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NOW v. OPERATION RESCUE

July 30, 1990

NOW, et al., Plaintiffs,
v.
OPERATION RESCUE, et al., Defendants


Louis F. Oberdorfer, United States District Judge.


The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE

 Pursuant to a Preliminary Injunction entered on November 8, 1989, plaintiffs filed a petition seeking contempt sanctions against defendants Operation Rescue, Project Rescue, Clifford Gannett, Patrick Mahoney, and Michael McMonagle, and respondents Joseph Foreman and Susan Odom. An evidentiary hearing was held on May 15-18, 1990. For the reasons stated below, an accompanying Order will cite Operation Rescue, Patrick Mahoney, Clifford Gannett, Joseph Foreman, and Susan Odom for civil contempt of the November 8, 1989 injunction.

 I.

 On November 8, 1989, the Court issued a Preliminary Injunction that, inter alia, prohibited Operation Rescue, Patrick Mahoney, Clifford Gannett, "and persons acting in concert with them" from "trespassing on, blockading, impeding or obstructing access to or egress from" various named clinics at which abortions and other family planning services were performed. See NOW v. Operation Rescue, 726 F. Supp. 300, 305 (D.D.C. 1989). The injunction also enjoined such parties from "inducing, encouraging, or directing others" to engage in prohibited activity. See id. The preliminary injunction was amended on November 9, 1989 to cover certain additional clinics. As amended, the injunction covered the Hillcrest Women's Surgi-Center ("Hillcrest Clinic"), the Washington Surgi-Clinic, and the Capitol Women's Center, among others.

 On January 26, 1990, a Permanent Injunction was issued. The Permanent Injunction prohibited the same conduct, but covered clinics throughout the District of Columbia. In ruling in favor of plaintiffs on the merits, the Court found that defendants had conspired together to plan physical blockades of clinics in the District of Columbia during November 11-18, 1989.

 Based on the November 1989 blockades, plaintiffs sought a finding of civil contempt, and a hearing was held on May 15-18, 1990. Defendants Operation Rescue, Randall Terry, Project Rescue, and Clifford Gannett were represented by counsel at that hearing. Defendant Patrick Mahoney appeared pro se. Defendant Michael McMonagle and respondents Joseph Foreman and Susan Odom neither appeared nor were represented by counsel at the hearing. Plaintiffs presented testimony from eleven witnesses, as well as deposition testimony of two persons and one affidavit in lieu of testimony. Plaintiffs introduced thirty-six exhibits into evidence, including a video tape showing scenes from the November blockades. Patrick Mahoney testified on his own behalf and introduced one exhibit. None of the other defendants, however, produced any evidence.

 II.

 As an initial matter, defendants Clifford Gannett and Project Rescue have argued that they are being subjected to criminal rather than civil contempt proceedings because the sanctions sought by plaintiffs are punitive in nature. The distinction between civil and criminal contempt was summarized by the Second Circuit:

 
The two species of contempt are distinguished by determining the purpose for which a sanction was imposed. A sanction imposed to compel obedience to a lawful court order or to provide compensation to a complaining party is civil. A sanction imposed to punish for an offense against the public and to vindicate the authority of the court, that is, not to provide private benefits or relief, is criminal in nature.

 New York State NOW v. Terry, 886 F.2d 1339, 1350-51 (2d Cir. 1989) (citations omitted). Civil contempt sanctions, therefore, may be imposed for two reasons: (1) to compensate an aggrieved party for damages resulting from the contempt; and (2) to coerce future compliance with the injunction. Compensatory sanctions may include attorneys fees. See Hutto v. Finney, 437 U.S. 678, 689 n. 14, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978). Coercive contempt sanctions must be conditional, i.e. the contemnor must be able to avoid the sanctions by purging himself of the contempt. See C. Wright & A. Miller, Federal Practice and Procedure § at 586 (quoting Lance v. Plummer, 353 F.2d 585, 592 (5th Cir. 1965), cert. denied, 384 U.S. 929, 16 L. Ed. 2d 532, 86 S. Ct. 1445 (1966)).

 The sanctions sought by plaintiffs fall within these parameters. Plaintiffs seek only (1) compensation for damages caused by the contempt, (2) attorneys fees incurred as a result of the contempt proceedings, and (3) future fines designed to coerce compliance with the permanent injunction. These proceedings, therefore, are civil in nature.

 Defendants Gannett and Project Rescue also challenge the validity of the preliminary injunction they are alleged to have violated. Such a challenge is inappropriate in a contempt proceeding. Although an adjudication of civil contempt will fall if the underlying injunction is subsequently held invalid, that does not authorize the alleged contemnor to challenge the validity of the injunction at the contempt hearing. See, e.g., Pennhurst State School & Hosp., 673 F.2d 628, 637 (3d Cir. 1982) (stating the "settled rule that the merits of the underlying order may not be called into question in a post-judgment civil contempt proceeding" (citing Oriel v. Russell, 278 U.S. 358, 73 L. Ed. 419, 49 S. Ct. 173 (1929).

 Defendants are entitled to challenge this court's jurisdiction to enter the preliminary injunction. See Commodity Futures Trading Comm. v. Nahas, 580 F. Supp. 245 (D.D.C.), vacated, 238 U.S. App. D.C. 93, 738 F.2d 487 (D.C. Cir. 1983). Any jurisdictional challenge, however, is groundless. In issuing the preliminary injunction, this court exercised pendent jurisdiction based on a finding that plaintiffs' "federal claims are not insubstantial." See NOW, 726 F. Supp. at 304. That finding has been borne out by subsequent proceedings as plaintiffs have prevailed on their federal claims in this case, as well as in related cases. See Memorandum, today; NOW v. Operation Rescue, 726 F. Supp. 1483 (E.D. Va. 1989).

 III.

 The relevant legal standards for this civil contempt proceeding are not in dispute. Movants for civil contempt must show by clear and convincing evidence that a court order has been violated. See, e.g., Washington-Baltimore Newspaper v. Washington Post, 200 U.S. App. D.C. 165, 626 F.2d 1029, 1031 (D.C. Cir. 1980). The violation need not be intentional or willful: "the intent of the recalcitrant party is ...


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