915 F.2d 92 (2nd Cir. 1990), 979, Town of West Hartford v. Operation Rescue

Docket Nº:979 to 981, Dockets 89-9051, 89-9053 and 89-9055.
Citation:915 F.2d 92
Party Name:TOWN OF WEST HARTFORD, a municipal corporation located in the State of Connecticut, Plaintiff-Appellee, v. OPERATION RESCUE, Joseph M. Scheidler, Randall A. Terry, Project Life, Inc., Connecticut Pro-Life Action Network, John Kladde, John Charles Grant, Eileen M. Haggerty, Jean Pollock, Spear Printing Company, John M. Spear, Catherine A. Jersey, Ma
Case Date:October 10, 1990
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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915 F.2d 92 (2nd Cir. 1990)

TOWN OF WEST HARTFORD, a municipal corporation located in

the State of Connecticut, Plaintiff-Appellee,

v.

OPERATION RESCUE, Joseph M. Scheidler, Randall A. Terry,

Project Life, Inc., Connecticut Pro-Life Action Network,

John Kladde, John Charles Grant, Eileen M. Haggerty, Jean

Pollock, Spear Printing Company, John M. Spear, Catherine A.

Jersey, Maria D. Garvey, Lillian A. Loughlin, William A.

Calvin, William P. Cotter, Hjalmar Syversen, Faithful and

True Roman Catholics, John Doe(s) and Jane Doe(s), Defendants.

Appeal of OPERATION RESCUE, Randall A. Terry, Project Life,

Inc., Lillian A. Loughlin, John Charles Grant, Eileen M.

Haggerty, Jean Pollock, Spear Printing Company, John M.

Spear, Catherine A. Jersey and Hjalmar Syversen,

Defendants-Appellants.

Nos. 979 to 981, Dockets 89-9051, 89-9053 and 89-9055.

United States Court of Appeals, Second Circuit

October 10, 1990

        Argued March 12, 1990.

        As Amended on Denial of

        Rehearing Dec. 26, 1990.

Page 93

        Joseph P. Secola (George J. Mercer, The Rutherford Institute of Connecticut, Milford, Conn., of counsel), for defendants-appellants Randall A. Terry, Operation Rescue and Project Life, Inc.

        Vincent P. McCarthy, New Milford, Conn., for defendants-appellants Lillian A. Loughlin, John Charles Grant, Eileen M. Haggerty, Jean Pollock, Spear Printing Co., John M. Spear, Catherine A. Jersey, and Hjalmar Syversen.

        Patrick G. Alair, Asst. Corp. Counsel, Town of West Hartford, West Hartford, Conn., for plaintiff-appellee Town of West Hartford.

        Nancy J. Gannon, George W. Koch, Jr., Milwaukee, Wis., for amicus curiae Catholic League for Religious and Civil Rights.

        Before KEARSE, CARDAMONE and MAHONEY, Circuit Judges.

        MAHONEY, Circuit Judge:

        This appeal is taken from a preliminary injunction barring defendants-appellants 1 from entering or remaining upon the property or offices of the Summit Women's Center (the "Center") in the Town of West Hartford, Connecticut, or impeding access thereto. The district court found that such activities had occurred on April 1 and June 17, 1989 for the purpose of impeding the performance of abortions at the Center.

        The preliminary injunction was premised upon a pendent state law claim of public nuisance. The only basis for federal jurisdiction was a claim that defendants violated Title 18, part 1, chapter 96 of the United States Code, entitled "Racketeer Influenced and Corrupt Organizations" ("RICO"), specifically 18 U.S.C. Sec. 1962 (1988), through predicate acts of extortion violative of the Hobbs Act, 18 U.S.C. Sec. 1951 (1988).

        Concluding that plaintiff-appellee the Town of West Hartford (the "Town") has not asserted a colorable basis for federal jurisdiction, we vacate the preliminary injunction and remand with instructions to dismiss the complaint.

Background

  1. Findings of the District Court.

            We draw our factual summary from the district court's findings of fact, set forth in Town of West Hartford v. Operation Rescue, 726 F.Supp. 371, 373-75 (D.Conn.1989).

            This case arises from demonstrations conducted at the Center, which is a health

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    care facility that provides medical services, including abortions, to women. The Center shares occupancy of a building within a shopping center at 345 North Main Street, West Hartford, Connecticut with several other businesses, including medical and dental offices.

            On April 1 and June 17, 1989, large groups of demonstrators gathered outside the Center to protest its abortion practices. The demonstrators picketed, distributed leaflets, and attempted to persuade women not to enter the Center or to have abortions. Among the demonstrators were certain individuals--termed "rescuers" by the district court--who, as part of the protests, entered and/or blocked the offices of the Center in order to close down the Center and prevent the performance of abortions. During each protest, rescuers occupied the Center for the entire business day, despite demands that they leave by Center employees, an employee of the landlord, and the West Hartford police. Elevators were disabled, and access impeded both within and to the Center, as well as to other facilities within the building. During the April 1 protest, patients entering the Center and its treatment rooms encountered a "gauntlet" of rescuers who urged the patients not to have abortions. The June 17 protest prevented the treatment of any patients at the Center that day. A receptionist at the Center had an anxiety attack on June 17, and four Center employees quit their jobs, citing their fear of the protests.

