New York State Nat. Organization for Women v. Terry

• Decision Date: 13 April 1992
• Docket Number: 1552,Nos. 1427,D,1553,s. 1427
• Citation: 961 F.2d 390
• Parties: NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN; New York City Chapter of the National Organization for Women; National Organization for Women; Religious Coalition for Abortion Rights--New York Metropolitan Area; New York State National Abortion Rights Action League; Planned Parenthood of New York City, Inc.; Eastern Women's Center, Inc.; Planned Parenthood Clinic (Bronx); Planned Parenthood Clinic (Brooklyn); Planned Parenthood Margaret Sanger Clinic (Manhattan); Ob-Gyn Pavilion; the Center for Reproductive and Sexual Health; VIP Medical Associates; Bill Baird Institute (Suffolk); Bill Baird Institute (Nassau); Dr. Thomas J. Mullin; Bill Baird; Reverend Beatrice Blair; Rabbi Dennis Math; Reverend Donald Morlan; Pro-Choice Coalition, Plaintiffs-Appellees, and The City of New York, Intervenor-Appellee, and United States of America, Creditor-Appellee, v. Randall A. TERRY; Operation Rescue; Reverend James P. Lisante; Thomas Herlihy; John Doe(s); Jane Doe(s), the last two being fictitious Names, the real names of said defendants being presently unknown to plaintiffs, said fictitious names being intended to designate organizations or persons who are members of defendant organizations, and others acting in concert with any of the defendants who are engaging in, or intend to engage in, the conduct complained of herein, Defendants, Randall A. Terry; Operation Rescue; and Thomas Herlihy, Defendants-Appellants, Bernard Nathanson, Respondent, Jesse Lee; Joseph Foreman; Michael McMonagle; Jeff White; Florence Talluto; Michael LaPenna; Adelle Nathanson; Reverend Robert Pearson; Bistate Operation Rescue Network; and Christopher Slattery, Respondents-Appellants, A. Lawrence Washburn, Jr., Counsel-Appellant. ockets 90-6187, 91-6011, 91-6029.
• Court: U.S. Court of Appeals — Second Circuit

Page 390

961 F.2d 390

22 Fed.R.Serv.3d 313

NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN; New York

City Chapter of the National Organization for Women;

National Organization for Women; Religious Coalition for

Abortion Rights--New York Metropolitan Area; New York State

National Abortion Rights Action League; Planned Parenthood

of New York City, Inc.; Eastern Women's Center, Inc.;

Planned Parenthood Clinic (Bronx); Planned Parenthood

Clinic (Brooklyn); Planned Parenthood Margaret Sanger

Clinic (Manhattan); Ob-Gyn Pavilion; the Center for

Reproductive and Sexual Health; VIP Medical Associates;

Bill Baird Institute (Suffolk); Bill Baird Institute

(Nassau); Dr. Thomas J. Mullin; Bill Baird; Reverend

Beatrice Blair; Rabbi Dennis Math; Reverend Donald Morlan;

Pro-Choice Coalition, Plaintiffs-Appellees,

and

The City of New York, Intervenor-Appellee, and United States of America, Creditor-Appellee, v. Randall A. TERRY; Operation Rescue; Reverend James P.

Lisante; Thomas Herlihy; John Doe(s); Jane Doe(s), the

last two being fictitious Names, the real names of said

defendants being presently unknown to plaintiffs, said

fictitious names being intended to designate organizations

or persons who are members of defendant organizations, and

others acting in concert with any of the defendants who are

engaging in, or intend to engage in, the conduct complained

of herein, Defendants,

Randall A. Terry; Operation Rescue; and Thomas Herlihy,

Defendants-Appellants,

Bernard Nathanson, Respondent,

Jesse Lee; Joseph Foreman; Michael McMonagle; Jeff White;

Florence Talluto; Michael LaPenna; Adelle Nathanson;

Reverend Robert Pearson; Bistate Operation Rescue Network;

and Christopher Slattery, Respondents-Appellants,

A. Lawrence Washburn, Jr., Counsel-Appellant.

Nos. 1427, 1552, 1553, Dockets 90-6187, 91-6011, 91-6029.

United States Court of Appeals, Second Circuit.

Argued May 20, 1991.

Decided April 13, 1992.

Joseph P. Secola, New Milford, Conn. (A. Lawrence Washburn, Jr., New York City, of counsel), for defendants-appellants, respondents-appellants (other than Christopher Slattery), and counsel-appellant.

Mary M. Gundrum, Center for Constitutional Rights, New York City (Alison Wetherfield, Ruth Jones, NOW Legal Defense & Education Fund, of counsel), for plaintiffs-appellees.

William P. Harrington, White Plains, N.Y. (Bleakley, Platt & Schmidt, of counsel), for respondent-appellant Christopher Slattery.

Gail P. Rubin, Asst. Corp. Counsel of the City of New York, New York City (Victor A. Kovner, Corp. Counsel of the City of New York, of counsel), for intervenor-appellee City of New York.

Nancy Kilson, Asst. U.S. Atty. for the Southern District of New York, New York City (Otto G. Obermaier, U.S. Atty. for the Southern District of New York, of counsel), for creditor-appellee U.S.

Before: KEARSE, MAHONEY, and SNEED, ^* Circuit Judges.

