Abortion Foes Take Battle Over Contempt Fine to 9th Circuit

SAN FRANCISCO (CN) – An anti-abortion crusader’s lawyer on Friday urged the Ninth Circuit to reverse a nearly $200,000 contempt fine, accusing a federal judge of bias and painting the fine as an unfair criminal penalty imposed on her client.

“My client has been tried, convicted and punished for contempt without due process or any proof,” attorney Sarah Pitlyk told the three-judge Ninth Circuit panel.

Pitlyk represents David Daleiden, founder of the anti-abortion group Center for Medical Progress, which used fake aliases to infiltrate and secretly record an abortion-provider trade group’s meetings. The group’s actions spurred two federal lawsuits.

Last year, U.S. District Judge William Orrick III slapped Daleiden and two of his lawyers with $195,000 in fines for making public videos of the National Abortion Federation’s annual meeting in violation of a preliminary injunction. Daleiden’s lawyers, Steve Cooley and Brentford Ferreira, say they had to share links to those videos on their website and in a public court filing to mount a “vigorous criminal defense” against 15 felony charges Daleiden faces in state court for conspiracy and invasion of privacy.

Pitlyk told the appellate panel Orrick morphed the civil contempt case into a criminal proceeding when he cited deterrence as a justification for imposing fines in his August 2017 ruling.

“The deterrent language in this case is ubiquitous,” Pitlyk  said. “[Orrick] specifically uses it several times to depart from the standards for a civil compensatory award.”

The National Abortion Federation had requested $288,000 in legal fees and security costs incurred as a result of the banned videos’ release. The judge reduced that request by 32 percent, finding the higher amount would exceed what was necessary to ensure future compliance with his injunction.

The three-judge Ninth Circuit panel appeared skeptical of Pitlyk’s argument that considering deterrence as a factor in a civil contempt case automatically turns it into a criminal proceeding.

“What case says that any departure from the language of civil contempt automatically converts the proceeding into a criminal contempt,” U.S. Circuit Judge Johnnie Rawlinson asked.

Pitlyk insisted that a fine for deterrence makes this a criminal matter, which affords her client certain due process rights, including a higher burden of proof to be found guilty. Daleiden was found liable based on his “deafening silence” and refusal to answer questions about any role he may have had in editing and posting the videos.

Turning to fines imposed on Daleiden’s lawyers, U.S. Circuit Judge Michelle Friedman challenged the defense’s notion that a 1971 Supreme Court ruling, Younger v. Harris, means federal injunctions don’t apply to lawyers representing a client in a state court criminal case.

Cooley and Ferreira’s attorney, Matthew Geragos of Los Angeles, argued the Younger abstention forbids federal court interference in a state court criminal proceeding.

“In what way did this interfere at all with the state court proceeding,” Friedman asked.

Geragos replied that the injunction serves as a “roadblock” preventing Cooley and Ferreira from mounting an “unfettered” defense on behalf of their client. Complying with the injunction could force them to “give up [their] whole defense” if they have to ask Orrick for permission each time they want to use certain portions of evidence in state court, he argued.

“Maybe you need to seal the state court room or something,” Friedman responded. “How is it interfering?”

Representing the National Abortion Federation, attorney Derek Foran urged the panel to dismiss the appeal for lack of jurisdiction. He said the appeal is not yet ripe because the court has yet to determine if Daleiden and his co-defendants broke the law by secretly taping the trade group’s meetings.

Rendering a decision now would undermine the purpose of Section 1291 of Title 28 in the U.S. Code of Laws, which only gives appeals courts power to review final decisions by federal courts, Foran argued.

He also urged the panel to reject the defense team’s rehashed arguments about Judge Orrick’s alleged bias.

In June 2017, U.S. District Judge James Donato denied a motion to disqualify Orrick as presiding judge in the case, finding allegations about his wife’s Facebook “likes” and his previous work with a Planned Parenthood-affiliated health clinic were “miles away from the kind of entanglements that would support recusal.”

Nevertheless, Pitlyk renewed the defense’s request to remove Orrick, arguing that in a divisive case like this the standard is “whether it’s advisable for the preservation of the appearance of justice.”

U.S. Circuit Judge Paul Watford joined Rawlinson and Friedland on the panel. All three judges were appointed by Democratic presidents.

In May, the Ninth Circuit advanced a separate case against Daleiden and the Center for Medical Progress filed by Planned Parenthood, which seeks punitive damages for the release of “heavily manipulated” and “misleading” videos that suggest the nation’s largest abortion provider illegally profited from its fetal tissue donation program.

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