Kennan v. Warren
| Decision Date | 15 May 1971 |
| Docket Number | No. 71-C-132.,71-C-132. |
| Citation | 328 F. Supp. 525 |
| Parties | Alfred L. KENNAN, M.D., Plaintiff, v. Robert WARREN, Attorney General for the State of Wisconsin, et al., Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
COPYRIGHT MATERIAL OMITTED
David C. Pappas, Charles P. Dykman, Madison, Wis., for plaintiff.
LeRoy Dalton, Robert D. Martinson, Asst. Attys. Gen., Madison, Wis., for defendants.
OPINION AND TEMPORARY RESTRAINING ORDER OF MAY 5, 1971
This action (commenced April 28, 1971) relates to certain facets of a controversy centering upon the alleged operation by the plaintiff and his staff of a medical center in the City of Madison in this district, in which, it is alleged, abortions have been performed in violation of Sections 940.04(1) and (5), and 448.18 (1) (a), Wis.Stat.
It appears that there are at least three legal facets of this controversy: (1) a criminal prosecution against Dr. Kennan and certain members of his staff which was commenced on April 21 or April 22, 1971, by the District Attorney of Dane County, Wisconsin, in the County Court for Dane County, charging violations of Section 940.04(1) and (5); (2) a civil action commenced by the Attorney General of Wisconsin (by the service of a summons and complaint on April 21, 1971) in the Circuit Court for Dane County, Wisconsin, in which the State of Wisconsin is the plaintiff and Dr. Kennan is the defendant (No. 133151 in that court), which action purports to have been brought pursuant to Section 448.19, Wis.Stat., in which it is alleged that Dr. Kennan has repeatedly violated Sections 940.04(1) and 448.18(1) (a), Wis.Stat., and in which judgment is sought permanently enjoining Dr. Kennan and his staff from activity relating to the performance of other than "therapeutic" abortions as defined in Section 940.04 (5), Wis.Stat.; and (3) a written warning by the Medical Examining Board of the State of Wisconsin, addressed to Dr. Kennan by the Board on April 27, 1971, that the Board will immediately suspend his license, pursuant to Section 448.18 (7), Wis.Stat., unless he ceases to perform abortions "except in strict conformity to the exception to the criminal abortion law as stated in sec. 940.04(5), Stats., and in strict conformity with accepted medical and surgical standards." I will refer to these three facets herein as "the state court criminal action," "the state court civil injunction action," and "the Medical Board proceeding."
(1) The state court criminal action.
In an action initiated by Dr. Kennan in this court on April 20, 1971, under 42 U.S.C. § 1983 (Kennan et al. v. Nichol, W.D.Wis., No. 71-C-118, 326 F.Supp. 613), I entered a temporary restraining order April 27, 1971, pursuant to 28 U.S.C. § 2284(3). I initiated the convening of a three-judge court by the Chief Judge of the Circuit. A three-judge court has been convened by the Chief Judge of the Circuit. It consists of Circuit Judge Kerner, and District Judges Reynolds and Gordon. I have withdrawn from the action, and Judge Gordon is acting as the single United States District Judge for the Western District of Wisconsin in the action, as well as acting as a member of the three-judge court.
The temporary restraining order entered April 27, 1971, enjoined the defendant District Attorney of Dane County, "and any and all persons acting in concert with him or at his direction or under his control" from further enforcement of Section 940.04(1) and (5), Wis. Stat., against Dr. Kennan and his staff, in any case involving an embryo of four months or less.
At a hearing in this court on May 4, 1971, in the present case (71-C-132), counsel for Dr. Kennan contended that by pursuing the state court civil injunction action, the Attorney General of Wisconsin is "acting in concert" with the District Attorney of Dane County, in violation of the temporary restraining order entered April 27, 1971, in 71-C-118. I permitted counsel for Dr. Kennan to state the contention, and I provided the opportunity for the Assistant Attorney General to respond. However, it is clear that I have no authority to deal with such a contention. If there is a desire to pursue it, it must be directed to the three-judge court which has been convened in 71-C-118, the action in which the temporary restraining order of April 27, 1971, was entered.
(2) The state court civil injunction action.
