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NOW v. OPERATION RESCUE

March 15, 1993

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



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 Defendants have appeared before the Court at two hearings to show cause why they should not be cited in contempt for violating the Court's July 31, 1990 Revised Permanent Injunction. The first hearing was held on January 24, 1992, and the second hearing on October 26, 1992. An Order filed January 28, 1993, and brought the parties before the Court again on February 16, 1993, to address the pending contempt motions and four additional questions, namely (1) whether the exercise of pendent jurisdiction is appropriate in light of the decision of a divided Supreme Court in Bray v. Alexandria Women's Health Clinic, 122 L. Ed. 2d 34, 61 U.S.L.W. 4080, 113 S. Ct. 753 (U.S. Jan. 13, 1993); (2) whether the Court has jurisdiction to act on alleged violations of the Injunction while appeal of that Order is pending; *fn1" (3) if so, what remedies are available under the Injunction; and (4) whether the United States should be invited to participate in the case. This Memorandum records findings of fact and conclusions of law concerning the evidence and legal principles addressed at those hearings and the entire record.

 I. Jurisdiction After Bray Decision

 The Revised Permanent Injunction for which enforcement is sought here enjoined violations of plaintiffs' federal civil rights under 42 U.S.C. § 1985(3); violations of rights under District of Columbia trespass law, D.C. Code § 22-3102; and violations of District of Columbia public nuisance law, see B & W Management, Inc. v. Tasea Investment Co., 451 A.2d 879, 881 (D.C. 1982). NOW v. Operation Rescue, 747 F. Supp. 760, 767-78 (D.D.C. 1990). The Supreme Court holding in Bray, supra, that section 1985(3) does not create a cause of action against persons blocking access to abortion clinics invalidates the section 1985(3) ground for the Injunction. Defendants argue that the Bray decision ousts this Court's jurisdiction over the entire case. However, the principle of pendent jurisdiction preserves the Court's continued jurisdiction over the injunction against D.C. law violations and sustains the Court's power and duty to enforce its orders.

 As the Bray court put it:

 
[Petitioners] contend that respondents' § 1985(3) claims were so insubstantial that the District Court lacked subject-matter jurisdiction over the action, including the pendent state claims; and that the injunction should therefore be vacated and the entire action dismissed. We do not agree. While respondents' § 1985(3) causes of action fail, they were not, prior to our deciding of this case, "wholly insubstantial and frivolous," [citations] so as to deprive the District court of jurisdiction.
 
It may be, of course, that even though the District Court had jurisdiction over the state-law claims, judgment on those claims alone cannot support the injunction that was entered. We leave that question for consideration on remand.

 61 U.S.L.W. at 4086. So here, at the time the defendants allegedly violated the relevant orders entered, the federal element of jurisdiction was substantial and serious, supported by, among others, the decision of the Court of Appeals only recently reversed by the divided Bray court. See NOW v. Operation Rescue, 914 F.2d 582, 585 (4th Cir. 1990). Accordingly, the only remaining jurisdictional question is whether the claims under District of Columbia law support the Injunction entered.

 The November 1989 Memorandum explained the original Injunction against defendants' clinic-blocking actions as follows:

 
It is likely, though not yet certain, that plaintiffs' constitutional claims will lie. However, the preliminary relief sought by plaintiffs can be afforded on the basis of the state claims without reliance upon the constitutional ones.
 
. . .
 
Such blockading of plaintiffs' premises would violate District of Columbia laws proscribing trespassing (D.C. Code § 22-3102) and public nuisances (see B & W Management Inc. v. Tasea Investment Co., 451 A.2d 879, 881-82 (D.C. App. 1982)), as well as tortuously interfere with plaintiffs' professional and business relations. See Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284, 288 (D.C. App. 1977).
 
NOW v. Operation Rescue, 726 F. Supp. 300, 304 (D.D.C. 1989). The District law claims therefore provide a sufficient basis for retaining federal jurisdiction, enforcing the Injunction, protecting the previously established rights of plaintiffs, and vindicating the vital authority of a United States District Court. The findings of fact and conclusions of law set forth below substantiate this conclusion.

 II. Findings of Fact

 The evidence adduced at the hearings on January 24, 1992 and on October 26, 1992, and incorporating the Findings of Fact made in the July 31, 1990 and the January 16, 1992 Memoranda and Court Orders, lead to the following Findings of Fact:

 A. The January 24, 1992 Hearing

 1. A January 16, 1992 order required defendants Clifford Gannett and Operation Rescue, as well as Keith Tucci and Keith Tucci doing business as "Operation Rescue National," to appear before the Court to show cause why each of them should not be cited for contempt for violating and inducing others to violate the July 31, 1990 Revised Permanent Injunction in the above matter. The hearing set by that Order was held on January 24, 1992. Clifford Gannett appeared and represented himself; Operation Rescue appeared through counsel. Neither Keith Tucci nor Operation Rescue National appeared.

 2. Operation Rescue is an unincorporated entity and is a named defendant in NOW v. Operation Rescue, et al, 89-2968.

 3. Operation Rescue National is an unincorporated entity, frequently used as a trade name by Keith Tucci, with its principal place of business, like his, at P.0. Box 127, Summerville, SC 29484.

