ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V MELBOURNE
DOCKET / CHRONOLOGICAL FILE
APPELLANT'S PRINCIPAL BRIEF

No. 00-11403-B

UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT

MEREDITH T. RANEY, JR.,
Appellant,

vs.

CITY OF MELBOURNE, FLORIDA,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT,
MIDDLE DISTRICT OF FLORIDA, JUDGE PATRICIA FAWSETT,
NUMBER 99-416-ORL-19B

PRINCIPAL BRIEF OF APPELLANT, MEREDITH T. RANEY, JR.

CHRISTOPHER F. SAPP
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar Number 0097823
Attorney for Appellant

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS
CERTIFICATE OF TYPE SIZE AND STYLE
STATEMENT REGARDING ORAL ARGUMENT
TABLE OF CITATIONS
STATEMENT OF JURISDICTION
STATEMENT OF ISSUES
STATEMENT OF THE CASE
BACKGROUND
STATEMENT OF THE FACTS
STANDARD OF REVIEW
SUMMARY OF THE ARGUMENT
ARGUMENT AND CITATIONS OF AUTHORITY
CONCLUSION
CERTIFICATE OF SERVICE

Adams, Henry Lee, Jr., U.S. District Judge presiding in Sienkiewicz v. Hart[6]

Allstate Floridian Insurance Company, Plaintiff in Allstate v. Raney[1]

Allstate Insurance Company, Plaintiff in Allstate v. Raney[1]

Aware Woman Center for Choice, Inc., Appellee/Defendant in Roe, II v. Aware Woman Center For Choice, Inc.[3] and in Raney v. Aware Woman[4]; also, Plaintiff in Aware Woman v. Raney[7], along with other Plaintiffs with fictitious names, proceeding anonymously, and Defendant in Allstate v. Raney[1] and also a Plaintiff in Manhattan Magnolia Corp. v. Unterburger[9]

Babyack, Jill, Manager of Ft. Myers Women's Health Center, Inc., Defendant in Sienkiewicz v. Hart[6]

Block, Jack, Esquire, Attorney for Appellees/Defendants in N.O.W. v. Scheidler[2]

Branin, Sharon, Individually and on behalf of the classes of patients, staff, physicians, invitees, guests, and independent contractors of Manhattan Magnolia Corp., Defendant in Allstate v. Raney[1] and a Plaintiff in Manhattan Magnolia Corp. v. Unterburger[9]

Brejcha, Thomas, Esquire, of the Thomas More Society, attorney for Appellants/Defendants in N.O.W. v. Scheidler[2]

Clayton, Fay, Esquire, Attorney for Plaintiffs/Appellees in N.O.W. v. Scheidler[2]

Clinton, William J., President of the United States and Defendant in Sienkiewicz v. Hart[6]

Compuserve, Incorporated, a corporation doing business in Florida. A Defendant in Manhattan Magnolia Corp. v. Unterburger[9]

Coar, David H., U.S. District Judge presiding in N.O.W. v. Scheidler[2]

Dean, Horace "Ed", Sheriff-Marion County, Defendant in Ocala Women's Center, Inc. v. City of Ocala[8]

Dean, Ringers, Morgan and Lawton PA, Law firm of Lamar D. Oxford.

Deen, Morrey, Chief of Police of City of Ocala and a Defendant in Ocala Women's Center, Inc. v. City of Ocala[8]

Delaware Women's Health Organization, Inc., Plaintiff in N.O.W. v. Scheidler[2]

Doe Corporations 1-X, their agents, assigns, collaborators, accomplices, confederates, aiders & abbettors, successors in interest, those acting in concert or participating with them, and the class of individuals and entities similarly situated as to the named defendants, Defendants in Manhattan Magnolia Corp. v. Unterburger[9]

Doe, Jane & Moes 1-X, Defendants in Manhattan Magnolia Corp. v. Unterburger[9]

Doe, John & Moes 1-X, Defendants in Manhattan Magnolia Corp. v. Unterburger[9]

Does, Jane 1-X, Defendants in Ocala's Women's Center, Inc. v. City of Ocala[8]

Does, John 1-X, Defendants in Ocala's Women's Center, Inc. v. City of Ocala[8]

Doyle, Conal, Attorney for Sheriff of Lee County, Defendant in Smith v. McDougall[5]

Egherman, William P., M.D. Appellee/Defendant in Roe, II v. Aware Woman Center For Choice, Inc.[3], potential member of Plaintiff Class in Aware Woman v. Raney[7], together with other Plaintiffs who are proceeding anonymously, and Defendant in Allstate v. Raney[1]

England, Susan, Attorney for Defendants in Raney v. Aware Woman[4]

Ergle, Ken, Former sheriff of Marion County and a Defendant in Ocala Women's Center, Inc. v. City of Ocala[8]

Falvey, Carol A., Attorney for Horace "Ed" Dean, Sheriff of Marion County, in Ocala Women's Center, Inc. v. City of Ocala[8]

Fawsett, Patricia C., U.S. District Judge, Middle District of Florida, presiding in Raney v. City of Melbourne[10], Roe, II v. Aware Woman Center For Choice, Inc.[3] and also Raney v. Aware Woman Center For Choice, Inc.[4]

Fort Myers Women's Health Center, Inc, Defendant in Sienkiewicz v. Hart[6]

Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Law firm of Conal Doyle.

Frese, Nash & Torpy, P.A., Law firm of Vincent G. Torpy, Jr. and Lisa Hogreve.

Gilligan, Patrick G., Attorney for City of Ocala and Morrey Deen, Chief of Police of the City of Ocala, in Ocala Women's Center, Inc. v. City of Ocala[8]

Hart, Larry, Police Chief of Fort Myers, Florida and Defendant in Sienkiewicz v. Hart[6]

Herzog, Michelle, A Defendant in Manhattan Magnolia Corp. v. Unterburger[9]

Hirsh & Heuser, Law firm of Michael R. Hirsh.

