State v. Wisener

[Cite as State v. Wisener, 2022-Ohio-4557.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
THOMAS WISENER,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0025
Criminal Appeal from the
Youngstown Municipal Court
Mahoning County, Ohio
Case No. 22CRB00163Y
BEFORE:
Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. John B. Juhasz, 7081 West Boulevard, Suite No 4, Youngstown, Ohio 44512 for
Plaintiff-Appellee.
Atty. Daniel J. Leffler, Ohio Patrolmen’s Benevolent Assoc., 10147 Royalton Road, Suite
J, North Royalton, Ohio 44133 for Defendant-Appellant.
Dated: December 15, 2022
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Robb, J.
{¶1} Appellant Thomas Wisener appeals the decision of the Youngstown
Municipal Court finding him guilty of contempt for refusing to wear a mask in the
courthouse in violation of a court order. In the first assignment of error, Appellant
contends his contempt should have been treated as civil contempt with an opportunity to
purge rather than criminal contempt with a definite jail term. In the second assignment of
error, he alleges the courthouse mask order unconstitutionally interfered with his religious
beliefs because it was not the least restrictive means of furthering the admittedly
compelling state interest of protecting against Covid-19 transmission during a pandemic
and allowing the court to remain operational. For the following reasons, the trial court’s
judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On February 23, 2022, a visiting municipal court judge signed a judgment
entitled, “In re Contempt of Court Order of 8/23/21 (Covid-19) Thomas Wisener (YPD
Officer).” Citing the court’s Covid-19 Operations Order, the judgment memorialized that
the court advised Appellant he was in violation of the mask order and informed him of the
potential penalties for first time contempt. The entry, filed on February 28, 2022, set a
hearing date of March 18, 2022.
{¶3} A second entry was filed the same day, wherein Youngstown Municipal
Court Judge Carla Baldwin instructed the clerk to create a case number for Appellant’s
contempt case, which was set for hearing on March 18. This entry noted the charge was
“Contempt of Court 2705.02,” and a summons was issued to Appellant for the contempt
hearing.
{¶4} At the hearing before Judge Baldwin, defense counsel acknowledged
Appellant’s violation of the court’s mask order and said Appellant understood his
obligation to comply with court orders, including as an officer of the court. (Tr. 2). Counsel
argued Appellant violated the order because he believed it offended his religious beliefs.
(Tr. 2-3).
{¶5} Appellant’s pastor testified Appellant came to his church, Sovereign Grace
Chapel, during the pandemic because Appellant’s former church required masks. The
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pastor generally opined Appellant had “a sincerely held religious conviction that he
believed he would be violating the Ninth Commandment and some other principled
convictions from the scripture” and could not “with a clear conscience be wearing a mask.”
(Tr. 4). The content of the cited commandment was not mentioned, and it was not
explained how it related to masking during a pandemic.1
{¶6} Appellant’s explanation was as follows: “scripture tells me to love the Lord
my God with all my heart, with all my soul, with all my mind. If I violated a deeply held
conviction, if I do not uphold a conviction that God gave me, then I cannot love the Lord
my God with all my heart, mind, and soul.” (Tr. 5).
{¶7} The judge noted Appellant never raised his religious objection to the court
in any formal fashion despite being warned multiple times by court staff. Still, the judge
noted she found Appellant’s “beliefs are sincere” and said she did not dispute the
statements provided by Appellant and his pastor. The judge explained the mask order
was not a suggestion and was issued without exceptions to protect the public and court
staff so the court could ensure the effective administration of justice through the
pandemic. It was also noted Appellant had a rare benefit for a contempt defendant: the
opinion of the law department.
{¶8} The court concluded Appellant admitted he did not wear a mask and he
repeatedly and blatantly violated the authority and dignity of the court. It was specified
that Appellant was found guilty beyond a reasonable doubt of contempt of court by
violating the court’s mask order. Appellant was sentenced to 10 days in jail and fined
$250. (Tr. 6-7); (3/18/22 J.E.).
{¶9} Appellant filed a timely notice of appeal. His jail term was stayed pending
appeal (under principles related to the automatic misdemeanor stay provision). In the
praecipe, Appellant asked for a complete transcript; however, he then made comments
under the section for a partial transcript and only listed the March 18, 2022 hearing. Still,
he failed to order a transcript from a court reporter. His brief cited an audio recording
from the March 18, 2022 hearing, acknowledging he did not have a transcription made.
