COURT OF APPEALS DECISION DATED AND RELEASED December 17, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0254
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
In the Matter of the
Finding of
Contempt in: State of
Wisconsin and
City of Milwaukee v.
Missionaries
to the Preborn, et al.
-------------------------------------------
State of Wisconsin and
City of Milwaukee,
Plaintiffs-Respondents,
v.
James R. Donohoo,
Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
RAYMOND E. GIERINGER, Reserve Judge.
Affirmed.
Before Wedemeyer, P.J.,
Fine and Curley, JJ.
PER CURIAM. James R. Donohoo appeals from an order
issuing a contempt citation for violating a permanent injunction enjoining the
activities of abortion protesters at various medical clinics in the City of
Milwaukee. Donohoo claims that the
trial court erred when it found that he violated the injunction by acting in
concert with three individuals who were named defendants in the permanent
injunction. He argues that in order to
find that he acted in concert with a named defendant, the trial court must find
that a named defendant actually violated the injunction at the same time that
Donohoo did. Because the trial court
did not err in finding that Donohoo acted in concert with a named defendant, we
affirm.
I. BACKGROUND
On December 10, 1992, a
Milwaukee trial court issued a permanent injunction restraining numerous
individuals and anyone acting in concert with those individuals from engaging
in certain activities at various medical clinics that provide abortions. The injunction prohibited protest activities
within twenty-five feet of the entrance to the clinics and within ten feet of
the individuals seeking access to the clinic facilities. Donohoo was not named in the permanent
injunction, but he admitted that he had received notice of it. He also admitted that on June 25, 1994, he
engaged in protest activities within twenty-five feet of the entrance of one of
the clinics named in the injunction; that he spoke with Dale Pultz (who is a
named defendant in the injunction); and that after conversing with Pultz, he
returned to his protest position within twenty-five feet of the entrance to the
clinic.
The trial court found
Donohoo in violation of the injunction, ruling that Donohoo engaged in
prohibited protest activities while acting in concert with Pultz, Stephen
Gaenslen and John Stambaugh. Gaenslen
and Stambaugh are also named defendants in the injunction. Donohoo now appeals.
II. DISCUSSION
Whether Donohoo's
actions constituted a contempt of court is a finding of fact for the trial
court. See Oliveto v.
Cranford Cir. Ct., 194 Wis.2d 418, 427-28, 533 N.W.2d 819, 823
(1995). In reviewing the determination,
we defer to the trial court's findings of fact, which will not be overturned
unless they are clearly erroneous. Id.
Moreover, the question of whether a
non-party is acting in concert with a party to an injunction is a question of
fact to be determined by the trial court.
See Dalton v. Meister, 84 Wis.2d 303, 312, 267
N.W.2d 326, 331 (1978).
Donohoo argues that the
trial court erred when it found him in contempt. His argument rests in his definition of “in concert.” Donohoo claims that an individual cannot be
acting in concert with a named defendant unless a named defendant is violating
the injunction at the same time as the non-named individual. Donohoo argues that because the trial court
did not find that a named defendant violated the injunction at the same time he
did, that the trial court could not find him in contempt. We do not accept Donohoo's interpretation.
“Concerted action” is
“action that has been planned, arranged, adjusted, agreed on and settled
between parties acting together pursuant to some design or scheme.” Black's
Law Dictionary 289 (6th ed. 1990).
This definition articulates the proper legal standard necessary to
determine whether a non-party has acted in concert with a defendant named in
the injunction.
The definition does not
require what Donohoo proposes—that a named defendant must be found to be
violating the injunction at the same time as a non-named individual in order to
make the “in concert” finding. To
accept such an interpretation would invite the named defendants to solicit
non-named individuals to commit the conduct proscribed by the injunction and,
in effect, render the injunction meaningless.
This is not the intent of the law.
See Roe v. Operation Rescue, 919 F.2d 857, 871 (3d
Cir. 1990) (“The law does not permit the instigator of contemptuous conduct to
absolve himself of contempt liability by leaving the physical performance of
the forbidden conduct to others.”).
We have reviewed the
record and conclude that the evidence is sufficient to justify the trial
court's ruling that Donohoo acted in concert with named defendant Pultz and
participated in proscribed protest activities.
The trial court's findings can be discerned from the citation for
contempt and are not clearly erroneous with respect to Pultz. See § 805.17(2), Stats.
David Ritz, a
photographer, testified at the hearing that he observed Donohoo conversing with
Pultz and that after this conversation, Donohoo proceeded to protest within
twenty-five feet of the clinic entrance.
When Donohoo testified, he admitted that he spoke with Pultz and then
protested within twenty-five feet of the clinic entrance. Under these facts, it is reasonable to infer
that Donohoo acted in conjunction with a named defendant. The conversation with Pultz followed by
engaging in proscribed protest activities is sufficient to support the trial
court's determination.
We do not find support
in the record to support the trial court's findings that Donohoo acted in
concert with Gaenslen or Stambaugh.
Although both were present, Donohoo did not have any contact with
Stambaugh, and his only contact with Gaenslen was a brief conversation as
Donohoo was leaving the scene. The
trial court's err in this regard, however, is harmless because Donohoo did act
in concert with Pultz, which is sufficient to sustain the contempt
finding. See State v.
Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231 (1985). Accordingly, we affirm.[1]
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.