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IN RE CRIMINAL CONTEMPT PROCEED. AGAINST CRAWFORD

February 27, 2001

IN RE CRIMINAL CONTEMPT PROCEEDINGS AGAINST GERALD CRAWFORD AND MICHAEL WARREN.


The opinion of the court was delivered by: Arcara, District Judge.

DECISION AND ORDER

INTRODUCTION

On March 24, 2000, the government commenced the instant criminal contempt proceeding against defendants Gerald Crawford and Michael Warren by the filing of a "Notice of Criminal Contempt," pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure. The Notice charges that on three dates in 1999, defendants violated a temporary restraining order ("TRO") issued by this Court on April 15, 1999, in the underlying civil action, People of the State of New York, by Eliot Spitzer, Attorney General of the State of New York, et al. v. Operation Rescue National, et al., 69 F. Supp.2d 408 (W.D.N.Y. 1999) ("Spitzer"), in violation of 18 U.S.C. § 401(3). The Court's TRO prohibited defendants from engaging in certain conduct outside reproductive health care facilities located within the District. The Notice of Criminal Contempt alleges that defendant Warren violated the TRO on May 18, 1999, and that both defendants Warren and Crawford violated it on May 22 and July 14, 1999.

The case was initially referred to Magistrate Judge Carol E. Heckman, pursuant to Rule 21.1 of the Local Rules of Criminal Procedure for the United States District Court for the Western District of New York and 28 U.S.C. § 636(b)(1). Upon Magistrate Judge Heckman's retirement from the Bench on May 1, 2000, all of her cases were referred to Magistrate Judge H. Kenneth Schroeder, Jr.

On July 5, 2000, defendants filed a joint motion to dismiss the criminal contempt proceedings on two grounds: (1) that pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, the TRO expired before the dates the defendants are alleged to have violated it; and (2) that defendants' actions on the dates in question were protected by the First Amendment. Defendants also moved for change of venue and for recusal of this Court. On July 20, 2000, the government filed a response opposing defendants' motions.

On September 29, 2000, Magistrate Judge Schroeder filed a Report and Recommendation, recommending that the defendants' motion to dismiss the criminal contempt proceedings be granted. Magistrate Judge Schroeder found that the Court's April 15, 1999 TRO expired, pursuant to Rule 65(b), on May 14, 1999. Thus, according to Magistrate Judge Schroeder, because the TRO was no longer in existence on the dates the defendants are alleged to have violated it, they cannot be held in criminal contempt. Magistrate Judge Schroeder did not address defendants' First Amendment argument. In light of his recommendation that the contempt action be dismissed, Magistrate Judge Schroeder denied defendants' motions for change of venue and recusal, without prejudice.

On October 19, 2000, the government filed objections to the Magistrate Judge's Report and Recommendation. Also on October 19th, the plaintiffs in Spitzer moved to appear as amici curiae in this action. Plaintiffs filed amici briefs on October 26, 2000. On November 6, 2000, defendants filed a joint opposition to plaintiffs' requests to appear as amici. On November 8, 2000, the Court granted plaintiffs' motions to appear as amici. Defendants filed responses to the government's objections and the amici briefs on December 8 and 11, 2000. The government and the amici filed reply briefs on January 8, 2001.

Oral argument on the objections was held on January 18, 2001. At oral argument, defendants made several oral motions requesting relief. First, defendants moved the Court to recuse itself from the case. Next, defendants moved for dismissal of the case because amici status was improperly granted to the plaintiffs in the Spitzer action. In the alternative, defendants requested that both the amici and the United States Attorney be disqualified from the case.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation in this case, and after reviewing the submissions and hearing argument from the parties, the Court rejects the proposed findings and recommendation of the Magistrate Judge and denies defendants' motion to dismiss the criminal contempt proceeding. The Court also (1) denies defendants' motions to disqualify the amici and the United States Attorney, (2) denies defendants' motion for recusal, and (3) denies defendants' motion for change of venue.