1 In some denominations, the Ninth Commandment proscribes bearing false witness against one’s
neighbor; in others, this proscription is contained in the Eighth Commandment, and the Ninth proscribes
coveting the house or the wife of one’s neighbor. See, e.g., Summum v. City of Ogden, 152 F.Supp.2d
1286, 1296 (D.Utah 2001); Ring v. Grand Forks Pub. School Dist., 483 F.Supp. 272, 273 (D.N.D.1980).
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{¶10} Notably, “The appellant shall order the transcript in writing and shall file a
copy of the transcript order with the clerk of the trial court.” App.R. 9(B)(3),(6) (and the
form of the transcript is prescribed). See also 7th Dist.Loc.R. 9C. The state objected but
then (with this court’s permission) supplemented the record with the March 18, 2022
written transcript, which the state ordered even though the obligation rested on the
Appellant here.
{¶11} In addition to referring to the March 18, 2022 hearing, Appellant’s brief
refers to facts allegedly occurring on February 23, 2022. He therein admits: walking into
the courthouse without a mask (notwithstanding the security guard at the front desk
inquiring about his lack of a mask); waiting outside of a courtroom and rejecting another
security guard’s request for him to don a mask, even after she said he would be reported
to the police department’s internal affairs department; entering a courtroom while
maskless to await the case for which he had been subpoenaed to testify; and walking
around the courthouse maskless after the case was continued (while attempting to obtain
a signature on the subpoena for work purposes).
{¶12} These facts are not contained in the judgment entry signed that day or
mentioned at the March 18, 2022 hearing. Appellant did not obtain a transcript from
February 23, 2022 or utilize an alternative under division (C) or (D) of App.R. 9.
ASSIGNMENT OF ERROR ONE: CRIMINAL CONTEMPT
{¶13} Appellant sets forth two assignments of error, the first of which alleges:
“THE TRIAL COURT ERRED IN FINDING DEFENDANT/APPELLANT IN
CRIMINAL CONTEMPT OF COURT AND SENTENCING DEFENDANT/APPELLANT
TO A DEFINITE TERM IN JAIL.”
{¶14} Appellant contends the court abused its discretion by sentencing him to a
definite jail term as if the proceedings involved criminal contempt. He notes criminal
contempt could have been punished summarily, but here, charges were filed and process
was issued for a later hearing. He characterizes the contempt as indirect because the
mask order was issued in order to protect others around the entire courthouse and
concludes the case should have been treated as a civil contempt with an opportunity to
purge. He then claims purging would have occurred automatically by operation of law
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because the mask order was terminated on February 28, 2022, five days after his violation
but before the March 19, 2022 contempt hearing.2
{¶15} A contempt decision rests within the trial court’s “sound discretion.” State
v. Kilbane, 61 Ohio St.2d 201, 204, 400 N.E.2d 386 (1980). An abuse of discretion
consists of more than an error of judgment but encompasses an attitude on the part of
the trial court that is unreasonable, unconscionable, or arbitrary. State v. Thompson, 141Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 91.
{¶16} “A court, or judge at chambers, may summarily punish a person guilty of
misbehavior in the presence of or so near the court or judge as to obstruct the
administration of justice.” R.C. 2705.01. This is the codification of the court’s pre-existing
power to punish direct contemnors summarily. Kilbane, 61 Ohio St.2d at 204.
{¶17} “A person guilty of any of the following acts may be punished as for a
contempt: (A) Disobedience of, or resistance to, a lawful writ, process, order, rule,
judgment, or command of a court or officer * * *.” R.C. 2705.02. “In cases under section
2705.02 of the Revised Code, a charge in writing shall be filed with the clerk of the court,
an entry thereof made upon the journal, and an opportunity given to the accused to be
heard, by himself or counsel.” R.C. 2705.03. “At the hearing, the court shall investigate
the charge and hear any answer or testimony that the accused makes or offers and shall
determine whether the accused is guilty of the contempt charge.” R.C. 2705.05(A). A
case is not automatically labeled indirect contempt merely because there was
disobedience to an established court order, which is mentioned in R.C. 2705.02. Kilbane,
61 Ohio St.2d at 204.
{¶18} Statutorily, a first offense of contempt carries a maximum fine of $250 and
a definite term of imprisonment of not more than 30 days in jail. R.C. 2705.05(A)(1).3
2 We note Appellant’s brief fails to mention the mask order was merely modified on that date to waive the
masking requirement for vaccinated individuals. See In re: Covid 19 Operations Order, 20 CRS OPEN, 20
CRB OPEN, 20 TRD OPEN, 20 TRC OPEN (2/28/22). His vaccination status was not discussed on the
record.
