Opinion
No. 87-795
Submitted May 17, 1988 —
Decided October 26, 1988.
Contempt — Enforcement of order limiting picketing at abortion clinic — Prohibition does not lie to prevent trial court from enforcing its order, when.
APPEAL from the Court of Appeals for Hamilton County, No. C-870065.
Relator-appellant, Carl Tilford, is one of a class of defendants in an action brought by the Planned Parenthood Association of Cincinnati, Inc. ("PPAC") to enjoin demonstrators from harassing the patients and staff at a PPAC-operated clinic located at 3332 Vine Street in Cincinnati. The clinic provides a variety of medical services for its patients, including abortions. Intervening as plaintiffs in the suit are the tenants of an apartment building which is next door to the clinic at the southeast corner of Vine and Louis Streets.
After finding that members of the group Project Jericho and others were creating a nuisance by regularly blocking sidewalks and driveways, creating hazards with signs, and causing "loud and disturbing noise" while picketing the clinic, respondent-appellee, Hamilton County Court of Common Pleas Judge Thomas Crush issued a preliminary injunction restraining their protest activities. That order, however, did not sufficiently abate the nuisance.
As a result, appellee modified his order on June 20, 1986. This modification named a class of defendants described as:
"Persons picketing between the South curb of Louis Ave[.] and the North curb of Shields Avenue and on both sides of Vine Street from Louis Ave[.] to Shields Ave[.] who have been personally served with this order as well as their officers, agents, servants, employees, attorneys and those persons in active concert or participation with them who receive personal service of the order."
It enjoined this class "from doing or causing to be done, instigating, encouraging, maintaining, aiding or abetting any person in doing any of the following:
"1. Screaming, chanting, speaking and singing in a manner designed, intended or having the effect of reaching the patients inside the clinic at 3332 Vine Street, Cincinnati, OH, or the tenants inside the apartment building at One Louis Street, Cincinnati, OH;
"2. Screaming at patients entering or leaving the medical clinic at 3332 Vine Street, Cincinnati, OH;
"3. Blocking or obstructing in any manner any driveway or pedestrian entrance areas or exit areas or the public walkway on the east side of Vine Street, between Shields and Louis Streets;
"4. All mass picketing, except that five picketers may be present as follows:
"(a) One stationary picket may be present on the public sidewalk on Louis Street as long as neither he or she nor the sign the person carries crosses over into the sidewalk area of Vine Street.
"(b) One stationary picket may be present on the public sidewalk on Shields Street as long as neither he or she nor the sign the person carries crosses over into the sidewalk area of Vine Street.
"(c) Three moving pickets, one each at the locations labeled (1), (2), and (3) on the attached diagram. Location (1) extends from the corner of Louis Avenue to the north corner of plaintiff's property. Location (2) extends from the north corner of plaintiff's property to the north side of the intersection of plaintiff's driveway with the public walk. Location (3) extends from the south edge of plaintiff's drive to the corner at Shields Street. Those who are moving, if they wish to rest, must move completely off the east side of Vine Street between Louis Street and Shields Street." Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho (June 20, 1986), Hamilton C.P. No. A8602417, unreported.
After a hearing on December 20, 1986, appellee found beyond a reasonable doubt that appellant had intentionally violated the terms of the June 20 injunction as well as the spirit in which it was issued. On December 22, 1986, appellee held appellant in contempt because he had been picketing the described site for many months, had been served a copy of the injunction, was a member of the defendant class, had engaged in "stationary picketing in zone 1, a zone reserved for one moving picket," and had participated in "mass picketing in zone 1 by virtue of there being more than one picketer in the zone." Appellant was fined $400 plus costs and attorney fees. He was sentenced to ten days in the Hamilton County Justice Center. The jail sentence was stayed pending appeal of the order "so long as * * * [appellant] remain[ed] away from 3332 Vine Street and the surrounding area * * *." The monetary penalties were to be stayed upon the filing of a bond.
The parties submit that appellant has appealed the contempt citation to the Court of Appeals for Hamilton County. He also filed a complaint for a writ of prohibition in that court seeking the "[i]mmediate revocation" of the June 20, 1986 injunction and to prevent appellee from further enforcing that order. Appellee moved to dismiss the complaint on the ground that it failed to state a claim for extraordinary relief. The court of appeals granted appellee's motion.
The complaint was styled "JOHN C. SCANLON acting for CARL TILFORD, Complainant vs. Thomas H. Crush, Judge, Court of Common Pleas of Hamilton County, Defendant."
