NOW v. Operation Rescue

816 F. Supp. 729, 1993 WL 92402
CourtDistrict Court, District of Columbia
DecidedMarch 29, 1993
DocketCiv. A. 89-2968-LFO
StatusPublished
Cited by8 cases

This text of 816 F. Supp. 729 (NOW v. Operation Rescue) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
NOW v. Operation Rescue, 816 F. Supp. 729, 1993 WL 92402 (D.D.C. 1993).

Opinion

MEMORANDUM

OBERDORFER, District Judge.

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, brought the parties before the Court again on February 16, 1993, to *730 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, — U.S. -, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993); (2) whether the Court has jurisdiction to act on alleged violations of the Injunction while appeal of that Order is pending; 1 (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 ease, “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.

— U.S. at -, 113 S.Ct. at 768. 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 tortiously 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 *731 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 Fáct

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 appealed 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.O. Box 127, Sum-merville, 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 tu 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.

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816 F. Supp. 729, 1993 WL 92402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/now-v-operation-rescue-dcd-1993.