Appendix — Enix v. Dayton Women's Health Center, Inc.

ee j

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IN THE SUPREME COURT OF THE UNITED.

STATES

October Term, 1990

DAVID ENIX, re or MEHAFFIE, DAVID

HAFFIE,

DOUGLAS SAPP, KYM MEHAFFIE and

H.F. PERKINS, Petitioners,

v.

THE DAYTON WOMEN’S HEALTH CENTER, INC.,

K. W. DAVIS, MD, and ROBERT SKIPTON, MD,

Respondents.

APPENDIX

Of Counsel Counsel of Record

Thomas E. Grossmann Robert K. Skolrood

1800 Star Bank Center National Legal Foundation

Cincinnati, OH 45202 Suite 306

(513) 381-2838 6477 College Park Square

Virginia Beach, VA 23464

Brian M. McCormick (804) 424-4242

National Legal Foundation

Suite 306

6477 College Park Square

Virginia Beach, VA 23464

(804) 424-4242

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Filed Jan. 15, 1987, at 1:56 p.m.

IN THE COMMON PLEAS COURT OF

MONTGOMERY COUNTY, OHIO

THE DAYTON WOMEN’S :

HEALTH CENTER, : CASE NO. 86-3120

et al., ;

Plaintiffs, : (Judge John M. Meagher)

v. : DECISION, ENTRY &

: ORDER OVERRULING

: DEFENDANTS’ MOTION

: TO STRIKE PLAINTIFFS’

: CLASS ACTION;

DAVID ENIX et al., : CERTIFYING CASE AS

: CLASS ACTION; AND

Defendants.: SUSTAINING

: PLAINTIFFS’ MOTION

: FOR PRELIMINARY

: INJUNCTION.

This matter comes before the court on

defendants’ motion to strike plaintiffs’ class action and

plaintiffs’ motion for preliminary injunction.

The facts indicate that the plaintiffs brought this

action in October 1986 claiming that defendants have

interfered with plaintiffs’ business, staff and patients by

engaging in a variety of activities including invasion of

privacy, trespass and interference with business

reiationships. Plaintiffs pray for injunctive relief and

monetary damages.

Defendants move to strike plaintiffs’ class action

claiming that the requirements of Ohio Civil Rule 23

have not been satisfied. An examination of Rule 23(A)

lists the four prerequisites necessary for a class action

lawsuit.

One or more members of a class may sue

or be sued as representative parties on

behalf of all only if:

(1) the class is so numerous that joinder

of all members is impracticable.

[No. 86-3120, 2]

(2) there are questions of law or fact

common to the class,

(3) the claims or defenses of the

representative parties are typical of the

claims or defenses of the class, and

(4) the representative parties will fairly

and adequately protect the interests of the

class.

In addition, one of the requirements enumerated

in Rule 23(B) must be met:

An action may be maintained as a class action if the

prerequisites of subdivision (A) are satisfied, and in

addition:

Page 2

(1) The prosecution of separate actions by or

against individual members of the class would

create a risk of:

(a) inconsistent or varying adjudication

with respect to individual members of the

Class which would establish incompatible

standards of conduct to the party opposing

the class; or

(b) adjudications with respect to individual

members of the class which would as a

ractical matter be dispositive of the

interests of other members not parties to

the adjudication or substantially impair or

impede their ability to protect their

interests; or

(2) The party opposing the class has acted or

refused to act on grounds generally applicable to

the class, thereby making appropriate final

injunctive relief or corresponding declaratory

relief with respect to the class as a whole...

The Court finds from the evidence that the first

{No. 86-3120, 3]

requirement of Rule 23(A) is clearly satisfied inasmuch

as on at least two separate occasions, up to seventy-five

(75) persons have engaged in picketing activities at the

Dayton Women’s Health Center. Thus, the class is so

numerous that joinder of all members is impractical.

Lastly, the Court finds no merit in the contention that

Page 3

the granting of an injunction against defendant class

would be an injunction against the entire world.