Hirsh, Michael R., Attorney for Plaintiff in Raney v. Aware Woman[4]

Hodges, William Terrell, U.S. District Judge, Middle District of Florida presiding in Ocala Women's Center, Inc. v. City of Ocala[8]

Hogreve, Lisa, Attorney for Defendants in Raney v. Aware Woman Center For Choice, Inc.[4]

Hurley, Daniel T.K., U.S. District Court Judge, Southern District of Florida, presiding in Manhattan Magnolia Corp. v. Unterburger[9]

Jolly, John W., Jr., Attorney for Ken Ergle, former Sheriff of Marion County, in Ocala Women's Center, Inc. v. City of Ocala[8]

LaVigna, Wendy, Defendant in Allstate v. Raney and Plaintiff in Manhattan Magnolia Corp. v. Unterburger[9]

LeStourgeon, William, Defendant in Manhattan Magnolia Corp. v. Unterburger[9]

Love, Sara N., Of the Feminist Majority Foundation and attorney for Appellees/Plaintiff in NOW v. Scheidler[2]

Lucas, Roy , Attorney for Appellees/Defendants in Raney v. Aware Woman Center For Choice, Inc.[4]; for Plaintiffs in Aware Woman v. Raney[7], and all Defendants other than Meredith T. Raney, Jr., in Allstate v. Raney[1] also attorney for Plaintiffs in Ocala Women's Center, Inc. v. City of Ocala[8] and attorney for Manhattan Magnolia Corp. et al. in Manhattan Magnolia Corp. v. Unterburger[9]

McEwen, Patricia, A Defendant in Manhattan Magnolia Corp. v. Unterburger[9]

Marion, County of, A Defendant in Ocala Women's Center, Inc. v. City of Ocala[8]

Manhattan Magnolia Corp., A Florida corporation, t/a Aware Woman Medical Center, Defendant in Allstate v. Raney[1] and Plaintiff in Manhattan Magnolia Corp. v. Unterburger[9]

Marino, John P., Attorney for TML Services, Inc. in Manhattan Magnolia Corp. v. Unterburger[9]

Martin, James Edward, Sr., A Defendant in Ocala Women's Center, Inc v. City of Ocala[8]

Maxwell, George W., Florida Circuit Judge presiding in Allstate v. Raney[1]

Melbourne, City of, Appellee/Defendant in Raney v. City of Melbourne[10]

Menyhart, Andrew, Attorney for Appellees/Defendants Aware Woman Center For Choice, Inc., Patricia B. Windle and Edward W. Windle, Jr. in Roe, II v. Aware Woman Center For Choice, Inc.[3] and all Defendants other than Meredith T. Raney, Jr. in Allstate v. Raney[1]

Moritz, Ellen, Defendant in Allstate v. Raney[1] and a Plaintiff in Manhattan Magnolia Corp. v. Unterburger[9]

Murphy, Timothy , Defendant in N.O.W. v. Scheidler[2]

National Organization of Women (N.O.W.), Plaintiff in N.O.W. v. Scheidler[2]

National Organization of Women (N.O.W.), Florida Chapter.

Nelson, Frederick, Attorney for Defendants, Raymond Unterburger, Cheryl Unterburger, Eric Olson, Meredith Raney, Patricia McEwen, William LeStourgeon, John "Jay" Rogers, Richard Vanderbilt, Patricia Vanderbilt and Michelle Herzog in Manhattan Magnolia Corp. v. Unterburger[9] and Defendant Meredith T. Raney, Jr. in Ocala Women's Center, Inc. v. City of Ocala[8]

Nimmons, Ralph W., Jr., U.S. District Judge presiding in Smith v. McDougall[5]

Ocala Women's Center, Inc., A Florida corporation and Plaintiff in Ocala Women's Center, Inc. v. City of Ocala[8]

O'Connor & Meyers, P.A., Law firm of Lawrence M. Siff.

Olson, Eric, Defendant in Manhattan Magnolia Corp. v. Unterburger[9]

Operation Rescue, Defendant in N.O.W. v. Scheidler[2]

Oxford, Lamar D., Defense attorney in Raney v. City of Melbourne[10]

Parker, Julius F., Jr., Attorney for John McDougall, individually, Defendant in Smith v. McDougall[5]

Pendergraft, James S., M.D., Defendant and proposed class representative in Allstate v. Raney[1] also Plaintiff in Ocala Women's Center, Inc. v. City of Ocala[8]

Pfau, Cheryl, Defendant in Allstate v. Raney[1] and a Plaintiff in Manhattan Magnolia Corp. v. Unterburger[9]

Poe, Don, Fictitious name of a Plaintiff in Aware Woman v. Raney[7] and Defendant in Allstate v. Raney[1]

Poe, Grandfather, Fictitious name of a Plaintiff in Aware Woman v. Raney[7] and a Defendant in Allstate v. Raney[1]

Poe, Jane, 1-M (1-1,000), Fictitious name of a proposed Defendant class in Allstate v. Raney[1]

Poe, John, 1-M (1-1,000), Fictitious name of a proposed Defendant class in Allstate v. Raney[1]

Poe, Tiffany, Fictitious name of a Plaintiff in Aware Woman v. Raney[7], who is proceeding anonymously as are the two previous Poes and Defendant in Allstate v. Raney[1]

Pro-Life Action League, Inc., Defendant in N.O.W. v. Scheidler[2]

Ramsey, Richard E., Attorney for William P. Egherman, M.D., Appellee/Defendant in Roe, II v. Aware Woman Center For Choice, Inc.[3]

Raney, Meredith T., Jr., Appellant/Plaintiff in Raney v. City of Melbourne[10], and Raney v. Aware Woman Center For Choice, Inc.[4], Defendant in Allstate v. Raney[1], Defendant in Manhattan Magnolia Corp. v. Unterburger[9] and Defendant in Ocala Women's Center, Inc. v. City of Ocala[8]

