An Interview with Tom Condit
Tom, tell me about your background and education.
I was born and raised in Cincinnati, Ohio, one of eleven children. We are a traditional Roman Catholic family educated in the Catholic schools. I can’t resist quoting Henry Hyde or Bob Dornan, whoever it was who said that he “was educated by the Jesuits before they left the Church.” I like to say that I was educated by the Jesuits after they left the Church. Anyway, I graduated from St. Xavier High School here in Cincinnati in 1974.
I attended Western Kentucky University (WKU) in Bowling Green, Kentucky, graduating in 1978 with a BA in Government and Philosophy. I then returned for a fifth year to get certified to teach, with a minor in Mathematics. On a personal note, an athletic pursuit was the reason I stayed longer at WKU, which had an excellent track and field program. I was a decent cross-country runner in high school—nothing special. I attended WKU as an unrecruited walk-on but found myself training every day with world-class runners. I was completely over my head but I hung in there and eventually broke through to a higher level. My modest success as an undergrad convinced me that if I did everything right I could qualify for the U.S. Olympic Marathon Trials in 1980. I was accepted to law school in 1978, but opted to stay at WKU to pursue that goal. By the grace of God, I did qualify for and compete in the 1980 Olympic Marathon Trials. Unless I can get Roe v. Wade reversed, I doubt that I can do anything in the legal profession more satisfying. Anyway, I had higher hopes for 1984 but my running career flamed out in injuries. In 1985, I began law school at the University of Illinois. After one year I transferred home to the University of Cincinnati to finish my degree. In May 1989, I was sworn in to practice law in Ohio.
What type of law do you practice in addition to your pro-life work?
I have always been a solo practitioner sharing office space with my dad, James Condit, Sr., and his partner Jack Dressing. It was an ideal situation coming right out of law school, having the support and structure of their law firm but still independent. At their request, I assumed responsibility for a small number of Ohio Workers Compensation files, representing injured workers, and developed it as my core practice. It is dreadfully unromantic, but it has been my primary source of income and is still 75% of my practice.
Could you tell me the history of your pro-life work? Did you start out initially doing a case for the Life Legal Defense Foundation?
No. In fact, my dad and Jack Dressing were the two most active Cincinnati attorneys who would litigate pro-life cases. My father was always involved in Catholic causes; a fighter for the Faith, for Catholic education and so forth.
In 1986, Planned Parenthood sued my brother and three other pro-life leaders for supposedly unlawful picketing activities. Planned Parenthood had everything but the evidence. It turned into a scandalous case of pro-life persecution. I contributed what little I could while still in law school, but the case lasted so long that I was able to argue it to the Supreme Court of Ohio in February, 1990.
The Planned Parenthood case shaped my legal personality early on. It taught me that no right is so precious that it cannot be denied to a pro-lifer, and that bizarre legal principles will be created and upheld in pro-life cases. In Planned Parenthood, for example, there were allegations of misconduct against four people in the context of large weekly demonstrations. After many days of hearings, and without finding that any individual had engaged in misconduct, the trial judge granted Planned Parenthood’s motion to certify a defendant class of picketers under Civil Rule 23. He then enjoined and strictly regulated the entire class, which was defined as all “persons picketing” in a one-block geographical area who were served with injunction. My father and Mr. Dressing, over their objections, were appointed representatives of the bizarre defendant class, which changed and expanded every time a new person showed up to picket. It was an injunction against the world. We argued from the outset that no court could issue a binding order against innocent non parties, but the judge adopted Planned Parenthood’s novel theory that by certifying a defendant class it could exercise jurisdiction over everyone who was later served with the order. The Court effectively enjoined (in advance) everyone who showed up to picket. The Rev. Jerry Falwell came to town one week to support the pickets and was made a “class member” when he was served with the order. We still laugh about that. Dozens of people were arrested and cited for alleged violations of the injunction, including people who thought they were obeying it. Thirteen people were ultimately convicted of contempt for alleged violations of the order, mostly for things like kneeling quietly in prayer.
