159 F.3d 86 (2nd Cir. 1998), 477, New York State Nat. Organization for Women v. Terry

Docket Nº:477, Docket No. 97--7217.
Citation:159 F.3d 86
Party Name:NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN, et al, Plaintiffs-Appellees, City of New York, Plaintiff-Intervenor-Appellee, v. Randall A. TERRY, Operation Rescue, et al, Defendants-Appellants, B.O.R.N., Jesse Lee, Joseph Foreman, et al, Respondents-Appellants, Reverend James P. Lisante, et al, Defendants.
Case Date:October 21, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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159 F.3d 86 (2nd Cir. 1998)

NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN, et al,

Plaintiffs-Appellees,

City of New York, Plaintiff-Intervenor-Appellee,

v.

Randall A. TERRY, Operation Rescue, et al, Defendants-Appellants,

B.O.R.N., Jesse Lee, Joseph Foreman, et al, Respondents-Appellants,

Reverend James P. Lisante, et al, Defendants.

No. 477, Docket No. 97--7217.

United States Court of Appeals, Second Circuit

October 21, 1998

Argued Nov. 19, 1997.

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Martha F. Davis, New York, NY (Rocio L. Cordoba, NOW Legal Defense and Education Fund, New York, NY; Karen L. Hagberg, James M. Bergin, Jamie A. Levitt, Morrison & Foerster LLP, New York, NY; Barbara Olshanski, Center for Constitutional Rights, New York, NY, On the Brief) for Plaintiffs-Appellees.

Joseph P. Secola, New Milford, CT (John F. Sweeney, Michael O. Cummings, Morgan & Finnegan, L.L.P., New York, NY; Gabriel P. Kralik, Fish & Richardson, P.C., New York, NY; Michael P. Tierney, Legal Center for Defense of Life, New York, NY; A. Lawrence Washburn, New York, NY, On the Brief) for Defendants-Appellants and Respondents-Appellants.

Before: KEARSE, LEVAL, and FRIEDMAN, [*] Circuit Judges.

LEVAL, Circuit Judge:

Plaintiffs are a group of women's organizations, health care clinics, and abortion providers who brought a civil rights action against an anti-abortion organization, its leader, and anti-abortion protestors. The district court, which had earlier enjoined defendants from engaging in various actions in violation of plaintiffs' rights and had found the defendants in contempt for violation of the injunction, granted plaintiffs' motion to reinstate the earlier finding of contempt, and imposed coercive fines. The fines were subject to an opportunity for defendants to purge themselves of contempt and be relieved of the obligation to pay the fines by obeying the injunction and publicly declaring their intention to comply with the injunction. The

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court also granted plaintiffs' motion to reinstate its award of attorney's fees to plaintiffs for prevailing on their contempt motions and civil rights claim.

On appeal from the finding of contempt with coercive fines and the award of attorney's fees, defendants argue that (1) the contempt sanctions should be vacated for mootness because defendants have not violated the injunctions in over seven years or because of the enactment of the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248 (the "FACE Act"); (2) the fines, notwithstanding the opportunity to purge, are a criminal penalty that may not lawfully be imposed because defendants were not afforded procedural protections required by the Constitution for criminal proceedings; (3) attorney's fees awarded to plaintiffs for prosecuting contempt motions were improperly reinstated; (4) attorney's fees awarded to plaintiffs under 42 U.S.C. § 1988 were improperly reinstated; and (5) the motion for reinstatement of sanctions was time-barred.

We affirm.

BACKGROUND

Plaintiffs brought this action in the Supreme Court of New York on April 25, 1988, seeking declaratory and injunctive relief to restrain defendants 1 from blocking access to medical facilities that provided abortions during a series of protests planned for April 30 through May 7, 1988. The complaint alleged eight separate causes of action: violations of New York Civil Rights Law § 40-c and New York Executive Law § 296; public nuisance; interference with the business of medical facilities; trespass; infliction of emotional harm on patients and employees of medical facilities; tortious harassment of patients and employees of medical facilities; false imprisonment of patients and employees of medical facilities; and conspiracy to deny women seeking abortion or family planning services the equal protection of the laws and equal privileges and immunities, in violation of 42 U.S.C. § 1985(3).

On April 28, 1988, Justice Cahn of the Supreme Court issued a temporary restraining order that did not expressly enjoin defendants from blocking access to abortion clinics.

On May 2, 1988, following a demonstration outside a Manhattan abortion clinic, Justice Cahn issued a second temporary restraining order that enjoined defendants from "trespassing on, blocking, obstructing ingress into or egress from any facility at which abortions are performed in the City of New York, Nassau, Suffolk, or Westchester Counties from May 2, 1988 to May 7, 1988." The following day, May 3, defendant Terry and other protestors violated the order during a demonstration outside a Queens abortion clinic. At a hearing that afternoon before Justice Cahn, defendants removed to federal district court.

