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A nonprofit legal group that defended an anti-abortion activist in a case settled one year ago says its viability is threatened by a recent court order to pay attorney fees to Planned Parenthood.


Cheryl Sullenger shown on public sidewalk that intersects Planned Parenthood driveway

San Diego Superior Court Judge Kevin Enright ruled Oct. 1 that the United States Justice Foundation filed a frivolous motion to dismiss a suit in which the abortion provider sought an injunction against Cheryl Sullenger of Santee, Calif., for allegedly harassing employees and customers of an area clinic in 1999.

Sullenger, who holds up graphic signs of aborted fetuses and distributes literature explaining the process of abortion, considers herself a “sidewalk counselor” who helps women willing to hear her message make informed choices about their pregnancies.

Planned Parenthood of San Diego and Riverside Counties attorney James McElroy successfully argued, however, that, based on photographic evidence, no reasonable attorney would file a motion to dismiss the case against Sullenger.

USJF litigation counsel Richard Ackerman insists the photos are open to interpretation, however, and says the “chilling” decision not only threatens his group financially but casts a pall on his ability to represent clients whose First Amendment rights are challenged.

“I can’t control the outcome of a case,” he said, “but I can’t be required to fight with my hands tied behind my back every time I make a judgment about a First Amendment issue.”

Ackerman believes Planned Parenthood’s Aug. 7 request to make USJF pay $60,000 in fees was a retaliatory response to a recent suit the nonprofit group filed against Planned Parenthood clinics in San Diego, Riverside and Los Angeles counties, accusing them of unsafe medical practices and failure to report the sexual molestation of minors who receive abortions.

McElroy denies that the timing of his request was related to USJF’s action against Planned Parenthood, insisting that he has been processing it diligently since it was first filed a year ago.

The lawyer has squared off with the USJF on many other cases and both sides agree, according to Ackerman, that they are in a cultural battle much bigger than the individual cases they represent. McElroy was co-counsel with the ACLU when it successfully argued this year that San Diego gave an unfair advantage in its sale of city-owned Mt. Soledad Park to a religious group that sought to maintain a cross on the land.

Ackerman believes McElroy’s primary aim is to shut down the pro-life movement.

McElroy responded to WND that “Mr. Ackerman is a real zealot for his cause, which is to shut down Planned Parenthood and anyone else who believes in family planning or abortion or anything else he doesn’t like, such as gay rights.”

“I at least see that people have different opinions,” McElroy continued. “This is an issue that people should have different opinions about. We have other people who come [to the clinic] and demonstrate; we are polite and courteous because they don’t interfere and obstruct us.”

Ackerman defended WorldNetDaily in its battle with the Senate Press Gallery to acquire credentials to cover Congress.

The USJF is scheduled to appear at 8:30 a.m. tomorrow in San Diego Superior Court to ask Judge Enright for “mercy and to hold off on enforcement of the fees ruling until an appeal can be prepared,” Ackerman said.

If the order to pay the fees is enforced, according to Ackerman, McElroy could come to the USJF office near San Diego and remove library books, computers and equipment, “and has indicated a willingness to do so.”

Worth a thousand words?

Two other defendants involved with Sullenger in the February 1999 anti-abortion protest that prompted Planned Parenthood’s suit have successfully filed a motion to have their cases dismissed on First Amendment grounds.

But McElroy argued that photographic evidence in the case of Sullenger was so obvious that a reasonable attorney has no right to believe that her activity is protected by the First Amendment.


Cheryl Sullenger after interaction with couple near San Diego Planned Parenthood clinic.

McElroy points to a photo that shows Sullenger holding an anti-abortion sign while conversing with a couple in a car idling in the driveway of the Mission Valley clinic at Planned Parenthood’s San Diego headquarters.

The Planned Parenthood lawyer maintains this photo and others provide conclusive evidence that Sullenger was trespassing and harassing clinic customers.

“We have people who demonstrate on our sidewalks all the time, and we never file injunctions, and we never call the police, because they are peaceful, and they have the right to be there,” McElroy told WorldNetDaily.

Sullenger maintains, however, that the couple called her over to their car as she stood on the public sidewalk next to a colleague who was “preaching.”

The couple informed her that they decided to keep their baby, said Sullenger, who told WND that her small group, the California Life Coalition, has helped save hundreds of babies over the past 18 years.

“They found out they’re having twins,” Sullenger recalled, “and I said, ‘God bless you.’”

A Planned Parenthood security guard snapped a photo as Sullenger, still holding her sign, conversed with the couple.

