State ex rel. New Prospect Baptist Church v. Ruehlman , 2019 Ohio 5263 ( 2019 )

[Cite as State ex rel. New Prospect Baptist Church v. Ruehlman, 2019-Ohio-5263.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO EX REL. NEW : CASE NO. C-180591
PROSPECT BAPTIST CHURCH,
:
Relator, O P I N I O N.
:
vs.
:
HON. ROBERT P. RUEHLMAN,
JUDGE, COURT OF COMMON :
PLEAS, HAMILTON COUNTY, OHIO,
Respondent. :
Original Action in Mandamus and Prohibition
Judgment of the Court: Writ of Mandamus is Denied; Writ of Prohibition is Granted
in Part and Denied in Part
Date of Judgment Entry: December 20, 2019
American Civil Liberties Union of Ohio Foundation, Joseph W. Mead, Freda J.
Levinson and David J. Carey, for Relator,
Joseph T. Deters, Hamilton County Prosecuting Attorney, Pamela J. Sears and
Cooper D. Bowen, Assistant Prosecuting Attorneys, for Respondent.
OHIO FIRST DISTRICT COURT OF APPEALS
MOCK, Presiding Judge.
{¶1} This is an original action in which the relator, New Prospect Baptist
Church (“New Prospect”), a local religious organization, seeks writs of prohibition and
mandamus involving respondent, the Hon. Robert P. Ruehlman, a judge of the
Hamilton County Court of Common Pleas.
{¶2} New Prospect seeks to prevent respondent from enforcing an August 16,
2018 permanent injunction issued under Civ.R. 65, in a nuisance action brought
against the city of Cincinnati in the case numbered A-1804285 (“the underlying case”).
Based on affidavits from public health and police officials, respondent found that
illegal encampments by homeless persons on public rights-of-way on Third Street in
downtown Cincinnati were a nuisance and constituted “a hazard to the health and
safety of the general public, including those living in the illegal encampments.”
{¶3} Respondent further found that, in response to its earlier temporary
restraining orders, the homeless encampments were moving to other locations
within the Cincinnati city limits including a community park in the city’s Over-the-
Rhine neighborhood. Respondent identified these encampments as a mobile and
moving nuisance that also jeopardized public health and safety. Respondent then
decreed that based upon its “county wide jurisdiction over encampments on public
property and privately owned unlicensed parks, camps, [and] park-camps located
anywhere in Hamilton County, Ohio,” the Cincinnati police department and the
Hamilton County Sheriff’s Office were authorized to clear illegal encampments
“through any lawful means necessary, including arrest for obstructions of official
business in execution of this lawful order.” City and county law-enforcement
personnel were authorized to seize tents, other shelters, and valuables found at the
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OHIO FIRST DISTRICT COURT OF APPEALS
encampments. Violators of the injunction are “subject to arrest” under the court’s
contempt powers.
{¶4} New Prospect was never made a party to the underlying action but
fears being bound by its expansive injunctive relief without notice and an
opportunity to be heard. It is undisputed that the 100-year-old church observes a
religious and charitable mandate to serve those in need in Cincinnati. As part of that
mission New Prospect has offered its four-acre site in the Roselawn neighborhood of
Cincinnati as a refuge for people experiencing homelessness.
{¶5} After New Prospect filed this petition seeking writs of mandamus or
prohibition, respondent moved this court to dismiss the petition alleging that New
Prospect lacked standing to maintain this action. Following oral argument on the
motion, on January 24, 2019, we denied the motion and held that New Prospect has
standing to proceed because it has demonstrated “an injury in fact to a legally
protected interest.” See State ex rel. Matasy v. Morley, 25 Ohio St. 3d 22, 23, 494
N.E.2d 1146 (1986).
