NY State Nat. Organization for Women v. Terry, 88 Civ. 3071 (RJW).

Decision Date27 October 1988
Docket NumberNo. 88 Civ. 3071 (RJW).,88 Civ. 3071 (RJW).
Citation697 F. Supp. 1324
PartiesNEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN; New York City Chapter of the National Organization for Women; National Organization for Women; Religious Coalition for Abortion Rights-New York Metropolitan Area; New York State National Abortion Rights Action League, Inc.; Planned Parenthood of New York City, Inc.; Eastern Women's Center, Inc.; Planned Parenthood Clinic (Bronx); Planned Parenthood Clinic (Brooklyn); Planned Parenthood Margaret Sanger Clinic (Manhattan); OB-GYN Pavilion; the Center for Reproductive and Sexual Health; VIP Medical Associates; Bill Baird Institute (Suffolk); Bill Baird Institute (Nassau); Dr. Thomas J. Mullin; Bill Baird; Reverend Beatrice Blair; Rabbi Dennis Math; Reverend Donald Morlan; and Pro-choice Coalition, Plaintiffs, and City of New York, Plaintiff-Intervenor, v. Randall TERRY; Operation Rescue; Reverend James P. Lisante; Thomas Herlihy; John Doe(s) and Jane Doe(s), 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.
CourtU.S. District Court — Southern District of New York

COPYRIGHT MATERIAL OMITTED

Center for Constitutional Rights, New York City (David Cole, Joan Gibbs, Rhonda Copelon, of counsel), Now Legal Defense and Educ. Fund, New York City (Alison Wetherfield, Sarah Burns, of counsel), Rabinowitz, Boudin, Standard, Krinsky & Lieberman, New York City (Judith Levin, of counsel), for plaintiffs.

Corporation Counsel for the City of New York, New York City (Peter Zimroth, Lorna Goodman, Hilary Weisman, of counsel), for plaintiff-intervenor.

Michael E. Tierney, New York City, A. Lawrence Washburn, Albany, N.Y., for defendants.

OPINION

ROBERT J. WARD, District Judge.

Plaintiffs brought the instant motion for civil contempt pursuant to 18 U.S.C. § 401 and Rule 70, Fed.R.Civ.P., claiming that defendants had violated this Court's order prohibiting the blocking of access to medical facilities where abortions are performed. Defendants have cross-moved to dismiss the complaint, pursuant to Rule 12(b)(6), Fed.R.Civ.P., on the ground that plaintiffs and plaintiff-intervenor lack standing to bring the action.

For the reasons that follow, plaintiffs' motion for civil contempt is granted and defendants' cross-motion to dismiss is denied.

BACKGROUND

Plaintiffs commenced this action in New York State Supreme Court on April 25, 1988, seeking injunctive and declaratory relief.1 Defendants had organized and publicized a week of protests called Operation Rescue to be carried out in the New York City area from April 30 until May 7, 1988.2 According to the plan, protestors each day would converge on a facility at which abortions were performed in an effort to close down the facility. The target facility each day was not to be disclosed in advance.

By order to show cause plaintiffs sought to enjoin defendants, for the duration of the planned Operation Rescue, from obstructing access to any facility at which abortions were performed in New York City ("the City") and the surrounding counties. Justice Cahn of the New York State Supreme Court, New York County, issued a first temporary restraining order on April 28, 1988. This order did not contain language specifically prohibiting the blocking of access to clinics.

It is undisputed that on May 2, 1988, Operation Rescue conducted a demonstration in front of a physician's office at 154 East 85th Street in Manhattan, where abortions are performed. Five hundred and three protestors sat on the sidewalk in front of the office for at least five hours, and the police arrested these 503 demonstrators for disorderly conduct in blocking ingress to and egress from the office. Statement of Stipulated Facts, filed May 4, 1988 ¶ 1.

Justice Cahn held another hearing on the afternoon of May 2, 1988, in view of defendants' conduct at the demonstration earlier that day. At the conclusion of the hearing, Justice Cahn issued a second, modified temporary restraining order. Id. ¶ 2. This second order included an express prohibition against the blocking of access to facilities where abortions are performed.3

Operation Rescue conducted a demonstration on the morning of May 3, 1988, in front of a clinic at 83-06 Queens Boulevard, Queens, New York. Defendant Terry was present at the demonstration in a leadership capacity and was personally served with Justice Cahn's order at approximately 9:00 a.m. The demonstration continued after Terry was served with the order. The police arrested several hundred demonstrators for blocking ingress to and egress from the clinic, and the sidewalk was cleared by approximately 11:45 a.m. Id. ¶¶ 3, 10.