The second requirement, that is, that questions

of law or fact be common to the class is also clearly

satisfied, in light of the many instances involving

representatives of the class in acts of trespass,

obstruction and interference with the orderly flow of

traffic on South Dixie Drive and verbal abuse.

The third and fourth prerequisites of Rule 23(A)

are also met. The Court finds no conflict of interest

between the representatives of the class and the

defendant class itself. Furthermore, the Court finds that

the representatives of the class have already, and will

continue to, adequately represent the interests of the

class.

Finally, it is apparent to the court that the

requirement of Rule 23(B)(1) has been satisfied and

thus warrants certification of plaintiffs’ proposed class.

If this matter was allowed to proceed without class

certification, separate adjudication could possibly result

in prejudice to non-party litigants. In short, all the

Page 4

ee eT

requirements necessary to maintain a class action have

been satisfied.

[No. 86-3120, 4]

Therefore, in the interest of judicial efficiency

and in accordance with the forgoing, defendants’ motion

to strike plaintiffs’ class action is OVERRULED.

Therefore, the Court, pursuant to Rule 23,

certifies this matter as a defendant class action whose

class consists of:

all individuals alge. the activities

conducted at the Dayton Women’s Health

Center, 3460 South Dixie Drive, Dayton,

Ohio 45439, who have been personally

served with this Entry and Preliminary

Injunction 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 Entry and Preliminary Injunction.

Plaintiffs’ motion for preliminary injunction and

defendants’ opposition to it asks this Court to balance

the defendants’ constitutional right to free speech and

assembly versus plaintiffs’ constitutional right to privacy.

Plaintiffs operate the Dayton Women’s Health

Center which provides various health services including,

Page 5

but not limited to, therapeutic abortions. Defendant

class objects to these services and has conducted various

activities at the Center and the offices of the Center’s

physicians.

The Court, after carefully listening to all the

testimony during three days of hearings, has determined

that the defendants’ conduct includes:

1) interference with the daily business operations

of the Health Center including trespass upon the Health

Center’s

[No. 86-3120, 5]

property,

2) obstruction of the driveway which enters the

Health Center’s lot, and

3) interference with the flow of traffic on South

Dixie Drive.

Therefore, the Court concludes that a preliminary

injunction is the appropriate remedy in this matter.

The Supreme Court of the United States has

determined that although freedom of speech is highly

protected, it is not absolute. In fact, reasonable timie,

Page 6

place and manner restrictions may be enforced

providing that such restrictions are narrowly tailored to

serve s significant governmental interest, leave open

ample alternative channels of communication and are

content neutral United States v. Grace, 461 U.S. 171

(1983). Therefore, in light of the evidence and

balancing the constitutionally protected interests of both

parties, the Court ORDERS that the defendant class

and the representative defendants, David Enix, Jim

Mehaffie, David Mehaffie, Kim Mehaffie, Douglas Sapp

and H.F. Perkins are enjoined from:

1) Blocking or interfering with the access or

egress of any individual going to or from the Dayton

Women’s Health Center.

2) Blocking or interfering with the driveway of

the Dayton Women’s Health Center.

3) Speaking, chanting, yelling or verbally

communicating in any manner designed, intended or

having the effect of reaching

[No. 86-3120, 6]

Page 7

the staff or patients inside the Dayton Women’s Health

Center.

4) Trespassing on the property of the Dayton

Women’s Health Center.

5) Verbal communications, either in person or by

telephone, with employees of the Center unless such

communications are with the consent of such

employees.

6) Picketing at or within viewing distance of the

homes of such employees in groups of more than three

(3) individuals.

7) Picketing at or within viewing distance of the

offices of such employees in groups of more than five

(5) individuals.

8) Picketing at or within viewing distance of the

Dayton Women’s Health Center in groups of more than

ten (10) individuals.