{¶6} A writ of prohibition directs a lower court to refrain from exercising
authority over a matter beyond its jurisdiction. A writ of prohibition is the proper
vehicle to prevent enforcement of an order against an entity that “was not served
with a summons, did not appear, and was not a party.” State ex rel. Doe v. Capper,
132 Ohio St. 3d 365, 2012-Ohio-2686, 972 N.E.2d 553, ¶ 15. To be entitled to a writ
of prohibition, New Prospect must establish that respondent Ruehlman has or is
about to exercise judicial or quasi-judicial power, that the exercise of that power is
unauthorized by law, and that it lacks an adequate remedy in the ordinary course of
law. See id. at ¶ 10; see also State ex rel. Levin v. Sheffield Lake, 70 Ohio St. 3d 104,
106, 637 N.E.2d 319 (1994).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} A petition seeking prohibition is a civil action. See Civ.R. 1(A) and
1(C). Thus it may be resolved on summary judgment. See State ex rel. Scripps
Media v. Hunter, 1st Dist. Hamilton No. C-130241, 2013-Ohio-5895, ¶ 31. Summary
judgment is appropriate if (1) no genuine issue of material fact exists for trial, (2) the
moving party is entitled to judgment as a matter of law, and (3) reasonable minds
can come to but one conclusion and that conclusion is adverse to the nonmoving
party, who is entitled to have the evidence construed most strongly in his or her
favor. See Civ.R. 56; see also Dresher v. Burt, 75 Ohio St. 3d 280, 662 N.E.2d 264
(1996).
{¶8} Here, respondent has moved for summary judgment claiming that no
triable issues of fact remain and that he is entitled to judgment as a matter of law.
New Prospect argues that “on the undisputed and admitted facts” it is entitled to the
issuance of the writs. Since both parties maintain that no genuine issues of material
fact remain in dispute, this court is free to render a decision as a matter of law. See
Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emp., AFL–CIO, 93
Ohio App. 3d 162, 164, 638 N.E.2d 94 (1st Dist.1994).
{¶9} It is clear that respondent has exercised judicial power in the
underlying action by issuing temporary restraining orders and a permanent
injunction under Civ.R. 65. New Prospect was not an original party to the underlying
action. It did not become one by substitution or by intervention under Civ.R. 24. It
thus lacks an adequate remedy at law against respondent’s exercise of judicial
authority by means of a direct appeal. Thus the sole issue remaining for resolution is
whether respondent’s exercise of judicial power was unauthorized by law.
{¶10} In response to respondent’s motion for summary judgment, New
Prospect first argues that respondent lacked jurisdiction to enter orders under Civ.R.
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OHIO FIRST DISTRICT COURT OF APPEALS
65 in the underlying action, which it characterizes as a “non-adversarial lawsuit.”
Relying in large part on Cincinnati Mayor John Cranley’s April 5, 2019 affidavit, New
Prospect claims that there were no adverse interests between the parties to the
underlying action. It maintains that Mayor Cranley had invited the Hamilton County
Prosecuting Attorney to file a lawsuit that culminated in the permanent injunction.1
{¶11} In the affidavit, the mayor acknowledges that in early August 2018, he
issued a statement to area media in which he declared that illegal encampments in
public rights-of-way “present[ed] a clear and present health and safety hazard to
homeless individuals and the general public.” In addition to the city’s efforts to
remedy matters, Cranley indicated that he had “asked for and ha[d] obtained the
assistance of Hamilton County Prosecutor Joe Deters. Prosecutor Deters will be
filing actions in state court and we will file motions in federal court.” We note that
this affidavit is not contained in the agreed statement of facts prepared by the parties
to this original action pursuant to 1st Dist. Loc.R. 33.2.
{¶12} Nonetheless, New Prospect argues that the resulting lawsuit was one
between two friendly parties who sought precisely the same outcome and remedy: to
avoid matters of city policy and legislation by forbidding homeless persons from
seeking shelter in tents anywhere within the city or county borders.
{¶13} “The Ohio Supreme Court has interpreted ‘justiciable matter’ to mean
the existence of an actual controversy, a genuine dispute between adverse parties.”
1 We note that in May 2019, in a federal lawsuit brought by a Cincinnati homeless person
challenging the constitutionality of the city’s homeless-encampment policy, the United States
District Court for the Southern District of Ohio permitted the plaintiff to add a claim of sham legal
process against Cranley, in his official capacity as the mayor of Cincinnati. See Phillips v. City of
Cincinnati, S.D.Ohio No. 1:18-cv-00541, 2019 WL 5577958 (May 29, 2019). The court also
dismissed claims against the Cincinnati City Solicitor, and the various Hamilton County
defendants, including Prosecuting Attorney Joseph T. Deters.
