MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DISMISSING PLAINTIFF'S CLAIMS

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DISMISSING PLAINTIFF'S CLAIMS

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
AWARE WOMAN CENTER
FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE
Defendants.

CASE NO.: 97-1197-CV-ORL-19B

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DISMISSING PLAINTIFF RANEY'S CLAIMS ON McKUSICK, HOOVER, SAMUELS GROUNDS

Defendants, AWCC et al. respectfully submit this Memorandum in support of the Motion for Summary Judgment dismissing the Complaint of Plaintiff, Meredith Raney on McKusick grounds and for other relief.

PRELIMINARY STATEMENT

Plaintiff Raney's claims are very narrow, and without merit on any one and all of at least three separate legal grounds.

This district court has already decided a substantially similar case., with guidance from the Eleventh Circuit. See McKusick v. City of Melbourne, 96 F.3d 478 (11th Cir. 1996), complaint dismissed outright on remand, No. 94-1161-CIV- ORL-22 (M.D. Fla. June 26, 1997) (dismissing all claims of abortion protestor on very similar facts). [Opinion attached as Exhibit 1-A, M.D. Order attached as Exhibit 1-B].

This case and McKusick both involve:
(1) the same state court injunction;
(2) the same city, Melbourne, FL;
(3) the same clinic, AWCC;
(4) an anti-abortion protestor trying to induce a federal district court to review concluded local enforcement of a state court injunction and a state court process, in violation of all concepts of federalism and comity;
(5) claims for federal declaratory relief, revising a state court injunction that has already been construed by the U.S. Supreme Court in Madsen v. WHC, 512 U.S. 753 (1994), and which upheld the 36 foot "buffer zone" in question, where Raney was arrested;
(6) requested relief which was declaratory and injunctive in McKusick, is declaratory and for damages here, yet the two are analytically indistinguishable in light of the Eleventh Circuit disposition in McKusick, Accord, Samuels v. Mackell, 401 U.S. 66 (1971); and
(7) the unseemly prospect of hundreds of anti-abortion harassers who have final contempt convictions in Florida, or fear prosecution, bringing their frivolous claims to this federal court in Orlando.

The attached memorandum from the State Attorney (a public record) [Exhibit 2] enumerates some, but by no means all of the individuals who have been convicted of contempt for violating the injunction upheld in relevant. part by Madsen V. WHC, 512 U.S. 753 (1994). As it shows, Plaintiff was a persistent offender for whom a maximum sentence was recommended. He is no legitimate health care counselor. His past is utterly devoid of even the remotest healthcare qualifications. He worked previously in electronics, and has never been near a counseling course. Rather, the emerging evidence shows that Raney is a trained clinic harasser who follows doctors, regularly copies license plate numbers from cars at clinics and subsequently makes contact and has invaded the privacy. of patients and their families thousands of times.

Raney, more than McKusick, has been a persistent anti-abortion protestor locally and elsewhere since 1989 or earlier, with multiple arrests. He has almost no other life or cause, other than an urge for obstruction and protestation on behalf of fetuses. His arrest records may be impressive to a few fundamentalist pastors, but his claims to be a reproductive health care provider have no rational merit in this federal court.

Raney protests a state court injunction which was upheld in relevant part by the Supreme Court in Madsen v. WHC, 512 U.S. 753 (1994). He asks for damages predicated of necessity on declaratory relief McKusick protested the same state court injunction with its "buffer zone "upheld by the Supreme Court in Madsen, supra.

Neither Raney nor McKusick even alleged absence of probable cause by the City of Melbourne police to warn or arrest them for violation of the 36 foot buffer zone and state court injunction. Both Raney and McKusick protest normal police enforcement procedures by the same City of Melbourne in the same context.

Neither Raney nor McKusick denied notice of the state court injunction, which notice has been conspicuously posted on city signs at the site, since 1993. Both Raney and McKusick want to violate the protective clinic "buffer zone" at the same site, i.e., AWCC-Aware Woman Center, as seen in Raney's choreographed videotapes. [Exhibit 7]

Both Raney and McKusick want federal declaratory relief against the buffer zone, although it was approved by the Supreme Court in an opinion by Chief Justice Rehnquist, and has not been reversed, but has in fact been re-confirmed. See Madsen v. WHC, 512 U.S. 753 (1994), approved in Schenck v. Pro-Choice Network, 137 L.Ed. 2d 1 (1997) (also opinion of Chief Justice Rehnquist).

McKusick also wanted injunctive relief, which the Eleventh Circuit found inconsistent with Younger v. Harris, 401 U.S. 37 (1971), as explained in Hoover v. Wagner, 47 F.3d 845, 858 (CA 7 1995), which it adopted. A courtesy copy of Hoover v. Wagner has been attached as Exhibit 3.

