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COURT OF APPEALS DECISION DATED AND RELEASED August 08, 1995 |
NOTICE |
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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. 94-2269
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN
and CITY OF MILWAUKEE,
Plaintiffs-Respondents,
v.
BRADFORD LESCHER,
Appellant,
MISSIONARIES TO THE
PREBORN,
ET AL.,
Defendants.
APPEAL from an order of
the circuit court for Milwaukee County: ROBERT W. LANDRY, Reserve Judge. Affirmed.
SULLIVAN, J.[1] Once again, this court is confronted by
another of a seemingly endless trickle of cases emanating out of protests at
abortion clinics located in Milwaukee County.
The issues presented are not new; neither is the result. Bradford Lescher appeals from an order
issuing a remedial contempt citation for violating a permanent injunction that
was issued on December 10, 1992, enjoining activities of certain abortion
protestors at medical clinics throughout the City of Milwaukee. The injunction prohibits certain named
individuals and anyone acting “in concert” with those individuals from engaging
in particular activities at medical clinics.
Lescher claims that the trial court erred in issuing a contempt order
against him because: (1) the trial
court did not “understand the proper legal definition of `in concert', and did
not correctly apply the proper legal definition to the facts;” and (2) the
evidence is insufficient to support the trial court's finding that Lescher
acted in concert with a named defendant to the injunction. This court rejects both of Lescher's
arguments and affirms the order.
I. BACKGROUND
On December 10, 1992, a
Milwaukee trial court issued a permanent injunction order prohibiting certain
individuals, and anyone acting in concert with those individuals, from engaging
in certain activities at medical clinics that provide abortions. On April 15, 1993, the trial court
filed an order modifying the caption of its December order, to specifically
list by name thirty-eight individuals subject to the injunction. Stephen Gaenslen was among the thirty-eight
individuals specifically named in the April injunction order. The injunctions prohibited the named
defendants, and anyone acting in concert with a named defendant, from entering
a twenty-five-foot buffer zone around clinic entrances and a “floating”
ten-foot personal zone around
individuals seeking access to the clinics.
On November 6, 1993,
Lescher was present at the Wisconsin Women's Health Center during an abortion
protest. A motion for contempt was
filed against Lescher on December 7, 1993, and an evidentiary hearing was held
on May 14, 1994, which provided the following evidence.
Witness Katrina Haas
testified that she knew Lescher because he was a frequent protester at abortion
clinics and that Lescher was present at the Health Center on the morning of
November 6, 1993. She further testified
that she knew Gaenslen, knew that he was a named defendant on the permanent
injunction, and saw Gaenslen protesting at the Health Center on November
6. She testified that at approximately
10:45 a.m., she saw Lescher speak with Gaenslen, although she did not hear the
substance of the conversation. Within
minutes after the conversation concluded, she testified that she saw Lescher
block a car from entering the clinic parking lot, and that she saw and heard
Lescher: (1) approach within two to three feet of a woman leaving a blocked
car; and (2) yell, “Don't let those satanic bastards murder your child.” Further, a video tape was presented to the
court that showed Lescher and Gaenslen standing next to each other and Gaenslen
turning his face towards Lescher.
Gaenslen and Lescher both testified that they did not know each other
and that neither planned any activity with each other on the day of the
protest.
At the conclusion of the
hearing, the trial court determined that Lescher had violated the injunction by
acting in concert with a named defendant to the permanent injunction. The trial court made the following findings
of fact in support of its conclusion:
(1) Gaenslen was a named defendant to the injunction; (2) Gaenslen and
Lescher were both protesting at the clinic on November 6, 1993; (3) Lescher was
aware Gaenslen was at the clinic; (4) Lescher and Gaenslen were two feet apart
as shown on the evidentiary video; (5) on the video Gaenslen turned his face
towards Lescher; and (6) Lescher entered within the prohibited twenty-five feet
of the Center's parking lot and within ten feet of one of the patients. The trial court ordered a remedial sanction
of $500, gave Lescher ten days to pay the $500, or take an oath before the
court indicating Lescher would not violate the permanent injunction. Additionally, if he either failed to pay the
$500 or failed to take an oath with the ten days, the trial would place him in
the House of Corrections for twenty days.
Lescher now appeals.
II. DISCUSSION
1. Acting In
Concert.
Lescher claims that the
trial court did not “understand the proper legal definition of `in concert' and
did not correctly apply the proper legal definition to the facts.” This court disagrees with Lescher. Whether the proper legal definition was
utilized is a legal conclusion that this court reviews de novo. See First Nat'l Leasing Corp.
v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).
Lescher argues that in
order for an unnamed defendant to be found to be acting “in concert” with a
named defendant to the injunction, the trial court had to make a specific
finding that the named defendant violated the injunction. This court totally disagrees. As the City and State properly point out in
their brief, if such a definition was employed, “`any groups bound on violating
the rights of others ... [could] effectively defeat the power of the courts' by
continually changing the persons acting against the injunction.'” (Citation
omitted; material in brackets added.)
Accordingly, this court concludes that all that is required to find a
party acting in concert with a named party to an injunction is a finding that
the parties collectively acted to achieve a common goal. See Planned Parenthood Ass'n of
Cincinnati, Inc. v. Project Jericho, 556 N.E.2d 157, 163 (1990). The trial court in this case applied the
appropriate definition and there was no error.
2. Insufficient trial
court findings?
Lescher next argues that
trial court findings were insufficient to support a conclusion that he acted in
concert with Gaenslen, a named defendant to the injunction. The record belies this argument. Whether a party is acting in concert with
another person is a question of fact to be determined by the trial court, and
we will not overturn such a finding of fact unless it is clearly
erroneous. See Dalton v.
Meister, 84 Wis.2d 303, 312, 267 N.W.2d 326, 331 (1978);
§ 805.17(2), Stats.
None of the trial
court's findings of fact are clearly erroneous. The trial court found that: (1) Gaenslen was a named defendant to
the injunction; (2) Gaenslen and Lescher were both protesting at the
clinic on November 6, 1993; (3) Lescher was aware Gaenslen was at the
clinic; (4) Lescher and Gaenslen were two feet apart as shown on the
evidentiary video; (5) on the video Gaenslen turned his face towards Lescher;
and (6) Lescher entered within the prohibited twenty-five feet of the Center's
parking lot and within ten feet of one of the patients. The trial court's findings are sufficient to
uphold the order.
Further, any conflict in
the testimony of the witnesses is a question of credibility for the finder of
fact. Gehr v. City of Sheboygan,
81 Wis.2d 117, 122, 260 N.W.2d 30, 33 (1977); Milbauer v. Transport
Employes' Mut. Benefit Soc'y, 56 Wis.2d 860, 865, 203 N.W.2d 135, 138
(1973). An appellate court will not
substitute its judgment for that of the trier of fact unless the fact finder
relied on evidence that was “inherently or patently incredible—that kind of
evidence which conflicts with the laws of nature or with fully-established or
conceded facts.” State v.
Tarantino, 157 Wis.2d 199, 218, 458 N.W.2d 582, 590 (Ct. App.
1990). None of the testimony used in
support of the trial court's findings is patently incredible; hence, this court
will not substitute its judgment for that of the trial court. Accordingly, this court rejects Lescher's
arguments and affirms the order.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.