 4. Keith Tucci had actual notice of the Court's Revised Permanent Injunction. January 16, 1992 Order at 2-3.

 5. Plaintiffs caused a copy of the Revised Permanent Injunction to be sent to Tucci by registered mail, return receipt requested, to the address that appears prominently on the fund solicitation letter signed by Keith Tucci as Director, Operation Rescue National. The address to which the Order was sent was P.O. Box 127, Summerville, SC 29484.

 6. Keith Tucci had actual notice of the January 16, 1992 Court Order requiring him to appear on January 24, 1992 in order to show cause why he should not be held in contempt. The Order of January 16, 1992 required defendants Clifford Gannett and Operation Rescue to "cause a copy of the . . . Injunction and a copy of this Order to be delivered by hand to, and by whatever means, also fully inform Keith Tucci, and Keith Tucci d/b/a Operation Rescue National . . . of the Injunction and this Order." January 16, 1992 Order at 3.

 7. Plaintiffs also served Keith Tucci with a subpoena ordering his appearance at the January 24, 1992 hearing. Tr. 4-5; Pl. Ex. 10.

 8. Keith Tucci circulated a letter dated December 3, 1991 on Operation Rescue National stationery to individuals who had purchased merchandise from Operation Rescue and asked to have their names placed on a mailing list. Pl. Ex. 1; Hudson, Tr. 15-16. Keith Tucci signed the letter "Director, Operation Rescue National." Pl. Ex. 1, at 4. This letter announced the "Capital Project's," three days of activities in Washington, D.C. that would include so-called "rescues" similar to those that were attempted or conducted in Wichita, Kansas in the summer of 1991. Id. The letter also urged individuals to come to Washington to participate. Pl. Ex. 1 at 4.

 9. Keith Tucci's letter of December 3, 1991, was accompanied by a brochure announcing that the Capital Project activities would occur on January 20-22, 1992. Pl. Exs. 3 & 4; Hudson, Tr. 29. This brochure urged individuals to register for the Project by sending $ 10.00 to Operation Rescue National at P.O. Box 127, Summerville, S.C. 29484. It also identified a hotel in Arlington, Virginia where individuals participating in the Capital Project would receive a special rate. A section of the brochure headed "Rules For The On-site Participant" indicated that participants could expect to be arrested. Pl. Exs. 3 & 4.

 10. A December 13, 1991 letter, on Project Rescue stationary and signed by Clifford Gannett, provided information concerning the Capital Project and urged individuals to participate in the activities. Pl. Ex. 2. Mr. Gannett declared in the letter that he was writing "at the request of Keith Tucci, Director of Operation Rescue-National." Additionally, he stated that interested individuals could receive more information by contacting "O.R. National, P.O. Box 127, Summerville, SC 29484."

 11. Individuals whose names were placed on mailing lists after registering at an Operation Rescue rally received a postcard identifying the times, dates, and locations of the "Capitol Project Rallies" and stating that they are sponsored by operation Rescue National. Pl. Ex. 5; Kingsley, Tr. 26, 27-29.

 12. A newsletter entitled "Operation Rescue National Rescuer" was published from Operation Rescue National's address and included an article stating that "Operation Rescue National's Director Rev. Keith Tucci held a press conference [in Washington, D.C.] on August 30, following his release from a Kansas jail, to announce national rescue events for the rest of this year and into 1992." Pl. Ex. 9, at 5. Among the events was "the Capitol Rescue" scheduled to be held in Washington, D.C. on January 20-22, 1992. Id.

 13. Keith Tucci, defendant Randall Terry, and defendant Pat Mahoney spoke at a rally on the night of January 22, 1992, during the Capital Project. Roccanova Tr. 42. Keith Tucci was introduced as a leader of Operation Rescue National and spoke about how the group had successfully closed down clinics that day. Id. He also solicited funds for his organization. Id. at 42-43.

 14. Defendant Clifford Gannett had notice of the July 31, 1990 Revised Permanent Injunction. At the hearing on January 24, 1992, Gannett represented himself pro se and admitted that he participated in the Operation Rescue events and intervened at one of the "rescue" blockades. Gannett, Tr. 7.

 15. Gannett also stated that he wrote and circulated a letter on Project Rescue stationary dated December 9, 1991. Pl. Ex. 2. This letter, according to Mr. Gannett, "encourages individuals to intervene to save human life." Gannett, Tr. 7. It urges readers to "continue to fight the good fight" and announces that "the Capital Project sponsored by Operation, Rescue National will take place from January 20th to 22nd." Pl. Ex. 2. The letter urged readers to make hotel reservations and other preparations.

 16. At the January 21, 1992 rally, attended by witness Roccanova, both Keith Tucci and defendant Randall Terry (a founder of Operation Rescue) spoke. During Keith Tucci's presentation, "he said they needed contributions to keep their work going and that if people wanted to write checks, their could make them out to Operation Rescue or O.R. National. He could cash either one." Roccanova, Tr. 42-43. Ms. Roccanova's testimony was credible and no witness or document has contradicted it.

 17. Two fliers announced the Capital Project. These notices were identical except that one was entitled "Operation Rescue Announces the Capital Project," and the other "Operational Rescue National Announces the Capital Project." Pl. Exs. 3 & 4. Both fliers requested participants to fill out registration forms and mail them with a $ 10.00 ...


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