BACKGROUND

On March 22, 1999, the plaintiffs in the Spitzer action, who include the People of the State of New York, by Eliot Spitzer, Attorney General of the State of New York, several medical facilities and doctors that provide reproductive health care services, and organizations that advocate abortion rights, commenced that action by filing a complaint seeking relief under the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248, and New York law.*fn1 Along with the complaint, the plaintiffs filed a motion for a TRO and a preliminary injunction, asking the Court to establish limited buffer zones around reproductive health care facilities located within this District and otherwise preventing the 68 named-defendants from engaging in illegal activities designed to disrupt access to those facilities. The defendants in the instant criminal contempt proceeding, Gerald Crawford and Michael Warren, are named-defendants in the Spitzer action.

Practically speaking, the Spitzer action is simply a continuation of a previous civil action filed in this Court in 1990. See Pro-Choice Network of Western New York v. Project Rescue Western New York, 799 F. Supp. 1417 (W.D.N.Y. 1992), aff'd, 67 F.3d 377 (2d Cir. 1995), aff'd in relevant part, sub nom., Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) ("Pro-Choice"). Of the 68 named-defendants in the Spitzer action, fourteen of them, including defendant Crawford, were also named-defendants in the Pro-Choice case.

On March 24, 1999, the Court granted plaintiffs' application in the Spitzer case for an expedited hearing on their motion for a TRO and scheduled a hearing for April 8, 1999. The Court gave defendants until April 6, 1999 to respond to the TRO motion.

On April 6 and 7, 1999, defendants submitted various opposition papers and memoranda of law in response to the plaintiffs' TRO motion. Most of the defendants submitted affidavits contesting the factual allegations made against them in the complaint and in plaintiffs' papers.*fn2 Many of the defendants also moved for dismissal of the complaint on various grounds, including lack of personal jurisdiction and improper service of process.

On April 8, 1999, the Court commenced the TRO hearing. The hearing continued over three days, April 8th, 9th and 12th. Most of the defendants were represented at the hearing by counsel, but several defendants either appeared pro se (including defendants Crawford and Warren) or made no appearance at all. At the hearing, defendants vigorously contested plaintiffs' TRO motion on both factual and legal grounds. As stated, several of the defendants submitted affidavits denying the factual allegations contained in plaintiffs' complaint and motion papers. The parties also presented evidence in the form of photographic and video evidence. One of the named-defendants, Renee Riddle, testified on her own behalf regarding her intent not to appear at any upcoming anti-abortion demonstrations. Her counsel moved orally for her dismissal and the Court reserved decision. At the close of the proceedings on April 12, 1999, the Court gave the parties until the close of business on April 13, 1999 to file any supplemental papers in support of their respective positions, at which time the record would be deemed closed. During the hearing, the Court also set a briefing schedule for resolution of the various motions to dismiss filed by the defendants.

The parties filed additional affidavits on April 13 and 14, 1999. Many of these affidavits were submitted on behalf of defendants and again disputed the factual allegations contained in the complaint and in plaintiffs' moving papers.

On April 15, 1999, the Court issued a TRO, enjoining defendants from engaging in certain conduct outside reproductive health care facilities located within the District. The TRO stated that it could be enforced by a motion for either criminal or civil contempt. The last paragraph of the TRO stated:

IT IS FURTHER ORDERED that this Order shall remain in full force and effect until modified by further Order, or until resolution of plaintiffs' motion for a preliminary injunction.

The Court included this language in the TRO regarding its duration because the Court was aware, at the time it issued the TRO, that based on the large number of defendants in the case, the numerous disputed issues of fact raised in the parties' affidavits that would have to be resolved at the preliminary injunction hearing,*fn3 the necessary resolution of the pending motions to dismiss, the Court's experience at the TRO hearing, the Court's calendar,*fn4 and the Court's past experience in the Pro-Choice case, the preliminary injunction hearing would be lengthy and the Court probably would not be able to complete the hearing and resolve the motion for preliminary injunction within the time limitations in Rule 65(b). Also on April 15th, the Court issued an Order setting the preliminary injunction hearing to commence on May 4, 1999. The Court set a pre-hearing conference for April 29, 1999.

Prior to the pre-hearing conference scheduled for April 29, 1999, the Court was contacted by counsel for the parties, who informed the Court that they were engaged in serious settlement discussions and that there was a possibility that the case could settle. The Court therefore converted the pre-hearing conference for April 29th into a status conference.