Reno, Janet, Attorney General of the United States and Defendant in Sienkiewicz v. Hart[8]

Richard & Richard, PA, Local counsel for Manhattan Magnolia Corp. et al.in Manhattan Magnolia Corp. v. Unterburger[9]

Richman, Michael, Esq., Attorney for Appellees/Plaintiffs in N.O.W. v. Scheidler[2]

Robinson, Curley, & Clayton, P.C., Attorney for Appellees/Plaintiffs in N.O.W. v. Scheidler[2]

Roe, Jane, II, Fictitious name of Appellant/Plaintiff in Roe, II v. Aware Woman Center For Choice, Inc.[3]

Rogers, John C. "Jay", Defendant in Manhattan Magnolia Corp. v. Unterburger[9]

Rost, Scott, Attorney for Plaintiffs in Ocala Women's Center Inc. v. City of Ocala[8]

Rowe, Scott P., Attorney for Plaintiff in Allstate v. Raney[1]

Rumberger, Kirk & Caldwell P.A., Law firm of Scott P. Rowe and David B. Shelton.

Sachnoff & Weaver, Ltd., Attorneys for Appellees/Plaintiffs in N.O.W. v. Scheidler[2]

Sachnoff, Lowell, Esq., Attorney for Appellees/Plaintiffs in N.O.W. v. Scheidler[2]

Sapp, Christopher F., Attorney for Appellant/Plaintiff Raney v. City of Melbourne[10]; also for the Appellant/Plaintiff in Raney v. Aware Woman Center For Choice, Inc.[4]; also for Plaintiffs in Smith v. McDougall[5]; also for Plaintiff in Sienkiewicz v. Hart[6], also for Defendant Meredith T. Raney, Jr. in Allstate Insurance Company v. Raney[1] and Plaintiff in Roe, II v. Aware Woman Center For Choice, Inc.[3]

Scheeler, Charles P., Attorney for Defendant CompuServe, Inc. in Manhattan Magnolia Corp. Center, Inc. v. Unterburger[9]

Scheidler, Joseph M., Defendant in N.O.W. v. Scheidler[2]

Scholberg, Andrew, Defendant in N.O.W. v. Scheidler[2]

Sharp, G. Kendall, U.S. District Judge, Middle District of Florida, presiding Aware Woman v. Raney[7]

Shelton David B., Attorney for Plaintiffs in Allstate v. Raney[1]

Sienkiewicz, Ray, Plaintiff in Smith v. McDougall[5] and in Sienkiewicz v. Hart[6]

Siff, Lawrence M., Attorney for Sphere Drake Insurance Company PLC and Westco Claims Management Services, Inc., Third Party Defendants in Raney v. Aware Woman[4]

Smith, Robert, Plaintiff in Smith v. McDougall[5]

Sphere Drake Insurance Company, PLC, Third Party Defendant in Raney v. Aware Woman[4]

Staver, Mathew D., Attorney for Defendant Edward Martin in Ocala Women's Center Inc. v. City of Ocala[8]

Stevens and Menyhart, P.A., Law firm of Andrew Menyhart.

Stevens, Sheldon D., Former Defense attorney in Roe, II v. Aware Woman Center For Choice, Inc.[3]

Summit Women's Health Organization, Inc., Plaintiff in N.O.W. v. Scheidler[2]

TML Information Services, Inc, Corporate Defendant in Manhattan Magnolia Corp. v. Unterburger[9]

Torpy, Vincent G., Florida Circuit Judge and Attorney for Defendants in Raney v. Aware Woman Center For Choice, Inc.[4]

Unterburger, Cheryl, Defendant in Manhattan Magnolia Corp. v. Unterburger[9]

Unterburger, Raymond, Defendant in Manhattan Magnolia Corp. v. Unterburger[9]

Vanderbilt, Patricia, Defendant in Manhattan Magnolia Corp. v. Unterburger[9]

Vanderbilt, Richard, Defendant in Manhattan Magnolia Corp. v. Unterburger[9]

Westco Claims Management Services, Inc., Third Party Defendant in Raney v. Aware Woman[4]

Weber, Walter, Esq., Of the American Center For Law and Justice and attorney for Appellant/Defendant Operation Rescue in N.O.W. v. Scheidler[2]

Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., Law firm of Richard E. Ramsey.

Wilson, Charles R., Judge - United States Court of Appeals, Eleventh Circuit, Defendant in Sienkiewicz v. Hart[6]

Windle, Edward W., Jr., Appellee/Defendant in Roe, II v. Aware WomanCenter For Choice, Inc.[3], also, Plaintiff in Aware Woman v. Raney[7], together with other Plaintiffs using fictitious names in order to proceed anonymously. Defendant in Allstate v. Raney[1]

Windle, Edward W. (Todd), III, Defendant in Allstate v. Raney[1] and a Plaintiff in Manhattan Magnolia Corp. v. Unterburger[9]

Windle, Patricia B., Appellee/Defendant in Roe, II v. Aware Woman Center For Choice, Inc.[3] Appellant/Defendant in Raney v. Aware Woman Center For Choice, Inc.[4] Also Plaintiff in Aware Woman v. Raney[7], together with other Plaintiffs using fictitious names in order to proceed anonymously and Defendant in Allstate v. Raney[1]

Wright, Virgil W., III, Attorney for Marion County in Ocala Women's Center, Inc. v. City of Ocala[8]

NOTES OF RELATED CASES ON TRIAL LEVEL

[1] Allstate Insurance Company and Allstate Floridian Insurance Company vs. Meredith T. Raney, Jr., et al., Eighteenth Judicial Circuit for Brevard County, Florida, Case Number 99-25178 CAD: a declaratory action regarding home owner's insurance coverage.