The case finally went up to the Court of Appeals, which struck down the class certification as an abuse of discretion, but still upheld all of the contempt convictions. The result made no sense. If the class certification fell, the convictions of non parties had to fall with it because the “class” was the only vehicle by which the Court claimed jurisdiction to bind them. The Supreme Court of Ohio gave us hope when it agreed to hear the case in 1990, but then shocked us by not only unanimously affirming the contempt convictions, but going further to validate the concept of the defendant class. The Court’s opinion omitted most of the facts helpful to our position, so anyone reading it will not comprehend the depth of the error, on First Amendment grounds and otherwise. In the end, the Supreme Court of Ohio allowed a trial court to deprive innocent non-parties of their right to free speech on a public sidewalk without a hearing, based upon the conduct of strangers with whom they had no affiliation. It is an astounding violation of due process which would never survive a challenge from, say, homosexual rights activists or pornographers.
Anyway, to make a long story longer, the Planned Parenthood case launched me into various civil suits on behalf of pro-lifers. In one case, a protester was speaking out against abortion on a public sidewalk in front of Planned Parenthood. He was arrested by Cincinnati police officers who later claimed the protester was trespassing on clinic property (contrary to 50 pro-life eyewitnesses). Ignoring the pleas of the protester, the police abandoned his two young weeping children at the clinic in a crowd of strangers seven miles from their home. The police lied in their depositions, thereby creating a core fact dispute, but the officers and the city were granted summary judgment. Immunity for everyone. The Court of Appeals distorted the facts to uphold that result. Neither the Ohio Supreme Court nor the U.S. Supreme Court would even review the case.
In another case, we sued the county sheriff and the city police for arresting twenty people for allegedly violating the injunction discussed earlier. We later learned that the police and Planned Parenthood’s attorneys had devised a scheme to let Planned Parenthood’s clinic workers decide who should be arrested. Innocent people, some of whom were never even served with a copy of the injunction, were arrested without violating it and absent any independent judgment by the police. If Planned Parenthood selected you for arrest, you went to jail. Again, in our civil suit we could not even get to a jury. Immunity for the civil rights of violators. No remedy for pro-life victims.
I also began representing rescuers as soon as I passed the Bar, probably 200 or more between 1989 and 1995. Rescuers were my favorite clients—no money and absolutely no expectation of winning.
How did you first connect with Life Legal?
My only case for Life Legal was a Chuck Spingola case. I don’t exactly know how you referred Chuck Spingola to me. I had certainly heard of Life Legal but had never worked with the organization.
Our Mary Riley is a bloodhound. She can find a pro-life lawyer anywhere.
I’m so happy that she contacted me. Chuck Spingola came to me on these facts. He is an independent preacher who goes to college campuses preaching against sin, fornication, homosexuality, and abortion. You can imagine how well received he is. Chuck went to Ohio University on a number of occasions to preach in a grassy park-like area known as the Monument Area of the College Green, a daily gathering place where hundreds of students assemble in good weather to talk, eat lunch, play sports, sing, play musical instruments, and generally engage in all forms of speech. There was a permit scheme for reserving buildings and facilities elsewhere on the College Green, but no permit process for the Monument Area. Traditionally, the campus police ordered preachers to stay on the nearby sidewalk even though everyone else was permitted to gather in the Monument Area to debate and insult the preachers. One day Chuck refused to move to the sidewalk when non preachers were permitted to continue speaking as they wished from the Monument Area. A woman began screaming at Chuck that he had no right to be there and called the police. Chuck stood his ground and asserted that he would not be treated like a second class citizen on public property any longer. He was arrested and charged with criminal trespass and a concocted resisting arrest charge.
We raised three issues in defense, all of which had undeniable merit. First, the Monument Area is a public forum in light of its daily usage as a gathering place. Therefore, Chuck had every right to speak there. Second, we raised a vagueness challenge due to the absence of any standard or University policy defining speech and assembly rights there. Third, we argued that Chuck was a victim of a discriminatory prosecution in light of the fact that he alone was singled out from a vocal crowd and arrested for peaceful religious speech. After a motion hearing which established the essential and undisputed facts, Chuck agreed to enter a plea of no contest in exchange for the state’s dropping the resisting arrest charge. We reserved all constitutional issues for appeal, which was argued last fall.
One of the three appellate judges really drilled the prosecutor on our vagueness argument and was visibly dissatisfied with the response. We left oral argument knowing that one judge was on our side, maybe two. The decision arrived two days before Christmas: conviction affirmed, three votes to zero. Unbelievable, but very typical. I find that judges like to appear interested in protecting First Amendment rights of Christians, but then write opinions which omit facts which are favorable to the Christians and which would require a different result if mentioned. Anyone reading the opinion would not understand how misleading it is. In Chuck’s case, for example, a street vendor testified that the Monument Area, where he did business every day, was “a commons” where students gathered every day to engage in every form of recreational activity and speech. It was compelling but neutral testimony about the nature of the forum. The Court of Appeals opinion omitted his testimony altogether and instead portrayed the Monument Area as a virtual outdoor library disrupted only by Chuck Spingola. Very dishonest opinion.