            Approximately forty police officers from the Town responded to the scene on both occasions, together with an ambulance and paramedic team under contract with the Town. The ambulance and paramedics were also on hand when arrestees from the demonstrations were processed at a local court. Members of the Town fire department were summoned on April 1 to separate five rescuers who had used locks to fasten themselves together.

            Large numbers of people were arrested at both protests: sixty-one on April 1, and two hundred sixty-one on June 17. They were charged with criminal trespass, interfering with a police officer, and refusal to be processed. The latter charges were premised upon the demonstrators' passive resistance (i.e., their refusal to walk or display identification after being arrested).

            In the words of the district court, "[t]he demonstration and rescue was organized, prepared, and orchestrated." 726 F.Supp. at 374. On both occasions, persons described as "negotiators" gave instructions to the arrested persons and told officials that they were authorized to speak for the arrestees. The negotiator on April 1 was a man known only as "Bill." The negotiator on June 17 was defendant William A. Calvin.

            The district court further stated that "[t]here appears to be a substantial association of people who are committed to eliminating the availability of abortions. The association appears to be loose and not formed." 726 F.Supp. at 375. Groups have associated under the names "Connecticut Pro-Life Action Network," "Faithful and True Roman Catholics," and "Operation Rescue." Id. Defendant-appellant Randall A. Terry "proclaims a role" in the latter organization, which, like the other groups named, was not shown to have a legal status.

            Defendants John Kladde, John Charles Grant, Catherine A. Jersey, William A. Calvin, William P. Cotter, Hjalmar Syversen, Lillian A. Loughlin and Jean Pollock were "all shown to have been personally involved as rescuers." Id. "An individual named Haggerty was involved, but not clearly identified as Eileen Haggerty, the named defendant." Id.

  2. The Complaint and RICO Case Order.

            On June 29, 1989, the Town commenced the present action against the named defendants. In addition to asserting a RICO claim pursuant to 18 U.S.C. Sec. 1962 (1988) based upon predicate acts of extortion in contravention of 18 U.S.C. Sec. 1951 (1988), the complaint alleged a conspiracy to deprive civil rights in violation of 42 U.S.C. Sec. 1985(3) (1982), and various pendent state

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    claims, including public nuisance. The jurisdictional statement of the Town's complaint read as follows:

            This Court has subject matter jurisdiction under 28 U.S.C. Section 1331, 28 U.S.C. Sections 1343 and 2201, 18 U.S.C. Section 1964, 15 U.S.C. Sections 21 and 26, 42 U.S.C. Section 194, and the principles of pendent jurisdiction.

            28 U.S.C. Sec. 1331 (1988) confers original jurisdiction upon federal district courts as to "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. Sec. 1343 (1988) confers such jurisdiction as to certain civil actions regarding civil rights and the elective franchise. 28 U.S.C. Sec. 2201 (1988) authorizes any federal court to render declaratory judgments in any "case of actual controversy within its jurisdiction." 18 U.S.C. Sec. 1964 (1988) vests jurisdiction in the district courts to grant civil remedies for violations of 18 U.S.C. Sec. 1962 (1988). 15 U.S.C. Secs. 21 and 26 (1988) deal with enforcement of the federal antitrust laws. 42 U.S.C. Sec. 194 (1982) requires the Secretary of Health and Human Services to furnish sufficient quarters for the work of the Children's Bureau, a component of the Department of Health and Human Services, at an annual rental not to exceed $2,000.

            In its opinion, the district court stated that the Town's "announced intention to withdraw its Sec. 1985 claim ... leaves the RICO claim as the sole basis for federal jurisdiction over this action." 726 F.Supp. at 376. The announcement occurred in a document filed by the Town on August 25, 1989, in response to a series of inquiries in a RICO Case Order entered by the district court. The Town's brief on appeal confirms that "[b]y amended complaint dated December 6, 1989, the Town abandoned its state and federal civil rights claims."

            In addition, we note that a motion by the Center to intervene in this case was granted August 28, 1989, after the preliminary injunction hearing, but the decision from which this appeal is taken addressed preliminary relief "only as a question of entitlement of the [Town]." 726 F.Supp. at 373 n. 1. The Town's amended complaint did drop its claim under 42 U.S.C. Sec. 1985 (1988), but made no substantial change to its RICO claim. In addition, the Center was added as a plaintiff suing under RICO on its own behalf and on behalf of a class of similarly situated abortion facilities nationwide. Like the Town's claim, the Center's RICO claim was grounded on predicate Hobbs Act violations, but the Center's theory of extortion significantly differed from that of the Town. We do...

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