[2] NATIONAL ORGANIZATION FOR WOMEN, INC., and its women members and other women who use or may use the services of women's health centers that provide abortions; DELAWARE WOMEN'S HEALTH ORGANIZATION, INC., and SUMMIT WOMEN'S HEALTH ORGANIZATION, INC., on behalf of themselves and all other similarly-situated clinics, v. JOSEPH M. SCHEIDLER; ANDREW SCHOLBERG; TIMOTHY MURPHY; PRO-LIFE ACTION LEAGUE, INC., and OPERATION RESCUE, U.S. District Court for the Northern District of Illinois, Eastern Division, Case Number 86 C 7888: national injunction which provides for pro-life sidewalk counselors helping women approaching the entrances of abortion clinics.

[3] Jane Roe, II v. Aware Woman Center For Choice, Inc., a Florida corporation, Edward W. Windle, Jr., Patricia B. Windle and William P. Egherman, M.D., U.S. District Court for the Middle District of Florida, Orlando Division, Case Number 99-850-CV-19A: F.A.C.E. action by a young woman who was held down to keep her from leaving Aware Woman by four assistants to the abortionist who then mutilated her internally. On appeal.

[4] Meredith T. Raney,Jr. v. Aware Woman Center For Choice, Inc., a Florida corporation, Edward W. Windle, Jr., Patricia B. Windle, U.S. District Court for the Middle District of Florida, Orlando Division, Case Number 97-1197-CIV-ORL-19-B: F.A.C.E. action for intimidation of sidewalk counselor at Aware Woman Center For Choice, Inc. currently on appeal to this United States Court of Appeals, Appeal No.: 99-14122-I.

[5] Robert Smith and Ray Sienkiewicz v. John McDougall, individually and as Sheriff of Lee County, Florida, et al., U.S. District Court for the Middle District of Florida, Fort Myers Division, Case Number 99-385-CIV-FTM- 21: F.A.C.E. action against local sheriff whose violations of sidewalk counselors' rights was procured by federal officials.

[6] Ray Sienkiewicz v. Larry Hart, individually and as Chief of Police of Ft. Myers, Florida et al., U.S. District Court for the Middle District of Florida, Fort Myers Division, Case Number 2:00-CV-0057-FTM-25D. F.A.C.E. action against Chief of Police whose violations of sidewalk counselor's rights was procured by federal officials.

[7] AWARE WOMAN CENTER FOR CHOICE, INC., on its own behalf and for the class of patients, patient companions, staff, physicians, invitees, owners, and independent contractors, PATRICIA BAIRD WINDLE, EDWARD W. WINDLE, JR., TIFFANY POE, DON POE, GRANDFATHER POE, et al. v. MEREDITH T. RANEY, JR., et al. U.S. District Court for the Middle District of Florida, Orlando Division, Case Number 99-5-CV-ORL- 19C. F.A.C.E. action brought by the staff and owners of the Aware Woman abortion clinic, including a patient and her relatives who are utilizing fictitious names to protect their privacy.

[8] OCALA WOMEN'S CENTER, INC., a Florida corporation, et al. v. CITY OF OCALA, FLORIDA, et al., U.S. District Court for the Middle District of Florida, Orlando Division, Case No.: 98-1358-CV-18C, transferred to Ocala Division, Case No.: 98-371-CIV-OC-10C. Injunction and class action relief sought by abortionist and his clinic against the City of Ocala and other government officials and pro-life persons.

[9] MANHATTAN MAGNOLIA CORP., a Florida corporation, t/a/ AWARE WOMAN MEDICAL CENTER; et al. v. RAYMOND UNTERBURGER, et al., U.S. District Court for the Southern District of Florida, Case No.: 98-8164-CIV-HURLEY. Various relief sought by abortion clinics and their owners and staff from several pro-life persons and other corporations and possible classes of individuals and corporations.

[10] Meredith T. Raney, Jr. v. City of Melbourne, Florida, U.S. District Court for the Middle District of Florida, Orlando Division, Case Number 99-416-Civ- Orl-19B: F.A.C.E. action for intimidation of sidewalk counselor at Aware Woman by the Melbourne City Police.

Meredith T. Raney, Jr., the Appellant, by and through his undersigned attorney, hereby certifies that the type size utilized in this document is 14 point and that the style of the type is Times New Roman.

Appellant hereby respectfully requests the opportunity to present oral argument on the issues raised in this appeal for the reason that governmental bodies must learn that they are not above the law and that young women dealing with crisis pregnancies must be allowed access to the facts needed for them to be fully informed about the horrible consequences of bad abortion-related decisions.

Meredith T. Raney, Jr. brought this civil action in the United States District Court for the Middle District of Florida pursuant to 28 U.S.C. §1391(b) because the claim arose in the District and also because the Defendant is a municipal corporation existing in this District. The civil action seeks damages and other relief for violation of that Act of Congress known as Freedom of Access to Clinic Entrances Act (F.A.C.E.), 18 U.S.C. §248; thus the claim arises under the laws of the United States, according to 28 U.S.C. §1331. Additionally, original jurisdiction lies in the District Court under 28 U.S.C. §1343 (a)(4) as this is a civil action to recover damages under an Act of Congress providing for the protection of civil rights.

This appeal to the United States Court of Appeals is brought pursuant to 28 U.S.C. §1291 from a final decision of the District Court granting the Defendant's Motion To Dismiss, and also denying the Plaintiff's Motion To Strike Insufficient Defenses, entered by the Clerk on March 9, 2000.

Notice of Appeal was timely filed on March 14, 2000.

Page 6

1. Did the District Judge err in denying the Counselor's Motion To Strike where the defenses raised by the City were insufficient as a matter of law to state a defense to the Counselor's F.A.C.E. claims?

