Vermont Women's Health Center v. Operation Rescue

• Decision Date: 17 July 1992
• Docket Number: No. 91-035,91-035
• Citation: 617 A.2d 411,159 Vt. 141
• Court: Vermont Supreme Court
• Parties: VERMONT WOMEN'S HEALTH CENTER, Rachel Atkins, Jude Sullivan and Susan A. v. OPERATION RESCUE, et al.

Page 411

617 A.2d 411

159 Vt. 141

VERMONT WOMEN'S HEALTH CENTER, Rachel Atkins, Jude Sullivan and Susan A. v. OPERATION RESCUE, et al.

No. 91-035.

Supreme Court of Vermont.

July 17, 1992.

Motion for Reargument Denied

Sept. 3, 1992.

John D. Schullenberger and William M. Dorsch of Mickenberg, Dunn, Sirotkin & Dorsch, Burlington, for plaintiffs-appellees.

Thomas E. McCormick of McNamara, Fitzpatrick, McCormick & Mertz, P.C., Burlington, Daniel J. Lynch of Lynch & Hadden, St. Albans, and Michael Rose (on the brief), St. Albans, for defendants-appellants.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

The superior court adjudged fourteen persons (defendants) in contempt for actions, protesting abortion, taken at a women's health clinic in violation of the court's temporary restraining order (TRO). The court ordered defendants to pay damages and attorneys' fees to plaintiffs, the Vermont Women's Health Center and certain of its staff members and patients, and subjected defendants to prospective coercive fines. They appeal, claiming that (1) because only one defendant was properly served with the TRO, the court lacked subject matter jurisdiction to hold the nonserved individuals in contempt; (2) the court's findings that defendants had actual notice of the TRO and violated its terms were erroneous; and (3) the court incorrectly assessed damages and fees and improperly imposed prospective fines. We affirm.

In November 1988, the superior court issued a TRO directed to Operation Rescue, an anti-abortion organization; defendant Michael McHugh; and "all other persons, groups and organizations acting in concert with either Operation Rescue or Michael McHugh." The TRO, which was extended by the court in December 1988 and remains in effect by stipulation of the parties, prohibits the following conduct:

1. Blocking any doorway, entrance, driveway or parking lot at the Vermont Women's Health Center ...

2. Entering or attempting to enter the building ...

3. Directing bullhorns, shouting, yelling or otherwise verbally directing sounds to the interior of the Vermont Women's Health Center ...

4. Physically blocking the entry of any persons to the Vermont Women's Health Center....

On October 24, 1989, a group led by defendant McHugh of more than fifty persons, including the remaining defendants, physically invaded the grounds and building of the health center. They blocked doorways and exits of the building and positioned a ten-wheel truck to block the driveway. Many of them locked themselves to one another in the hallways of the building; they made a great deal of noise singing and chanting. As a result, health services for women scheduled for that day, including cancer-related examinations and other tests, as well as abortions, were cancelled. Two police officers were injured as they attempted to enter the building through doors pulled shut by protesters. The use of mace and tear gas was ultimately required to gain entry and control. Once inside, the chief of police read the face sheet of the injunction, listing the prohibited activities, in a loud and clear voice, in each of the two main wings of the building. Police then arrested defendants and the other protesters for unlawful trespass and removed them from the building.

Plaintiffs subsequently brought a civil contempt action against defendants for violation of the TRO, serving each with copies of the court's order and the motion for contempt. Following evidentiary hearings held December 20, 1989, and January 17, 1990, the court found defendants in contempt, held them liable to plaintiffs for certain fees, costs, and damages, and subjected them to prospective coercive fines to be assessed in the event of future violations of the court's order. This appeal followed.

We address first defendants' claim that the court lacked subject matter jurisdiction to hold any of them, other than Michael McHugh, in contempt because they were not parties named in the TRO and were not properly served with the order, as required by 12 V.S.A. § 122. While service of the order was made on McHugh and the organizational defendant prior to October 24, 1989, the order was not served, prior to its violation, upon the remaining defendants other than by police officers at the health center at the time the protest was taking place.

Defendants' argument is based on the wording of 12 V.S.A. § 122, which allows for the commencement of contempt proceedings against a party for violation of a court order only if there has been "service of the order upon that party." In defendants' view, the failure to effect personal service of the TRO on defendants prior to the alleged violation deprives the court of jurisdiction to find them in contempt.

