NOW v. Operation Rescue
| Citation | 747 F. Supp. 772 |
| Decision Date | 31 July 1990 |
| Docket Number | Civ. A. No. 89-2968-LFO. |
| Parties | NOW, Plaintiffs, v. OPERATION RESCUE, Defendants. |
| Court | U.S. District Court — District of Columbia |
Laurence J. Eisenstein, Steven Semeraro, Richard H. Seamon, Covington & Burling, Sarah E. Burns, Alison Wetherfield, NOW Legal Defense & Educ. Fund, Washington, D.C. and New York City, for plaintiffs.
C. Peter Thomas S. Cornell, Amshoff & Amshoff, Louisville, Ky., for Operation Rescue and Randall Terry.
Richard L. Swick, Washington, D.C., for D.C. Project, Susan Odom, Project Rescue, and Clifford Gannett.
Jay Allan Sekulow, Atlanta, Ga., for Veterans Campaign for Life, Michael McMonagle, Rev. Patrick J. Mahoney, Joseph Foreman, and James M. Henderson, Jr.
Pursuant to a Preliminary Injunction entered on November 8, 1989, plaintiffs filed a petition seeking contempt sanctions against defendants Operation Rescue, Project Rescue, Clifford Gannett, Patrick Mahoney, and Michael McMonagle, and respondents Joseph Foreman and Susan Odom. An evidentiary hearing was held on May 15-18, 1990. For the reasons stated below, an accompanying Order will cite Operation Rescue, Patrick Mahoney, Clifford Gannett, Joseph Foreman, and Susan Odom for civil contempt of the November 8, 1989 injunction.
On November 8, 1989, the Court issued a Preliminary Injunction that, inter alia, prohibited Operation Rescue, Patrick Mahoney, Clifford Gannett, "and persons acting in concert with them" from "trespassing on, blockading, impeding or obstructing access to or egress from" various named clinics at which abortions and other family planning services were performed. See NOW v. Operation Rescue, 726 F.Supp. 300, 305 (D.D.C.1989). The injunction also enjoined such parties from "inducing, encouraging, or directing others" to engage in prohibited activity. See id. The preliminary injunction was amended on November 9, 1989 to cover certain additional clinics. As amended, the injunction covered the Hillcrest Women's Surgi-Center ("Hillcrest Clinic"), the Washington Surgi-Clinic, and the Capitol Women's Center, among others.
On January 26, 1990, a Permanent Injunction was issued. The Permanent Injunction prohibited the same conduct, but covered clinics throughout the District of Columbia. In ruling in favor of plaintiffs on the merits, the Court found that defendants had conspired together to plan physical blockades of clinics in the District of Columbia during November 11-18, 1989.
Based on the November 1989 blockades, plaintiffs sought a finding of civil contempt, and a hearing was held on May 15-18, 1990. Defendants Operation Rescue, Randall Terry, Project Rescue, and Clifford Gannett were represented by counsel at that hearing. Defendant Patrick Mahoney appeared pro se. Defendant Michael McMonagle and respondents Joseph Foreman and Susan Odom neither appeared nor were represented by counsel at the hearing. Plaintiffs presented testimony from eleven witnesses, as well as deposition testimony of two persons and one affidavit in lieu of testimony. Plaintiffs introduced thirty-six exhibits into evidence, including a video tape showing scenes from the November blockades. Patrick Mahoney testified on his own behalf and introduced one exhibit. None of the other defendants, however, produced any evidence.
As an initial matter, defendants Clifford Gannett and Project Rescue have argued that they are being subjected to criminal rather than civil contempt proceedings because the sanctions sought by plaintiffs are punitive in nature. The distinction between civil and criminal contempt was summarized by the Second Circuit:
The two species of contempt are distinguished by determining the purpose for which a sanction was imposed. A sanction imposed to compel obedience to a lawful court order or to provide compensation to a complaining party is civil. A sanction imposed to punish for an offense against the public and to vindicate the authority of the court, that is, not to provide private benefits or relief, is criminal in nature.
New York State NOW v. Terry, 886 F.2d 1339, 1350-51 (2d Cir.1989) (citations omitted). Civil contempt sanctions, therefore, may be imposed for two reasons: (1) to compensate an aggrieved party for damages resulting from the contempt; and (2) to coerce future compliance with the injunction. Compensatory sanctions may include attorneys fees. See Hutto v. Finney, 437 U.S. 678, 689 n. 14, 98 S.Ct. 2565, 2573 n. 14, 57 L.Ed.2d 522 (1978). Coercive contempt sanctions must be conditional, i.e. the contemnor must be able to avoid the sanctions by purging himself of the contempt. See C. Wright & A. Miller, Federal Practice and Procedure § at 586 (quoting Lance v. Plummer, 353 F.2d 585, 592 (5th Cir.1965), cert. denied, 384 U.S. 929, 86 S.Ct. 1380, 1445, 16 L.Ed.2d 532 (1966)).