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OHIO FIRST DISTRICT COURT OF APPEALS
Waldman v. Pitcher, 2016-Ohio-5909, 70 N.E.3d 1025, ¶ 21 (1st Dist.), citing State
ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas, 74 Ohio St. 3d
536, 542, 660 N.E.2d 458 (1996). The dispute must be “more than a disagreement;
the parties must have adverse legal interests.” Kincaid v. Erie Ins. Co., 128 Ohio
St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 10.
{¶14} Here the agreed facts reveal that absent the consent of the city council,
the mayor has no direct authority over how the city manager and the city solicitor
carry out their public health and safety functions. There was disagreement between
city officials and the county prosecutor as to the continued presence of the
encampments and whether they presented hazards to the health and safety of the
public and the homeless persons. The gravamen of the underlying action was
whether the original encampments on Third Street and other areas of the city
constituted a nuisance and whether the city nonetheless had allowed these
encampments to continue in operation on public property. On the basis of the
agreed facts, we hold that the parties to the underlying action had adverse legal
interests sufficient to confer jurisdiction on the respondent to resolve a justiciable
matter. That the parties often made joint recommendations of various motions to
the court is only one factor in our analysis. See Spercel v. Sterling Industries, Inc.,
31 Ohio St. 2d 36, 38, 285 N.E.2d 324 (1972) (noting that the law favors the
resolution of controversies and uncertainties through compromise and settlement).
And in an action seeking resolution of issues affecting public health and safety timely
resolution of the matters is an important factor.
{¶15} Respondent’s motion for summary judgment next argues that he is
entitled to judgment as a matter of law on New Prospect’s claim that the permanent
injunction was overly broad because it improperly bound nonparties throughout
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OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton County. Respondent’s permanent injunction instructed law-enforcement
authorities in the city and in Hamilton County to prohibit any unlicensed
encampment on public or private property anywhere in Hamilton County. The
injunction applies not only to the single, named party-defendant, the city of
Cincinnati, but also to any nonparty attempting to provide an unlicensed location for
homeless individuals to camp, including private entities like New Prospect.
{¶16} An injunction is binding upon the parties to the action and those “in
active concert or participation with [parties] who receive actual notice” of the
injunction. Civ.R. 65(D); see Planned Parenthood Assoc. of Cincinnati, Inc. v.
Project Jericho, 52 Ohio St. 3d 56, 61, 556 N.E.2d 157 (1990). Nonparties may be
bound to prevent a defendant from “nullify[ing] a decree by carrying out prohibited
acts through aiders and abettors, although they were not parties to the original
proceeding.” Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14, 65 S. Ct. 478, 89 L. Ed. 661
(1945). But on the stipulated facts available here, there is no evidence that New
Prospect, a nonparty, was acting in concert with the city, or was aiding or abetting
the city’s actions. The injunctive relief is directed at the named defendant in the
underlying action, a political subdivision and law-enforcement agencies in the city
and the county. There is no evidence here connecting those entities with New
Prospect, a nonparty, sufficient to enjoin it from future activity in furtherance of its
religious and charitable mission. Thus, on the evidence adduced here, respondent
was not authorized by law to enjoin New Prospect.
{¶17} The geographical scope of the permanent injunction is also
problematic. Respondent relied upon considerable evidence adduced in the
underlying action that the nuisance conditions created by encampments in
Cincinnati constituted a mobile nuisance. After the underlying action was filed, the
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OHIO FIRST DISTRICT COURT OF APPEALS
original Third Street camps moved from areas proscribed by respondent’s temporary
restraining orders to other locations within the city. As the mobile nature of the
camps became apparent, respondent expanded the area covered by the original
restraining orders to include larger portions of the city.
{¶18} Ohio nuisance statutes expressly contemplate enjoining behavior
constituting a mobile nuisance. R.C. 3767.05(D) permits a court to perpetually
enjoin “the defendant and any other persons from further maintaining a nuisance at
the place” or places that are the subject of the complaint. It also permits perpetually
enjoining “the defendant from maintaining the nuisance elsewhere.” R.C.
