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Volume 157, No. 94
Notre Dame drops trespass charges against protesters
By Jerry Crimmins
Law Bulletin staff writer
After litigation as contentious as a bowl
game, a prosecutor dropped trespass
charges against about 90 people arrested
at Notre Dame University while they
protested the university’s invitation to
President Barack Obama to speak at the
2009 commencement.
The anti-abortion protesters, known as
the ND88, were opposed to the
president’s abortion rights policies.
A lawyer for the protesters threatened
to sue the county and university for
discriminatory arrests on the grounds that
charges against protesters for other causes
at Notre Dame were typically dropped.
The case was resolved when lawyers
for Chicago’s Thomas More Society, which
represented the protesters, signed an
“agreement not to sue” Notre Dame or St.
Joseph County.
The agreement was contingent on the
the charges being dropped. St. Joseph
County, Ind., prosecutor Michael Dvorak
dismissed the trespass charges last week.
Dvorak said he took the action because
Notre Dame wanted “to reconcile” with
the defendants even though Dvorak was
confident the charges would have held up.
Thomas Brejcha, president and chief
counsel of the Thomas More Society,
called the outcome “a victory for the pro-
life cause.”
Brejcha hailed Osceola, Ind., attorney
Thomas M. Dixon as “quite a heroic figure
in this.” Dixon initially volunteered and
filed appearances to represent all the
arrested protestors himself pro bono,
Brejcha said.
Asked how Dixon could afford to
represent scores of protestors for nothing,
Brejcha said, “He couldn’t. It was a leap of
faith.”
The Thomas More Society arrived on
Copyright © 2011 Law Bulletin Publishing Company. All rights reserved. Reprinted with permission from Law Bulletin Publishing Company.
Thursday, May 12, 2011
the scene when asked to represent two
protesters from Colorado. “We got there,”
Brejcha said, “and found out (Dixon) was
like a lonesome cowboy representing all
these people.”
The society made Dixon its special
counsel and paid for Dixon’s expenses and
some of his time. But the case was still “a
very sacrificial effort on his part,” Brejcha
said.
Peter C. Breen, executive director and
legal counsel for the Thomas More Society,
also represented the protestors and signed
the agreement with Notre Dame.
The unusual agreement contains
statements like:
•“The purpose of this agreement is to
provide a basis for reconciliation before
God and a continuing dialogue between
the university and clients.” “Clients”
refers to the protesters.
•The protesters are “pro-life activists
who were arrested while engaged in
prayerful demonstrations in support of
their cause.”
Rev. John I. Jenkins, president of Notre
Dame, issued a statement afterward
saying he was pleased the charges were
dropped. Jenkins said everyone involved
always agreed on the “sanctity of human
life.”
In the 24 months since the controversy
began, Jenkins has launched a pro-life task
force and a substantial program among
Notre Dame alumni to support women’s
centers that provide free pregnancy
testing and free prenatal services.
The litigation over the protests was
often contentious.
Dixon asked the original judge, Jenny
Pitts Manier, to recuse herself from the
case because her husband, an emeritus
Notre Dame professor, was prominently in
favor of abortion rights.
Manier ultimately did recuse herself,
but she filed disciplinary charges against
Dixon.
Dixon said she alleged that he engaged
in “excess of advocacy” and “impugned
the character of the judiciary.”
Manier declined to comment to the
Chicago Daily Law Bulletin.
The protesters said they would demand
to be tried one at a time.
“It would have gone on a heck of a long
time,” Brejcha said. “The chief judge told
me he was very relieved the case was
settled. He was bringing judges out of
retirement to handle the trials.”
Chief Judge Michael P. Scopelitis of St.
Joseph County Superior Court, took over
the cases after Manier recused herself.
Scopelitis also “was going to give us
another six months of discovery,” Brejcha
said. “We were going to be taking
depositions all over.”
Breen said 91 protesters were arrested
in the weeks leading up to and during
Obama’s appearance at Notre Dame in
May 2009.
Three chose to be represented by the
American Center for Law and Justice out
of Washington, D.C.
Dixon and the Thomas More Society
initially represented ND88, but two died
before the case was resolved.
Lawyers in the case were mostly Notre
Dame alumni. Brejcha got his bachelor’s
degree there in 1965. Breen is a 2000
graduate of the Notre Dame Law School.
Manier got her bachelor’s degree at
Notre Dame in 1982 and her law degree
there in 1985. Scopelitis got his law
degree at Notre Dame in 1971.
Dixon graduated from Notre Dame in
1985 and from the law school in 1993.
Dixon was also a lay missionary with
Holy Cross priests in Chile in 1984 and
1985. Holy Cross priests founded Notre
Dame.