ARTICLES

Good Guys Win One

PRO-ABORT ATTORNEY DROPS UNIVERSITY HEIGHTS CASE

By Judith Martel

On February 23 San Diego Union reporter Bill Callahan, a film crew, and other press members spent the day covering pro-abortion attorney James McElroy's case against two pro-life sidewalk counselors. But when it became apparent that the pro-life side, represented by attorney Rick Vattuone, would prevail, reporters declared the case unnewsworthy. After McElroy's mid-trial decision to drop the case, reporters went over to chat with him, shunning Vattuone. Approaching Callahan, Vattuone asked if a story would be written about the trial, to which the U-T reporter replied no, because McElroy might decide to file another case, which could be harmed by press coverage of this trial. (Vattuone points out that a case dismissed during trial is dismissed "with prejudice," making McElroy unable to re-file.)

McElroy has become a local celebrity due to his efforts to stop pro-life activities through lawsuits. After winning a multi-million-dollar case against white supremacist Tom Metzger, McElroy compared Operation Rescue to the KKK and vowed to stop pro-life activists. McElroy won an $880,000 judgment against Operation Rescue in March of 1995, although the case is being appealed on the judge's failure to include Operation Rescue in the trial. (O.R. claimed they had not been properly served with legal papers, so they did not respond; the judge deemed them to be present and proceeded) The jury in that case also awarded damages inappropriate (such as "emotional distress") for a corporation.

Emboldened by his successes, McElroy took on a case against two pro-lifers, Troy Newman and Connie Youngkin, at the request of Kathleen Gregory, a woman who lives about a block away from abortionist Philip Milgram's office at 4386 Mississippi Street in University Heights. Gregory, claiming to speak for other homeowners in the University Heights Association, obtained a temporary restraining order against Newman and Youngkin, saying that the pro-lifers were harassing residents and showing grisly pictures to children. Youngkin notes that since she and Newman started picketing Milgram's clinic (October and December of 1995, respectively), Gregory had been attempting to organize her neighbors against them. Gregory often blocked the protesters and shouted obscenities at them with a bullhorn.

Gregory's case against Newman and Youngkin was filed by McElroy January 17, 1996, using a expedited procedure for getting an injunction to stop harassment, especially stalking. At the initial hearing February 6, Vattuone pointed out that this code does not apply to the abortion protester scenario, as it can only be used against one individual who is illegally harassing another individual and since it does not cover constitutionally protected activities. The judge never ruled on this argument but did uphold Vattuone's objection to hearsay evidence. McElroy requested a continuance so he could bring witnesses in place of the rejected petition and declarations, to which the judge consented.

During questioning at the February 23 continuation, Vattuone was able to establish that Gregory had lied in legal documents and on the witness stand. It was shown in court that the only person who had ever been arrested at Milgram's clinic was Gregory herself, who had threatened to shoot Newman and the other pro-life picketers. On the stand Gregory volunteered that she is manic-depressive and could not recall some of her actions. It was also revealed that in May, 1995, a restraining order was taken out against Gregory because she had been conducting false arrests (not related to abortion or political issues).

During the trial, Gregory claimed that on January 7 Newman and Youngkin chased her down the block to her house, screaming at her, killed an iguana, hung it on her porch, and threw a rock through her window. Neither Newman nor Youngkin was at the clinic that day, and both had witnesses to prove their whereabouts.

McElroy brought forth as witnesses children who claimed to be upset by a dead baby photograph on a picketer's sign. Vattuone asked the children whether their parents allow them to see gory movies, to which they all responded yes. Under re-examination by McElroy, the kids said that such movies don't horrify them because they know them to be untrue.

Youngkin later reported to the judge that she overheard one child, who had left the witness stand, telling another in the hallway, "I made it all up." Testimony also revealed that, whereas the protesters never deliberately showed the pictures to children, Gregory was videotaped bringing children over to the sign, pointing it out to them.

On February 23, Vattuone asked that the case be dismissed, citing another case as proving that the harassment code cannot be applied to a legal entity. The judge said he would read the other case over the weekend. Youngkin arranged a separate settlement with McElroy on February 23, agreeing not to show grisly pictures to children and to stay directly in front of Milgram's clinic. The settlement also specifies that Youngkin and Gregory must stay 25 feet away from each other, prohibiting further harassment by Gregory.

On Monday Judge Howatt asked McElroy what he thought of the case Vattuone had cited. McElroy replied that he had not read it. The judge said because of the other case he would remove all plaintiffs except Gregory and her husband, since the University Heights Association did not qualify for the harassment law.

McElroy said he didn't feel he could win the case with those two plaintiffs. He asked for a continuance, which was denied. He then asked if he could amend the complaint, which was denied. McElroy then dropped the case. Vattuone is filing a motion against McElroy and the plaintiffs for attorney's fees.

The abortionist, Dr. Milgram, never participated in the case. Youngkin suspects there is bad blood between Milgram and McElroy, since McElroy represented a woman who sued Milgram in 1992, claiming that he sexually molested her on the examination table (McElroy lost that case).

McElroy continues to pursue legal actions against pro-lifers. He is representing Dr. George Kung against Nancy Scofield, the Palomar-Pomerado Health System board member who tried to have the Kung's hospital privileges removed, identifying him as a "third-trimester abortionist," which Kung denies. Scofield has at least one witness testifying that Kung performed a late-term abortion on her.