3767.05(D); see State ex rel. Miller v. Anthony, 72 Ohio St. 3d 132, 138, 647 N.E.2d
1368 (1995). But the express language of the statute limits mobile-nuisance
restrictions to defendants alone. Thus the city, a named defendant, arguably could
not escape the impact of the permanent injunction within its own borders. We note
that in the underlying action, the city did not raise the affirmative defense that under
R.C. Chapter 2744 it was immune from a nuisance action.
{¶19} But the permanent injunction extended the geographic scope of the
injunctive remedy to include the entirety of Hamilton County, including areas
outside the city limits. Again, Hamilton County was not a defendant in the
underlying action. There is no connection in the agreed evidence between the named
defendant, the city, and the relief ordered enjoining encampments on public or
private property in those portions of Hamilton County outside the city limits.
Respondent’s extension of its injunctive relief to areas outside the city limits was
thus not authorized by law.
{¶20} Finally, respondent challenges New Prospect’s contention that
respondent exceeded his authority under R.C. Chapter 3767 by imposing additional
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burdens, not required by statute, upon New Prospect, a private entity that intends to
host an encampment. The injunction requires city and county law-enforcement
officials to remove any existing or future unlicensed encampment located on private
property in the city or the county that lacks “running water or toilet facilities and
other requirements” described in Ohio Adm.Code 3701-25-01 et seq.
{¶21} But under R.C. 3729.05(A)(3), a camp operator like New Prospect who
“neither intends to receive nor receives anything of value” from the camp is exempt
from a host of administrative regulations including those governing fresh water and
sewage disposal. The only requirement for such a camp is that “[i]f any health
hazard exists,” then it shall be corrected in a manner consistent with uniform rules
promulgated by the state director of health under R.C. 3729.02. Id. Since it is
undisputed that New Prospect does not intend to receive anything of value from the
campers in carrying out its mission to provide care for them, respondent was not
authorized by law to impose the additional requirements identified in the permanent
injunction.
{¶22} We note that New Prospect claims that it has adequate facilities on its
four-acre site to ensure the health of homeless campers. If New Prospect were
unable to comply with the appropriate requirements, nothing in this opinion should
be construed to prevent a separate nuisance action from being brought in which New
Prospect would have the opportunity to appear and to contest the allegations.
{¶23} Finally, the respondent is entitled to summary judgment on New
Prospect’s petition for a writ of mandamus. Mandamus compels the performance of
a present existing duty as to which there is a present default. See State ex rel. Home
Care Pharmacy, Inc. v. Creasy, 67 Ohio St. 2d 342, 343-344, 423 N.E.2d 482 (1981).
Mandamus will not issue to require a judicial officer to prospectively observe the law,
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OHIO FIRST DISTRICT COURT OF APPEALS
or to remedy the anticipated nonperformance of that duty. See id. at 343; see also
State ex rel. Evans v. Tieman, 157 Ohio St. 3d 99, 2019-Ohio-2411, 131 N.E.3d 930.
As the requested writ of mandamus seeks to control Judge Ruehlman’s prospective
rulings in this matter, the writ will not issue. See State ex rel. Scripps Media v.
Hunter, 1st Dist. Hamilton No. C-130241, 2013-Ohio-5895, ¶ 71.
{¶24} In conclusion, we hold that New Prospect has established that
respondent has or is about to exercise judicial power, and that it lacks an adequate
remedy to the exercise of that power in the ordinary course of law. We further hold
that respondent’s exercise of that power in its August 16, 2018 permanent injunction
is unauthorized by law to the extent that respondent seeks to enjoin actions by
private nonparties, not found to be aiding or abetting a named defendant, within the
city limits of Cincinnati, and by any entity outside the city limits of Cincinnati.
Respondent’s orders imposing additional health and safety conditions on entities like
New Prospect are similarly unauthorized by law. We therefore grant the requested
writ of prohibition in part and deny it in part. Respondent was authorized by law to
impose its ordered injunctive relief against mobile nuisance encampments on public
property within the city limits of Cincinnati.
{¶25} Because a writ of mandamus will not issue to require respondent to
prospectively observe the law, we deny New Prospect’s petition for a writ of
mandamus.
Judgment accordingly.
MYERS, J., concurs.
HENDON, J., concurs in judgment only.
SYLVIA SIEVE HENDON, retired, from the First Appellate District, sitting by
assignment.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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