Metropolitan News-Enterprise


Thursday, June 6, 2019


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Ninth Circuit Won’t Consider Cooley’s Appeal of Contempt Fine

Opinion Says Former District Attorney, Pro-Life Activist, Others Can’t Contest, Now, a $195,000 Penalty For Posting a Video in Violation of Order; Challenge Must Await Resolution of Underlying Civil Case


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday dismissed an appeal by former Los Angeles County District Attorney Steve Cooley and others of a $195,000 civil contempt fine based on violating a preliminary injunction, saying that the appeals are premature because the underlying civil action is still pending.

The fine was based on the display on the website of Steve Cooley Associates of videos surreptitiously recorded by pro-life activist David Daleiden and members of his organization, Center for Medical Progress (“CMP”) at annual meetings of the National Abortion Federation (“NAF”) in 2014 and 2015. Claiming that Daleiden violated a confidentiality agreement he signed, NAF has sued him and CMP in the U.S. District Court for the Central District of California for fraudulent misrepresentation, promissory fraud, breach of contract, and civil conspiracy.

U.S. District Court Judge William Horsley Orrick of the Northern District of California in 2016 granted NAF a preliminary injunction barring Daleiden and CMP from “publishing or otherwise disclosing to any third party any video, audio, photographic, or other recordings taken, or any confidential information learned, at any NAF annual meetings.”

There was a police raid on Daleiden’s home and, anticipating criminal proceedings against him, the activist hired Cooley and his associate, Brentford Ferreira, to represent him. He is now charged in San Francisco Superior Court with 15 state felony counts stemming from the surreptitious recordings.

Orrick found Cooley, Ferreira, Daleiden and CMP in civil contempt based on a three-minute “preview” on the Cooley website of the 144 hours of recordings. He also determined that Daleiden and CMP violated the preliminary injunction through an upload to YouTube.

Cooley and Ferreira have contended that they posted the “preview” in pursuit of providing a “vigorous criminal defense” for their client.

Watford’s Opinion

In yesterday’s decision, Circuit Judge Paul Watford recited that Daleiden and CMP filed an appeal and Cooley and Ferreira separately appealed. He said:

“NAF argues that we lack jurisdiction to hear either appeal, given that final judgment has not yet been entered in the underlying civil action. We agree and accordingly dismiss both appeals.”

The judge continued:

“The analysis with respect to Daleiden and CMP is straightforward, so we will start with them. As parties to the underlying action, Daleiden and CMP could obtain immediate appellate review of the district court’s contempt order only if the court had held them in criminal contempt….If the court instead held them in civil contempt, as it purported to do, Daleiden and CMP would need to wait until entry of final judgment in the underlying action to obtain appellate review of the orders….Although the label the district court affixes to sanctions is not dispositive…, the contempt sanctions imposed here are plainly civil in nature. The sanctions were made payable to NAF, not the court, and they compensate NAF only for the expenses it incurred as a direct result of Daleiden’s and CMP’s sanctionable conduct….The fact that the sanctions are immediately payable does not render the court’s order appealable on an interlocutory basis.”

Non-Party Appellants

Ordinarily, Watford said, the sanction against Cooley and Ferreira would be immediately appealable because they are not parties to the District Court proceeding.

“But when there is a ‘substantial congruence of interests’ between the sanctioned non-party and a party to the action, the non-party may not immediately appeal,” he pointed out.

Watford declared:

“The interests of Cooley and Ferreira are substantially congruent with those of Daleiden and CMP. The district court found that Daleiden and CMP acted in conceit with Cooley and Ferreira to violate the preliminary injunction, so the liability of all of them arises out of the same course of conduct. In addition, the court imposed joint and several liability, so Cooley and Ferreira are attacking the same award imposed against Daleiden and CMP on largely the same grounds. In these circumstances. Cooley and Ferreira must wait until after entry of final judgment to obtain review of the contempt sanctions imposed against them, just as Daleiden and CMP are required to do.”

Distinction Drawn

Cooley and Ferreira argued that cases in which an attorney was found in contempt and was required to wait until resolution of the underlying civil action before appealing have involved the situation where the attorney was representing a party in the civil proceeding—which they were not.

Watford acknowledged that Cooley and Ferreira were representing Daleiden not in the District Court case, but a state criminal proceeding.

“Nothing turns on that distinction, though,” he said. “The purpose of the substantial congruence rule is to avoid duplicative appeals, and that harm would occur whether or not the attorney found in contempt represents a party in the underlying action.”

Derek Foran, a partner in the San Francisco office of Morrison & Foerster LLP, argued for NAF. He commented yesterday:

“We are pleased with the result, but given the overwhelming, undisputed evidence of an outrageous, deliberate contempt of court perpetrated by two members of the bar on behalf of their client, there was only ever going to be one outcome, and that is vindication for NAF and its members.”

Ferreira’s Remarks

Ferreira remarked that the Ninth Circuit “took the easy way out instead of dealing with the merits.”

He recounted that the presiding judge of the San Francisco Superior Court ordered the state attorney general “to give us complete access to the videos and other documents obtained by a search warrant served on David Daleiden.” That action was taken, th

e lawyer noted, after Attorney General Xavier Becerra “disparaged our client as a criminal in a press release.”

“Mr. Cooley and I decided to make the videos available on the Steve Cooley & Associates website so that the public could decide whether Mr. Daleiden was a journalist and not a criminal,” he continued. “Judge Orrick held us in contempt based on an injunction he issued in a civil case to which Mr. Cooley and I were not parties.”

Abstention Doctrine

Ferreira pointed to the U.S. Supreme Court’s 1971 decision in Younger v. Harris. There, it was held that federal courts are not to interfere with state criminal proceedings except under extraordinary circumstances.

“An important issue under Younger v. Harris exists concerning whether an already-existing federal civil injunction can bind defense lawyers in a state criminal case charged with protecting the liberty of a journalist whose First Amendment rights are being ignored,” Ferreira said.

He charged that former Attorney General Kamala Harris (now a U.S. senator) and then Becerra “pandered to their ally Planned Parenthood in bringing an entirely unwarranted criminal case.”

Watford’s opinion came in National Abortion Federation v. Center for Medical Progress, 17-1662.


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