The court carefully reviewed the videotapes

marked as plaintiffs’ exhibits 14 and 15 and reaches the

conclusion that serious issues of public safety exist that

involve the members of defendant class and drivers and

Page 8

aa

passengers of vehicles on South Dixie Drive. Two

examples which illustrate the problem include the use of

large red sign with the letters S-T-O-P and the use of

signs urging motorists to honk. Both types of signs

could easily confuse a driver or contribute to driver

distraction and subsequently result in a collision with

other vehicles or the picketers themselves. Accordingly,

the Court feels compelled to further enjoin the

defendant class and iheir representatives from

[No. 86-3120, 7]

9) Blocking or interfering with the flow of traffic

on, from or to South Dixie Drive.

10) Picketing on the west side of South Dixie

Drive.

11) Using any sign larger than four feet in any

dimension, including signs resembling traffic safety signs,

i.€., stop signs.

12) Using any sign urging motorists to honk.

In accordance with the foregoing, plaintiffs’

motion for preliminary injunction is SUSTAINED.

Page 9

Plaintiffs shall post a copy of this Order in front

of the clinic at 3460 South Dixie Drive, Dayton, Ohio

45439. This notice is only an accommodation. Official

class notice is by personal service on class members.

No further service of this Order shall be

necessary on the representative defendants. For the

purpose of this Order, "persons picketing" and a "picket"

include persons present in the area referred to in this

Order who are carrying protest and informational signs,

passing out literature, speaking publicly, or otherwise

engaged in activity intended to inform, influence and

persuade the public about matters of public interest,

including abortion. Service of this Order on such

people shall be effected by the Sheriff of Montgomery

County. Service documented by videotape will be

preferred. Other evidence of service will be acceptable

at the option of the Court. Those serving members of

the class with this Order shall request the name and

address of

[No. 86-3120, 8]

Page 10

of (sic) the person served. A person refusing to

accept the Order shall be deemed to be served.

The Sheriff of Montgomery County may enforce

the terms of this Order.

SO ORDERED:

[s/ John M. Meagher

John M. Meagher, Judge

Copies of this Decision, Entry & Order were

served on all parties, as is indicated below, by ordinary

mail this filing date:

DAVID GREER/JOHN HAVILAND, Attorneys for

Plaintiffs

DAVID HAFFEY, Attorney for Defendants, D. Enix,

D. & K. Mehaffie, D. Sapp and H.F. Perkins

JAMES CONDIT, Attorney for Defendant, Jim

Mehaffie

CATHY MILLER, Bailiff

MONTGOMERY COUNTY SHERIFF’S

DEPARTMENT

Page 11

IN THE COMMON PLEAS COURT OF

MONTGOMERY COUNTY, OHIO

THE DAYTON :

WOMEN’S HEALTH :

CENTER, et al., : CASE NO. 86-3120

;.s

Plaintiffs, | : (Judge John M. Meagher)

v. : DECISION, ENTRY & ORDER

: OVERRULING DEFENDANTS’

: MOTIONS TO AMEND

: PENDANT INJUNCTION;

DAVID ENIX et al., : OVERRULING PLAINTIFFS’

: MOTION TO MODIFY THE

Defendants : PRELIMINARY INJUNCTION;

: ORDERING DEFENDANTS

: AND DEFENDANT CLASS

: PERMANENTLY ENJOINED;

: AND ORDERING MEMBERS

: MAY BE ADDED TO

: DEFENDANT CLASS.

This matter comes before the Court on

defendants Jim Mehaffie and David Mehaffie’s motions

to amend pendant injune ‘on, plaintiffs’ motion to

modify preliminary injunction, and the parties’ request

for a permanent injunction on the evidence submitted.

Defendants moves this Court to amend the

injunction by incorporating the following:

1. Eliminating the O.R.C.P. 23 "class certification.

2. Eliminate the language "within viewing

distance of" as a limitation on the picketing activities at

any site.