3 Due to the inherent power of the court in contempt cases, the Supreme Court has questioned whether the
legislature can limit the remedy even for indirect contempt where the procedure can be regulated. City of
Cincinnati v. Cincinnati Dist. Council 51, 35 Ohio St.2d 197, 207, 299 N.E.2d 686 (1973), citing Local Union
5760, 172 Ohio St. 75 at paragraph two of the syllabus (“In imposing punishment for acts of direct contempt,
courts are not limited by legislation”).
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“When the contempt consists of the omission to do an act which the accused yet can
perform, he may be imprisoned until he performs it.” R.C. 2705.06. “When a person is
committed to jail for contempt, the court or judge who made the order may discharge him
from imprisonment when it appears that the public interest will not suffer thereby.” R.C.
2705.08.
{¶19} The state characterizes the contempt as direct, noting Appellant
acknowledges a direct contempt includes misconduct committed in the presence of the
judge or so near the courtroom that it obstructs the court’s administration of justice. As
the court pointed out, the continued operation of the court depended on protecting the
staff and the public with the mask order.
{¶20} As the statute makes clear: “An act need not be in the immediate presence
of the court in order to constitute direct contempt, if it tends to obstruct justice or interfere
with actions of the court in the courtroom itself.” In re Wright's Estate, 165 Ohio St. 15,
26, 133 N.E.2d 350 (1956). Moreover, “contempt of court is directed to the court itself
rather than toward an individual judge thereof.” Id. at 25. “A court is constructively
present wherever any of its court officers are engaged in the execution of the business of
the court according to law.” State v. Local Union 5760, United Steelworkers of America,
172 Ohio St. 75, 173 N.E.2d 331 (1961), paragraph two of the syllabus. See also State
ex rel. Seventh Urban, Inc. v. McFaul, 5 Ohio St.3d 120, 449 N.E.2d 445 (1983) (an
attorney's assault on the opposing party in the courtroom on court business in the
presence of court personnel before the judges entered the courtroom was direct contempt
in the constructive presence of the court).
{¶21} Here, the first judge told Appellant he was in violation of the mask order,
and set the case for further hearing rather than summarily punishing him for his contempt
of court by disobeying a court order. “[J]ust because [a contemnor] was charged with
contempt under R.C. 2705.02 does not mean that her contempt was indirect.” Cleveland
v. Bright, 2020-Ohio-5180, 162 N.E.3d 153, ¶ 39 (8th Dist.). Even if contempt is
committed in or near the court’s presence, a court may schedule a hearing if the threat to
justice is no longer imminent, as courts are cautious in utilizing a summary procedure. Id.
at ¶ 28-29. See also Local Union 5760, 172 Ohio St. at 82 (noting it is a better practice
to provide notice of a hearing if the judge was not actually physically present during the
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contempt). After Appellant acknowledged his refusal to wear a mask in violation of the
court order at a contempt hearing, a second judge then reiterated the finding of the
violation, noting he repeatedly and blatantly violated the court order.
{¶22} Courts distinguish between direct and indirect contempt in order to
determine whether the contempt can be punished summarily (and potentially to determine
whether the court will apply the statutory limitations on the sanction). Kilbane, 61 Ohio
St.2d at 204 (where the contemnor was summarily held in contempt). See also In re
Contempt of Christman, 2022-Ohio-1937, 190 N.E.3d 1225, ¶ 14 (8th Dist.) (direct
contempt by pulling mask down during court proceedings could be punished summarily).
In Bright, the Eighth District pointed out:
the distinction between direct and indirect is inconsequential in this case
because it is only significant when courts are trying to determine whether
due process protections were necessary, and if so, did the court provide
those protections to the contemnor. In this case, the court provided Bright
with due process by not punishing her summarily for direct contempt, giving
her notice, ensuring she had counsel, and setting the matter for a hearing.
Bright, 2020-Ohio-5180.
{¶23} Likewise, Appellant does not take issue with the procedure or claim he was
punished without advance notice of a hearing or beyond the statutory limits. The imposed
sanction was within the statutory limits, and as Appellant acknowledges, he was not
punished summarily. The court found a violation while Appellant was before the court,
memorialized this in the initial entry, and set a further hearing. At the scheduled hearing,
it was conceded Appellant violated the mask order. It seems Appellant is suggesting
indirect contempt is more likely to be classified as civil contempt; however, even an
indirect contempt can be dealt with as a criminal contempt.