On May 4, 1988, the district court adopted a modified version of Justice Cahn's second temporary restraining order. The new temporary restraining order (the "TRO") included coercive sanctions of $25,000 for each day defendants violated the order and required defendants to notify the City of New York in advance of the location of any demonstrations. After defendants violated this TRO on May 5-6, 1988, plaintiffs sought contempt sanctions in accordance with the TRO. The district court adjudged Operation Rescue and Terry in civil contempt of the May 4 Order held them jointly and severally liable for a $50,000 fine. See New York State Nat'l Org. for Women v. Terry, 697 F.Supp. 1324, 1338 (S.D.N.Y.1988), aff'd as modified, 886 F.2d 1339 (2d Cir.1989)("Terry I "), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990).

In response to defendants' publicized plan to carry out more protests on October 28, 29, and 31, 1988, plaintiffs moved to modify the TRO to cover those dates. The district court granted plaintiffs' motion and converted the TRO into a preliminary injunction. In spite of the injunction, on October 29, 1988, hundreds of Operation Rescue protestors blocked access to clinics at two covered locations.

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When defendants threatened to block access again on January 12-14, 1989, plaintiffs moved for summary judgment on their claims under 42 U.S.C. § 1985(3) and New York law, and for a Permanent Injunction. The district court granted summary judgment for plaintiffs on their § 1985(3) claim. New York State Nat'l Org. for Women v. Terry, 704 F.Supp. 1247, 1258-60 (S.D.N.Y.1989), aff'd as modified, 886 F.2d 1339 (2d Cir.1989)("Terry I "), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990). The judgment permanently enjoined defendants from

trespassing on, blocking, or obstructing ingress into or egress from any facility at which abortions are performed in the City of New York, Nassau, Suffolk, or Westchester counties [and] physically abusing or tortiously harassing persons entering, leaving, working at, or using any services at any facility at which abortions are performed in the City of New York, Nassau, Suffolk, or Westchester counties.

Terry I, 886 F.2d at 1345 n. 1, aff'g 704 F.Supp. at 1263. The Permanent Injunction also established a schedule of prospective coercive civil sanctions for future violations, providing that

the failure to comply with this Order by any Operation Rescue participant with actual notice of the provisions of this Order shall subject him or her to civil damages of $25,000 per day for the first violation ... each successive violation of this Order shall subject the contemnor to a civil contempt fine double that of the previous fine ... each contemnor shall be jointly and severally liable for all attorneys' fees and related costs incurred by plaintiffs in relation to enforcement of this Order.

Id. We affirmed summary judgment for plaintiffs and the Permanent Injunction. Terry I, 886 F.2d at 1357-64.

In subsequent civil contempt proceedings, the district court found that defendants had violated the TRO, preliminary injunction, and Permanent Injunction ("the district court's orders") on four separate dates: May 6, 1988, October 29, 1988, and January 13-14, 1989. See New York State Nat'l Org. for Women v. Terry, 732 F.Supp. 388, 398 (S.D.N.Y.1990). The court fined defendant Terry and Operation Rescue, jointly and severally, $100,000 and fined defendant Thomas Herlihy $25,000. Several non-party respondents who acted in concert with defendants 2 were also fined, including B.O.R.N. ($25,000), Jesse Lee ($100,000), Joseph Foreman ($25,000), Michael McMonagle ($25,000), Jeff White ($25,000), Michael La Penna ($25,000), Florence Talluto ($50,000), Adelle Nathanson ($25,000), and Robert Pearson ($25,000). See 732 F.Supp. at 413-14.

The district court also awarded plaintiffs attorney's fees for prevailing on their contempt motions and their civil rights claim. See New York State Nat'l Org. for Women v. Terry, 737 F.Supp. 1350, 1363, 1367 (S.D.N.Y.1990). We affirmed the contempt judgments and attorney's fees against all defendants and all but two 3 non-party respondents. See New York State Nat'l Org. for Women v. Terry, 961 F.2d 390, 401 (2d Cir.1992)("Terry II ").

Defendants then petitioned for a writ of certiorari based on the Supreme Court's grant of certiorari in Bray v. Alexandria Women's Health Clinic, 498 U.S. 1119, 111 S.Ct. 1070, 112 L.Ed.2d 1176 (1991), a case involving similar facts. Following its decision in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993), the Supreme Court granted certiorari, vacated the contempt fines and attorney's fees in a memorandum decision, and remanded the case to the Second Circuit for further consideration. See Pearson v. Planned Parenthood Margaret Sanger Clinic (Manhattan), 507 U.S. 901, 113 S.Ct. 1233, 122 L.Ed.2d 640 (1993). On remand, we reinstated the contempt fines and attorney's fees, stating that applications for relief in...

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