Nancy Kindschy v. Brian Aish

2022 WI APP 17

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2020AP1775

†Petition for Review Filed

Complete Title of Case:

NANCY KINDSCHY,

PETITIONER-RESPONDENT,

V.

BRIAN AISH,

†RESPONDENT-APPELLANT.

Opinion Filed: March 8, 2022
Submitted on Briefs: October 12, 2021
Oral Argument:

JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the
briefs of Joan M. Mannix of Thomas More Society, pro hac vice, and
Dudley A. Williams of Buting, Williams & Stilling, S.C., Chicago,
Illinois.

Respondent
ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the
brief of Diane M. Welsh and Beauregard W. Patterson of Pines Bach
LLP, Madison.
2022 WI App 17

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 8, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2020AP1775 Cir. Ct. No. 2020CV40

STATE OF WISCONSIN IN COURT OF APPEALS

NANCY KINDSCHY,

PETITIONER-RESPONDENT,

V.

BRIAN AISH,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Trempealeau County:
RIAN RADTKE, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 GILL, J. Brian Aish appeals from a circuit court order granting
Nancy Kindschy a harassment injunction against him. Between 2019 and 2020,
Aish protested at the Blair Health Center (hereinafter, “Blair Clinic”) where Planned
Parenthood provided services and Kindschy worked as a nurse practitioner. The
No. 2020AP1775

circuit court concluded that Aish’s actions toward Kindschy during his protests
constituted “harassment” as defined by WIS. STAT. § 813.125 (2019-20).1 In
particular, the court found that Aish’s statements—such as “bad things happening
to you and your family” and “you’re lucky if you make it home safe”—were
designed to intimidate Kindschy and did not serve a legitimate purpose. The court
issued an injunction barring Aish, until September 9, 2024, from harassing
Kindschy and requiring him to avoid Kindschy’s residence or any premises
temporarily occupied by her, including the Blair Clinic.

¶2 Aish contends the circuit court erred because the evidence does not
support a conclusion that his actions met the statutory definition of “harassment”
under WIS. STAT. § 813.125. Specifically, Aish asserts that any comments he made
to Kindschy about “bad things” generally happening to her do not meet the
definition of “harassment” because the comments “referr[ed] to dangers everyone
knows exist” and did not “suggest[] that Aish might play a role in any bad thing that
might happen to Kindschy or her family.”

¶3 Aish further argues that the circuit court erred by concluding that
Aish’s actions lacked a “legitimate purpose” under WIS. STAT. § 813.125. Aish
maintains that the “legitimate purpose” constituted protected expression meant to
influence Kindschy to leave her employment in furtherance of his goal of shutting
down Planned Parenthood and to proselytize. Finally, and relatedly, Aish asserts
that the court’s injunction was insufficiently tailored in scope, thus violating the
First Amendment by effectively banning him from ever protesting against Planned
Parenthood at the Blair Clinic.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

2
No. 2020AP1775

¶4 We conclude the circuit court properly determined that Aish’s conduct
constituted harassment as defined in the statute. The record contains ample evidence
to support the court’s finding that Aish’s actions toward Kindschy were without a
legitimate purpose. The evidence established a pattern of repeated actions over the
course of months that demonstrated Aish’s purpose was to scare and intimidate
Kindschy, including evidence that Aish threatened Kindschy and her family on
more than one occasion. Although Aish claims that he intended only to influence
Kindschy to leave her employment, to shut down Planned Parenthood, and to
proselytize, his comments and behavior were harassing to Kindschy, making his
actions unprotected speech. To protect against such harassment, the court
permissibly tailored the injunction order to prevent Aish from being at Blair Clinic
when Kindschy is there. An individual’s ability to protest abortion, like any other
subject, is not unlimited. Accordingly, we reject Aish’s arguments and affirm the
order.

BACKGROUND

¶5 Kindschy petitioned for a harassment injunction against Aish on
March 10, 2020, claiming that Aish had engaged in threatening behavior over a
period of time that caused her to fear for her safety. The following facts were
adduced during a two-day injunction hearing at which the circuit court heard
testimony from Kindschy, two of Kindschy’s co-workers, Aish, and Aish’s wife.

¶6 Kindschy has worked as a nurse practitioner at various family
planning clinics. Since 2019, Planned Parenthood has provided family planning
services at the Blair Clinic where Kindschy works. Abortions, however, are not
performed at that facility.

3
No. 2020AP1775

¶7 Since 2014, Aish has protested at several family planning clinics
where Kindschy has worked. Early interactions between Aish and Kindschy were
not confrontational, consisting of conversations regarding Aish and his beliefs. In
the fall of 2019, however, Aish’s behavior toward Kindschy changed significantly.
Kindschy testified that Aish became more aggressive and confrontational toward
her, and he seemed to single her out while protesting.