{¶24} Contempt proceedings “are sui generis in the law” bearing “some
resemblance to suits in equity, to criminal proceedings and to ordinary civil actions; but
they are none of these.” Cincinnati Dist. Council 51, 35 Ohio St.2d at 201-202. “Sui
generis, translated, means: of its own kind; peculiar to itself.” State v. Timson, 38 Ohio
St.2d 122, 128-129, 311 N.E.2d 16 (1974). In distinguishing the type of proceeding as
criminal or civil, the court’s intent governs: “Sentences for criminal contempt are punitive
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in nature and are designed to vindicate the authority of the court. * * * On the other hand,
the purpose of sanctions in a case of civil contempt is to coerce the contemnor in order
to obtain compliance with the lawful orders of the court.” Kilbane, 61 Ohio St.2d at 204-
205. Therefore, a court’s intent in a particular case can vary from another court’s intent
in a different case with similar misconduct.
{¶25} Courts distinguish between criminal and civil contempt to determine the
available sentence and the applicability of certain constitutional rights. Id. at 205. For
instance, a criminal contemnor has the right to be found guilty beyond a reasonable doubt.
Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 55 L.Ed. 797(1911). Appellant does not claim inadequate rights were afforded, and the court found
him guilty beyond a reasonable doubt. Rather, he claims the contempt was civil (as he
did not interfere with a court action but violated an order meant to protect others) so he
was entitled to an opportunity to purge instead of a definite sentence.
{¶26} In general, “offenses against the dignity or process of the court are criminal
contempts, whereas violations which are on their surface offenses against the party for
whose benefit the order was made are civil contempts.” Kilbane, 61 Ohio St.2d at 204.
Accordingly, “if the contempt is civil the sanction is primarily coercive in nature and must
allow for purging. If the contempt is criminal the sentence must be imposed primarily to
vindicate the authority of the court and must be determinate.” Id. at 206-207 (but
conditional contempt is not necessarily civil where coercion is a secondary purpose).
{¶27} As the state argues, the court’s intent was clearly to punish Appellant for
past criminal contempt. If the court was concerned with coercion at the time of the
scheduled hearing, then it could have issued a conditional sentence. Instead, the court
issued a determinate, unconditional sentence in order to vindicate the court’s authority to
enforce its mask order issued in response to the Covid-19 pandemic. The order violated
here was not issued for an opposing party, and the court was not concerned with assisting
an opposing party in a court case. Rather, the court was focused on punishing Appellant
for repeatedly violating the mask mandate and preserving the dignity of the court which
suffered by the acknowledged disobedience to the court order applicable to the
courthouse and the courtroom. Accordingly, the imposition of a determinate sentence for
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this criminal contempt was not an abuse of discretion, and this assignment of error is
overruled.
{¶28} Lastly, we note Appellant’s reply brief, while discussing the definite nature
of the sentence, could be read as adding a general argument that the jail term of ten days
was unreasonable and not commensurate with the misconduct. An argument on the
length of the jail term was not alternatively raised in the initial brief, where Appellant
challenged the definite nature of the sentence (arguing for a conditional sentence subject
to purging). To the extent additional issues are mentioned, we must point out “a reply
brief is not the place for making new arguments.” State v. Donlow, 7th Dist. Mahoning
No. 21 MA 0046, 2022-Ohio-1518, ¶ 34, citing State v. Quarterman, 140 Ohio St.3d 464,
2014-Ohio-4034, 19 N.E.3d 900, ¶ 18.
{¶29} Nevertheless, the imposition of a contempt sanction is within the trial’s court
sound discretion. Kilbane, 61 Ohio St.2d at 207 (the sentence should be reasonably
commensurate with the gravity of the offense when imposing a sanction inherent with the
court’s direct contempt power, which extends beyond the statutory limitations).
Although the sentence may seem harsh, the ten-day jail sentence was well below the
statutory maximum. Merely because an appellate judge would have rendered a lesser
sentence in the same situation does not mean a trial judge abused her discretion. When
applying an abuse of discretion standard of review, we are not permitted to substitute our
judgment for that of the trial court. State v. Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d
940 (2002). Appellant’s general statements do not demonstrate an abuse of discretion in
the length of the jail term. We also note it is possible the trial court could be persuaded
to apply R.C. 2705.08: “When a person is committed to jail for contempt, the court or
judge who made the order may discharge him from imprisonment when it appears that
the public interest will not suffer thereby.”