MAHONEY, Circuit Judge:

Defendants-appellants and respondents-appellants (other than Christopher Slattery) appeal ¹ from an order entered May 10, 1990, and a final amended order entered July 9, 1990, of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, that (1) adjudged them in civil contempt of orders and a permanent injunction previously entered by that court, (2) assessed contempt penalties against them in amounts ranging from $25,000 to $100,000, and (3) assessed attorneys' fees and costs against them in amounts ranging from $3,190.02 to $157,505.81. Respondent-appellant Christopher Slattery appeals ² from an order and judgment of that court entered December 26, 1990 that adjudged him in contempt of a preliminary injunction and a permanent injunction previously entered by that court, assessed a $50,000 contempt penalty against him, and stayed execution of judgment as to $25,000 on condition that Slattery commit no further violations of the injunctions. Counsel-appellant A. Lawrence Washburn, Jr. appeals from an amended final order of that court entered July 9, 1990 that assessed a sanction against him, pursuant to Fed.R.Civ.P. 11, in the amount of $11,712.47.

The appealed rulings are premised upon two published opinions, New York State National Organization for Women v. Terry, 732 F.Supp. 388 (S.D.N.Y.1990), and New York State National Organization for Women v. Terry, 737 F.Supp. 1350 (S.D.N.Y.1990), and (as to respondent-appellant Christopher Slattery) an unpublished oral bench decision.

We reverse as to respondents-appellants Florence Talluto and Michael LaPenna and counsel-appellant; we otherwise affirm.

Background

Plaintiffs-appellees are organizations that favor legalized abortion, health clinics that perform abortions, a doctor who performs abortions, and three religious leaders. Defendants-appellants are three individuals, Randall A. Terry, Reverend James P. Lisante, and Thomas Herlihy, and an organization, Operation Rescue, opposed to legalized abortion. Plaintiffs also "named as defendants 'John Does' and 'Jane Does,' intended to designate organizations or persons who are members of defendant organizations, and others acting in concert with any of the defendants who are engaging in, or intend to engage in, the conduct complained of." New York State Nat'l Org. for Women v. Terry, 697 F.Supp. 1324, 1327 n. 2 (S.D.N.Y.1988). That conduct is the prevention of access to facilities in the New York City area performing abortions.

In New York State National Organization for Women v. Terry, 886 F.2d 1339, 1357-64 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990) ("Terry I "), we affirmed a permanent injunction entered by the district court on January 10, 1989 against defendants' efforts to block access to abortion clinics in certain New York State counties because we concluded that those attempts violated 42 U.S.C. § 1985(3) (1988), as well as state trespass and public nuisance law. (The injunction provides for prospective civil contempt penalties of $25,000 per day for its violation, and each successive violation results in doubling of the sanction applicable to the contemnor. See New York State Nat'l Org. for Women v. Terry, 704 F.Supp. 1247, 1263-64 (S.D.N.Y.1989)). We also affirmed an earlier ruling entered October 27, 1988, see New York State Nat'l Org. for Women v. Terry, 697 F.Supp. 1324 (S.D.N.Y.1988), in which the district court held, inter alia, that: (1) defendants Terry and Operation Rescue were in contempt of that court's May 4 temporary injunction, ³ which also provided for $25,000 per day sanctions, and imposed contempt sanctions of $25,000 against each of them; and (2) discovery sanctions pursuant to Fed.R.Civ.P. 37(a)(4) would be imposed against defendants. See Terry I, 886 F.2d at 1350-57. We modified the district court's ruling, however, by directing that the contempt sanctions be paid to the court, rather than to plaintiff-appellee New York State National Organization for Women ("N.O.W."), which had provided "no evidence of actual injury [to N.O.W.] due to Operation Rescue's activities." 886 F.2d at 1354.

The district court's October 27, 1988 contempt ruling was "without prejudice to plaintiffs' right to proceed against defendants Herlihy and Lisante, or against any other individuals who violated the Court's Order with notice." New York State Nat'l Org. for Women v. Terry, 697 F.Supp. at 1338. Plaintiffs have since initiated contempt proceedings against various alleged participants in Operation Rescue's activities. See New York State Nat'l Org. for Women v. Terry, 732 F.Supp. at 392-93. The demonstrators against whom plaintiffs sought contempt sanctions are the following organizations and persons: defendants-appellants Operation Rescue, Terry and Herlihy; respondent Bernard Nathanson; and respondents-appellants Bistate Operation Rescue Network ("B.O.R.N."), Jesse Lee, Joseph Foreman, Michael McMonagle, Jeff White, Florence Talluto, Michael LaPenna, Adelle Nathanson, Reverend Robert Pearson, and Christopher Slattery. See id. at 396 & n. 2.

Plaintiffs-appellees' contempt application relates to four days of demonstrations at various facilities performing abortions: May 6, 1988, October 29, 1988, January 13, 1989, and January 14, 1989. See id. at 398. On all these dates, Operation Rescue members held demonstrations at which they blocked access to abortion facilities. See id. at 394-95. At the May 6, 1988 demonstration, the terms of the May 4, 1988 temporary injunction were read aloud by the New York City police before arrests began. See id. at 394. Similarly, on January 13 and 14, 1989, police officers read the applicable permanent injunction to the demonstrators before initiating arrests. See id. at 395.

The district court found, with respect to defendants-appellants, that "all of the demonstrations at issue in these contempt proceedings were initiated and coordinated by Operation Rescue," id. at 398-99; Terry led the demonstrations, engaging in "purposeful conduct designed to violate the Court's orders," id. at 399; and Herlihy participated in the May 6 demonstration with notice of the district court's order against him. See id. The district court: (1) adjudged Terry and Operation Rescue to be in civil contempt of its October 27, 1988 order and permanent injunction, and assessed penalties in the amount of $100,000 against each of them; and (2) adjudged Herlihy to be in civil contempt of its May 4, 1988 order, and assessed a penalty in the amount of $25,000 against him. See id. at 413.

Contempt penalties were also assessed against respondents-appellants on the basis that "civil contempt sanctions may be assessed against nonparties who had actual notice of the [court's] orders in effect at the time in question and participated with defendants in violating those orders." Id. at 399-400. See Fed.R.Civ.P. 65(d) (order granting injunction "is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or...