COURT OF APPEALS DECISION DATED AND RELEASED December 12, 1995 |
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. 95-0256
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
OF THE PREBORN, ET
AL.:
STATE OF WISCONSIN
and CITY OF MILWAUKEE,
Plaintiffs-Respondents,
v.
SHARON KISTER,
Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
ROBERT C. CANNON, Reserve Judge.
Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Sharon Kister 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. Kister claims that the trial court erred in
issuing the contempt order against her because: (1) the finding of contempt was not supported by a preponderance
of the evidence; (2) the trial court applied an improper definition of “in
concert;” and (3) the trial court refused to dismiss the contempt motion based
upon the equitable defense of laches.
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 25 feet of the entrance to the clinics and within 10 feet of individuals
seeking access to the clinic facilities.
Kister was not named in the permanent injunction but she admitted that
she had received notice of it. On
February 12, 1994, Kister engaged in anti-abortion protest activities at one of
the clinics named in the injunction.
Elizabeth Wagi, one of the named defendants in the injunction, also
protested at the clinic. According to
the record, when Kister first arrived at the clinic, she and Wagi were within a
few feet of one another. Soon afterwards,
Kister and Wagi separated and each patrolled the opposite ends of the street
where the clinic was located. As
persons would attempt to enter the clinic, Kister, Wagi and other protesters
would stop them and try to talk to them.
David Ritz testified at the contempt hearing that he saw Kister do these
things within 25 feet of the entrance to the clinic and within 10 feet of the
individuals seeking access to the clinic facilities.
On May 13, 1994, the
City of Milwaukee commenced a contempt proceeding against Kister. On June 25, 1994, Kister was served with a
copy of the motion for contempt. An
affidavit supporting the motion was filed on July 14, 1994, detailing the
specifics of Kister's alleged contempt.
On November 4, 1994, Kister filed a motion to dismiss based upon the
affirmative defense of laches. The
motion was heard and denied on November 14, 1994. On that same date, the trial court found that Kister violated the
injunction by protesting within 25 feet of the clinic entrance and by
approaching within 10 feet of individuals attempting to enter the clinic. The trial court also determined that Kister
was acting in concert with Wagi.
Kister first argues that
the trial court's finding that she acted in concert with Wagi was not supported
by the evidence. Persons not party to
an injunction action who have knowledge of the injunction may be punished for
contempt if they aid, abet, or act in concert with named parties. Dalton v. Meister, 84 Wis.2d
303, 311–312, 267 N.W.2d 326, 330–331 (1978).
These are questions of fact to be determined by the trial court. Id., 84 Wis.2d at 312, 267
N.W.2d at 331. The evidence here is
ample to justify the conclusion that Kister acted in concert and participated
in proscribed anti-abortion protest activities with Wagi, a named defendant. The trial court's findings are inherent in
the citation for contempt punishing Kister, and are not clearly erroneous. See § 805.17(2), Stats.
Kister also argues that
the trial court applied the wrong definition of “in concert,” contending that
the trial court based its findings on her mere presence at the anti-abortion
demonstration. This argument raised by
Kister was rejected by the trial court.
The trial court applied the Black's
Law Dictionary definition of “concerted action” in reaching its
decision. Black's Law Dictionary defines “concerted action” as: “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). We agree with the trial court
that this definition sufficiently articulates the proper legal standard
necessary to determine whether a non-party has acted in concert with a
defendant named in an injunction. 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. As a result, those
who have knowledge of a valid court order and abet others in violating it are
subject to the court's contempt powers.”).
Finally, Kister argues
that the trial court should have dismissed the contempt charge based on
laches. Laches is an equitable doctrine
developed to prevent injustice from resulting in situations where a party unreasonably
delays asserting his rights and in so doing causes the other party to be
disadvantaged in asserting a defense. Smart
v. Dane County Bd. of Adjustments, 177 Wis.2d 445, 458, 501 N.W.2d 782,
787 (1993). The elements of laches
are: (1) unreasonable delay; (2) lack
of knowledge on the part of the party asserting the defense that the other
party would assert the right on which he bases his suit; and (3) prejudice to
the party asserting the defense in the event the action is maintained. Id. Laches is available only if all three elements are
established. “The determination whether
the delay was so unreasonable, inexcusable, and prejudicial to the [party
asserting laches] as to bar the [non-asserting party's] remedies rest[s] in the
sound discretion of the trial judge.” Blue
Ribbon Feed Co., Inc. v. Farmers Union Cent. Exch., Inc., 731 F.2d 415,
420 (7th Cir. 1984).
Kister fails to allege
any facts to support the element of prejudice.
Although Kister insisted that she could not recall the events of the day
in question, she declined to view some 52 pictures taken of her engaged in
various forms of protest activity at the clinic on that day, thus deliberately
avoiding a way to refresh her memory.
Nevertheless, she apparently had sufficient memory of that day to deny
doing any of the things in violation of the injunction with which she was
charged. In light of this, and in light
of her refusal to look at the photographs, we cannot conclude that the trial
court erroneously exercised its discretion in determining that she had not
established laches.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.