Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 88-05157.
Sloviter, Becker, and Rosenn, Circuit Judges.
This appeal raises a classic issue relating to the tension that arises between exemplary efforts made by diligent and conscientious trial courts to manage their calendar in the expedition of justice and the constitutional requirement of the procedural process due a defendant in a civil contempt hearing.
The contempt charge underlying this appeal followed previous violations by the defendant of the trial court's order enjoining him from obstructing ingress or egress from any facility at which abortions are performed in the Philadelphia metropolitan area. The trial court found defendant to be in contempt of court and levied conditional fines. The trial court rejected Michael McMonagle's motion to dismiss plaintiff's current action to hold him in civil contempt, and after a series of preliminary motions by the parties, fixed a date for hearing on the latest contempt motion.
The court initially granted a number of continuances and, when it learned that at the time fixed for the contempt hearing the defendant would be in the throes of a six-month confinement in Atlanta, Georgia, for charges arising from his anti-abortion activities there, it granted the defendant another continuance expressly so that he could arrange to attend the hearing. McMonagle never appeared, claiming that the cost of transportation while in custody presented a financial hardship. The court held that McMonagle had waived his right to be present and adjudged him in contempt and imposed a fine. McMonagle appeals, claiming the contempt hearing violated his due process rights under the fifth amendment of the United States Constitution. We affirm.
On June 30, 1988, plaintiffs, Philadelphia-area abortion providers (the providers), obtained a temporary restraining order (TRO) in the United States District Court for the Eastern District of Pennsylvania enjoining the defendant, including McMonagle personally, from "blocking, obstructing ingress or egress from any facility at which abortions are performed in the City of Philadelphia and metropolitan area . . . ." McMonagle, the paid Executive Director of the Pro-Life Coalition of Southeastern Pennsylvania, was a named defendant in another case recently heard in this court also involving injunctive proceedings. Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342, 1345 (3d Cir.), cert. denied, 493 U.S. 901, 107 L. Ed. 2d 210, 110 S. Ct. 261 (1989). The terms of the TRO were extended on two occasions and a permanent injunction issued on March 21, 1989.
During the week of July 4, 1988, despite the TRO in effect at that time, the defendant and others blockaded the facilities of several abortion providers. By order dated December 5, 1988, the district court found McMonagle in civil contempt for violation of the TRO and imposed conditional fines in the amount of $10,000 for two violations. The court suspended the fines on the condition that any future violation would trigger the fines based on past violations and a $5,000 fine for each current violation.
On January 21, 1989, McMonagle participated in a blockade of the Reproductive Health and Counseling Center (RHCC) in Chester, Pennsylvania. On February 8, 1989, the defendant participated in another blockade at the Women's Suburban Clinic (WSC) in Paoli, Pennsylvania. As a result, plaintiffs filed another motion for civil contempt on July 7, 1989.
The court initially scheduled the hearing on the contempt motion for September 8, 1989. At defendant's request, the court continued that hearing to September 28, 1989. The court granted another continuance on September 21 to allow defendants time to respond to plaintiff's discovery requests. Beginning October 16, the contempt hearing was subject to call on 24 hours notice, until November 15, 1989, when the court scheduled the hearing for November 21, 1989.
McMonagle filed another motion for continuance on November 17, 1989, stating that he could not attend the contempt hearing scheduled for November 21, 1989, because he was incarcerated in the Fulton County prison in Atlanta, Georgia. He was under sentence there for six months beginning on November 15, 1989, for refusal to pay a fine for trespass. The trial court in this proceeding again granted McMonagle's motion for a continuance "so that defense counsel may arrange for the defendant's presence at the hearing," which the court rescheduled for December 13, 1989.
On December 11, 1989, defendant requested yet another continuance. This motion included an exhibit letter from his lawyer stating that he would be filing a motion to modify McMonagle's Georgia prison ...