2. Did the District Judge err in determining that the Counselor had no standing as a reproductive health service provider, namely a provider of referral and counseling services concerning pregnancy and its termination, to bring a civil action under F.A.C.E. against the City for attempting to intimidate him in order to prevent him from providing these services within the boundaries of the Aware Woman abortion facility?

3. Should the case be remanded by the U.S. Court of Appeals to a different District Judge on account of the prejudice and bias in favor of the abortion industry and the City shown by the present District Judge?

Page 7

NATURE OF THE CASE

Meredith T. Raney, Jr. sued the City of Melbourne, Florida for multiple violations of the Freedom of Access to Clinic Entrances Act (F.A.C.E.). He was unlawfully prevented by the City's employees from providing pro-life reproductive health counseling and referral services within the boundaries of the Aware Woman abortion facility in Brevard County, Florida.

The Plaintiff, Meredith T. Raney, Jr., is called the "Counselor".

The Defendant is called the "City".

COURSE OF PROCEEDINGS

The Complaint was filed by the Counselor in District Court in Orlando, Florida on April 7, 1999. R1-1. The City filed with the Clerk a Motion To Dismiss with supporting memorandum on May 3, 1999. R1-5.

The Counselor moved to strike as insufficient all of the defenses raised by the City in its motion and also furnished, at the same time, memoranda opposing the City's motion to dismiss and supporting his own motion to strike. R1-7. These papers were filed with the Clerk on May 20, 1999.

[Note Bene: The District Judge has stated in her Order of March 8, 2000 that there was filed on September 7, 1999 "Defendant's Memorandum of Law in

Page 8

Opposition to Plaintiff's Motion to Strike (Doc. No. 18, . . .)". This statement appears to be incorrect. A motion has been filed with the U.S. Court of Appeals to exclude this document and any others not shown on the Clerk's civil docket from the Record. This motion assumes that such documents do, in fact, exist. However, there is no indication from the civil docket that Document 18 was ever filed with the Clerk, contrary to the specific description of the document given by the District Judge.]

The District Judge signed an Order granting the City's motion to dismiss and denying the Counselor's motion to strike on March 8, 2000. R1-11. This Order was filed with the Clerk on March 8, 2000 and entered on the docket on March 9, 2000.

Notice of Appeal was filed with the Clerk of the District Court on March 14, 2000.

Page 9

There has been a law enforcement transformation in this country following the Roe v. Wade decision on January 22, 1973 that decriminalized elective abortion. Prior to this decision, police departments certainly made no efforts to encourage or promote any abortion business. Gradually, though, municipal officials in many communities began to treat abortion clinics as "sacred cows" where services, above and beyond the normal demands of duty, were sometimes supplied to the abortion industry in violation of the legal rights of those who knew that elective abortion, like slavery and segregation, was wrong and were trying to do something constructive about this awful practice.

Some of the people who know elective abortion is wrong expressed their opinions by protest methods which did little to help the real victims. Fortunately, there have been some caring people who reach out to the pregnant young woman offering love and help rather than debate or condemnation. These are the individuals sometimes called "sidewalk counselors", but who are actually providers of reproductive health services now defined and protected by F.A.C.E.

These pro-life providers of reproductive health services for many years have suffered abuse at the hands of over-zealous police officials. However, since May 26, 1994, the affective date of F.A.C.E., such abuse is prohibited by federal law.

Page 10

No longer can municipalities intentionally intimidate pro-life providers of reproductive health services with impunity. For that reason, this civil rights action is brought against the Defendant, City of Melbourne, Florida by the Plaintiff, Meredith T. Raney, Jr., a trained referral counselor, protected by F.A.C.E.

Historically, F.A.C.E. has been portrayed by the media, and therefore perceived by the general public, as a law passed to protect abortion clinics. This is only part of the story; F.A.C.E. protects all providers of reproductive health services whether their services are oriented toward abortion or toward providing alternative choices to the desperate pregnant women and girls.

Page 11

Hope Adoption Agency and Aware Woman abortion clinic are businesses located at 1564 Dixie Way inside the city limits of Melbourne, Florida. The building and the parking lot used for these businesses is adjacent to the buffer zone described in Madsen v. Woman's Health Center, Inc., 114 S.Ct. 2516 (1994). The buffer zone includes a sidewalk open to the public. The sidewalk, the building, the parking lot and the related real estate constitute a reproductive health service facility.

The Counselor tried to volunteer his counseling and referral services within the boundary of the facility between June 30, 1994 and June 8, 1996 with the exceptions stated for those three days, January 28, 1995, April 26, 1995 and January 24, 1996 which are the subject of another F.A.C.E. action.

The Counselor was unlawfully prevented from providing these counseling and referral services concerning crisis pregnancy and abortions by the Melbourne City Police who were stationed at the facility whenever abortions were being done. These police were armed with semi-automatic firearms and other weapons; they regularly threatened the Counselor with arrest to prevent him from entering the portion of the facility where he was legally entitled to operate.

The City's police officers were not patrolling the general area nor were they engaged in the performance of any duties described in the City's charter.

Page 12

According to a statement by the owner of the abortion clinic made in a letter to the Chief of Police, the City of Melbourne committed more than four thousand violations of the counselor's rights under F.A.C.E.. The Counselor is seeking statutory damages of $5,000 per violation.

Page 13

This Court of Appeals recently provided the Standard of Review for orders granting motions to dismiss in the case of Mesocap Ind. Limited v. Torm Lines, 194 F.3d 1342 (11th Cir. 1999) at page 1343:

In reviewing an order granting a motion to dismiss, the appellate court must accept the factual allegations of the complaint as true and may affirm the dismissal of the complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104, S.Ct. 2229, 81 L.Ed.2d 59, 65 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed 2d 80, 85-86 (1957). The Appellate Court reviews the District Court's legal conclusions de novo. G.S.W., Inc. v. Long County, 999 F.2d 1508 (11th Cir.1993).