¶8 On October 8, 2019, while standing three to four feet from Kindschy’s
car as she was leaving the Blair Clinic, Aish stated to Kindschy: “You have time to
repent. You will be lucky if you don’t get killed by a drunk driver on your way
home. Bad things are going to start happening to you and your family.”
Approximately one week later, Kindschy testified that Aish approached her vehicle
as she left the Blair Clinic parking lot and said to her in an angry, cold, and loud
tone, “you have blood on your hands.” Thereafter, Kindschy saw Aish receive a
citation for trespassing, which Kindschy believed angered him even more.
Kindschy was frightened of Aish’s aggressive and angry behavior. On another date
in October when Kindschy was leaving work, Aish “ran out into the road after
[Kindschy] pumping his anti-abortion sign into [her] car window within inches of
it.”

¶9 In February the following year, Aish continued to single out Kindschy
from her fellow employees. On February 18, 2020, as Kindschy left work, Aish
followed her directly to her vehicle. Aish stated that Kindschy would be “lucky” if
she got home safely, she could possibly be killed, and that bad things were going to
start happening to her family. Video footage of this confrontation was introduced
into evidence. A week later, Aish accused Kindschy of lying to the authorities about
him and told her that she would be “lucky” to make it home safely, which caused
her “great concern.”

4
No. 2020AP1775

¶10 The circuit court found that Aish repeatedly committed acts that
intimidated and harassed Kindschy. The court further found that Aish’s repeated
statements that Kindschy would be “lucky” if she made it home safely and that bad
things would start happening to her family were threatening. The court also found
that Aish used intimidation with an intent to scare Kindschy into quitting her
employment with the Blair Clinic. The court issued an injunction barring Aish from
harassing Kindschy and requiring him to avoid her residence or any premises
temporarily occupied by her, including the Blair Clinic, until September 9, 2024.

¶11 Aish filed a motion for reconsideration, arguing that the circuit court
committed manifest error “by determining that Mr. Aish’s right to assemble and his
right to freedom of expression under the First Amendment was not a legitimate
purpose.” The court denied the motion, and Aish appeals. Additional facts will be
included as relevant to the discussion.

DISCUSSION

¶12 Under WIS. STAT. § 813.125(4), a circuit court may grant an
injunction ordering a person to cease or avoid the harassment of another if it finds
“reasonable grounds to believe that the respondent has engaged in harassment with
intent to harass or intimidate the petitioner.” See § 813.125(4)(a)3. This finding
presents a mixed question of fact and law. Board of Regents-UW Sys. v. Decker,
2014 WI 68, ¶20, 355 Wis. 2d 800, 850 N.W.2d 112. A reviewing court will uphold
the circuit court’s factual findings unless they are clearly erroneous, but whether
reasonable grounds exist to grant the injunction is a question of law that we review
de novo. Id. As relevant to this case, § 813.125(1)(am)4.b. defines “harassment”
to mean, “[e]ngaging in a course of conduct or repeatedly committing acts which
harass or intimidate another person and which serve no legitimate purpose.”

5
No. 2020AP1775

A. Aish repeatedly committed acts that harassed and intimidated Kindschy.

¶13 Aish first argues that the circuit court erred by finding that his actions
were harassing or intimidating. Aish contends there was no evidence—and no
finding by the court—that he threatened Kindschy or otherwise suggested that he
would have a role in any negative thing that might happen to Kindschy or her family.
Additionally, Aish contends the court made an “unprecedented” finding that Aish’s
statements referring to existing known dangers in the world constitute harassing and
intimidating conduct within the scope of WIS. STAT. § 813.125. Aish contends that
the concept of intimidating someone implicitly requires that one acts with the
purpose of creating “timidity or fear of the person doing the alleged intimidating.”
Aish argues the video in evidence shows that he did not engage in conduct to
intimidate or harass Kindschy.

¶14 In making his arguments, Aish ignores our standard of review, as well
as the circuit court’s factual findings and the record supporting them. In particular,
the circuit court determines credibility, and we will not second-guess its credibility
determinations. See Nicholas C.L. v. Julie R.L., 2006 WI App 119, ¶23, 293
Wis. 2d 819, 719 N.W.2d 508. In Welytok v. Ziolkowski, 2008 WI App 67, ¶35,
312 Wis. 2d 435, 752 N.W.2d 359 (citation omitted), this court noted that to
“‘harass’ means ‘to worry and impede by repeated attacks, to vex, trouble or annoy
continually or chronically, to plague, bedevil or badger, and ‘intimidate’ means ‘to
make timid or fearful.’” Here, the court specifically found that Aish directed his
comments toward Kindschy. It further found that Aish intimidated Kindschy by
repeatedly making threats to Kindschy and her family.