ASSIGNMENT OF ERROR TWO: RELIGION
{¶30} Appellant’s second assignment of error contends:
“THE YOUNGSTOWN MUNICIPAL COURT MASK MANDATE ORDER
INTERFERED WITH DEFENDANT/APPELLANT’S RELIGIOUS BELIEF AND WAS NOT
THE LEAST RESTRICTIVE MEANS TO ACCOMPLISH THE GOVERNMENTAL
INTEREST.”
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{¶31} Appellant’s brief cites the free exercise of religion provisions in the First
Amendment to the United States Constitution and Article I, Section 7 of the Ohio
Constitution.4 In discussing his religious beliefs on appeal, Appellant relies on additional
bible verses or explanations that were not mentioned below. He adds the explanation,
which was not specified below, that he cannot love God if he shows fear of the virus and
that he is to emulate God by not lying but would be lying by complying with the mask
mandate due to his belief that a mask would not protect others. He concludes that if God
allowed him to hold a genuine conviction (on masks), then he cannot love God with all his
heart, mind, and soul if he fails to follow this conviction.
{¶32} In the case cited by Appellant, the Ohio Supreme Court explained that under
the federal standard, “the relevant issues are whether the regulation at issue is religion-
neutral and whether it is generally applicable. If those elements are fulfilled, then the
regulation does not violate the Free Exercise Clause.” Humphrey v. Lane, 89 Ohio St.3d
62, 67, 728 N.E.2d 1039 (2000), citing Oregon Dept. of Human Resources, Emp. Div. v.
Smith, 494 U.S. 872, 885, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (rejecting the
compelling state interest test for these cases, even if the law had the incidental effect of
burdening a particular religious practice). Only “[a] law failing to satisfy the religion neutral
and generally applicable requirements must be justified by a compelling governmental
interest and narrowly tailored to advance that interest.” Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)
(a law is not religiously neutral if it is facially discriminatory or the object of the law is to
infringe upon or restrict practices because of religious motivation).5
4 Without further briefing the topic, Appellant also cites the Fourteenth Amendment while referring to a right
of privacy or personal autonomy. However, he did not mention this below or outline the applicable standard
under this assignment of error, which focuses on religion. The state assumes the Fourteenth Amendment
is cited because it is employed when the First Amendment’s free exercise clause is applied to the states.
Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). In any event,
Appellant’s argument presents the application of the Ohio Constitution’s free exercise test as the dispositive
issue on appeal.
5 In response to the Smith case, Congress passed the Religious Freedom Restoration Act to restore the
stricter test if the government action substantially burdens religious exercise. 42 U.S.C § 2000bb-1(a).
However, it was ruled the act cannot be applied to state regulations. City of Boerne v. Flores, 521 U.S.
507, 532-536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). See also Holt v. Hobbs, 574 U.S. 352, 356, 135
S.Ct. 853, 859, 190 L.Ed.2d 747 (2015) (discussing the subsequent federal law applicable to the states in
some contexts, Religious Land Use and Institutionalized Persons Act of 2000). Appellant does not cite a
federal act.
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{¶33} Although Smith did not explicitly mention the remaining part of the test to be
applied (after concluding strict scrutiny did not apply to the religion-neutral and generally
applicable law), courts apply the rational basis test to a federal free exercise claim where
a contested regulation is neutral and generally applicable. See, e.g., Seger v. Kentucky
High Sch. Athletic Assn., 453 Fed.Appx. 630, 634 (6th Cir.2011); Keeton v. Anderson-
Wiley, 664 F.3d 865, 880 (11th Cir.2011). Under a rational basis review, a law will be
upheld if it is reasonably related to furthering a legitimate state interest. See generally
Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 85, 108 S.Ct. 1645, 100 L.Ed.2d 62(1988). See also F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct.
2096, 124 L.Ed.2d 211 (1993) (when the rational basis test applies, there is a strong
presumption of constitutionality and the challenger has the burden of disputing every
reasonably conceivable basis).
{¶34} Appellant concedes the municipal court’s mask order is neutral on its face,
and there is no allegation of a religion-related motivation behind the order. Therefore,
there is no dispute the municipal court’s mask order is religion-neutral. Furthermore, the
order is generally applicable. Finally, Appellant does not claim the order was not rationally
related to a legitimate government interest. Regardless, we apply strict scrutiny next in
analyzing Appellant’s free exercise claim under Ohio’s Constitution (which is the focus of
the argument presented under this assignment of error). In fact, while applying the strict
scrutiny test under Ohio law, Appellant acknowledges the mask order was supported by
a compelling state interest (which is much higher than a legitimate interest).
