Powell v. Ward

• Decision Date: 05 January 1993
• Docket Number: 0873-91-1,Nos. 0872-91-1,s. 0872-91-1
• Citation: 15 Va.App. 553,425 S.E.2d 539
• Parties: William POWELL v. Dr. Horace G. WARD, et al. Raelle Wise MADRID v. Dr. Horace G. WARD, et al. Record
• Court: Virginia Court of Appeals

Page 539

425 S.E.2d 539

15 Va.App. 553

William POWELL v. Dr. Horace G. WARD, et al.

Raelle Wise MADRID v. Dr. Horace G. WARD, et al.

Record Nos. 0872-91-1, 0873-91-1.

Court of Appeals of Virginia.

Jan. 5, 1993.

Peter A. Cotorceanu, Williamsburg (Knicely & Cotorceanu, on briefs), for appellants.

Linda S. Laibstain, Norfolk (Hofheimer, Nusbaum, McPhaul & Samuels, on brief), for appellees.

Present: BAKER, BRAY and FITZPATRICK, JJ.

FITZPATRICK, Judge.

William Powell and Raelle Wise Madrid (appellants) were convicted of criminal contempt for violation of a permanent prohibitory injunction and sentenced to serve a term of thirty days in the Norfolk City Jail. On appeal, they contend that: (1) their actions did not constitute contempt; (2) they were entitled to a jury trial; (3) the trial judge erred in finding that William Powell, who was not a named party to the original injunction, acted in concert with others who were parties to the injunction; and (4) that the trial judge erred in imposing convictions for criminal contempt in a civil proceeding. We find the appellants' first three grounds for appeal to be without merit. We agree, however, that the trial court improperly imposed criminal contempt sanctions in a civil proceeding and, therefore, we reverse the convictions.

BACKGROUND

The permanent injunction entered by the trial court on December 8, 1989 enjoined the named defendants and anyone acting in concert with them from:

(a) Trespassing on, sitting in, blocking, impeding or obstructing ingress into or egress from the Hillcrest Clinic, including demonstrating or picketing on the private property in and around the Bel Aire Building or obstructing the public driveways leading thereto;

(b) Physically abusing or tortiously harassing persons entering or leaving (c) Attempting or directing others to take any of the actions described in paragraphs (a) and (b) above,

working at or using any services at the Hillcrest Clinic; or

The injunction was intended to curtail unlawful interference with the operation of the Hillcrest clinic and to prevent unlawful harassment of the clinic's patrons and staff by anti-abortion protesters. In practice, the injunction was designed to keep demonstrators on or beyond the public sidewalk, and to enjoin them from trespassing upon the Bel Aire building's private property. The permanent injunction was entered by consent and the appropriateness of the injunction itself is not challenged in this appeal.

CONTEMPTUOUS CONDUCT

The evidence shows that the appellants trespassed upon the Bel Aire building's private property and unlawfully harassed and impeded the progress of clinic patrons exiting their automobiles. Madrid admitted that she came onto the Bel Aire parking lot many times for the purpose of intercepting people going to the clinic. The fact that patrons tried to avoid Madrid by running from their cars to the clinic is a further example of her interference with their progress toward the building.

After Powell received a copy of the injunction in February 1991, he continued to approach cars as they entered the parking lot and attempted to talk to the occupants and present them with anti-abortion literature. He admitted that he would trespass upon the posted Bel Aire property carrying roses and anti-abortion literature. As patrons of the clinic walked across the parking lot, he would continue to talk to them despite their indications that they did not want to speak with him or accept his anti-abortion literature.

In addition, there is overwhelming evidence to support the trial judge's finding that Powell acted in concert with other individuals named as defendants in the injunction; that he had actual knowledge of the injunction; and that agents of the owner of the Bel Aire building informed him that he was trespassing. Therefore, the appellants undeniably violated the injunction.

