People of State of N.Y. by Vacco v. Operation Rescue Nat.

• Decision Date: 29 March 1996
• Docket Number: D,260,Nos. 259,s. 259
• Citation: 80 F.3d 64
• Parties: PEOPLE of the State of New York, by Dennis C. VACCO, Attorney General of the State of New York, Plaintiff-Appellee, v. OPERATION RESCUE NATIONAL; Randall Terry; Keith Tucci; Youth for America; Missionaries to the Pre-Born; Joseph Foreman; John and Jane Does; Patrick Mahoney; B.O.R.N., Defendants, Raymond Mylott, Respondent, Daniel Brusstar; Norman Weslin; John Dunkle; Mary L. Biltz; E.J. Gannon; Carol M. Hagen; Michael J. Henry; Clarence Hinke; Colin Hudson; Ethel Norton; Edward Sauley; Lola Yellico; James Yonan, Respondents-Appellants, United States of America, Creditor-Appellee, John. J. Broderick, Esquire, Appellant. ockets 94-7947, 94-9039.
• Court: U.S. Court of Appeals — Second Circuit

Page 64

80 F.3d 64

34 Fed.R.Serv.3d 1334

PEOPLE of the State of New York, by Dennis C. VACCO Attorney General of the State of New York Plaintiff-Appellee, v. OPERATION RESCUE NATIONAL; Randall Terry; Keith Tucci Youth for America; Missionaries to the Pre-Born Joseph Foreman; John and Jane Does; Patrick Mahoney; B.O.R.N., Defendants, Raymond Mylott, Respondent, Daniel Brusstar; Norman Weslin; John Dunkle; Mary L. Biltz; E.J. Gannon; Carol M. Hagen; Michael J. Henry; Clarence Hinke; Colin Hudson; Ethel Norton; Edward Sauley; Lola Yellico; James Yonan, Respondents-Appellants, United States of America, Creditor-Appellee, John. J. Broderick, Esquire, Appellant.

Nos. 259, 260, Dockets 94-7947, 94-9039.

United States Court of Appeals, Second Circuit.

Argued Oct. 18, 1995.

Decided March 29, 1996.

Appeal from judgments entered August 11, 1994 in the United States District Court for the Southern District of New York, Robert J. Ward, Judge, that held respondents-appellants in civil contempt of an injunction of the court and awarded injunctive relief, compensatory damages, and attorney fees, and from an order entered August 11, 1994 that assessed a monetary sanction against appellant John J. Broderick.

Joseph P. Secola, New Milford, Connecticut (McCarthy & Secola, The Rutherford Institute of Connecticut, of counsel), for Respondents-Appellants.

A. Lawrence Washburn, Jr., New York City, for Respondents-Appellants and Appellant.

Sooknam Choo, Assistant Attorney General of the State of New York, New York City (Dennis C. Vacco, Attorney General, Victoria A. Graffeo, Solicitor General, Barbara A. Mehlman, Assistant Attorney General, of counsel), for Plaintiff-Appellee.

Edward Scarvalone, Assistant United States Attorney for the Southern District of New York, New York City (Mary Jo White, United States Attorney, Steven M. Haber, Assistant United States Attorney, of counsel), for Creditor-Appellee.

Before: MESKILL, MAHONEY, and WALKER, Circuit Judges.

MAHONEY, Circuit Judge:

Respondents-appellants Daniel Brusstar, Norman Weslin, John Dunkle, Mary L. Biltz, E.J. Gannon, Carol M. Hagen, Michael J. Henry, Clarence Hinke, Colin Hudson, Ethel Norton, Edward Sauley, Lola Yellico, and James Yonan ("Respondents") appeal from judgments entered August 11, 1994 in the United States District Court for the Southern District of New York, Robert J. Ward, Judge, that adjudicated them in civil contempt of a prior preliminary injunction of that court, awarded injunctive relief, compensatory damages, and attorney fees against all of the Respondents, and also assessed a civil contempt fine against Sauley. Respondents contend that they were not proper parties to the contempt proceeding because none of them are named in, or were acting in concert with anybody who is named in, the prior preliminary injunction. Respondents further contend that plaintiff-appellee the State of New York ("New York") lacked standing to recover the compensatory damages awarded by the district court. In addition, Sauley challenges the district court's calculation of his pro rata share of costs and attorney fees.

Appellant John J. Broderick was counsel for Respondents, except Brusstar, at the proceedings below. He appeals from an order of the district court entered August 11, 1994 that assessed a $2,500 sanction against him pursuant to 28 U.S.C. § 1927 and the district court's inherent powers. The district court sanctioned Broderick after Broderick insisted upon playing certain videotaped evidence in open court despite the court's repeated admonitions that the evidence was cumulative and wasteful of the court's time. Because Broderick was directed to make payment to the United States, the United States joins in this appeal as creditor-appellee.

We affirm the district court's determination that Respondents are proper parties to this proceeding, and therefore affirm the injunctive relief entered against them. However, we find that New York lacked standing to recover compensatory damages on behalf of nonparty entities injured by Respondents' conduct, and accordingly vacate the award of damages and remand for recalculation of attorney fees. Finally, we affirm the district court's sanction against Broderick.