At the April 29th status conference, defendants Warren and Crawford, who were previously proceeding pro se, appeared for the first time through counsel. Counsel for the parties advised the Court that the parties had entered into settlement discussions and wished to continue those discussions rather than starting the preliminary injunction hearing. In that regard, the plaintiffs informed the Court that they had already agreed to dismissal of four of the defendants. In order to accommodate the parties' settlement discussions, the Court adjourned the commencement of the preliminary injunction hearing to May 25, 1999. The Court reiterated that the TRO would continue to remain in effect until the preliminary injunction hearing was completed. Even though all the defendants agreed to postponement of the preliminary injunction hearing and the continuation of the settlement discussions, they all objected to the continuation of the TRO.

On May 21, 1999, several defendants, including defendants Crawford and Warren, moved to sever the claims against them and to have those claims transferred to a judge in Rochester, New York or, in the alternative, to sever the claims against them for a separate proceeding and trial before this Court.

Prior to the scheduled hearing on May 25, 1999, the Court was contacted by counsel and told that a possible settlement had been reached by some of the defendants. Accordingly, the Court did not commence the hearing on May 25th, but instead held a status conference. At the conference, counsel informed the Court that several of the defendants had agreed to settle the case and be bound by the TRO and any further injunctive relief granted by the Court. Counsel also indicated that a number of other defendants, while they did not wish to contest the case, did not want to enter into any type of settlement or stipulation, as a matter of principle. Counsel for those defendants informed the Court that they would simply default if required to file an answer. Because it appeared that a substantial number of the defendants were going to either settle or default, thereby reducing the amount of resources necessary for a preliminary injunction hearing, the Court decided to delay the preliminary injunction hearing until the settlement and default judgments could be finalized. The Court stated:

It's my understanding that a number of the defendants may be defaulting, a number of the defendants may be agreeing to stipulation, a number of the defendants may be whatever. And it would seem that their involvement as far as any future hearings are concerned, at least many of the defendants, may be unnecessary. But it's going to take some time to work all this out. And it seems to me that would be a waste of judicial resources to be conducting hearings when many of the defendants will ultimately either be defaulting, or they will be stipulating to the injunction. It would be wasting the Court's time as well as attorney time, and would serve no useful purpose.

Spitzer, Item No. 184 at 3-4. The Court then tried to schedule a new date for the preliminary injunction hearing that was convenient to all the parties. There was much disagreement among counsel, however, as to when the hearing should begin. Plaintiffs and some of the defendants wanted the hearing to start immediately after the issues regarding the settling and defaulting defendants were finalized, while other defendants wanted it adjourned until September or even the following January. The Court then set the date of July 28, 1999 for the hearing. The Court also established a schedule for finalizing the settlement discussions and any default judgments, and set a briefing schedule for resolution of any outstanding motions. The extension of the TRO was not discussed at the May 28th status conference.

On June 16, 1999, the Court issued a 24-page Decision and Order denying all of defendants' outstanding motions. See People of the State of N.Y. ex rel. Spitzer v. Operation Rescue Nat., 69 F. Supp.2d 408 (W.D.N.Y. 1999).

Due to a civil jury trial that went longer than expected and a delay in finalizing some of the settlements and resolving all the default judgments, the preliminary injunction hearing was postponed from July 28, 1999 to August 3, 1999. By the time the hearing started on August 3, 1999, 45 of the original 68 defendants had either settled, defaulted or been dismissed from the case.

The preliminary injunction hearing lasted 23 days and spanned from August 3 through September 29, 1999. The Court heard testimony from 40 witnesses.

On August 6, 1999, during the preliminary injunction hearing, the plaintiffs made an application for an Order to Show Cause as to why defendants Crawford and Warren should not be held in criminal and civil contempt for violating the Court's April 15, 1999 TRO for acts they allegedly engaged in on May 18, May 22 and July 14, 1999. On August 12, 1999, the Court signed the Order to Show Cause, directing that those defendants appear on August 17, 1999. On August 17, 1999, the Court held a hearing on the Order to Show Cause and referred the matter to the United States Attorney's Office for the Western District of New York for investigation and possible prosecution for criminal contempt.

At the conclusion of the preliminary injunction hearing, the Court set a briefing schedule for submission by the parties of proposed findings of fact and conclusions of law. The Court required that a transcript of the hearing be prepared and that the parties' proposed findings of fact cite to specific transcript pages. The briefing schedule was extended several times pursuant to requests of the parties. On July 26, 2000, the Court issued a 125-page Decision and ...


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