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N.Y. STATE NAT. ORG. FOR WOMEN v. TERRY
February 27, 1990
NEW 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,
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.
The opinion of the court was delivered by: Robert J. Ward, District Judge.
For the reasons that follow, the motion to hold defendants
and respondents in civil contempt is granted in part and denied
in part, the renewed cross-motion to dismiss is denied, the
motion for the imposition of Rule 11 sanctions against Washburn
is granted, and the motion to strike the record and impose
sanctions on Hale is granted in part and denied in part.
Plaintiffs commenced this action in New York State Supreme
Court on April 25, 1988, seeking injunctive and declaratory
relief to restrain defendants from blocking access to medical
facilities providing abortions.*fn1 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. According to defendants' 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 and the surrounding counties. On
April 28, 1988, a temporary restraining order ("TRO") was
issued by Justice Cahn of the New York State Supreme Court, New
York County, which did not expressly enjoin Operation Rescue
from blocking access to health care facilities. On May 2, as a
result of a demonstration in front of a physician's office at
154 East 85th Street in Manhattan where abortions are
performed, a second TRO was issued by Justice Cahn that
enjoined defendants from "trespassing on, blocking, obstructing
ingress into or egress from any facility at which abortions are
performed in the City of New York, Nassau, Suffolk or
Westchester Counties from May 2, 1988 to May 7, 1988."
On May 3, 1988, Operation Rescue, led by Terry, conducted a
demonstration in front of a clinic in Queens, New York, during
which several hundred demonstrators were arrested for blocking
ingress to and egress from the clinic. Statement of Stipulated
Facts, filed May 4, 1988 ¶¶ 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. A hearing was scheduled to be conducted before this
Court in the late afternoon of the following day, May 4, 1988.
After argument by the parties, this Court ruled on May 4,
1988, that it would adopt and continue Justice Cahn's May 2,
1988 order, and would modify it by (1) adding coercive
sanctions of $25,000.00 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 ("the
May 4 Order"). This Court also ruled that failure to give such
advance notice would make defendants liable for any resulting
costs incurred by the City. Defendant Terry was notified of
this Court's action by his attorney on the evening of May 4,
and the Court signed the May 4 Order the following morning.
Second Statement of Stipulated Facts, filed July 19, 1988 ¶ 1.
Defendants moved to vacate the May 4 Order for plaintiffs'
alleged failure to comply with Rule 65(c), Fed.R.Civ.P. That
motion was denied by this Court on May 6. Also on that same
date, the Court of Appeals denied defendants' application for
a stay of the May 4 Order pending appeal.
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, May 2, at 154 East 85th Street,
Manhattan, once again blocking access to the physician's
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. The terms of the May
4, Order were read aloud by the New York City police before
arrests began. 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. Id. ¶ 6. Defendant Terry,
however, communicated the terms of the Court's May 4 Order to
the demonstrators at the May 6, 1988 demonstration. Id.
Approximately 320 Operation Rescue demonstrators were arrested
that day. Id. ¶ 7.
On May 31, 1988, plaintiffs sought civil contempt sanctions
against defendants pursuant to Rule 70, Fed.R.Civ.P. and
18 U.S.C. § 401 (1982), as a consequence of the events of May 5
and 6. In an Opinion dated October 27, 1988 ("the October 27
Opinion"), the Court granted the motion, denied defendants'
cross-motion to dismiss, and adjudged defendants Terry and
Operation Rescue in civil contempt of the May 4 Order for their
activities during the May 5 and May 6 demonstrations.
697 F. Supp. 1324, 1338. Accordingly, a judgment in the amount of
$50,000.00 was entered by the Court holding Terry and Operation
Rescue jointly and severally liable for $50,000.00 in civil
contempt sanctions to be paid to plaintiff, National
Organization for Women ("N.O.W."), and a judgment was entered
in the amount of $19,141.00 in favor of the City for the costs
that resulted from defendants' failure to provide advance
notice of either demonstration. The relief granted in the
Court's October 27 Opinion was expressly "without prejudice to
plaintiffs' right to proceed against defendants Herlihy and
Lisante, or against any other individuals who violated the
Court's Order with notice." 697 F. Supp. at 1338.