A motion to dismiss a defense, that is, a motion to strike, is proper when the defense is insufficient as a matter of law. Kaiser Aluminum, Etc. v. Avondale Shipyards, Inc., 677 F.2d 1045 (1982) at page 1057. Cited by the U.S. Court of Appeals, Fifth Circuit, in Kaiser (supra), was an opinion from the Middle District of Florida, Anchor Hocking Corp. v. Jacksonville Elec. Authority, 419 F.Supp. 992 (1976), holding:

In considering these motions to strike, under Fed.R.Civ. P. 12(f), the facts have been assumed to be as set forth in (the) answer, Kelly v. Kosuga, 358 U.S. 516, 79 S.Ct. 429, 3 L.Ed.2d 475 (1959), except for the recurrent

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phrase that recited the same legal conclusion raised by (the) first affirmative defense: "the contract was abrogated by operation of law." While the Court has broad discretion in disposing of motions to strike, Coca-Cola Co. v. Howard Johnson Co., 386 F. Supp. 330, 333 (N.D. Ga. 1974), they are granted only where clearly warranted. Giraud v. Teamsters, Chauffeurs, Warehousemen, and Helpers, Local 901, 46 F.R.D. 5 (D.P.R. 1969). The standard that must be met is undisputed: Only if a defense is insufficient as a matter of law will it be stricken. Systems Corp. v. A T & T Co., 60 F.R.D. 692, 694 (S.D.N.Y. 1973); Carter-Wallace, Inc. v. Riverton Labs, Inc., 47 F.R.D. 366, 367-68 (S.D.N.Y. 1969). A defense is insufficient as a matter of law if, on the face of the pleadings, it is patently frivolous, Shenandoah Life Ins. Co. v. Hawes, 37 F.R.D. 526, 529 (E.D.N.C. 1965); or if it is clearly invalid as a matter of law. United States v. 416.18 Acres of Land, 514 F.2d 627, 630-31 (7th Cir. 1975); United States v. 187.40 Acres of Land, 381 F. Supp. 54, 56 (M.D.Pa.1974); in such cases, the determination should be made, and the defenses stricken, in order to avoid unnecessary time and money in litigating invalid, spurious issues. United States v. 416.18 Acres of Land, 514 F.2d 627, 637 (7th Cir. 1975); Purex Corp. v. General Foods Corp., 318 F.Supp. 322, 323 (C.D. Calif.1970).

Lastly, when the interest of justice would be best served by remanding a case with instructions that a different District Judge be assigned by the U.S. Court of Appeals, such a result has been approved in Mitchell v. Maynard, 80 F.3d 1433, 1450, (10th Cir. 1996).

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The District Judge erroneously denied the Counselor's motion to strike the defenses as insufficient.

The City had chosen to raise so-called to be defenses by motion under Federal Civil Rule of Procedure 12(b) instead of by answer. These "defenses" were not sufficient as a matter of law. The appropriate way to erase them from the case was by motion to strike. The Counselor supported his motion to strike by an appropriate memorandum showing that all of these "defenses" were insufficient as a matter of law and reinforced this position with a memorandum directed to the motion to dismiss which cited authorities for the Counselor's position. Therefore, the motion to strike should have been granted.

Secondly, the Counselor clearly has standing at all times specified in his Complaint to bring this action for F.A.C.E. violation against the City. He was unlawfully prevented from providing reproductive health services, such as referral and counseling, within the boundaries of the facility at 1564 Dixie Way, in the City of Melbourne, Florida. The City employees who violated his rights were policemen, wearing their badges and carrying official semi-automatic weapons and using as a guard house City of Melbourne police vehicles. These policemen were stationed for hours on end at the Aware Woman abortion facility.

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The Counselor can show that he has received appropriate training in providing F.A.C.E.-protected counseling and had appropriate written referral information to give to pregnant young women so that they might be fully informed about their crisis pregnancies and the resources available to them.

The United States Supreme Court has confirmed that there was a public sidewalk within the buffer zone which the Counselor has shown to be part of the facility. The Counselor was entitled to provide F.A.C.E.-protected services there. Thus, the District Court erroneously granted the City's motion to dismiss.

Lastly, the Counselor has shown that the District Judge has acted improperly in this case due to bias and prejudice in favor of the abortion industry. The Counselor seeks reversal of the erroneous Order from which this appeal is taken. In the event that the United States Court of Appeals remands this case to the District Court, it would be appropriate to specify in its mandate that another judge be assigned to the case. That way, the Counselor would more likely receive a fair and impartial trial, which would not be possible if the current District Judge were allowed to remain on the case.

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FIRST ISSUE

The District erred in denying the counselor's motion to strike where the defenses raised by the City of Melbourne were insufficient as matter of law to state a defense to the F.A.C.E. claims of Meredith T. Raney, Jr. Such a motion, authorized by Fed.R.Civ.P. 12(f), is the primary procedure for objecting to an insufficient defense. Wright & Miller, Federal Practice and Procedure: Civil 2d § 1380.

The City had raised five defenses in its motion to dismiss the Complaint. All of these defenses failed the test for legal sufficiency. We will review them one by one.

FIRST DEFENSE: FAILURE TO STATE A CAUSE OF ACTION

The counselor provided the District Court with an analysis of the cause of action as stated in the Complaint, showing that not only were the elements of civil wrongdoing alleged in accordance with 18 U.S.C. §248, but also a comparison was made with McKusick v. City of Melbourne, 96 F.3d 478 (11th Cir. 1996) which decision has set the legal stage for the present civil action. Since the Counselor's allegations are all taken as true, the Complaint, on its face, is not susceptible to a successful assault by motion to dismiss for failure to state a cause of action. Thus,

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the first defense, in accord with the standard of review, was insufficient and should have been stricken. Hishon v. King & Spalding (supra).

