Fargo Women's Health Organization, Inc. v. Larson

• Decision Date: 23 July 1986
• Docket Number: No. 11058,11058
• Citation: 391 N.W.2d 627
• Court: North Dakota Supreme Court
• Parties: FARGO WOMEN'S HEALTH ORGANIZATION, INC., Robert Lucy, M.D., George Miks, M.D., & Jane Doe, Plaintiffs and Appellees, v. Patricia LARSON, Darrold Larson, David Pence, Terri Carlson, John Robertson, Robyn Robertson, Loralee Isaacson, directors of the FM Women's Help and Caring Connection d/b/a Women's Help Clinic, Defendants and Appellants. Civ.

Page 627

391 N.W.2d 627

FARGO WOMEN'S HEALTH ORGANIZATION, INC., Robert Lucy, M.D., George Miks, M.D., & Jane Doe, Plaintiffs and Appellees, v. Patricia LARSON, Darrold Larson, David Pence, Terri Carlson, John Robertson, Robyn Robertson, Loralee Isaacson, directors

of the FM Women's Help and Caring Connection d/b/a Women's

Help Clinic, Defendants and Appellants.

Civ. No. 11058.

Supreme Court of North Dakota.

July 23, 1986.

William Kirschner, Fargo, for plaintiffs and appellees.

Jean Samelson, Fargo and Michael P. Farris, Gen. Legal Counsel and Jordan W. Lorence, Staff Atty., argued, Concerned Women for America Educ. and Legal Defense Foundation, Washington, D.C., for defendants and appellants.

GIERKE, Justice.

The FM Women's Help and Caring Connection, Incorporated, d/b/a Women's Help Clinic and its directors, Patricia Larson, Darrold Larson, David Pence, Terri Carlson, John Robertson, Robyn Robertson, and Loralee Isaacson, (hereinafter collectively referred to as the Help Clinic unless the context requires otherwise) appeal from a district court order finding the Help Clinic and the individual directors in contempt of court for violating a preliminary injunction enjoining false and deceptive advertising and related activities. We affirm in part and reverse in part.

Fargo Women's Health Organization, Inc. (Women's Health) operates a medical clinic which performs abortions in Fargo. The Help Clinic, also operating in Fargo, provides pregnancy tests and anti-abortion counseling services but does not perform abortions. In January 1985, Women's Health filed an action against the Help Clinic alleging that the Help Clinic used false and deceptive advertising and solicitation practices to mislead persons seeking abortions into believing that it performed abortions. Upon filing the action, Women's Health requested the trial court to enter a preliminary injunction to enjoin the allegedly deceptive advertising and solicitation practices by the Help Clinic while the action was pending. The district court issued an oral order granting the preliminary injunction on February 22, 1985, and a written order was entered on March 1, 1985, which provided in relevant part:

"THEREFORE IT IS ORDERED,

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"... [T]hat the defendant be enjoined from using the name Women's Help Clinic, or comparable words which are similar, and confusing....

"... [T]hat the defendants individually and collectively, jointly and severally, shall be prohibited from falsely and deceptively advertising that they provide elective abortions and financial assistance for such services.

"... [T]hat the defendants do not falsely lull people that come to them for counseling into thinking that they are, in fact, the Women's Health Organization or the Fargo Women's Health Organization, Inc. and that the defendants take no action or inaction which would lull people into believing that they are dealing with the Fargo Women's Health Organization, Inc. when they are in fact dealing with defendants or F-M Women's Help and Caring Connection, Inc....

"... [T]hat if the defendants advertise using the term abortion, then they must state that they do not perform abortions."

In Fargo Women's Health Organization, Inc. v. Larson, 381 N.W.2d 176 (N.D.1986) [Fargo Women's Health I], cert. denied, --- U.S. ----, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986), we modified the preliminary injunction by striking the provision that if the defendants advertise using the term abortion, they must state that they do not perform abortions, and, as modified, we affirmed the preliminary injunction. We further concluded that the preliminary injunction did not unconstitutionally infringe upon the Help Clinic's First Amendment rights.