¶15 Aish argues there is evidence contrary to the circuit court’s findings,
but he does not argue those findings themselves are clearly erroneous. Here, the

6
No. 2020AP1775

evidence clearly supports the court’s findings that Aish harassed Kindschy and
intimidated her. Evidence introduced at the injunction hearing showed that
Kindschy had known Aish as a protestor for six years. Earlier in their interactions,
Aish was respectful, spoke nicely to Kindschy, discussed his beliefs and mission,
and would tell her to have a nice day.

¶16 Starting October 8, 2019, however, Aish’s demeanor and message
changed. Kindschy testified that she was very frightened not only by Aish’s
proximity and his words, but by the change in his demeanor. Aish’s changed
demeanor, tone and message continued through February 2020, where they even
intensified. Aish began to state that Kindschy would be “lucky” if she got home
safely, that she could be killed, and that bad things were going to start happening to
her family. On one occurrence, Aish accused Kindschy of lying to the authorities
about him and again threatened that she would be lucky if she were able to make it
home safely. As a result, Kindschy testified that she felt scared and threatened by
Aish.

¶17 Aish claims that he was merely “drawing [Kindschy’s] attention to the
reality of commonplace but serious dangers” and that there “was no explicit or
suggested causal relationship to Aish.” These assertions, however, are contrary to
both the record and the circuit court’s findings. Kindschy testified that she was
scared of Aish as a result of the comments he made to her, not that she was suddenly
fearful that she or her family might be the victim of some wholly unrelated accident.
In fact, one of Kindschy’s co-workers testified that Kindschy appeared bothered and
scared, and she would head straight for her car “as quickly as possible” to avoid
Aish. The record also shows that the Blair Clinic added a security guard and
cameras to address Kindschy’s concerns about Aish.

7
No. 2020AP1775

¶18 Although Aish argues that the video evidence does not support a
determination that he was threatening or intimidating Kindschy, the circuit court
found to the contrary based on the testimony of Kindschy and her colleagues, which
the court found to be credible. Aish has not shown that any of the court’s factual
findings or credibility determinations are clearly erroneous, even in light of the
limited video evidence. Based on those findings, the court correctly determined that
Aish’s conduct was harassing or intimidating. See WIS. STAT. § 813.125(1)(am)4.b.

¶19 This evidence established a pattern of repeated actions that frightened
Kindschy. Aish approached Kindschy repeatedly over the course of several months,
and during each interaction, he berated her with veiled threats suggesting harm
toward both Kindschy and her family, and he falsely accused her of actions she did
not commit. On this record, the circuit court properly determined that Aish engaged
in a pattern of harassing or intimidating conduct within the meaning of WIS. STAT.
§ 813.125(1)(am)4.b.

B. Aish’s conduct was not for a legitimate purpose.

¶20 Aish next asserts that the circuit court found his comments were made
“in furtherance of two First Amendment protected goals”—to influence Kindschy
to leave her work with the Blair Clinic, and to proselytize. Aish therefore asserts

[t]he Court manifestly erred in interpreting and applying the
statute to reach protected expression and in determining
Kindschy has a greater interest in not hearing words that
might cause her to contemplate negative realities than Aish
has in exercising his First Amendment rights and expressing
his pro-life, anti-Planned Parenthood, Christian viewpoint.

¶21 Aish argues the circuit court’s decision is contrary to controlling
precedent—specifically, our supreme court’s decision in Bachowski v. Salamone,
139 Wis. 2d 397, 407 N.W.2d 533 (1987). The Bachowski court held that “[t]he

8
No. 2020AP1775

intent requirement and the phrase ‘no legitimate purpose’ make clear that protected
expression is not reached by the statute. It is not directed at the exposition of ideas
but at oppressing repetitive behavior which invades another’s privacy interests in an
intolerable manner.” Id. at 411 (citation omitted). Aish appears to argue that his
comments at issue in this case constituted protected expression, and that the court
therefore erred by concluding they lacked a legitimate purpose.

¶22 Aish’s argument that the circuit court found he did not engage in
harassment with the intent to harass Kindschy is without record support. In fact, the
court specifically found that “Aish engaged in harassment with intent to harass or
intimidate” Kindschy. The court found that Aish intended to use intimidation and
scare tactics to pressure Kindschy to quit her job, and that Aish’s actions were for
the purpose of scaring Kindschy. The court noted that this conduct is not protected
speech, regardless of any relation it has to otherwise protected speech. Furthermore,
the court refused to accept Aish’s claim that his actions were done out of a concern
for Kindschy or her spirituality. The court declined to find a legitimate purpose in
intimidating someone to get them to leave their job because the person making the
intimidating statements does not agree with victim’s employment or the work that
the victim’s employer performs.