SECOND DEFENSE: FAILURE TO PAY THE COSTS ON SIMILAR CLAIMS PREVIOUSLY DISMISSED BY PLAINTIFF

The City included as a defense the bare assertion that the Counselor had failed to pay the costs of an action on similar claims which he had dismissed after having filed it in a state court. While admittedly the state case which was voluntarily dismissed by the counselor had some factual relationship to this present case, there is no legal authority whatsoever indicating that such an allegation, even if it were true, could be grounds for any sort of dismissal, particularly under Fed.R.Civ.R.12.

THIRD DEFENSE: FAILURE TO PAY THE CITY'S COSTS ON A PREVIOUSLY-DISMISSED ACTION INCLUDING THE SAME GENERAL ALLEGATIONS AND CLAIMS

Once again the City alleged a failure by the Counselor to pay the costs incurred by the City in a previously-dismissed state action including the same general allegations and claims as the present F.A.C.E. claim. This is the same case referred to in the prior paragraph and not a second case. As authority, the City cites Fed.R.Civ.P.41(d). Even if this allegation were true, Rule 41(d) does not provide grounds for dismissal - only stays. Additionally, the City cites as authority

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Florida Rule 1.420. The Florida Rules of Civil Procedure do not govern civil actions in Federal Courts according to Fla. R.Civ.P. 1.010.

FOURTH DEFENSE: STANDING

The City alleged a lack of standing on the part of the Counselor to bring a F.A.C.E. action. While the legal insufficiency of this defense is discussed more fully in regard to the Second Issue, below, the application of F.A.C.E. to protect a pro-life counselor who was threatened with death in an effort to keep her associates away from an abortion clinic was approved in Greenhut v. Hand, 996 F.Supp. 372 (D.N.J. 1998) at page 375. There the Court wrote:

Now, for the first time, FACE is being invoked to penalize threats directed against a pro-life volunteer. Neither party questions the applicability of this statute to pro-life reproductive health service providers,... and the court finds no reason to do so.

The opinion of the District Judge in this New Jersey case applied F.A.C.E. to both viewpoints. Not only then is F.A.C.E. a shield to pro-life reproductive health service providers, such as the Counselor, but also, the McKusick (supra) decision promised protection of their civil rights to those on the sidewalk at 1564 Dixie Way, that is just where the Counselor sought to be: within the Aware Woman abortion facility. Thus the fourth defense raised by the City was also legally insufficient.

FIFTH DEFENSE: STATUTE OF LIMITATIONS

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The City claimed that all or part of their violations were protected under the statute of limitations.

Federal civil rights actions are subject to the statutes of limitations of the state in which suit is brought. Williams v. Hartje, 827 F.2d 1203 (8th Cir. 1987). When the case was filed, its allegations were that the violations had occurred on numerous occasions between June 30, 1994 and June 8, 1996 as part of an ongoing program of intentional attempted intimidations.

35 Fla. Jur. 2d Limitations And Laches §62 at page 65, provides:

Where separate and successive actions would lie for damages as they accrue, the statute of limitations as to such successive actions does not run from the date when the first wrong was suffered, but from the successive dates of the accrual of such damages.

Thus, the fifth and final defense is also devoid of legal sufficiency to cause dismissal of the Complaint.

The District Judge found that the City's motion to dismiss was not redundant, immaterial, impertinent or scandalous and so refused to strike it. However, the District Judge made no determination whatsoever as to the legal sufficiency of the motion. The combined memoranda submitted to the District Court by the Counselor contained at least adequate references to cases, rules of procedure and statutes to demonstrate that the City's motion to dismiss was clearly lacking in legal

Page 21

sufficiency in all five of its "defenses".

SECOND ISSUE

The District Judge erred in determining that Meredith T. Raney, Jr. had no standing as a reproductive health service provider, namely a provider of referral and counseling services concerning pregnancy and its termination, to bring a civil action under F.A.C.E. against the City of Melbourne for attempting to intimidate him and so prevent him from providing these services within the boundaries of the Aware Woman abortion facility.

F.A.C.E. contains definitions of the key words used in the Act. For instance, "reproductive health services" are defined at 18 U.S.C. §248(e)(5) as:

The term "reproductive health services" means reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counselling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.

Also defined is the word "facility". At 18 U.S.C. §248(e)(1), it is written:

The term "facility" includes a hospital, clinic, physician's office or other facility that provides reproductive health services, and includes the building or structure in which the facility is located.

These two definitions provided the focal points for the District Judge in determining, erroneously, that the Counselor lacked standing to bring a F.A.C.E. action against the City of Melbourne.

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The District Judge determines in her Order at page 6 that the requirement that reproductive health services, as a condition of legal protection for the provider, must be done "in a facility". 18 U.S.C. §248(c)(1)(a). This is only partially correct for the subsection in question also protects those "seeking to provide" these services in a facility. The Counselor has clearly alleged that he was seeking to provide the services as a volunteer in the Aware Woman facility. So far as the plain language of F.A.C.E. goes, the Counselor has shown entitlement to its protection.

The District Judge then rewrites the F.A.C.E. Act to require "affiliation" by the reproductive health service provider with the facility as a condition to protection. This requirement is nowhere to be found in the Act. Nevertheless, the District Judge equates, at page 10 of her Order, the word "welcome" to "affiliation" and so determines that if a reproductive health service provider is "not welcome" by those persons who run the abortion clinic, then she or he is not protected by F.A.C.E..

Was Janet Greenhut welcome at the New Jersey abortion clinic? No one would think so. She was threatened with death of she did not keep her associates away from it. Greenhut v. Hand (supra). Nor was being welcome held to be any impediment to F.A.C.E. protection in Greenhut (supra).

The U.S. Supreme Court learned that abortionists in Pennsylvania did not welcome the providing of information to pregnant young women in Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992). The Supreme Court decided that

Page 23

the pregnant women should be fully informed about their pregnancies, even though abortionists did not want them to have the relevant facts:

Those decisions...recognize a substantial government interest justifying a requirement that a woman be apprised of the health risks of abortion and childbirth. ...It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to insure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. Casey (supra), 2823.

