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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
December 12, 1995
A party may file with the Supreme Court                           This opinion is subject to further editing.
a petition to review an adverse decision                          If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                        appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                               Official Reports.
No.   95-0256
STATE OF WISCONSIN                                                IN COURT OF APPEALS
DISTRICT I
IN THE MATTER OF THE FINDING OF
CONTEMPT IN STATE OF WISCONSIN AND
CITY OF MILWAUKEE V. MISSIONARIES
OF THE PREBORN, ET AL.:
STATE OF WISCONSIN
and CITY OF MILWAUKEE,
Plaintiffs-Respondents,
v.
SHARON KISTER,
Appellant.
APPEAL from an order of the circuit court for Milwaukee County:
ROBERT C. CANNON, Reserve Judge.  Affirmed.
Before Wedemeyer, P.J., Sullivan and Fine, JJ.




No.   95-0256
PER CURIAM.    Sharon Kister appeals from an order issuing a
contempt citation for violating a permanent injunction enjoining the activities of
abortion protesters at various medical clinics in the City of Milwaukee.   Kister
claims that the trial court erred in issuing the contempt order against her
because:   (1) the finding of contempt was not supported by a preponderance of
the evidence; (2) the trial court applied an improper definition of “in concert;”
and (3) the trial court refused to dismiss the contempt motion based upon the
equitable defense of laches.
On  December                                                                          10,   1992,  a  Milwaukee  trial  court  issued  a
permanent injunction restraining numerous individuals and anyone acting in
concert with those individuals from engaging in certain activities at various
medical  clinics  that  provide  abortions.    The  injunction  prohibited  protest
activities within  25 feet of the entrance to the clinics and within  10 feet of
individuals seeking access to the clinic facilities.   Kister was not named in the
permanent injunction but she admitted that she had received notice of it.   On
February 12, 1994, Kister engaged in anti-abortion protest activities at one of the
clinics named in the injunction.   Elizabeth Wagi, one of the named defendants
in the injunction, also protested at the clinic.   According to the record, when
Kister first arrived at the clinic, she and Wagi were within a few feet of one
another.   Soon afterwards, Kister and Wagi separated and each patrolled the
opposite ends of the street where the clinic was located.   As persons would
attempt to enter the clinic, Kister, Wagi and other protesters would stop them
and try to talk to them.  David Ritz testified at the contempt hearing that he saw
Kister do these things within 25 feet of the entrance to the clinic and within 10
feet of the individuals seeking access to the clinic facilities.
On May 13, 1994, the City of Milwaukee commenced a contempt
proceeding against Kister.   On June 25, 1994, Kister was served with a copy of
the motion for contempt.   An affidavit supporting the motion was filed on July
14, 1994, detailing the specifics of Kister's alleged contempt.   On November 4,
1994, Kister filed a motion to dismiss based upon the affirmative defense of
laches.  The motion was heard and denied on November 14, 1994.  On that same
date, the trial court found that Kister violated the injunction by protesting
within  25 feet of the clinic entrance and by approaching within  10 feet of
individuals attempting to enter the clinic.   The trial court also determined that
Kister was acting in concert with Wagi.
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No.   95-0256
Kister first argues that the trial court's finding that she acted in
concert with Wagi was not supported by the evidence.   Persons not party to an
injunction action who have knowledge of the injunction may be punished for
contempt if they aid, abet, or act in concert with named parties.   Dalton v.
Meister, 84 Wis.2d 303, 311-312, 267 N.W.2d 326, 330-331 (1978).   These are
questions of fact to be determined by the trial court.   Id., 84 Wis.2d at 312, 267
N.W.2d at 331.   The evidence here is ample to justify the conclusion that Kister
acted in concert and participated in proscribed anti-abortion protest activities
with Wagi, a named defendant.   The trial court's findings are inherent in the
citation for contempt punishing Kister, and are not clearly erroneous.   See §
805.17(2), STATS.
Kister also argues that the trial court applied the wrong definition
of “in concert,” contending that the trial court based its findings on her mere
presence at the anti-abortion demonstration.   This argument raised by Kister
was  rejected  by  the  trial  court.    The  trial  court  applied  the  BLACK'S  LAW
DICTIONARY definition of “concerted action” in reaching its decision.   BLACK'S
LAW DICTIONARY defines “concerted action” as:   “Action that has been planned,
arranged,  adjusted,  agreed  on  and  settled  between  parties  acting  together
pursuant to some design or scheme.”   BLACK'S LAW DICTIONARY 289 (6th ed.
1990).   We agree with the trial court that this definition sufficiently articulates
the proper legal standard necessary to determine whether a non-party has acted
in concert with a defendant named in an injunction.   See Roe v. Operation
Rescue, 919 F.2d 857, 871 (3d Cir. 1990) (“The law does not permit the instigator
of contemptuous conduct to absolve himself of contempt liability by leaving the
physical performance of the forbidden conduct to others.  As a result, those who
have knowledge of a valid court order and abet others in violating it are subject
to the court's contempt powers.”).
Finally, Kister argues that the trial court should have dismissed
the contempt charge based on laches.  Laches is an equitable doctrine developed
to prevent injustice from resulting in situations where a party unreasonably
delays  asserting  his  rights  and  in  so  doing  causes  the  other  party  to  be
disadvantaged  in  asserting  a  defense.     Smart  v.  Dane  County  Bd.  of
Adjustments, 177 Wis.2d 445, 458, 501 N.W.2d 782, 787 (1993).   The elements of
laches are:                                                                              (1) unreasonable delay; (2) lack of knowledge on the part of the
party asserting the defense that the other party would assert the right on which
he bases his suit; and (3) prejudice to the party asserting the defense in the event
the action is maintained.   Id.   Laches is available only if all three elements are
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No.   95-0256
established.                                                                           “The  determination  whether  the  delay  was  so  unreasonable,
inexcusable, and prejudicial to the [party asserting laches] as to bar the [non-
asserting party's] remedies rest[s] in the sound discretion of the trial judge.”
Blue Ribbon Feed Co., Inc. v. Farmers Union Cent. Exch., Inc., 731 F.2d 415, 420
(7th Cir. 1984).
Kister fails to allege any facts to support the element of prejudice.
Although Kister insisted that she could not recall the events of the day in
question, she declined to view some 52 pictures taken of her engaged in various
forms of protest activity at the clinic on that day, thus deliberately avoiding a
way  to  refresh  her  memory.    Nevertheless,  she  apparently  had  sufficient
memory  of  that  day  to  deny  doing  any  of  the  things  in  violation  of  the
injunction with which she was charged.   In light of this, and in light of her
refusal to look at the photographs, we cannot conclude that the trial court
erroneously exercised its discretion in determining that she had not established
laches.
By the Court.—Order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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