The appellants argue that the injunction did not prohibit trespassing on the private property surrounding the clinic. We reject their strained construction of the terms of the injunction. The proscriptions of the injunction cannot be read in isolation. See United States v. McAndrew, 480 F.Supp. 1189 (E.D.Va.1979). The words "demonstrating or picketing" follow the word "including," which is merely a clarification of other activities. The prohibited activities of trespassing, sitting in, blocking, impeding or obstructing ingress to or egress from the Hillcrest Clinic also include the activities of demonstrating or picketing. Furthermore, as appellants concede, activities which constitute impeding or obstructing access to the Bel Aire building violate the injunction. Accordingly, we find that the injunction is clear and unambiguous, and that the appellants knowingly violated its terms.

ACTING IN CONCERT WITH NAMED DEFENDANTS

In Rollins v. Commonwealth, 211 Va. 438, 177 S.E.2d 639 (1970), the Supreme Court of Virginia defined the requirements necessary for finding a non-party to an injunction amenable to its terms. A non-party must have actual notice or knowledge of the injunction, and the evidence must show that the non-party violated the terms of the injunction while acting as an agent of or in concert with one or more of the named defendants. Id. at 442, 177 S.E.2d at 642-43.

The requirements set forth in Rollins are satisfied in this case. Powell had actual notice and knowledge of the injunction. The appellants concede that Ms. Collins, an employee of the clinic, handed Powell a copy of the injunction on February 23, 1991. Upon receipt, he conferred with Mr. Crane, Mr. Amici, and Mr. Ganas, all of whom were named parties to the injunction. In addition, Powell was warned on numerous occasions that he was trespassing Our standard for reviewing the sufficiency of the evidence is firmly established. The judgment of a trial court, sitting without a jury, is entitled to the same weight as a jury verdict and will not be set aside unless it appears to be plainly wrong or without evidence to support it. Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). We find no error in the trial court's determination that Powell acted in concert with others named as defendants in the injunction and that their actions were coordinated to prevent women from getting abortions at the clinic.

on the Bel Aire's private property. The evidence shows that Powell engaged in illegal activities on Bel Aire property with Mr. Crane and others since September 8, 1990. The fact that many of the named defendants remained on public property, adjacent to the private property upon which they were forbidden to trespass, does not overcome the strong evidence that Powell acted in concert with the named defendants.

THE RIGHT TO TRIAL BY JURY

The appellants argue that their conviction for criminal contempt must be reversed because they were denied their right to a jury trial. We disagree. In Yoder v. Commonwealth, the Supreme Court of Virginia noted that:

the general rule was, that no person could be deprived of his property or his liberty except by the judgment of his peers. To this rule, however, there was an exception, and in cases of contempt the offender could be attached, brought at once before the court and punished without the intervention of a jury.

107 Va. 823, 827-28, 57 S.E. 581, 583 (1907). In Nicholas v. Commonwealth, the Court again observed that " '[t]here has been general recognition of the fact that the courts are clothed with [the power to punish for contempt], and must be authorized to exercise it without referring the issues of fact or law ... to a jury.' " 186 Va. 315, 321, 42 S.E.2d 306, 309 (1947) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 501, 55 L.Ed. 797 (1911)). "We recognize, however, that the unbridled authority of courts to punish for criminal contempt in the absence of a jury is limited to 'petty contempts,' with a penalty not exceeding six months. Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 2701, 41 L.Ed.2d 897 (1974); Bloom v. Illinois, 391 U.S. 194, 210, 88 S.Ct. 1477, 1486, 20 L.Ed.2d 522 (1968); see Greene v. Tucker, 375 F.Supp. 892 (E.D.Va.1974)." Baugh v. Commonwealth, 14 Va.App. 368, 374, 417 S.E.2d 891, 895 (1992). In this case, the trial court sentenced each appellant to thirty days in jail. Under these facts, they did not have a right to a jury trial.

CRIMINAL CONTEMPT PROCEDURES

Finally, the appellants challenge their conviction for criminal contempt because the proceedings were civil in nature and the trial judge failed to follow the proper procedures for a criminal contempt trial. The evidence shows that the trial court did not: (1) adequately articulate the nature of the proceedings at the commencement of the hearing; (2) transfer the matter to the law side of the court; and (3) restyle the case and allow the Commonwealth to intervene and prosecute the action.

In Bagwell v. International Union, United Mine Workers of America, the Supreme Court explained the different types of contempt and the various options a trial court has...