Mary Doe, the pregnant woman in Doe v. Bolton, 35 L Ed 2d 201 (1973), doubted that an abortionist could be trusted to provide the truthful information needed to make correct decisions about abortion: physicians were guided by their own self-interest and prejudices. It follows, then, that counseling and referral services should be provided by independent counselors.

What if a pregnant woman as a result of being given accurate information about the resources available to her chooses childbirth over abortion? The U.S. Supreme Court found this not to be an undue burden even though it obviously resulted in fewer abortions:

In short, requiring that the woman be informed of the availability of information relating to fetal de-

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velopment and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice, one which might cause the woman to choose child-birth over abortion. This requirement cannot be considered a substantial obstacle to obtaining an abortion, and, it follows, there is no undue burden. Casey (supra), 2824.

The District Judge placed the commercial aspects of abortion facilities on a pedestal. (Page 10 of her Order) This is contrary to the position of the U.S. Supreme Court who, in Casey (supra), elevated "informed consent" for pregnant women above the abortionists' bottom line on their financial statements.

Sadly, the District Judge mis-quotes the Counselor saying that he sought to be in the "(clinic)" when in fact he used the term "facility". This mis-quote makes it sound like the Counselor wanted to be inside the office, instead of the facility boundaries. (page 12 of her Order)

That the sidewalk is part of the facility at Aware Woman is, in part, a result of the Madsen v. Women's Health Center, Inc., 114 S.Ct. 2516 (1994), case. There the U.S. Supreme Court was successfully implored to include the sidewalk within the buffer zone as a necessary addition to the Aware Woman property to provide ingress and egress to the building housing the abortion clinic. Since the buffer zone and its sidewalk were essential to the operation of that particular abortion business, they are

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part of the F.A.C.E. facility.

In Madsen (supra) the United States Supreme Court kept this sidewalk open as a forum area for all but a few. It did not exclude counselors acting on their own. And in Schenck v. Pro Choice Network, 519 U.S. 357 (1997) the U.S. Supreme Court provided the code of behavior appropriate for sidewalk counselors. Here, again, the opinion of the District Judge conflicts with that of the U.S. Supreme Court.

Some sidewalk counselors may be "self-proclaimed" as the District Judge has wrongfully labeled the Counselor. He has previously provided her with some of the details of his appropriate counseling training. Principal Brief in Raney v. Aware Woman, appeal number 99-14122-II. Additionally, ,he had written referral information available for the pregnant women. There is no question that the Counselor was providing F.A.C.E. services. As the Counselor was legally entitled to be in the facility providing F.A.C.E.-protected services, his rights were violated by the Melbourne police, who kept him out.

THIRD ISSUE

This case should be remanded by the U.S. Court of Appeals to a different District Judge on account of prejudice in favor of the abortion industry shown by the present District Judge to whom this case was originally assigned.

On February 26, 1999, the District Judge decided that the Melbourne police

Page 26

were on routine patrol when in fact they sat for hours on end in parked cars at the Aware Woman facility, guarding the buffer zone. Raney v. Aware Woman appeal number 99-14122-II.

More recently, the District Judge tried to strip a young woman, who had been brutally assaulted and slashed at Aware Woman, of her anonymity - which no other federal judge has done in an abortion case. Roe, II v. Aware Woman, appeal number 00-10231-DD

Now the Judge belittles a dedicated volunteer whose training as a counselor has been reviewed by herself previously, calling him a "self-proclaimed counselor".

Her decisions in all of these cases are properly under review by this U.S. Court of Appeals.

There is now a substantial question about "Document 18" which the Judge describes in her Order of March 8, 2000. Does it even exist? Did she make it up? There is at least the appearance of impropriety here.

The U.S. Court of Appeals, Tenth Circuit, ruled in the case of Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996) at page 1450:

Our job is to ensure Mr. Mitchell receives a fair hearing from an impartial judge. The history of the case, combined with evidence of Judge Seay's expression of his disapproval toward Mr. Mitchell, his attorney and his

Page 27

claims indicate that in order to prevent any probability of unfairness or impropriety we should direct a new judge to hear the case on remand.

Likewise, Meredith T. Raney, Jr. deserves a new District Judge in order to avoid the appearance of impropriety, in the event that this Court of Appeals determines that the case will go forward.[1]

[1] Most disturbing is the use by Attorney Roy Lucas of the expression "blackmail database" when referring to information about abortion clinic patients. Raney v. Aware Woman, appeal number 99-14122-II. If there is a pooling of data by the abortion clinics of this nation, then it may be impossible for a plaintiff such as Meredith T. Raney, Jr. or Jane Roe, II to get a fair trial in the United States. Direction from the U.S. Court of Appeals would be helpful as it will be virtually impossible for these plaintiffs/appellants to uncover the improper pressures and influences that a national database about abortion clinic patients would provide those with access to it.

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For the reasons stated, Meredith T. Raney, Jr. is entitled to have his motion to strike the City's defenses granted and, further, the motion to dismiss his complaint should have been denied. Therefore, the Counselor respectfully requests that the Order of March 8, 2000 be reversed and that a new District Judge be appointed with this case, and that the Counselor will receive such relief as is just.

Respectfully submitted,
Christopher F. Sapp (signed)
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar Number: 0097823
Attorney for Appellant

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CERTIFICATE OF SERVICE: I HEREBY CERTIFY that two true and correct copies of the foregoing have been furnished by U.S. Mail (priority service), postage prepaid, sent this 28th day of April, 2000 to Lamar D. Oxford, Esquire, Post Office Box 2928, Orlando, Florida 32802 and the original and six copies were dispatched to the Clerk this date by U.S. Mail (priority service).

Christopher F. Sapp (signed)
Attorney

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