While that appeal was pending in this court, Women's Health made a motion in district court seeking an order finding Darrold Larson, Patricia Larson, and the Help Clinic in contempt of court for alleged violations of the preliminary injunction. After an evidentiary hearing, the district court found the Help Clinic in civil contempt of court and entered an order requiring that the corporation pay $500 to Women's Health as a partial cost of attorney's fees for prosecuting the contempt proceeding and that Patricia Larson, Darrold Larson, David Pence, Terri Carlson, John Robertson, Robyn Robertson, and Loralee Isaacson be committed to 30 days in jail unless they purged themselves immediately by complying with the preliminary injunction. The Help Clinic appealed. ¹

The Help Clinic contends that the trial court erred in admitting tapes and transcripts of five telephone conversations into evidence. In March 1985, Women's Health employed a private investigator, Darrell Graf, to solicit individuals to call the Help Clinic to ascertain whether it was complying with the preliminary injunction, and he recorded those individuals' telephone conversations with Loralee Isaacson and Darrold and Patricia Larson. Graf was referred to Women's Health by its attorney, William Kirschner. Graf had done some work for Kirschner and shared office space in the same building; however, Graf testified that his actual employer was Buffalo City Security in Jamestown. The Help Clinic contends that the tapes and transcripts may have been obtained in violation of Disciplinary Rule 7-104(A)(1), North Dakota Code of Professional Responsibility ² and that the trial court erred in refusing to allow Kirschner to testify concerning his contact with Graf because the evidence strongly indicated that Kirschner had caused another to communicate with an adverse party on the subject of the representation. Therefore, the Help Clinic asserts that the tapes and transcripts should not have been allowed into evidence.

Generally, a trial court has wide discretion regarding the examination of witnesses, and, under appropriate circumstances, a court may refuse to allow a witness to testify. Gajewski v. United States, 321 F.2d 261 (8th Cir.1963) cert. denied, 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964). Courts are reluctant to allow attorneys to be called as witnesses in cases in which they are advocates, and a court may, without abusing its discretion, refuse to allow the defense to call the plaintiff's attorney as a witness. Gajewski v. United States, supra. Our review of such a refusal is whether or not the trial court abused its discretion. Gajewski v. United States, supra.

The testimony of Jane Bovard, administrator at Women's Health; Susan Hill, vice-president of Women's Health; and Graf unequivocally established that Graf was contacted, hired, and paid directly by Women's Health without any participation, other than referral, by Kirschner. Because of this unequivocal testimony, we do not believe the trial court abused its discretion in denying the Help Clinic's request to call Kirschner as a witness. Additionally, we do not believe there is any factual basis to support the Help Clinic's assertion that counsel for Women's Health caused another to communicate with an adverse party on the subject of the representation. ³

Furthermore, the Help Clinic's reliance on Kleiner v. First Nat. Bank of Atlanta, 751 F.2d 1193 (11th Cir.1985), is misplaced. In Kleiner, supra, the court issued a protective order prohibiting the defendant from contacting prospective plaintiffs in a class action against it. Thereafter, the defendant's attorney researched and provided legal advice to the defendant on the legality of a solicitation campaign to exclude potential plaintiffs in the class action and was in "close consultation" during the solicitation campaign. In Kleiner, supra, the court fined the attorney and disqualified him from representing the defendant. However, Kleiner, supra, did not involve the suppression of evidence, and the attorney's conduct involved much more than a referral of a private investigator and is distinguishable from the instant case.

The Help Clinic also contends that the tapes and transcripts should not have been allowed into evidence because they were obtained in violation of Section 12.1-15-02(1), N.D.C.C. Women's Health counters that the tapes were obtained legally pursuant to Section 12.1-15-02(3)(c), N.D.C.C.

Section 12.1-15-02, N.D.C.C., provides, in relevant part:

"1. A person is guilty of a class C felony if he:

a. Intentionally intercepts any wire or oral communication by use of any electronic, mechanical, or other device; or

b. Intentionally discloses to any other person or intentionally uses the contents of any wire or oral communication, knowing that the information was obtained through the interception of a wire or oral communication.

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"3. It is a defense to a prosecution under subsection 1 that:

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"c. (1) The actor was a party to the communication or one of the parties to the communication had given prior consent to such interception, and (2) such communication was not intercepted for the purpose of committing a crime or other unlawful harm."

Section 12.1-15-02, N.D.C.C., is derived from the proposed Federal Criminal Code and, as relevant to this case, is identical to Section 1561 of the Final Report of the National Commission of Reform of Federal Criminal Laws. The Final Report, submitted to Congress on January 7, 1971, states that the defenses in Section 1561 corresponded to the defenses provided by the law in effect at that time. As relevant to this case, those defenses have not been changed since that time and are currently found in 18 U.S.C. Sec. 2511(2)(d). ⁴ Pursuant to that statute, the federal courts have consistently permitted the recording of telephone conversations when one of the parties to the conversation consents. See United States v. Bragan, 499 F.2d 1376 (4th Cir.1974); United States v. Puchi, 441 F.2d 697 (9th Cir.1971), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 (1972); see also United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), reh'g denied, 402 U.S. 990, 91 S.Ct. 1643, 29...