3. Increase the number of picketers authorized to

20 on each side of South Dixie Drive in front of the

Plaintiff Center and increase the number of picketers to

20 at other sites covered by the order.

4. Eliminate all other aspects as to personal

conduct except the terms “blocking” or "interfering" in

the ingress and egress of any individual going to or from

the Plaintiff Center including the driveways of the

Center; and, trespassing.

[No. 86-3120, 2]

5. Redefine "picketing" to include only persons

who are present in the area and carrying protest and

informational signs.

Defendants contend that the current injunction exceeds

the Court’s jurisdiction and powers and therefore

believe that these changes are warranted.

Plaintiffs oppose defendants’ motions to amend

the injunction. Plaintiffs correctly point out that

defendants’ memorandum of law in support of

defendants’ motions contains no discussion but simply

lists six cases from foreign jurisdictions of which the first

five discuss generally the requirements for certifying a

Page 2

plaintiffs class action. Notwithstanding the cases cited

which discuss certifying class actions, the defendants

have cited no legal authority relevant to the issues

raised in their motions. Moreover, the defendants have

not presented any new evidence or reasons to support

the suggested amendments.

In light of the foregoing, defendants’ motions to

amend pendant injunction are OVERRULED.

Plaintiffs move for an order modifying the

preliminary injunction by adding the following:

"it is further Ordered that the Sheriff of

Montgomery County, Ohio, or any other law

enforcement officer be and he hereby is authorized to

arrest for contempt any defendant or member of the

defendant class observed violating the terms of the

injunctions issued by this Court."

Plaintiffs make this request as an alternative to the

cumbersome

[No. 86-3120, 3]

procedure of motions to show cause.

Page 3

ata aniline

After careful consideration, the Court is satisfied

that the current procedure involving motions to show

cause, although cumbersome, is the appropriate manner

to bring a potential contemner to the Court’s attention.

Accordingly, plaintiffs’ motion to modify the

preliminary injunction is OVERRULED.

Counsel for the parties having submitted this

matter to the Court on the evidence presented at the

various hearings thus far ‘held, it is ORDERED that the

individual defendants and the defendant class previously

certified by the Court and consisting of all individuals

protesting the activities conducted at The Dayton

Women’s Health Center, 3460 South Dixie Drive,

Dayton, Ohio, who have been personally served with

this Entry and Order of Final Judgment or with this

Court’s Entry and Preliminary Injunction of January 15,

1987, 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 Entry and Order of Final Judgment or

this Court’s Entry and Preliminary Injunction of January

Page 4

25, 1987, be and they hereby are permanently enjoined

from:

1. Blocking or interfering with the access or

ae < of any individual going to or from The Dayton

omen’s Health Center;

2. Blocking or interferin tae the driveway of

The Dayton Women’s Health Center;

[No. 86-3120, 4]

3. Blocking or interfering with the flow of traffic

on, from or to South Dixie Drive;

4. Using any sign larger than four feet in any

dimension, including = resembling traffic safety signs,

LC. _ signs, Or using any sign urging motorists to

ho

5. Speaking, chanting, yelling or verbally

communicating in any manner designed, intended or

having the effect of reaching the staff or patients or

volunteers inside The Dayton Women’s Health Center;

6. Trespassing on the property of The Dayton

Women’s Health aiser:

7. Verbal communications, either in person or by

telephone, with employees, staff or volunteers of the

Center unless such communications are with the consent

of such employees, staff or volunteers;

8. Picketing in any form including parking,

parading or demonstrating at or within the viewin

distance of the homes of patients, em : ees, staff or

volunteers of The Dayton Women’s th Center or of

rede my oo performing services at The Geten Women’s

ealth Center;

Page 5

iii

9. Picketing in any form including parking,

parading or demonstrating at or within the viewing

distance of the offices of nea es performing services

at The Dayton Women’s Health Center in groups of

more than five individuals;

10. Picketing in any form including parking,

Sag or demonstrating on the west side of South

ixie Drive within the viewing distance of The Dayton

Women’s Health Center;

11. Picketing in any form including parking,

remy | or demonstrating within the viewing distance

of The Dayton Women’s Health Center at location

other than the sidewalk bordering the east side of Dixie

Drive in front of the facility;

12. Picketing in any form including parking,

ary or demonstrating within the viewing distance

of The Dayton Women’s Health Center in groups of

more than ten (10) individuals.