On the afternoon of May 3, 1988, Justice Cahn conducted a further hearing on the matter, during the course of which defendants removed the action to this Court. This Court scheduled a hearing to be conducted in the late afternoon of the following day, May 4, 1988. Apparently, no demonstration was carried out on the morning of May 4.

After argument by the parties, this Court ruled on Wednesday evening, May 4, 1988, that it would adopt and continue Justice Cahn's May 2 order and would modify it by (1) adding coercive sanctions of $25,000 for each day that defendants violated the terms of the order; and (2) requiring defendants to notify the City in advance of the location of any demonstrations, and providing that if such notice was not provided, defendants would be liable for the City's excess costs incurred due to the lack of notice ("the Order" or "the May 4 Order"). Defendant Terry received oral notice of this Court's action from his attorney on the evening of May 4. Second Statement of Stipulated Facts, filed July 19, 1988 ¶ 1.4

This Court signed the Order on the morning of May 5, 1988, and defendants' counsel moved the next day by order to show cause to vacate the Order for failure to comply with Rule 65(c), Fed.R.Civ.P. The motion to vacate was denied on May 6, and the Court of Appeals for the Second Circuit on the same day denied defendants' application to stay the Order pending expedited appeal. Id. ¶ 2.

On Thursday morning, May 5, 1988, Operation Rescue demonstrators sat on the sidewalk in front of the Women's Choice Clinic, where abortions are performed, at 17 W. John Street, Hicksville, Long Island. The demonstrators blocked ingress to and egress from the clinic for approximately three hours. Id. ¶ 3.

On Friday morning, May 6, 1988, "Operation Rescue" demonstrators returned to the same site where they had demonstrated on Monday, at 154 East 85th Street, Manhattan, blocking access to the office. Id. ¶ 4. Defendant Terry personally participated in physically blocking access to the abortion facility during the May 6 demonstration and was arrested. Third Statement of Stipulated Facts, filed July 26, 1988 ¶ 5. Approximately 320 Operation Rescue demonstrators were arrested at the May 6 demonstration. Id. ¶ 7.

At no time after he received notice of the May 4 Order did defendant Terry direct demonstrators to obey the Order, nor did he at any time alter his prior written instructions to Operation Rescue participants that their goal must be to block access to abortion facilities. At the May 6 demonstration, defendant Terry did communicate to demonstrators the terms of the Court's Order. Id. ¶ 6. The City did not receive advance notice of the location of the demonstrations on May 5 or May 6. Second Statement of Stipulated Facts, filed July 19, 1988 ¶ 5.

On May 31, 1988, plaintiffs filed a motion for civil contempt against all defendants, pursuant to 18 U.S.C. § 401 and Rule 70, Fed.R.Civ.P. In their papers opposing plaintiffs' motion and in their cross-motion to dismiss, defendants present several arguments to support their contention that they cannot properly be held in contempt of this Court's May 4 Order or of Justice Cahn's May 2 order prohibiting the blocking of access to abortion facilities. In their cross-motion to dismiss, defendants raise the issue of plaintiffs' standing to maintain this action. In addition, defendants have asserted, in connection with ongoing discovery disputes, that the instant proceeding is in fact in the nature of a criminal contempt action, not a civil contempt action. Therefore, defendants argue, they are entitled to certain procedural protections that they have not been afforded, and the action must be pursued by a disinterested prosecutor rather than by plaintiffs.

The Court concludes that defendants' arguments are without merit. Accordingly, the Court holds that defendants Operation Rescue and Randall Terry are jointly and severally liable for $50,000 in civil contempt sanctions to be paid to plaintiff National Organization for Women. In addition, defendants Operation Rescue and Randall Terry are jointly and severally liable to plaintiff-intervenor the City of New York for the excess costs incurred by it due to the lack of advance notice of the location of the May 5 and May 6 demonstrations.

DISCUSSION

The Court will first take up the contempt issue, and will then discuss plaintiffs' standing to maintain this action.

A. Contempt

An individual who refuses obedience to a valid order is subject to both civil and criminal contempt penalties for the same acts. United States v. Petito, 671 F.2d 68, 72 (2d Cir.), cert. denied, 459 U.S. 824, 103 S.Ct. 56, 74 L.Ed.2d 60 (1982) (citing Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 133, 2 L.Ed.2d 95 (1957)); Accord S.E. C. v. American Bd. of Trade, Inc., 830 F.2d 431, 439 (2d Cir.1987).

In In re Weiss, 703 F.2d 653 (2d Cir. 1983), the Court of Appeals for the Second Circuit set forth the range of remedies available when a court is confronted with disobedience of an...

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