Raney did not ask for an injunction, because he knew it would be denied after Madsen, McKusick and Hoover, all supra. Instead, he asks for the even less likely relief of damages, which necessarily would have to be predicated on a declaration that he has some rights which were violated. Understandably his damage, amount is given as $0 (zero) on the court docket sheet.

The companion case of Younger namely Samuels v. Mackell, 401 U.S. 66 (1971), raises the same abstention bar against Raney as McKusick. Raney's Complaint, similar in content to McKusick's, must be dismissed on the authority of McKusick, Hoover, Younger, and Samuels. Raney has no support in the case law, and even less in reason and logic.

Raney and his counsel did not disclose the existence of the Eleventh Circuit opinion in McKusick v. City of Melbourne (entered September 1996), when they filed in October 1997, although it was well known to Raney through his anti-abortion colleagues. Nor did Raney disclose the final, outright dismissal of McKusick by Order dated June 26, 1997, that also occurred before he filed. [See Exhibits 1-A and 1-B].

Instead, Raney and his counsel changed a few allegations in a transparent attempt to start the process and reargue these issues all over again. That is an imposition upon this Court and these parties which calls for outright dismissal reasonable costs and attorneys' fees, and Rule 11 sanctions against Raney's counsel who perhaps intentionally neglected to disclose the dispositive McKusick line of authorities. See Turner v. Sungard, 91 F.3d 1418 (11th Cir. 1996) (attorney and client liable on non-meritorious case)

I. FEDERAL COURT ABSTENTION & DISMISSAL ARE APPROPRIATE UNDER McKUSICK V. CITY OF MELBOURNE (CA 11), WHICH FOLLOWED HOOVER V. WAGNER (CA 7).

This case is not significantly different for outcome-determinative purposes from McKusick v. City of Melbourne, 96 F.3d 478 (11th Cir. 1996), which followed Hoover v. Wagner, 47 F.3d 849 (7th Cir. 1996) (Posner, C.J.). Both dismissed similar actions brought by anti-abortion protestors after actual or threatened state court proceedings.

Plaintiff Raney did not bring attention to McKusick, an MD Fla case, at the time of filing, although the same city, injunction, clinic and routine police enforcement are involved. (Nor did Defendants previously cite McKusick, because dismissal on two further grounds would also be appropriate.)

Raney's three claims are very narrow, insufficiently developed, and readily disposed of by McKusick, Hoover, Younger, and Samuels all supra. The broader background is set forth Affidavit of Patricia Baird Windle [Exhibit 4].

First, we look to what Raney is asking the federal court to do to a state court injunction that has already been upheld in relevant.part by the Supreme Court in Madsen v. WHC, 512 U.S. 753 (1994), and reaffirmed in Schenck v. Pro-Choice Network, 137 L.Ed. 2d 1 (1997).

Raney has been prosecuted numerous times for violating the Melbourne "buffer zone" upheld in Madsen, supra. He admits to three [Exhibit 5] but does not allege absence of probable cause, nor lack of notice of the injunction, nor improper motive in enforcement nor federal habeas jurisdiction. He does not and could not claim lack of notice of the injunction, nor that he has not "participated" (since 1989) in an active program to harass, obstruct, threaten, and intimidate physicians, patients, staff, and other persons associated with the AWCC clinic. He is proud of it. That is his entire life.

Raney has been brought into state court often for violating the Melbourne injunction upheld in relevant part by Madsen v. WHC, 512 U.S. 753 (1994), albeit not often in the past two years. In such proceedings, prior, or after, Raney could ask the state court judge to modify the injunction, but he has not done so, preferring usually to appear pro se,. Nor has Raney availed himself of state appellate procedures, where he could attempt to take the injunction back up if he can find some way to get around the obstacle of Chief Justice Rehnquist's opinion in Madsen, supra.

Instead, Mr. Raney and his new counsel have moved over to federal court under inapplicable legislation [See Exhibit 6: Congressional Conference Committee Report describing Purposes and Findings of F.A.C.E.] and have asked this Court to reinterpret and supplant the state court injunction on the 36 foot "buffer zone," discussed so thoroughly and upheld by Chief Justice Rehnquist.

The case law offers no support for Mr. Raney, no federal declaration reinterpreting the injunction, none saying that he is not on notice and covered by it, and certainly no rational basis for assessing any kind of damages.

II. DISMISSAL WARRANTED UNDER "ROOKER-FELDMAN DOCTRINE" LIMITING FEDERAL REVIEW OF STATE COURT DECISIONS.

An alternate approach to dismissing Raney's case would be under the Rooker-Feldman doctrine, e.g., DC Ct App v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust, 263 U.S. 413, 415-16 (1923).

Raney's three complaints are about three completed state court proceedings. In state court Raney could have, but did not, seek modification of the injunction and arrest procedures. His remedy was to appeal upward in the state court system, but Raney did not.