{¶35} Before reviewing Appellant’s challenge to the Ohio Constitution’s free
exercise provisions, the state contends Appellant waived his constitutional challenge by
failing to challenge the mask mandate before the final contempt hearing. The state urges
there was no obvious error by the trial court or extraordinary circumstances to prompt this
court to exercise our discretion to recognize plain error. See State v. Noling, 98 Ohio
St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 62 (plain error is discretionary with appellate
court in extraordinary circumstances if there was obvious and outcome-determinative
error).
{¶36} It is claimed that in order to test the municipal court order, Appellant should
have done so prior to showing up without a mask. The state notes Appellant could have
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filed a declaratory judgment action to lodge his religious objection to the mask order. Yet,
the fact that a person can file an action does not mean he must file it in order to assert a
religious violation when a court believes a person is in contempt.
{¶37} The state also points out Appellant could have asserted his constitutional
argument in a motion to quash which sought permission to appear by video in response
to the subpoena summoning him to testify in the municipal court. Alternatively, it is
claimed Appellant should have raised the constitutional argument when the court first
found he was in violation of the mask mandate on February 23, 2022 or in a motion to
dismiss before the March 18, 2022 hearing. At the latter hearing, the trial court noted
Appellant did not raise the religious objection earlier.
{¶38} Appellant replies by citing the following general premise: “the question of
the constitutionality of a statute must generally be raised at the first opportunity and, in a
criminal prosecution, this means in the trial court.” State v. Awan, 22 Ohio St.3d 120,
122, 489 N.E.2d 277, 279 (1986). He points out he raised his religious objection to the
trial court and claims he did so at the first opportunity, which he says was at the March
18, 2022 hearing after being formally summoned to appear for contempt.
{¶39} Yet, this did not provide the state/city an opportunity to prepare to defend
the mask order, as there was no advance knowledge the order would be challenged on
a religious basis. We also note Appellant referred to his religion at the hearing but did
not mention the federal or state constitution or specifically claim the order was
unconstitutionally applied to him. See McFarland v. W. Congregation of Jehovah's
Witnesses, Lorain, Ohio, Inc., 2016-Ohio-5462, 60 N.E.3d 39, ¶ 60 (9th Dist.) (refusing to
review a broader argument under the Ohio Constitution where the appellant only raised
First Amendment free exercise below). The lack of specificity in raising the topic of
religion could reasonably lead the other participants to believe the topic was raised for
mitigation purposes, which was discussed at the hearing.
{¶40} Regardless, the state argues Appellant failed to make a prima facie case
when he finally raised his religious objection to the mask order. It is urged that his
objection, as vaguely expressed to the trial court, appeared to be a mere personal belief.
It is also claimed Appellant failed to demonstrate the mask mandate for courthouse visits
substantially burdened a central tenet of his religion. See, e.g., Hernandez v.
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Commissioner of Internal Revenue, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766(1989) (in previously applying strict scrutiny, it was observed that the free exercise test
initially asks whether the government “placed a substantial burden on the observation of
a central religious belief or practice”). Appellant replies by stating religion can be personal
and the objection need not correspond to a central tenet of a widely-publicized religion.
{¶41} The Ohio Constitution’s free exercise clause contains an added prohibition
on the “interference with the rights of conscience” and has been interpreted as being
broader than the United States Supreme Court’s most recent interpretation of the federal
constitution’s general protection of the free exercise of religion. Humphrey, 89 Ohio St.3d
at 67 (noting the federal standard was previously stricter and correlated to Ohio’s
standard). “Ohio's ban on any interference makes even those tangential effects
potentially unconstitutional” as the “protection applies to direct and indirect
encroachments upon religious freedom.” Id. at 67, 68 (even where the contested
government action is religiously neutral and evenly applied).
{¶42} Still, the constitutional reference to conscience must be connected to
religious exercise. See id. In other words, the Humphrey decision distinguishing between
the Ohio and federal free exercise clauses was “not a recognition of a general right of
conscience.” Luken v. Brigano, 154 Ohio App.3d 531, 2003-Ohio-5116, 797 N.E.2d 1047,
¶ 15-21 (12th Dist.) (“the Ohio Supreme Court has not recognized a general right of
conscience separate from the protection afforded to religious rights”).
