Lecher v. State, 93-2898

• Decision Date: 18 October 1994
• Docket Number: No. 93-2898,93-2898
• Citation: 188 Wis.2d 604,526 N.W.2d 280
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In the Matter of the Finding of contempt in State of Wisconsin and City of Milwaukee v. Missionaries to the Preborn, et al.: Linda LECHER, Appellant, v. STATE of Wisconsin and City of Milwaukee, Respondents.
• Court: Wisconsin Court of Appeals

Page 280

526 N.W.2d 280

188 Wis.2d 604

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

In the Matter of the Finding of contempt in State of

Wisconsin and City of Milwaukee v. Missionaries to

the Preborn, et al.:

Linda LECHER, Appellant, v. STATE of Wisconsin and City of Milwaukee, Respondents.

No. 93-2898.

Court of Appeals of Wisconsin.

Oct. 18, 1994.

SULLIVAN.

Linda Lecher appeals from an order issuing a remedial contempt citation for violating a permanent injunction, § 785.01(1)(b), STATS. She presents two issues for our review. First, she argues that the trial court erred when it concluded she was in contempt of court because the evidence does not support the trial court's finding that she acted in concert with the named defendants to a permanent injunction. Second, she alleges that portions of the permanent injunction are unconstitutional because they violate her First Amendment right to free speech. We reject both arguments and affirm. ¹

The permanent injunction at issue in this case prohibited certain activities that impeded the operation of several facilities in the City of Milwaukee at which abortions are performed. These facilities included Planned Parenthood of Wisconsin and the Imperial Health Center. The permanent injunction proscribed the named defendants to the injunction "and all persons acting in concert with them and having received notice of" the injunction from engaging in actions including:

Congregating, demonstrating, counseling or engaging in any other protest activity within twenty-five (25) feet of doorways, entrances, exits, parking lots, parking lot entrances, driveways and driveway entrances of [the] facilities. In addition, the above activities are prohibited within ten (10) feet of any person seeking access to or departing from those facilities.

Lecher was not a named defendant to the injunction; however, on July 28, 1993, the trial court held a hearing on a motion for contempt against Lecher in response to her alleged activities at the above facilities on July 1 and 3, 1993. Lecher did not appear at the hearing. The City presented evidence in support of the motion of contempt and the trial court granted the motion. On September 16, 1993, the trial court issued an order and citation for contempt against Lecher, and on September 28, an order for Lecher's commitment was issued. On September 30, 1993, Lecher filed a motion to reopen the order that the trial court denied. Lecher appeals from the original order and citation for contempt.

Lecher alleges that the trial court erred in finding that she acted in concert with the named defendants to the permanent injunction, and therefore, the trial court erred when it granted the contempt order. Whether Lecher's actions constituted a contempt of court is a question within the discretion of the trial court. See Oliveto v. Circuit Court, --- Wis.2d ----, ----, 519 N.W.2d 769, 772 (Ct.App.1994). We will not reverse such a determination except in the case of a plain instance of mistake or an erroneous exercise of discretion. Id. In reviewing the determination, "we defer to the trial court's findings of fact, which will not be overturned unless they are 'clearly erroneous.' " Id. at ----, ----, 519 N.W.2d at 772, 775 n. 6. Additionally, the question of whether a non-party is acting in concert with a party to an injunction is a question of fact to be determined by the trial court. See Dalton v. Meister, 84 Wis.2d 303, 312, 267 N.W.2d 326, 331 (1978).

At the hearing on the motion for contempt, the City presented evidence of Lecher's allegedly violative activities on July 1 and 3. David Ritz testified that on July 1, 1993, he observed Lecher at the Planned Parenthood office counseling patients entering the office. He testified that Lecher was counseling within inches of the patients and within three feet of the doorway to the office. He also testified about photographs he took showing Lecher on July 1, 1993. He testified that the photographs showed Lecher counseling a patient within five feet of the office's doorway, and that he heard the patient state that she did not want counseling. He later testified that he did not see any of the named defendants to the permanent injunction at the office on July 1, 1993.

Ritz also testified that on July 3, 1993, he observed Lecher at the Imperial Health Center. He testified that he observed and photographed Lecher talking with Kim Warren, James Chinavare, and Matthew Trewhella, named defendants to the permanent injunction. He testified that Lecher blocked the path of a person entering the center while attempting to hand literature to the person. He also testified that Lecher was counseling within a few feet of a person attempting to enter the clinic and within twenty-five feet of the clinic's parking lot.

The court found Lecher in violation of the injunction on both July 1 and July 3, 1993. The order and citation for contempt stated in part:

4. On July 1, 1993, Linda Lecher violated the Permanent Injunction Order by walking with patient to the clinic door and counselling them at the Planned Parenthood located at 302 North Jackson. Linda Lecher acted in concert with James Chinavare who is a named defendant in this action;

5. On July 3, 1993, Linda Lecher...