I filed a motion for reconsideration calling the glaring omission to the Court’s attention, but it was denied without comment. We appealed to the Supreme Court of Ohio, which refused to review the case. We are now considering whether to file a petition with the U.S. Supreme Court.
Under what circumstances would you hope to get such a case reviewed by the United States Supreme Court?
You can have the most meritorious case in the world and it means nothing. I remember watching Chief Justice Rehnquist on C-SPAN in 1996 explaining the standards under which the Court exercises its certiorari jurisdiction. He stated, “The fact that a case has been wrongly decided, or even that a great injustice has been done, is not a reason why the Court will hear a case.” I could not believe my ears. My reaction was “Why does the Court exist? Other than occasionally taking a case to further wreck our culture, what is the Court doing for anyone?” If the Court knowingly permits wrongfully decided cases to stand, creating bad precedent to be followed in later cases, who could it possibly be serving? It is probably an unintended admission by the Chief Justice that here are so many wrongly decided cases, so many injustices perpetrated in the lower courts, that the Supreme Court could not begin to correct them all even if it had the will to do so.
Are you litigating any other interesting prolife cases?
I have been litigating two residential picketing cases out of Fargo, North Dakota since 1993. Two different groups of pro-lifers were arrested in 1991 for walking on residential sidewalks. In one case, pro-lifers were lawfully picketing against abortion within the parameters set forth by the Supreme Court in Frisby v. Schultz. In the other case, pro-lifers walked in silent prayer in the clinic director’s neighborhood, without signs and without speaking. Both cases presented slam-dunk First Amendment violations, which is why I decided to litigate them 1,000 miles from home.
The trial judge ruled in our favor three times and was reversed by the Eighth Circuit all three times. I was shocked when the Eighth Circuit gave qualified immunity to the arresting police officers, but the trial judge ultimately granted summary judgment against the City of Fargo in both cases for its facially unconstitutional ordinance.
After recovering modest damages at two jury trials, the trial judge awarded more than $125,000 in attorneys’ fees and costs. Now remember that I am a solo practitioner, a little guy. That is a life changing attorney fee for me. Last summer, within a six week time frame, an Eighth Circuit panel took it all away. The opinions were just unbelievable. Inaccurate and, as usual, selective in their presentation of the facts. One of them created a direct conflict with Eighth Circuit precedent less than four years old. It must have disturbed enough of the judges that we were granted rehearing en banc.
We argued it in April to ten judges, several of whom will never vote in favor of the pro-lifers under any circumstance. I have some hope, however naive it may be, that we may get the five votes needed to affirm the District Court.
It sounds as if it has been entirely an uphill battle for you. How do you keep your spirits up?
It is very difficult at times. I would probably be happier teaching math and coaching cross country at a local high school. I would see my family more. The best way to describe my state of mind is to analogize to my running days. The sport is brutally fair. The conditions are the same for everyone. There were no incompetent umpires affecting the outcome with a bad call. When it was over, you knew everyone had a fair shake. All I ever wanted from the legal profession was the same kind of fairness. What a disappointment it has been. Too often, especially when pro-life Justice Scalia acknowledged the reality when he referred to the “ad hoc nullification machine” in abortion cases. So, yes, it can be very dispiriting. I survived as a distance runner because I was stubborn and competitive. I couldn’t survive as a lawyer without those qualities. But keep two things in mind. First, I have had a few victories to sustain me. Some judges do care more about applying the law and doing justice than in promoting their personal agenda. More importantly, I am always reminded that the perfect justice will be done on Judgment Day. I would not want the tone of this interview to mislead your readers. My life is good. I have been blessed with family, friends, and the Catholic faith. What else do I need? But, may God have mercy on the souls of those judges who do injustice deliberately.
Thank you very much Tom. I really appreciate your giving so much time.
I have nothing but good things to say about the Life Legal Defense Foundation and some of the other organizations with which I have occasionally collaborated—the Rutherford Institute, the ACLJ, etc. It has always been a pleasure to work with organizations which do so much for the cause of life.
This article was originally published in Lifeline Vol. X, Nº 2, Fall 2000.
Lifeline is a publication of Life Legal Defense Foundation, Napa, Calif.