The cause is now before this court on an appeal as of right.
John C. Scanlon, for appellant.
Arthur M. Ney, Jr., prosecuting attorney, James W. Harper and David L. Sellers, for appellee.
This court has consistently held that a claim in prohibition will not lie unless the following three requirements are met: (1) the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power; (2) the exercise of such power is unauthorized by law; and (3) it will result in injury for which no other adequate remedy exists. State, ex rel. Yates, v. Court of Appeals for Montgomery Cty. (1987), 32 Ohio St.3d 30, 512 N.E.2d 343; State, ex rel. Judson, v. Spahr (1987), 33 Ohio St.3d 111, 515 N.E.2d 911; Manrow v. Court of Common Pleas of Lucas Cty. (1985), 20 Ohio St.3d 37, 20 OBR 285, 485 N.E.2d 713; State, ex rel. Corrigan, v. Griffin (1984), 14 Ohio St.3d 26, 14 OBR 328, 470 N.E.2d 894.
Ordinarily, all three prerequisites must be present before a claim in prohibition has been stated. State, ex rel. Dayton, v. Kerns (1977), 49 Ohio St.2d 295, 297, 3 O.O. 3d 441, 443, 361 N.E.2d 247, 249. However, we have held that "[i]f an inferior court is without jurisdiction whatsoever to act, the availability or adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction by a superior court to prevent usurpation of jurisdiction by the inferior court." State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St.2d 326, 329, 59 O.O. 2d 387, 388, 285 N.E.2d 22, 24; State, ex rel. Johnson, v. Perry County Court (1986), 25 Ohio St.3d 53, 58, 25 OBR 77, 81, 495 N.E.2d 16, 21. But before we will exercise our jurisdiction to issue the writ in such instance, there must be a patent and unambigous lack of jurisdiction of the inferior court which clearly places the dispute outside the court's authority. State, ex rel. Smith, v. Court (1982), 70 Ohio St.2d 213, 215-216, 24 O.O. 3d 320, 321, 436 N.E.2d 1005, 1007, citing State, ex rel. Gilla, v. Fellerhoff (1975), 44 Ohio St.2d 86, 88, 73 O.O. 2d 328, 329, 338 N.E.2d 522, 523. Thus, where this showing has not been made, the availability of an adequate remedy in the ordinary course of law precludes the issuance of the writ of prohibition. Therefore, on some occasions, we have found it unnecessary to consider whether the other elements for issuing the writ have been satisfied. See, e.g., State, ex rel. Ruffin, v. Court of Common Pleas (1976), 46 Ohio St.2d 58, 75 O.O. 2d 142, 346 N.E.2d 325; State, ex rel. Zoller, v. Talbert (1980), 62 Ohio St.2d 329, 16 O.O. 3d 391, 405 N.E.2d 724.
Here, appellant does not dispute appellee's authority to issue preliminary injunctions pursuant to R.C. 2727.03. Neither does he question appellee's authority to order sanctions against those who disobey court orders in general, R.C. 2705.02; Zakany v. Zakany (1984), 9 Ohio St.3d 192, 9 OBR 505, 459 N.E.2d 870, and injunctions in particular, R.C. 2727.11. Furthermore, appellant does not claim on appeal that appellee exceeded his constitutional authority by issuing an injunction that restricts the content of ideas or imposes unreasonable logistic or numerical restrictions. Cf. State, ex rel. Beacon Journal Pub. Co., v. Kainrad (1976), 46 Ohio St.2d 349, 75 O.O. 2d 435, 348 N.E.2d 695. Rather, the gravamen of appellant's argument is that appellee is improperly enforcing his order and, as a result, has found appellant in contempt. Thus, the dispositive issue in this case is whether appellant has an adequate remedy at law.
R.C. 2705.09 specifically affords appellate review for contempt orders. Apparently, appellant has pursued an appeal, which, presumably, will extend to whether he violated the court's order and whether sanctions were properly imposed. Moreover, while the preliminary injunction cannot now be appealed, State, ex rel. Add Venture, Inc., v. Gillie (1980), 62 Ohio St.2d 164, 16 O.O. 3d 198, 404 N.E.2d 151, review may be had in the event that it becomes permanent. Inasmuch as prohibition cannot serve as a substitute for appeal, State, ex rel. Ruffin, v. Court of Common Pleas, supra, the judgment of the court of appeals dismissing the complaint is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, WRIGHT and H. BROWN, JJ., concur.
DOUGLAS, J., concurs in judgment only.