would also contribute to this balancing of interests.
26. The Respondent would further submit that a compatible temporary injunction against the Petitioner and staff members and parishioners of the Church of Scientology not to make personal physical contact with the Respondent, not to physically bar the progress of the Respondent in public places in Pinellas County, Florida, and not to harass or commit acts of violence against the Respondent would contribute to this balancing of interests.
WHEREFORE, the Respondent requests this Honorable Court:
(1) to modify the Temporary Injunction for Protection
against Harassment and Violence by rescinding the order in paragraph 3, directing that the Respondent stay at least 150 yards away from the 17 specified locations;
(2) to modify the Temporary Injunction for Protection against Harassment and Violence by replacing the order in paragraph 2, directing that the Respondent "stay away from the Petitioner, staff members and parishioners of the Church of Scientology," with an order that the Respondent have no intentional and willful physical contact with the Petitioner staff and parishioners of the Church of Scientology and that the Respondent not harass or commit acts of violence against these same persons;
(3) to issue a temporary injunction and restraining order enjoining the Petitioner and staff members and parishioners of the Church of Scientology not to make personal physical contact with the Respondent, not to physically bar the progress of the Respondent in public places in Pinellas County, Florida, and not to harass or commit acts of violence against the Respondent;
(4) to make such other orders in this cause as the Court deems appropriate and equitable to balance the rights and interests of all concerned parties and the public.
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by U.S. Mail and by facsimile to Paul B. Johnson, Esq., P.O. Box 3416, Tampa, FL 33601, facsimile (813) 254-8074, this 25th day of November, 1999.
Piper, Ludin, Howie & Werner, P.A. 5720 Central Avenue St. Petersburg, FL 33707 Telephone (727) 344-1111 Facsimile (727) 344-1117 Florida Bar No. 263230 SPN 0085319