State v. Linsky

• Decision Date: 31 October 1977
• Docket Number: No. 7684,7684
• Parties: The STATE of New Hampshire v. Neil A. LINSKY, Stephen H. Roth, Jay H. Adams, Michael C. Cushing, Robert R. Cushing, Jr., Mary F. Gregory, Medora Hamilton, Kevin J. Hopkins, Ann Carol Riley, Brian Cullen.
• Court: New Hampshire Supreme Court

Page 813

379 A.2d 813

117 N.H. 866

The STATE of New Hampshire v. Neil A. LINSKY, Stephen H. Roth, Jay H. Adams, Michael C. Cushing, Robert R. Cushing, Jr., Mary F. Gregory, Medora Hamilton, Kevin J. Hopkins, Ann Carol Riley, Brian Cullen.

No. 7684.

Supreme Court of New Hampshire.

Oct. 31, 1977.

David H. Souter, Atty. Gen., and Edward A. Haffer, Asst. Atty. Gen., for the State.

Rosenberg, Baker & Fine, Boston, Mass., and Brown & Nixon, Manchester, and Kearns & Colliander, Exeter (David W. Rosenberg, Boston, Mass., and David L. Nixon, Manchester, orally), for the defendants.

LAMPRON, Justice.

On July 29, 1976, Properties, Inc. and Public Service Company of New Hampshire petitioned the Rockingham County Superior Court for an injunction. The plaintiffs who are in the process of constructing a nuclear power plant in Seabrook were thereby attempting to prevent a demonstration against the power plant from occurring on the construction site. The superior court denied the petition without prejudice on July 30, 1976.

On August 20, 1976, the above plaintiffs joined by certain labor unions, whose members are employed in the construction of the plant, filed a motion to amend and bring forward the July 29, 1976 petition. In that petition plaintiffs Properties and Public Service had alleged that certain groups were planning to enter and occupy the described nuclear plant site on August 1, 1976, in sufficient numbers to stop its construction. The amended petition of August 20, 1976, additionally alleged in part that since June 1976, numerous Public Service offices and substation sites in the area of the nuclear plant had been victimized and vandalized and no trespassing signs on the plant site had been torn down and destroyed. On August 1, 1976, approximately 50 persons, among whom were the defendants, had approached the site via a B & M Railroad right-of-way and conducted themselves in such a manner "as to hinder and impede the criminal justice system."

The amended petition also alleged that on August 5, 1976, at a ground breaking ceremony on the site, a large group of demonstrators had blocked traffic upon a public way creating a danger to themselves and to persons traveling to and from the site. It was also alleged that the defendants were planning a large rally at about 1:00 p. m. on August 22, 1976, at Hampton Falls Common, and thereafter planned to occupy the site with 200 to 400 people. The goal of all these incidents being to impede the construction of the plant by acts of civil disobedience (See RSA 635:2) and to clog the court dockets to render the criminal justice system ineffective.

On August 20, 1976, the Superior Court (Bois, J.) granted plaintiffs' motion to amend and bring forward the prior petition. On the same date the court also granted ex parte plaintiffs' prayer for a temporary injunction enjoining and restraining the defendants from entering upon the site of the plant without the express permission of the Public Service; occupying the site; obstructing the entrance or exit of any person to or from the site; destroying or damaging any property of plaintiffs or of any other person lawfully upon the site; and committing any other act that will obstruct the activities on the site. However, on August 22, 1976, about 200 demonstrators entered the site and were arrested.

On the same day the court was presented affidavits alleging that the defendants, without the express permission of Public Service, intentionally and with knowledge of the above injunction went upon the nuclear plant site and engaged in conduct in violation of the injunction which constituted a contempt of the court. The defendants were arrested and pleaded not guilty to the charge of contempt when arraigned on August 23, 1976.

Between the latter date and the trial, which took place from August 31 to September 3, 1976, defendants made several motions among which were motions for a jury trial, for continuance, for the Trial Justice (Bois, J.) to recuse and disqualify himself, for discovery, and motions by Thomas Lesser, Esq. and Jim Starr, Esq., both from Massachusetts, to withdraw as counsel. All of these motions were denied and defendants excepted. After a hearing all defendants were found guilty. Each was sentenced to the county house of correction for a period of 6 months, of which 3 months was suspended. All exceptions taken by the defendants before, during, or after the trial were reserved and transferred.