Background

A. The Contempt Proceeding.

This case involves violations of a preliminary injunction issued in the district court on July 13, 1992 (the "1992 Injunction") in the underlying action, which was brought by the Attorney General of the State of New York against defendants Operation Rescue National, Randall Terry, Keith Tucci, Youth for America, Missionaries to the Pre-Born, Joseph Foreman, Patrick Mahoney, John and Jane Does, and the Bi-State Operation Rescue Network ("B.O.R.N.") (collectively the "Enjoined Parties"), and alleged that their anti-abortion protest activity violated 42 U.S.C. § 1985(3) and New York law. The 1992 Injunction restrained the Enjoined Parties, their "officers, directors, agents, and representatives ..., and all other persons known or unknown, acting in their behalf or in concert with them," from, inter alia, "trespassing on, [or] blocking or obstructing ... ingress into or egress from any facility ... at which abortions are performed in New York City and in all locations within the Southern District of New York." ¹

The instant contempt proceeding arose out of two anti-abortion protests on October 9, 1993 and June 28, 1994, at which Respondents and Raymond Mylott ² participated in physical blockades of the Women's Medical Pavilion (the "Pavilion"), a facility at which abortions are performed that is located within the Southern District of New York in the Village of Dobbs Ferry (the "Village"). In connection with the October 9, 1993 protest, Respondents, except Brusstar, were arrested, tried, and convicted of state law offenses, including trespass and disorderly conduct. In connection with the June 28, 1994 protest, Respondents, with the exception of Brusstar and Dunkle, were once again arrested, tried, and convicted of violations of state law, including disorderly conduct, trespass, and criminal contempt.

On July 1, 1994, New York moved by order to show cause in the district court for an order holding Respondents in contempt of the 1992 Injunction pursuant to 18 U.S.C. § 401, Rule 70 of the Federal Rules of Civil Procedure, and Rule 43 of the Civil Rules of the United States District Court for the Southern District of New York. ³ New York sought "civil damages" in the amount of $75,000 against each of the Respondents, plus costs, attorney fees, and other just and proper relief. ⁴

A hearing was held on July 26-28, 1994 at which Respondents (except Sauley, who had entered into a settlement with New York, and Brusstar, who had been found in default after failing to appear), were adjudicated in civil contempt. ⁵ The district court found that Respondents had received notice of the 1992 Injunction when it was read aloud to them by an officer of the Dobbs Ferry Police Department during the October 9, 1993 protest, and that Respondents had acted in concert with Brusstar. The court determined that Brusstar was either an officer of B.O.R.N., an unincorporated association named in the 1992 Injunction, or an officer of LIFE, B.O.R.N.'s "successor organization."

The court granted injunctive relief that substantially incorporated the terms of the 1992 Injunction, declined to impose fines, and awarded $45,523.11 in compensatory damages against Respondents jointly and severally, representing costs incurred by the Pavilion and the Village as a result of the October 9, 1993 and June 28, 1994 protests. The district court also awarded New York costs and reasonable attorney fees, which the court subsequently determined to be $2,847.54 against each Respondent except Sauley, and $1,982.79 against Sauley. See New York by Koppell v. Operation Rescue Nat'l, No. 92 CIV. 4884 (RJW), 1994 WL 517457 (S.D.N.Y. Sept. 21, 1994) (" Koppell I "). The court stayed enforcement of the judgment for thirty days, and offered to extend the stay indefinitely if Respondents made and kept a sworn pledge not to engage, anywhere in New York, in conduct that violated the 1992 Injunction as incorporated in the court's judgment.

B. Sauley's Settlement.

Prior to the start of the contempt trial, by letter dated July 11, 1994, Sauley made an offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure. ⁶ Sauley offered to pay $15,000 as the "monetary portion of judgment," and to accept (1) a $2,000 suspended coercive fine and (2) injunctive relief in accordance with the 1992 Injunction except for provisions thereof "no longer relevant." Sauley's letter declared that he would seek to vacate the judgment pursuant to Rule 60 of the Federal Rules of Civil Procedure in the event that a court invalidated the 1992 Injunction. By letter dated July 20, 1994, New York rejected Sauley's offer, asserting that Sauley's reservation of his right to seek relief pursuant to Rule 60 rendered his offer of judgment "a nullity."

On July 26, 1994, Sauley made a second offer in open court, this time accepting liability for up to $15,000 in compensatory damages and submitting to a $10,000 suspended coercive fine and injunctive relief. New York accepted Sauley's offer, and the district court subsequently entered judgment against him. The judgment paralleled that entered against the other Respondents, except that Sauley's share of the joint and several liability was limited to $15,000 and Sauley was assessed a fine in the agreed amount. The district court stayed the fine, and provided that it would be "vacated and expunged in its entirety" if Sauley complied with the injunctive portion of the judgment for three years or until the 1992 Injunction or any successor injunction expired, whichever first occurred. ⁷

In assessing fees and costs against Respondents, the district court found Sauley responsible for his pro rata share of fees and costs incurred up until July 26, 1994,...