Pro-Choice Network of Western New York v. Walker
| Citation | 994 F.2d 989 |
| Decision Date | 26 May 1993 |
| Docket Number | D,691,Nos. 692,PRO-CHOICE,s. 692 |
| Parties | NETWORK OF WESTERN NEW YORK, Buffalo Gyn Womenservices, P.C., Erie Medical Center, Paul J. Davis, M.D., Shalom Press, M.D., Barnett Slepian, M.D., Morris Wortman, M.D., Highland Obstetrical Group, and Alexander Women's Group, Plaintiffs-Appellees, v. Nancy WALKER, Defendant-Appellant, Project Rescue Western New York, Operation Rescue, Project Life of Rochester, Rev. James L. Evans, Rev. Paul Schneck, Rev. Ted Cadwallader, Dwight Saunders, David Anderson, Jeffrey Baran, Brian Bayley, Bonnie Behn, Ronald Breymeier, Gilbert Certo, Scott Chadsey, Kim Day, Constance Debo, Mark Dent, Wayne Dent, Paul Diemert, Joan Giangreco, Delores Glaser, Carmelina Golba, Kevin Golba, Linda Hall, Nancy Hall, Rev. Daniel Hamlin, James Handyside, Pamela Huffnagle, Donna Johanns, Eric Johns, Neal Kochis, Paulette Likoudis, Charles McGuire, Christopher Morrow, Annemarie Nice, Nicholas Pukalo, Carla Rainero, Thomas Riley, Patricia Ostrander, Linda Ross, David Smith, Linda Smith, Mark Sterlace, Joyce Strigel, John Thomann, John Tomasello, Paul Waldmiller, Jr., Leonard Winter, Horace Wolcott, Gerald Crawford, David Long, John Does, Jane Does, 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.NETWORK OF WESTERN NEW YORK, Buffalo Gyn Womenservices, P.C., Erie Medical Center, Paul J. Davis, M.D., Shalom Press, M.D., Barnett Slepian, M.D., Morris Wortman, M.D., Highland Obstetrical Group, and Alexander Women's Group, Plaintiffs-Appellees, v. Bonnie BEHN and Carla Rainero, Defendants-Appellants, Project Rescue Western New York, Operation Rescue, Project Life of Rochester, Paul Schenk, James L. Evans, Ted Cadwallader, Dwight Saunders, David Anderson, Jeffrey Baran, Brian Bayley, R |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
James J. Duane, Virginia Beach, VA, for appellants.
Lucinda M. Finley, Buffalo, NY, for appellees.
Before: MESKILL, Chief Judge, NEWMAN and JACOBS, Circuit Judges.
These two appeals involve contempt judgments resulting from violations of the same Temporary Restraining Order (TRO) issued by Judge Arcara on September 27, 1990. We address both appeals together because of their factual similarity and identical legal issues.
Appellant Nancy Walker appeals a judgment of the United States District Court for the Western District of New York, Arcara, J., entered on July 28, 1992 which granted the plaintiffs-appellees' (Pro-Choice Network's) 1 petition for civil contempt against her and imposed $10,000 in civil damages and a $20,000 fine. The court directed the Clerk to enter judgment against Walker in the amount of $10,000 to be paid to two of the plaintiffs; the remaining $20,000 was made contingent upon any future violations of the preliminary injunction.
Appellants Bonnie Behn and Carla Rainero appeal a judgment of the same court entered on August 14, 1992 which granted Pro-Choice Network's petition for civil contempt against them, entered judgment against them in the amount of $10,000 each and granted Pro-Choice Network's request for reasonable attorney's fees and costs associated with prosecuting the contempt.