¶23 Further, Aish’s argument that his comments are protected by the First
Amendment is misplaced. Although Aish correctly points out that his intent was to
influence Kindschy to leave her employment and to proselytize, this notion
overlooks the circuit court’s finding that he also intended to frighten Kindschy.
Harassing behavior cannot be transformed into nonharassing, legitimate conduct
simply by labeling it as a political protest. Our supreme court rejected that notion
in Decker, explaining:

9
No. 2020AP1775

Taken to its logical conclusion, this argument suggests that
if an individual has both a legitimate and an illegitimate
purpose, the legitimate purpose automatically protects the
individual’s conduct from being enjoined. Put another way,
according to Decker’s logic, conduct done with both the
purpose of protesting and the purpose of harassing cannot
constitute harassment. This is a senseless argument that
flatly contradicts our holding in Bachowski that
intentionally harassing conduct can never serve a legitimate
purpose.

Decker, 355 Wis. 2d 800, ¶38 (emphasis omitted). Here, Aish cannot shield his
harassing conduct from regulation by labeling it a “protest.” Consistent with
Decker, because at least some of Aish’s conduct unlawfully harassed Kindschy, it
may be enjoined under WIS. STAT. § 813.125.

¶24 Therefore, we conclude that the testimony of Kindschy and her
colleagues provided reasonable grounds to believe that Aish engaged in a course of
conduct that harassed or intimidated Kindschy and served no legitimate purpose,
and that he engaged in that conduct with the intent to harass or intimidate Kindschy.
We agree with the circuit court that Aish’s pattern of behavior was sufficient to
satisfy the statutory standard.

C. The injunction does not violate the First Amendment.

¶25 As discussed, Aish asserts that he protested at the Blair Clinic in
opposition to abortion and Planned Parenthood. Aish further contends that he tries
to spread a pro-life, Christian message, which is a matter of public concern. The
circuit court’s order now prohibits his presence at the Blair Clinic when Kindschy
is there. Although the court noted that Aish could be present at the Blair Clinic
when Kindschy is not there, Planned Parenthood only provides counseling at the
clinic on Tuesdays, which is when Kindschy works there. Thus, Aish asserts that
the injunction effectively prevents him from protesting at the Blair Clinic. Aish

10
No. 2020AP1775

therefore argues that the injunction is invalid because it “impermissibly effectively
completely bans Aish from exercising his First Amendment right to protest” at the
Blair Clinic.

¶26 As alluded to above, it is well established that an individual’s ability
to protest is not unlimited. Decker, 355 Wis. 2d 800, ¶44. Likewise, the right to
protest against abortions is not unfettered. The United States Supreme Court upheld
a Colorado statute that banned anti-abortion protestors from approaching patients
and employees entering or leaving clinics. Hill v. Colorado, 530 U.S. 703, 707-15
(2000). Additionally, in American Life League, Inc. v. Reno, 47 F.3d 642, 645-48
(4th Cir. 1995), the Fourth Circuit upheld the constitutionality of the Freedom of
Access to Clinic Entrances Act of 1994, a federal law enacted to limit anti-abortion
activists who had become increasingly violent in their attempts to shut down or
disrupt abortion clinic operations.

¶27 Furthermore, we are not persuaded by Aish’s reliance on Snyder v.
Phelps, 562 U.S. 443 (2011), for the contention that any conduct done in the name
of an anti-abortion protest is public in nature and therefore subject to special
protection. To be clear, Aish was not protesting at an abortion clinic. His efforts
were not geared toward changing the minds of the general public or legislators.
Rather, Aish was attempting to get Kindschy specifically to change her mind and to
resign her position as a nurse practitioner at the Blair Clinic. Stated differently,
Aish was attempting to convince a private citizen to end her employment with a
private organization, by making comments that instilled fear and trepidation. Aish’s
efforts were almost entirely personal—and not public—in nature.

¶28 We also reject Aish’s claim that the injunction was insufficiently
tailored. In order to protect Kindschy from Aish’s harassment, the circuit court

11
No. 2020AP1775

ordered that he not be present where Kindschy worked. Aish can protest at the Blair
Clinic anytime Kindschy is not present. The fact that Kindschy works on the only
day Planned Parenthood provides counseling at the Blair Clinic—thus preventing
Aish from protesting Planned Parenthood’s work there—does not mean the
injunction was insufficiently tailored. Aish can still protest at that site whenever
Kindschy is not present, or at any other clinic or Planned Parenthood site.

¶29 In sum, the circuit court’s order enjoining Aish from unlawfully
harassing Kindschy at the Blair Clinic did not violate Aish’s First Amendment
rights. The court correctly determined that the First Amendment does not uphold a
right to threaten or scare people in order to sway their religious beliefs or induce
them to quit their jobs. The court properly concluded that Aish had engaged in
harassment that was not protected by the First Amendment. For the foregoing
reasons, we reject Aish’s challenges to the order granting a harassment injunction.

By the Court.—Order affirmed.

12