{¶43} “To state a prima facie free exercise claim [in Ohio], the plaintiff must show
that his religious beliefs are truly held and that the governmental enactment has a
coercive affect against him in the practice of his religion.” Id. at 68. In Humphrey, a prison
guard violated the dress code by refusing to cut his hair because it was contrary to his
particular Native American religion, and the Supreme Court factually noted the trial court
believed the prison guard’s religious beliefs were sincerely held and the state did not
dispute a “central tenet” of the guard’s religion was for a man to refrain from cutting his
hair unless in mourning. Id.
{¶44} The asserted “religious beliefs need not be acceptable, logical, consistent,
or comprehensible to others in order to merit First Amendment protection.” Church of the
Lukumi Babalu Aye, 508 U.S. at 531. Even though an inquiry on the truth of the specified
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religious tenet is to be avoided, the objector must show the belief is sincerely held and
the challenged regulation coerces him in his religious practice. Humphrey, 89 Ohio St.3d
at 68. See also State v. Whitaker, 6th Dist. Fulton No. F-06-011, 2007-Ohio-881, ¶ 20
(otherwise, the free exercise clause could be used to avoid all undesired legal
obligations).
{¶45} The belief infringed must be “more than a personal or philosophical belief.”
United States v. Seeger, 380 U.S. 163, 166, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). “[T]he
very concept of ordered liberty precludes allowing every person to make his own
standards on matters of conduct in which society as a whole has important interests.”
Wisconsin v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (in
previously applying strict scrutiny, corresponding to Ohio’s test).
{¶46} If the plaintiff makes a prima facie case, then the burden shifts to the state
to prove the regulation furthers a compelling state interest and is the least restrictive
means available of furthering that state interest. Humphrey, 89 Ohio St.3d at 69.
Although the burden shifts to the state, when the court is considering a less restrictive
alternative, it is generally said “the burden is on the Government to prove that the
proposed alternatives will not be as effective as the challenged statute.” (Emphasis
added.) Ashcroft v. ACLU, 542 U.S. 656, 665, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004).
{¶47} In Humphrey, the Ohio Supreme Court found the state had a compelling
interest in enforcing policies on uniforms and grooming in order to maintain control and
stability in a prison by having an organized and unified guard force. Humphrey, 89 Ohio
St.3d at 69. However, the Court concluded the appellate court should not have reversed
the trial court’s factual determination that securing hair under the hat was a less restrictive
alternative to achieve the compelling interest. Id. at 70-71 (deferring to the fact-finder).
This alternative was expressly in the regulation for women prison guards. The Court
pointed out this may not be an alternative in another case if there is evidence the hair
could not be secured in a uniform and dignified manner. Id. at 70.
{¶48} Here, the trial court generally found Appellant’s “beliefs are sincere” and
said the court did not “dispute your statement or that of your pastor * * *.” (Tr. 7).
However, the court was merely noting it took no issue with the testimony given and found
Appellant had sincere beliefs. This was not a factual finding that Appellant held a
Case No. 22 MA 0025
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sincerely religious belief connected to masking so that the order had a coercive affect
against him in the practice of his religion. See Humphrey, 89 Ohio St.3d at 68. See also
Preterm Cleveland v. Voinovich, 89 Ohio App.3d 684, 697, 627 N.E.2d 570 (1993) (the
Ohio Constitution does not afford a right of conscience unconnected to religious freedom).
The statements of Appellant, his counsel, and his pastor were conclusory and do not
appear to demonstrate a prima facie case under Humphrey.
{¶49} Having a sincerely held religious belief about loving God combined with a
desire to refrain from performing an act contrary to one’s personal opinion does not
demonstrate the expressed religious belief had a relation to masks in order to
demonstrate the mask mandate “has a coercive affect against him in the practice of his
religion.” See Humphrey, 89 Ohio St.3d at 68. The disclosures in the record indicate
Appellant is personally against wearing a mask for unrevealed reasons. He did not show
his desire to refrain from wearing a mask was “more than a personal or philosophical
belief.” See Seeger, 380 U.S. at 166. Appellant did not disclose to the trial court at the
hearing the connection between his religious belief or practice and the mask mandate. It
was not explained how the courthouse mask order “infringes upon [Appellant’s]
constitutional right to the free exercise of religion.” See State v. Schmidt, 29 Ohio St.3d
32, 34, 505 N.E.2d 627, 629 (1987) (finding the disclosed religious belief may have been
sincere, but the objector failed to demonstrate the contested regulation infringes upon the
religious belief).