The sanctions sought by plaintiffs fall within these parameters. Plaintiffs seek only (1) compensation for damages caused by the contempt, (2) attorneys fees incurred as a result of the contempt proceedings, and (3) future fines designed to coerce compliance with the permanent injunction. These proceedings, therefore, are civil in nature.
Defendants Gannett and Project Rescue also challenge the validity of the preliminary injunction they are alleged to have violated. Such a challenge is inappropriate in a contempt proceeding. Although an adjudication of civil contempt will fall if the underlying injunction is subsequently held invalid, that does not authorize the alleged contemnor to challenge the validity of the injunction at the contempt hearing. See, e.g., Pennhurst State School & Hosp., 673 F.2d 628, 637 (3d Cir.1982) (stating the "settled rule that the merits of the underlying order may not be called into question in a post-judgment civil contempt proceeding" (citing Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173, 73 L.Ed. 419 (1929).
Defendants are entitled to challenge this court's jurisdiction to enter the preliminary injunction. See Commodity Futures Trading Comm. v. Nahas, 580 F.Supp. 245 (D.D.C.), vacated, 738 F.2d 487 (D.C.Cir. 1983). Any jurisdictional challenge, however, is groundless. In issuing the preliminary injunction, this court exercised pendent jurisdiction based on a finding that plaintiffs' "federal claims are not insubstantial." See NOW, 726 F.Supp. at 304. That finding has been borne out by subsequent proceedings as plaintiffs have prevailed on their federal claims in this case, as well as in related cases. See Memorandum, today; NOW v. Operation Rescue, 726 F.Supp. 1483 (E.D.Va.1989).
The relevant legal standards for this civil contempt proceeding are not in dispute. Movants for civil contempt must show by clear and convincing evidence that a court order has been violated. See, e.g., Washington-Baltimore Newspaper v. Washington Post, 626 F.2d 1029, 1031 (D.C.Cir.1980). The violation need not be intentional or willful: "the intent of the recalcitrant party is irrelevant." N.L.R.B. v. Blevins Popcorn Co., 659 F.2d 1173, 1184 (D.C.Cir.1981).
Movants need not show that parties sought to be held in contempt had actual notice of the order. See Fed.R.Civ. Proc. 65(b); Dole Fresh Fruit Co. v. United Banana Co., 821 F.2d 106, 109 (2d Cir. 1987). In contrast, movants must show that any non-parties sought to be held in contempt had notice of the order. See Douglas v. First National Realty Corp., 543 F.2d 894, 897 (D.C.Cir.1976). In proving notice, it is not necessary to show formal service of the order on the non-party. See Fed.R.Civ.Proc. 65(d). Moreover, notice may be proved from circumstantial evidence. See Douglas, 543 F.2d at 897.
Plaintiffs have submitted proposed findings of fact with supporting citations to the evidentiary record. Although defendants have responded to plaintiffs' proposed findings, defendants have not submitted alternative proposed findings, nor have they materially traversed most of the findings proposed by plaintiffs. Narrative findings in favor of plaintiffs follow.
There is no dispute that the alleged contemnors had either actual or constructive notice of the injunction. As parties to the underlying case, Operation Rescue, Project Rescue, Clifford Gannett, Patrick Mahoney, and Michael McMonagle are presumed to have notice of the preliminary injunction. Moreover, Joseph Foreman and Susan Odom both admitted that they are national leaders of Operation Rescue. Accordingly, knowledge of the injunction must be imputed to them. See Dole Fresh Fruit, 821 F.2d at 109 ().
The Preliminary Injunction was premised upon a finding that defendants planned to conduct blockades on certain unspecified abortion clinics on November 11, 17, and 18, 1989. See NOW v. Operation Rescue, 726 F.Supp. 300, 301 at ¶ 2. Defendants indeed carried out the threatened blockades. On November 11, 1989, a blockade took place at the Hillcrest Clinic, blocking all access to the clinic for several hours. Blockades also occurred on November 17, 1989 at the Washington Surgi-Clinic and at the Capital Women's Center, blocking all access to the clinics and cutting off traffic on surrounding streets.
Plaintiffs have demonstrated by clear and convincing evidence that Operation Rescue, Clifford Gannett, Michael McMonagle, Joseph Foreman, and Susan Odom violated the Preliminary Injunction at the November 1989 blockades and, therefore, should be held in contempt. Plaintiffs have not, however, provided clear and convincing evidence that Patrick Mahoney violated the Preliminary Injunction. In addition, in a separating ruling on plaintiffs' motion for summary judgment, this Court found, based on principles of res judicata, that Project Rescue is not a suable entity. See Memorandum. Project Rescue, therefore, cannot be found in contempt.
The following findings are based on clear and convincing evidence:
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