Instead, Raney launched this collateral federal court attack for declaratory relief (by implication) and damages. He is barred by Rooker-Feldman.

An almost identical case from the Fourth Circuit so held, dismissing convicted abortion harassers out of their later federal court case. See Craddock v. Circuit Court 112 F.3d 508 (4th Cir. 1997) (per curiam). Their Raney-type claim was found to be "frivolous." It was a subsequent collateral attack on a concluded state court proceeding, barred by Rooker-Feldman.

What was "frivolous" in the Fourth Circuit should be frivolous and dismissible here on this summary judgment motion.

Further support for the Rooker-Feldman approach comes from Hoover v. Wagner, 47 F.3d 845, 849 (7th Cir. 1995), adopted in this Circuit. Hoover would have been dismissed out under Rooker-Feldman, but "the plaintff's are not parties to the state court action. . . . " 47 F3 d at 849. Raney, however, was arrested and a party. He complains thereof. Hoover, therefore would support dismissal of Raney on ties second, additional ground. As we know, Hoover and McKusick went on to use the principles of abstention to dismiss abortion protestors. Raney's case, having followed their frivolous example, should now follow their footsteps out of this Court.

THE McKUSICK PRECEDENT

The district court and Eleventh Circuit McKusick opinions are included in this filing for the convenience of the Court. [Exhibits l-A and l-B]. Raney filed his action almost three months to the day after McKusick was dismissed out, so it was not flagged as a then-pending "unusually similar case" at the time.

The final McKusick opinion here "holds that McKusick's claim for declaratory and permanent injunctive relief should be dismissed on equitable grounds." (Opinion of June 26, 1997, p.2) [Exhibit 1-B]. As required by the Eleventh Circuit, 96 F.3d at 487-88 [Exhibit 1-A], this Court followed Hoover v. Wagner, 47 F.3d 845 (7th Cir. 1995) [Exhibit 3], which had dismissed a similar case on federalism and comity grounds, declining to:

"thrust the federal court into an unseemly, repetitive, quasi-systematic, supervisory role over administration of the state court injunction. . . ." 96 F.3d at 487-488.

Judge Conway noted further that:

"Declaratory relief would be equally inappropriate in this case. Only in 'unusual circumstances' is it appropriate to grant declaratory relief when the court has determined that injunctive relief is not justified. See Samuels v. Mackell, 401 U.S. 66, 73 (1971)." (Opinion of June 26, 1977, p. 4) [Exhibit 1-B].

It is a "repetitive, quasi-systematic, supervisory role" which Raney now asks of the federal court to review the first three "buffer zone" violations, then who knows how many more, from hundreds of state misdemeanor contempt proceedings in search of a federal revisionary remedy. This is even more intrusive on federalism than Linda McKusick's case. She had not even been in the state court process. Raney, however, had become a courthouse regular and occasional guest of the County.

Raney does not allege improper motive or lack of probable cause. His allegation of police-clinic agency is frivolous and cannot be supported. It is similar in weight to Paula Jones' complaint of not getting flowers on Secretaries Day. Raney did not have any clinic audience on his three selected arrest days: just police enforcing city policy, witnessed by the burly U. S. Marshal. No clinic persons were even present to direct an imaginary agency. Raney's own videotapes show the events clearly [Exhibit 7] and provide strong support for Defendants' summary judgment request.

The declaratory prong of McKusick, Hoover and Samuels is fully present here. Raney must first obtain some declaration that his rights were violated before he can ask for damages. This declaration would have to dismember and discredit the state court injunction, the process of enforcing it, and the Supreme Court affirmance. Raney cannot force such an interference with the state injunction because of McKusick, Hoover, Lamuels, Madsen, and many more cases. Certainly, Linda McKusick could not have changed her outcome by adding a claim for $1 in damages. And, Raney cannot make an end run around the Eleventh Circuit and Supreme Court of the U.S. by omitting a request for injunctive relief. His case must be dismissed on grounds of federalism, comity, and core abstention, or this Court will become an asylum for trespassers, stalkers, obstructionists, and the career domestic terrorists such as Meredith Raney, all complaining of stale misdemeanor convictions.

CONCLUSION

For the reasons set out, this Court should as a matter of law, grant AWCC's motion for summary judgment and dismiss Raney's claims and Complaint with prejudice on federalism, comity, and abstention grounds.

Respectively submitted,

Roy Lucas <signed>
Attorney for Defendants
P.O. Box 1433
Melbourne, FL 32902-1433
(407)339-4600

SUSAN A. ENGLAND <signed> Fla Bar #0186081
Attorney for Defendants
Susan A. England, P.A.
2805 Lakeview Drive
Fern Park, FL 32730-2007