{¶50} This is not to say an objector’s presentation in another case with a mask
mandate may not satisfy the requirements for a prima facie case. However, in this case,
the presentation was vague, and the analysis on appeal relies on an overbroad appellate
attempt to impliedly connect an unexplained personal opinion to a general religious
principle so the personal opinion is itself transformed into a religious tenant. See Lippert,
2010-Ohio-5809 at ¶ 12 (finding there was no evidence describing how the contested
policy is coercive as to tenet of the religious practice).
{¶51} Notably, new facts and arguments cannot be presented on appeal that were
not presented below with new quotations and citations to scripture and new
interpretations of how masking could be viewed under each principle (e.g., the brief now
claims Appellant believes displaying a mask as if it has protective value contradicts the
Case No. 22 MA 0025
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commandment against false testimony and showing fear of a virus contradicts a scripture
verse that God gave “a spirit not of fear”). The proper place for such claims was below.
See, e.g., State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of
the syllabus (“A reviewing court cannot add matter to the record before it, which was not
a part of the trial court's proceedings, and then decide the appeal on the basis of the new
matter.”).
{¶52} Under Appellant’s argument as presented below, any personal annoyance
or opinion would become a religious belief negatively affected by a regulation if a person’s
religion requires him to love or be true to God and he is subject to a regulation he does
not personally believe should have been issued. Appellant failed to make a prima facie
case that a sincerely held religious belief was connected to masking so as to show the
mask mandate had a coercive affect against Appellant in the practice of his religion.
{¶53} We note if Appellant had made a prima facie case, then the next inquiry
would be whether the mask order furthered a compelling state interest. Humphrey, 89
Ohio St.3d at 69. The state points out the municipal court’s mask mandate followed the
guidance of the Ohio Supreme Court. See Ohio Supreme Court “Responsible
RestartOhio” (5/7/2020) (Courts must establish policies that * * * Require face coverings
for employees and the public); Ohio Supreme Court New Mask Mandate (8/4/21)
(reimplemented due to higher county transmission rates).
{¶54} Appellant concedes the municipal court had a compelling state interest to
protect against Covid-19 transmission in the courthouse. See, e.g., Mussivand v. David,
45 Ohio St.3d 314, 319, 544 N.E.2d 265 (1989) (strong public policy in protecting the
public from communicable diseases). Another interest underlying this protection interest
is the compelling state interest in keeping the court operational through the pandemic.
{¶55} Where an objector makes a prima facie case and there was a compelling
state interest, the final inquiry would involve evaluating whether the mask mandate was
the least restrictive means to accomplish the compelling interest of protecting against the
spread of Covid-19 among those who enter the courthouse. See Humphrey, 89 Ohio
St.3d at 69. Appellant claims the municipal court mask mandate was not the least
restrictive means of protecting the staff and the public from a communicable disease and
suggests a less restrictive means would have been to allow a person to appear in court
Case No. 22 MA 0025
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by video, noting many courts used video appearances to ensure continued court
operations when the pandemic started in 2020.
{¶56} We note Appellant’s violation occurred in 2022, and Appellant did not
propose the video alternative below, before or after violating the court’s order. See
Ashcroft, 542 U.S. at 665, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (“the burden is on the
Government to prove that the proposed alternatives will not be as effective as the
challenged statute”). See also Humphrey, 89 Ohio St.3d at 69 (where the state failed to
show the hair-under-the-hat alternative, which was proposed by the objector and
contained in its policy for women, was not the least restrictive means). Where his reasons
for non-compliance were not provided before the hearing and were not particularized at
the hearing, alternatives could not have been formulated as options acceptable to the
objector. Moreover, video testimony is an alternative to one’s appearance in the
courthouse, not an alternative to masking once one is in the courthouse. The record does
not indicate the stage or type of case in which Appellant, a city police officer, was being
subpoenaed to testify. The rights of a criminal defendant may have been part of the
equation. Under the facts of this case, the trial court could reasonably conclude the mask
order was narrowly tailored to serve the compelling interest of protecting entrants to the
courthouse from Covid-19 and of keeping the court open during a pandemic.
{¶57} In any event, as concluded supra, Appellant failed to make a prima face
case under Humphrey by connecting a sincere religious belief to the mask order to show
it had a coercive affect in the practice of his religion. This assignment of error is overruled.
{¶58} For the foregoing reasons, the trial court’s judgment is affirmed.
Donofrio, P J., concurs.
D’Apolito, J., concurs.
Case No. 22 MA 0025
[Cite as State v. Wisener, 2022-Ohio-4557.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Youngstown Municipal Court of Mahoning County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.