The complaint by Dr. Kennan against the Attorney General and the Medical Board in this present action, 71-C-132, alleges, among other things, that the Attorney General, acting as counsel for the Board, has commenced an action in state court to enjoin the operation of Dr. Kennan's clinic. The verified complaint prays for a temporary restraining order restraining the Attorney General and the Board from suspending, revoking or otherwise interfering with Dr. Kennan's license, "or from any other method of further enforcement against Dr. Kennan of Sections 940.04(1) and (5) and 448.18, Wis.Stat., in any case involving an embryo of four months or less," and prays for such other relief as the court deems just and proper. I entered an order to show cause on April 28, 1971, in the form submitted by counsel for Dr. Kennan, returnable May 4, 1971, requiring the Attorney General and the Board to show cause why they should not be restrained temporarily from interfering with Dr. Kennan's license, and temporarily "suspending and restraining the operation, enforcement, or execution of Chapter 448 of the Wisconsin Statutes. * * * "
On May 3, 1971, there was filed in this action in this court a verified "amended complaint" in which the defendants (the Attorney General and the Board) remained as they were in the original complaint, but in which a second plaintiff, Adrienne H. Campbell, is shown. Parties may be added to an action only by order of the court. Rule 21, Federal Rules of Civil Procedure. No such order has been sought or entered. Dr. Kennan was free to amend his complaint, without leave of court, since no responsive pleading had been served. Rule 15(a), Federal Rules of Civil Procedure. I treat the amended complaint as an amended complaint by Dr. Kennan, verified by him, and since it is also verified by Adrienne Campbell, I treat it as an affidavit by her, in support of Dr. Kennan's motion for a temporary restraining order. However, Mrs. Campbell is not presently a party to this action.
The amended complaint includes more detailed allegations concerning the history of the state court civil injunction suit, and I will turn to them in a moment. The relief prayed for includes: a temporary restraining order preventing the defendants from interfering with Dr. Kennan's license or from any other method of further enforcement of Sections 940.04(1) and (5) and 448.18(1) (a) against Dr. Kennan, whether civil or criminal, in cases involving an embryo of four months or less; a temporary restraining order preventing the Attorney General from pursuing the state court civil injunction action and from seeking to enforce an order entered by the state court in that action April 30, 1971; the convening of a three-judge court; consolidation in this court of this action (71-C-132) with the earlier action (71-C-118); and permanent declaratory and injunctive judgments.
At the May 4 hearing in this action in this court on the order to show cause with respect to the motion for a temporary restraining order, counsel for the Attorney General and the Board objected to consideration of any temporary relief other than that specifically described in the order to show cause. That is, they contended that the hearing was limited to the Board's warning that Dr. Kennan's license may be suspended, and that it could not reach the matter of the state court civil injunction action. At the time of the hearing I expressed the view that there was merit to this contention, but I permitted argument on the matter of the state court civil injunction action, and provided an opportunity for the Attorney General to present evidence on the point if he so elected. Subsequently, I have concluded that the Attorney General's contention concerning the scope of the May 4 hearing was without merit. This is because I have since ascertained clearly that the state court civil injunction action was commenced pursuant to Section 448.19, Wis.Stat. The temporary relief sought, as stated in the order to show cause, included an order "suspending and restraining the operation, enforcement, or execution of Chapter 448 of the Wisconsin Statutes." The Attorney General and the Board were thus fairly warned that the May 4 hearing would reach the subject of the state court civil injunction action.
From the entire record herein, and by the exercise of judicial notice of the proceedings in the state court civil injunction action and in the earlier action in this court (71-C-118), I make the following findings of fact, for the purpose of acting upon Dr. Kennan's motion for a temporary restraining order, and for no other purpose.
I find that on April 19, 1971, pursuant to a search warrant issued by a judge of a state trial court, and at the direction of the District Attorney of Dane County, police entered the medical offices occupied by Dr. Kennan and his staff, in the city of Madison in this district, in connection with his specialized practice in the performance of abortions, that the police seized equipment and records, and that the practical effect of the seizure was to prevent the continuation of Dr. Kennan's abortion practice for some period of time. On April 19 and 20 the District Attorney made public statements threatening the imminent arrest of Dr. Kennan under Section 940.04(1), Wis. Stat. On April 21 or 22, 1971, the District Attorney commenced a criminal action against Dr. Kennan, alleging violations of Section 940.04(1).
An action (71-C-118) was commenced in ...
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