I. Evidence that the Injunction was violated.

This is a criminal contempt proceeding. State v. Towle, 42 N.H. 540 (1861); Duval v. Duval, 114 N.H. 422, 425, 322 A.2d 1, 3 (1974). Hence the state must prove the elements of its case beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see State v. Matthews, 37 N.H. 450, 456 (1859). The state therefore had the burden to prove beyond a reasonable doubt the existence of an injunction whose terms covered the defendants, and that defendants had notice thereof and intentionally committed one or more of the proscribed acts. The defendants claim that the state did not meet its burden. "On review, the evidence must be considered in the light most favorable to the State with all reasonable inferences therefrom." State v. Gilbert, 115 N.H. 665, 666, 348 A.2d 713, 714 (1975); In re Joyce, 506 F.2d 373 (5th Cir. 1975).

The defendants contend that even though they entered the premises, the terms of the injunction were not violated, and therefore the state has not proven its case beyond a reasonable doubt. The terms of the injunction that are relevant here are those which specifically restrained the defendants from entering the described premises "without the express permission of Properties, Inc. and Public Service Company of New Hampshire," or occupying the site. The defendants claim that they were given permission to enter the site, the ban on entry was thus waived, and they did not occupy the site as that term was used in the injunction.

The evidence shows that the defendants were among two hundred demonstrators who approached the construction site by a railroad right of way which passed through the enjoined premises. The demonstrators planned to continue walking on the railroad tracks through the construction site until they were arrested for trespass. Before their arrival a chain was placed by Public Service across the railroad tracks at the point where the tracks entered the construction site. The Boston & Maine Railroad had granted permission to Public Service to exclude people from the railroad tracks on the day of the demonstration. To the left of the demonstrators as they approached the chain was a snow fence running along the boundary of the enjoined premises. Where the snow fence and the chain joined there was an open space large enough for people to move through. The demonstrators were therefore thwarted in their plan to walk along the railroad tracks through the site. Rather than step over the chain and be confronted with police officers who were positioned beyond the chain, the demonstrators, after some discussion, decided to go through the opening between the snow fence and the chain. They entered the enjoined premises, sat down, and were later arrested.

The state's evidence concerning whether permission had been granted came from John Herrin, the construction site manager for Public Service Company of New Hampshire. Herrin was the representative of his company that day and therefore he was the one individual who could grant or deny permission to enter. Herrin testified that he never gave permission to any of the defendants to enter the premises, and told the group of demonstrators over a loud speaker that they were not allowed on the premises. When the demonstrators entered the premises, the police did not resist, but instead allowed the demonstrators to enter in order to prevent a confrontation, and kept them in a confined area to facilitate the arrests. We hold that on the evidence before the court, viewed in its entirety, it could be found that the defendants entered the premises without permission. State v. Breest, 116 N.H. 734, 741, 367 A.2d 1320, 1326 (1976). By the terms of the injunction, one would be in violation of it by entering the land without more. The affidavit concerning violation of injunction charges that the violation occurred when the defendants did "go upon" the premises. We also hold that the defendants were "occupying" the premises in its common and approved usage in the context of the injunction. See RSA 21:2.

II. Notice and Intent.

In order to find a person guilty of criminal contempt for violating an injunction, that person must have knowledge or notice of the injunction, 43 C.J.S. Injunctions § 261 (1945); F. Wharton, Criminal Law and Procedure, § 1348 (R. A. Anderson ed. 1957), and the violation must have been intentional. These two elements are interrelated since it is inconceivable that a person could intentionally violate an injunction without having knowledge or notice of the injunction. Being necessary elements for criminal contempt, they must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

The defendants contend that they were not given the type of notice demanded by due process. See Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Their claim is based on the evidence elicited at the trial that only two of the defendants, Linsky and Roth, received in-hand service of the injunction. We need not reach the due process argument of the defendants. Even though in hand service may not have been made to eight of the defendants, actual service is not required to find the necessary element of notice. In fact, a party to an injunction may be chargeable with notice of the injunction in certain cases, even though he does not have actual notice. 43 C.J.S. Injunctions supra ; F. Wharton supra. It is...