On October 7, 1988, plaintiffs moved to modify the Court's
prior injunction to cover the dates October 28, 29 and 31,
1988, in response to defendants' publicized plan to conduct a
"National Day of Rescue" at the end of October. At the
conclusion of an evidentiary hearing conducted on October 25
and 27, 1988, the Court granted plaintiffs' motion and signed
an order granting plaintiffs the modified preliminary relief
they sought ("the October 27 Order"). Defendants' applications
to this Court and to the Court of Appeals for a stay pending
appeal of the October 27 Order were denied.
Notwithstanding the issuance of the modified preliminary
injunction on October 27 and the denial of the requested stay,
Operation Rescue organized and conducted
two demonstrations on the morning of October 29, 1988, within
the geographical area covered by the October 27 Order. From at
least 8:00 a.m. until about 12:15 p.m. on October 29,
approximately 250 Operation Rescue demonstrators blocked
ingress to and egress from the Women's Pavilion medical clinic
on Ashford Avenue in Dobbs Ferry, New York. Exhibits A, H & I,
annexed to Affirmation of Mary M. Gundrum, filed December 21,
1988 ("Gundrum Aff."); Exhibit 37, annexed to Declaration of
Mary Gundrum, filed June 9, 1989 ("Gundrum Decl."). From at
least 8:00 a.m. until about noon on October 29, approximately
130 Operation Rescue demonstrators blocked access to the
Women's Pavilion medical clinic on Deer Park Avenue in Deer
Park, Suffolk County, New York. Exhibits A & J, annexed to
Gundrum Affidavit; Exhibit 37, annexed to Gundrum Decl. Both
clinics provide abortions and family planning counseling.
On December 21, 1988, plaintiffs moved for summary judgment
and a permanent injunction upon receiving notice of blockades
planned by Operation Rescue in the New York City area from
January 12 to 14, 1989. These blockades had been organized in
express retaliation for this Court's October 27 Opinion.
697 F. Supp. 1324. See Exhibit A, annexed to Gundrum Aff. (Letter
from Randall Terry, dated November 16, 1988, urging
participation in January blockades of "abortion mills" in the
New York City area in order to "face down" this Court). On
January 6, 1989, the Court heard oral argument on plaintiffs'
motion for summary judgment and defendants' motion to dismiss
and, on January 10, 1989, the Court issued a permanent
injunction that again enjoined defendants from blocking access
to medical facilities offering abortion and included coercive
sanctions of $25,000 per day for violations of the order (the
"Permanent Injunction"). The Permanent Injunction was modified
from the previous orders to provide that each successive
violation of the injunction would result in doubling the civil
contempt sanction applicable to the contemnor.
Notwithstanding the issuance of the Permanent Injunction,
once again Operation Rescue organized and led demonstrations
which blocked access to clinics offering abortion. On January
13, 1989, Terry and other Operation Rescue leaders led several
hundred persons to block access to and from the Margaret Sanger
Planned Parenthood Clinic at 380 Second Avenue in Manhattan, a
facility that performs abortions (the "Margaret Sanger
Clinic"). Exhibits 17 & 26, annexed to Gundrum Decl. Police
Inspector James Helbock read the permanent injunction to the
demonstrators using a bullhorn, before approximately 275
demonstrators were arrested. Exhibit 26, annexed to Gundrum
Decl. Terry, using a bullhorn as well, instructed demonstrators
to lock arms and prevent police officers from reaching the
building entrance, and to engage in "total, complete
non-cooperation" with the police. Id.
On January 14, 1989, Operation Rescue demonstrators again
blocked all access to the Margaret Sanger Clinic. As happened
during the previous day's demonstration, police officers read
the Permanent Injunction to the demonstrators blocking access
to the clinic before beginning arrests. Exhibits 28, 31, 26, 30
& 29, annexed to Gundrum Decl. Also on January 14, 1989,
demonstrators blocked access to five other clinics in the New
York City area which provide abortions. These demonstrations
occurred at (1) the Manhattan Women's Medical Clinic, located
at 115 East 23rd Street in Manhattan; (2) the VIP Medical
Associates Clinic, located at 72 Fifth Avenue in Manhattan; (3)
the Lincoln Women's Service Clinic, located at 1995 Broadway,
Manhattan; (4) the Park Med Clinic, located on the 12th floor
of 475 Park Avenue South in Manhattan; and (5) the Eastern
Women's Center, located at 38 East 30th Street in Manhattan.
