New York State Nat. Organ. for Women v. Terry, 88 Civ. 3071 (RJW).

Page 1033

952 F.Supp. 1033

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, v. Randall A. 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.

No. 88 Civ. 3071 (RJW).

United States District Court, S.D. New York.

January 17, 1997.

Morrison & Foerster, New York City (James A. Bergin, Jamie A. Levitt, of counsel), Now Legal Defense and Education Fund, New York City (Deborah Ellis, Rocio Cordoba, of counsel), Center for Constitutional Rights, New York City (Barbara Olshansky, of counsel), for Plaintiffs.

Corporation Counsel of the City of New York, New York City (Hillary Weisman, of counsel), for Plaintiff-Intervenor.

McCarthy & Secola, P.C., New Milford, CT (Joseph P. Secola, of counsel), Legal Center for the Defense of Life, New York City (Michael P. Tierney, of counsel), Bleakley Platt & Schmidt, White Plains, NY (William P. Harrington, of counsel), Morgan & Finnegan, L.L.P., New York City (John F. Sweeney, Gabriel P. Kralik, Michael O. Cummings, of counsel), A. Lawrence Washburn, New York City, for Defendants.

OPINION

ROBERT J. WARD, District Judge.

Plaintiffs move pursuant to Rule 43 of the Civil Rules for the Southern and Eastern Districts of New York ("Local Rule 43") for an order reinstating this Court's May 10, 1990 Order adjudging defendants in contempt and imposing noncompensatory sanctions on defendants, subject to an opportunity for defendants to purge themselves of contempt. In addition, plaintiffs move pursuant to 42 U.S.C. § 1988, Rule 54, Fed. R.Civ.P., and Local Rule 43 for an order reinstating this Court's July 9, 1990 Order awarding plaintiffs attorneys' fees incurred in bringing a motion for contempt and as prevailing parties on their civil rights claims. For the reasons that follow, plaintiffs' motion is granted.

BACKGROUND

Plaintiffs commenced this action in the Supreme Court of the State of New York on April 25, 1988, seeking injunctive and declaratory relief to restrain defendants from blocking access to medical facilities providing abortions. The action was brought in response to defendants' plan to carry out a week of protests, denominated "Operation Rescue," at area abortion clinics from April 30 until May 7, 1988. In furtherance of their plan, defendants attempted to prevent abortions by converging on a different clinic or facility each day. The target facility 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 medical facilities performing abortions in New York City and the surrounding counties. On April 28, 1988, Justice Cahn of the Supreme Court, New York County, issued a temporary restraining order ("TRO"). Having been assured by the New York City Police Department that access to the clinics would be provided, Justice Cahn did not expressly enjoin Operation Rescue from blocking access to health care facilities performing abortions.

Despite the assurances of the police department, on May 2, 1988, 503 protestors succeeded in blockading the office of a Manhattan doctor who performed abortions at 154 East 85th Street. All of the protestors were arrested. On the afternoon of May 2, 1988, Justice Cahn issued a second TRO, which 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."

Despite the order, defendant Randall Terry ("Terry") led a demonstration in front of a Queens facility where abortions were performed on May 3, 1988. During the demonstration, in which protestors blocked ingress into and egress from the facility, several hundred demonstrators were arrested. Later that afternoon, Justice Cahn conducted a hearing on the matter, during which defendants removed the action to this Court. A hearing before this Court was scheduled for May 4, 1988.

At that hearing, the Court decided that it would adopt and continue Justice Cahn's May 2, 1988 TRO, modifying it by (1) adding coercive sanctions of $25,000 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. On May 5, 1988, Operation Rescue conducted a demonstration in front of the Women's Choice Clinic in Hicksville, Long Island, a facility where abortions are performed. Protestors sat on the sidewalk in front of the clinic, blocking ingress into and egress from the clinic for three hours.

On May 6, 1988, Operation Rescue demonstrators returned to the East 85th Street office of the doctor who performed abortions. Terry personally participated in this protest, during which demonstrators blocked access to the office. As a result of the May 6, 1988 demonstration, 320 Operation Rescue protestors, including Terry, were arrested.

Following the events of May 5 and 6, 1988, and in accordance with the TRO, plaintiffs filed a motion seeking civil contempt sanctions against Operation Rescue and Terry. By Opinion dated October 27, 1988 ("the October 27 Opinion"), the Court granted the motion, denied defendants' cross-motion to dismiss, and adjudged Terry and Operation Rescue in civil contempt of the May 4 Order for their participation in the May 5 and May 6 demonstrations. N.O.W. v. Terry, 697 F.Supp. 1324, 1338 (S.D.N.Y.1988). A judgment was entered holding Terry and Operation Rescue jointly and severally liable for $50,000 in civil contempt sanctions, payable to the National Organization for Women ("N.O.W.").¹

On October 7, 1988, plaintiffs moved to modify the Court's prior order 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. The Court granted plaintiffs' motion after an evidentiary hearing, converting the TRO to a preliminary injunction on October 27, 1988 (the "Preliminary Injunction"). Defendants' applications to this Court and the Court of Appeals for a stay pending appeal of the Preliminary Injunction were denied. In spite of this, defendants proceeded with their plan, conducting two demonstrations on October 29, 1988 within the geographical area covered by the Preliminary Injunction.

One demonstration was held at the Women's Pavilion medical clinic in Dobbs Ferry, New York. Between 8 a.m. and 12:15 p.m., 250 Operation Rescue protestors blocked ingress into and egress from the clinic. During those same hours, 130 protestors blocked access to the Women's Pavilion clinic in Deer Park, New York. All 130 participants in the Deer Park blockade were arrested. Both clinics provide abortions and family planning counseling.

In retaliation for the Court's October 27, 1988 Opinion, Operation Rescue organized blockades of abortion providers in the New York City area from January 12 through January 14, 1989. N.O.W. v. Terry, 732 F.Supp. 388, 395 (S.D.N.Y.1990). Upon learning of Operation Rescue's plan, plaintiffs moved the Court for summary judgment on their claims under 42 U.S.C. § 1985(3) and state law, and for a permanent injunction on December 21, 1988. The Court heard oral argument on January 6, 1989. On January 10, 1989, the Court entered a permanent injunction ("the Permanent Injunction"), enjoining defendants from, among other things,

trespassing on, blocking, or obstructing ingress into or egress from any facility at which abortions are performed in the City of New York, Nassau, Suffolk or Westchester counties [and] physically abusing or tortiously harassing persons entering, leaving, working at, or using any services at any facility at which abortions are performed in the City of New York, Nassau, Suffolk, or Westchester Counties.

The injunction contained provisions limiting defendants' First Amendment right to sidewalk counsel. It also provided that defendants would be fined for failing to give the City of New York advance notice of any demonstrations.

In addition, the Permanent Injunction set out a schedule of sanctions for future violations. The Court ordered that

the failure to comply with th[e] Order by any Operation Rescue participant with actual notice of the provisions of th[e] Order shall subject him or her to civil damages of $25,000 per day for the first violation of th[e] Order; and ... further ordered that each successive violation of th[e] Order shall subject the contemnor to a civil contempt fine double that of the previous fine; and ... further ordered that any amounts collected thereunder shall be paid into the Registry of the Court to be disbursed by further Order of the Court; and ... further ordered that each contemnor shall be jointly and severally liable for all attorneys' fees and related costs incurred by plaintiffs in...