Although the district judge labeled the contempt proceedings civil, appellants argue that the unconditional fines he imposed are immediately appealable as orders of criminal contempt because they were neither compensatory nor coercive. They also contend that, as to each of them, the district court's findings of civil contempt by clear and convincing evidence were clearly erroneous. Walker Under our decisions in New York State Nat'l Org. For Women v. Terry, 886 F.2d 1339, 1350 (2d Cir.1989) (Terry I ), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990), and New York State Nat'l Org. For Women v. Terry, 961 F.2d 390 (2d Cir.1992) (Terry II ), vacated sub nom. Pearson v. Planned Parenthood, --- U.S. ----, 113 S.Ct. 1233, 122 L.Ed.2d 640 (1993), 2 the sanctions the district court imposed on each of the appellants are clearly ones for civil, not criminal, contempt. Therefore, we are without jurisdiction to hear these appeals. Because we lack jurisdiction, we cannot consider the merits of any of appellants' other arguments including their alternative contention that we should vacate the amount and disposition of the sanctions.
also argues that the portions of the TRO she allegedly violated were not legally valid because her alleged acts of contempt did not create any genuine threat of irreparable injury. Behn and Rainero argue that the portion of the order they allegedly violated was not legally valid because the mere act of speaking to unwilling listeners does not create any legally actionable threat of irreparable injury. Furthermore, Behn and Rainero contend that their conduct was protected under the First Amendment and therefore was not a violation of the court's order. Finally, all appellants argue that, even if we uphold the district court's finding of civil contempt, we should vacate the amount and disposition of the sanctions
BACKGROUND
Pro-Choice Network commenced an action in the district court on September 24, 1990 alleging that the defendants 3 had been engaging in a consistent pattern of illegal conduct at the appellees' health care facilities including blocking access to and egress from their facilities, trespassing, and harassing and intimidating their staffs and patients. The complaint stated causes of action under 42 U.S.C. § 1985(3) as well as under several state laws.
On December 6 and December 14, 1990, Pro-Choice Network filed motions for contempt against Walker based on incidents on November 29, 1990 outside Dr. Paul Davis' office and on December 1 and December 8, 1990 outside the premises of the Buffalo GYN Womenservices. In the words of the district court, Pro-Choice Network sought "compensatory and coercive civil contempt sanctions to remedy the loss they suffered as a result of the alleged violations, and to coerce Walker into conforming her behavior to the terms of the TRO in the future." The court held evidentiary hearings on these charges over the course of several days between February 6 and February 14, 1991. On July 24, 1992, Judge Arcara issued a decision and order finding Walker in contempt based on the two incidents which occurred on November 29, 1990 and December 1, 1990. The following facts are taken from the district court's opinion.
On November 29, 1990, Walker was part of a demonstration outside a health care facility that performs abortions in Amherst, New York. She repeatedly attempted to "counsel" three people, one of whom had an appointment with a doctor at the facility. The district court found that "[c]onfronted with Walker's loud and invasive behavior, [the three] repeatedly asked Walker to leave them alone." Walker ignored the requests and, according to the district court, her conduct "impeded and hindered" the access of these three people to the clinic.
On December 1, 1990, Walker was located outside the Buffalo GYN Womenservices' clinic as part of a demonstration offering "sidewalk counseling" to women entering the clinic. She approached two women who were seeking access to the clinic. The district court found that she pursued these two women for an entire city block, harassing them all the while. The court stated, "[s]he yelled at them, crowded them, invaded their personal space, and impeded and hindered them from entering the clinic."
The district court found that the collateral bar rule precluded Walker from challenging...
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Pro-Choice Network of Western New York v. Schenck
...district court found that Pro-Choice had failed to meet its burden of proving one of the incidents alleged. See Pro-Choice Network v. Walker, 994 F.2d 989, 993 (2d Cir.1993).4 The other incidents involved the contemnors' failure to observe the TRO's "cease and desist" provision, a provision......
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Pro-Choice Network v. Project Rescue, No. 90-CV-1004A.
...Nancy Walker, No. 92-7854, and Bonnie Behn and Carla Rainero, No. 92-7954, for lack of appellate jurisdiction. Pro-Choice Network v. Walker, 994 F.2d 989 (2d Cir. May 26, 1993). On June 15, 1993, the appeals in the other two contempt cases, Nos. 92-9124 and 92-9202, were reactivated, Item N......
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