Exhibits 1, 31, 18, 33, 30, 29, & 21, annexed to Gundrum Decl.
Operation Rescue claimed responsibility for organizing and
conducting these demonstrations in literature it disseminated
to its participants. Exhibit 1, annexed to Gundrum Aff.
Defendants appealed from the various orders entered by this
Court. The Court of Appeals, in an Opinion dated September 20,
1989, affirmed this Court's rulings which, inter alia, (1)
enjoined defendants from blocking access to clinics offering
abortions, (2) held Terry and Operation Rescue in contempt for
violation of the May 4 Order, and (3) imposed discovery
sanctions on defendants. 886 F.2d 1339. The Court's ruling
regarding payment of the civil contempt sanctions was modified
to provide that the coercive penalties for violations of the
orders be payable into the Court, not to plaintiff N.O.W. 886
F.2d at 1353.
The instant motion for contempt
Plaintiffs' application for contempt relates to four days of
blockades of facilities performing abortions: May 6, 1988,
October 29, 1988, January 13, 1989, and January 14, 1989.
Plaintiffs seek contempt sanctions against the following
organizations and persons:
Thomas Herlihy ("Herlihy")
Bistate Operation Rescue Network ("B. O. R. N.")
Joseph Foreman ("Foreman")
Michael McMonagle ("McMonagle")
Michael La Penna ("La Penna")
Florence Talluto ("Talluto")
Adelle Nathanson ("A. Nathanson")
Bernard Nathanson ("B. Nathanson")
Robert Pearson ("Pearson")
No facts were disputed by any of defendants, nor by
respondents B.O.R.N., Lee, Foreman, McMonagle, White, La Penna
and Talluto.*fn3 Respondents B. Nathanson, A. Nathanson and
Pearson, disputed the alleged facts concerning their knowledge
of the Court's orders and their involvement in blocking access
to clinics in concert with defendants. The Court commenced a
hearing regarding the disputed facts on August 9, 1989. On
August 9, 10, 15 and 16, 1989, the Court heard testimony and
received evidence concerning the alleged roles these three
respondents played in blocking access to clinics in concert
with defendants and in violation of the Court's orders.
The Court will first discuss the appropriateness of imposing
contempt sanctions against defendants and the objections they
raise to these contempt proceedings. Second, the Court will
examine the appropriateness of imposing contempt sanctions
against the various respondents. Third, the Court will consider
the plaintiffs' request for attorneys' fees and costs
associated with this application. Finally, the Court will
address the motions for sanctions against attorneys Washburn
The Court of Appeals, in its decision in this case, clearly
outlined the applicable law governing civil contempt
A court's inherent power to hold a party in civil
contempt may be exercised only when (1) the order
the party allegedly failed to comply with is clear
and unambiguous, (2) the proof of noncompliance is
clear and convincing, and (3) the party has not
diligently attempted in a reasonable manner to
886 F.2d at 1351; E.E.O.C. v. Local 638, Local 28 of the Sheet
Metal Workers' Int'l Ass'n, 753 F.2d 1172, 1178 (2d Cir . 1985)
aff'd, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986). It
is not necessary to show that the party disobeyed the court's
order willfully. E. E. O. C. v. Local 638, Local 28 of the
Sheet Metal Workers' Int'l Ass'n, supra, 753 F.2d at 1178.
The Court of Appeals, in upholding this Court's determination
that Operation Rescue and Terry had violated the May 4 Order,
rejected defendants' contention that the order was
The [May 4 Order] was sufficiently clear as to
what acts were proscribed. It prohibited trespass
and obstruction that had the effect of blocking
"ingress to and egress from any facility at which
abortions are performed" within a specific
geographic area. It barred physical abuse and
tortious harassment of patients and employees.
These prohibitions were balanced by language
expressly permitting sidewalk counseling in a
reasonably quiet and nonthreatening manner.
[citation omitted] The conduct that lay between
that which was prohibited and that which was
permitted was sufficiently clear for defendants to
ascertain precisely what they could and could not
do. Therefore, the order was specific enough to
serve as the foundation for a contempt citation.
The language of the October 27 Order and the Permanent
Injunction pertaining to defendants' proscribed and permitted
conduct was essentially unaltered from the language of the May
4 Order. Accordingly, these orders are sufficiently clear and
unambiguous to ...