Plaintiffs' position is based on V.R.C.P. 65(d), which provides that a restraining order or injunction is binding "upon the parties to the action ... and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." The relevant language is identical to that of Federal Rule of Civil Procedure 65(d). Decisions under the federal rule and similar state rules have uniformly allowed the enforcement of injunctive decrees against unnamed parties with actual notice, where they meet the other criteria of Rule 65(d), despite the absence of formal service. See, e.g., NOW v. Operation Rescue, 747 F.Supp. 772, 775 (D.D.C.1990) (citing Fed.R.Civ.P. 65(d), "it is not necessary to show formal service of the order on the non-party" with actual notice); Bratton v. MGK, Inc., 587 N.E.2d 134, 136-37 (Ind.Ct.App.1992) (upholding a finding that an abortion demonstrator was in contempt although he was not named in court's injunction and was not served individually with the order under state's rules of process); People v. Said, 120 A.D.2d 961, 962, 502 N.Y.S.2d 840, 841 (1986) (failure to serve defendant with copy of the order does not preclude contempt proceeding against him); Crozer-Chester Medical Center v. May, 366 Pa.Super. 265, 273, 531 A.2d 2, 7 (1987) ("[i]t is beyond cavil" that formal service of injunction is unnecessary for contempt judgment against individuals with actual notice).

While we are cognizant of the statutory language, the service requirement of 12 V.S.A. § 122 "is merely a procedural prerequisite to the institution of contempt proceedings." Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 163, 225 A.2d 60, 63 (1966) (court order ineffective until service upon named party); see also Horton v. Chamberlain, 152 Vt. 351, 354, 566 A.2d 953, 954 (1989) (section 122 "imposes no limit on the persons that a court may punish for contempt"). Thus, although it requires service of a court order before it can be enforced, the statute does not limit the parties against whom it may be enforced once it is effective. Rule 65(d) allows for enforcement of injunctions against nonparties in order to ensure that parties do not use nonparties to evade compliance with the injunction. Although the TRO enforced in this case applied to persons acting in concert with the named parties, this is merely a restatement of the reach of Rule 65(d) and did not make the nonserved defendants parties to the TRO proceeding within the meaning of 12 V.S.A. § 122. Thus, we hold that § 122 does not apply to the present circumstances at all, and it falls within the rules of procedure to define whether service was properly accomplished on the particular classes of contempt defendants.

It is reasonable for Rule 65(d) to define service on aiders and abettors, like the defendants in this case, in terms of actual notice by "personal service or otherwise." A more formal service requirement would render Vermont courts uniquely unable to enforce their orders against unnamed parties, enabling "any groups bound on violating the rights of others ... to effectively defeat the power of the courts" by continually changing the persons acting against the injunction. Bratton, 587 N.E.2d at 137. See also New York State National Organization for Women v. Terry, 961 F.2d 390, 397 (2d Cir.1992) ("absurd" to require clinic to foretell which individuals will, in concert with named and served parties, violate injunction, and insist on proper service of order to those individuals as prerequisite to holding them in contempt).

Defendants' next argument is that the court's findings, on which its contempt adjudication was predicated, were erroneous. V.R.C.P. 65(d) sets forth the elements necessary for enforcement of an injunction against persons unnamed in the order. Plaintiffs must show that defendants acted in concert or participation with named parties, that the order was specific and unambiguous, and that they violated the order with actual knowledge of its mandate. V.R.C.P. 65(d); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2956 (1973). All defendants have stipulated that, in their actions on October 24, 1989, they acted in concert and participation with defendants McHugh and Operation Rescue in an effort to stop abortion procedures that they believed were to take place that day. The clarity of the court's order is undisputed. Defendants claim, however, that except for McHugh they lacked actual notice of the TRO on that day. Certain of the defendants further argue that their actions did not amount to a violation of the TRO's provisions.

We first set out the standards for review of contempt orders. It is plaintiffs' burden to prove the elements of civil contempt by clear and convincing evidence. See Martin v. Trinity Industries, Inc., 959 F.2d 45, 47 (5th Cir.1992); 11 Wright & Miller, supra, § 2960, at 591. Once the trial court has made its findings of fact, and in its discretion entered a judgment of contempt, we will not disturb the judgment unless the court's discretion was "entirely withheld or was exercised on grounds clearly untenable." Persons v. Lehoe, 150 Vt. 582, 585-86, 554...