“That’s why Planned Parenthood said there was no way I was there to exercise my constitutional rights, that I was only there to block the driveway,” Sullenger said. “But I was in the driveway less than 30 seconds, and no cars tried to come in or out, and that couple had called me over to the car to talk to me.”

Sullenger also insists that when she stood next to the couple’s car she was not on Planned Parenthood property but on a public sidewalk that cuts through the driveway.

McElroy dismissed Sullenger’s explanation, arguing that she is not credible and asserting that other photos submitted as evidence, showing her on other occasions, also provided incontrovertible proof that Sullenger violated the law.

But Ackerman argues that the photos can be interpreted in a different way. The main issue with regard to the judge’s decision to make USJF pay the fees is whether or not the photos are conclusive, he emphasized.

“I think that a pro-life defense attorney has a right to argue for his client’s defense of those photos,” Ackerman said.


Anti-abortion activists on Denny’s restaurant property near Planned Parenthood clinic.

The Planned Parenthood attorney claims that Sullenger yelled at women entering the clinic and harassed them. Her technique, he maintained, is to “shove things in the car window,” such as pictures of aborted fetuses, as customers drive by.

“Where are the photos of that?” Ackerman asked. “There was no evidence of that anywhere. They had been out almost every week for three years. [The clinic] just decided one day that they’d had enough.”

McElroy said he has declarations from witnesses who say she was yelling, but Sullenger contends that during the trial of two other defendants, witnesses commonly attributed certain actions to the wrong people or confused what really happened.

She admitted that one of the defendants, an activist who sometimes comes from Denver, named Ken Scott, preaches with passion on the sidewalk and declared that “If you die without Jesus, you go to hell.”

Sullenger says that she does not distribute anything to passersby without their permission.

“It doesn’t make sense for us to force literature on people,” she said. “They won’t read it.”

Credibility questioned

 

McElroy said that as a lawyer, he is a “strong believer” in the First Amendment.

” I respect their right to be there,” he said. “But we asked her to get out of our driveway on numerous occasions, and she wouldn’t.”

Like many jurisdictions, San Diego has a law establishing a “bubble” around clinic property that is off-limits to protesters, but the regulation is considered so ambiguous by police that it is not enforced.

Sullenger testified in a Nov. 23, 1999 declaration that she has never trespassed on Planned Parenthood property, “never attacked, harassed, threatened, yelled at or shouted threats to anyone” and has never “obstructed anyone from entering the clinic or the driveway.”

McElroy maintains that Sullenger is not credible.

“I think she’s got a high school education – nothing wrong with that – but she’s not sophisticated enough to understand much, and she has a tendency to be less than truthful,” he told WND.

“He’s insulted me to my face,” Sullenger responded. “Actually I have some college education. He just thinks I’m stupid, but he does that to rile me, and I don’t care what he thinks about my IQ.”

McElroy pointed out that Sullenger was convicted along with her husband in 1987 of conspiring to bomb an abortion clinic. Sullenger said she has admitted her guilt and no longer condones such violent acts. She was given a reduced sentence of two-and-a-half years in prison and ended up serving two.

“He’s told me that it’s his mission in life to get people like me off the streets,” she said of McElroy. “He represents the people who are against what we would consider to be Christians. I think he despises us.”

Ackerman argues, however, that Sullenger’s past is irrelevant because the issue hinges on whether or not she had a right to be there outside the clinic. He notes that McElroy settled the lawsuit against Sullenger, which, according to McElroy, establishes a buffer zone but allows her to continue her anti-abortion activism near the clinic.

“If she was so threatening, why would Planned Parenthood settle?” Ackerman asked.

Ackerman noted that the local Planned Parenthood admitted during the trial of Ken Scott and another colleague, Ron Brock, that it destroyed a videotape from a surveillance camera that would have shown exactly what the anti-abortion activists were doing that day. The clinic said they would have kept it if it had anything relevant.

That tape, which was trained on the area where Scott and Brock stood, “would have shown absolutely nothing” incriminating, Ackerman believes.

“Mr. McElroy doesn’t care about whether or not she protested out there on a given Saturday, he wants to shut down the pro-life movement,” Ackerman charged.

“I have no sympathy for Cheryl Sullenger, who thinks the way to get her point across is to blow up a building,” said McElroy. “She is a dangerous person. Doctors and workers have been murdered in this country and there have been over 200 arsons.”

“When I’m dealing with people like Sullenger,” he added, “as a lawyer, I think it’s my obligation to protect the staff and say, ‘Your honor, they’ve crossed the line.’”

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