For purposes of this injunction, the term

"picketing" includes, but is not limited to, parading,

parking or any other form of demonstration. In fact,

"picketing" goes to the mere

[No. 86-3120, 5]

presence of an individual.

} It is further ORDERED that members may be

added to the defendant class by effecting service of a

copy of this Order on individuals falling within the

description of the defendant class by the Sheriff of

Page 6

Montgomery County, any other law enforcement

individual or by any employee of The Dayton Women’s

Health Center.

The individual effecting such service shall

thereafter file in this action a signed Certificate of

Service stating the date, time and place of service

together with the name and address of the individual

upon whom such service was made.

All individuals who are members of the

defendant class shall divulge to the individual effecting

such service the name and address of any individual

upon whom such service is effected, to the extent such

information is known. If the name and address of the

individual upon whom such service is effected is not

known at the time of service, a photograph of the

individual may be attached to the Certificate of Service

in lieu of such information. Any employee of The

Dayton Women’s Health Center is hereby authorized to

photograph the effecting of any such service.

Counsel should take note that this Decision,

Entry and Order is also in the form of a judgment

Page 7

entry. Therefore, the time for prosecuting an appeal to

the Second District Court of Appeals must be computed

from the date upon which this decision and entry is

filed.

[No. 86-3120, 6]

Costs are to be paid by the defendants.

SO ORDERED:

is/ John M, Meagher

John M. Meagher, Judge

Copies of this Decision, Entry & Order served

on all parties, indicated below, by ordinary mail this

filing date:

DAVID C. GREER, Attorney for Plaintiffs

DAVID A. HAFFEY, Attorney for Defendants, D.

Enix, D. & K. Mehaffie, D. Sapp, and H.F. Perkins

JAMES J. CONDIT, Attorney for Defendant, James

Mehaffie and for Defendant Class

MONTGOMERY COUNTY SHERIFF

DEPARTMENT

CATHY MILLER, Bailiff

Page 8

IN THE COMMON PLEAS COURT OF

MONTGOMERY COUNTY, OHIO

THE DAYTON ¢

WOMEN’S HBALTH :

CENTER, ét al., : CASE NO. 86-3120

Plaintiffs, : (Judge John M. Meagher)

v. : DECISION, ENTRY & ORDER

: OVERRULING DEFENDANTS’

: MOTIONS TO AMEND

: PENDANT INJUNCTION;

Davip ENIx et al., : OVERRULING ;

: MOTION TO MODIFY THE

Defendants : PRELIMINARY INJUNCTION;

: ORDERING DEFENDANTS

: AND DEFENDANT CLASS

: PERMANENTLY ENJOINED;

: AND ORDERING MEMBERS

: MAY BE ADDED TO

: DEFENDANT CLASS.

This matter comes before the Court on

defendants Jim Mehaffie and David Mehaffie’s motions

to amend pendant injunction, plaintiffs’ motion to

modify preliminary injunction, and the parties’ request

for a permanent injunction on the evidence submitted.

Defendants moves this Court to amend the

injunction by incorporating the following:

1. Eliminating the O.R.C.P. 23 “class certification.

Tc seienaeiaantneneiaiinie neil

2. Eliminate the language “within viewin

distance of" as a limitation on the picketing activities at

any site.

3. Increase the number of picketers authorized to

20 on each side of South Dixie Drive in front of the

Plaintiff Center and increase the number of picketers to

20 at other sites covered by the order.

4, Eliminate ali other aspects as to personal

conduct except the terms "blocking" or "interfering" in

the ingress and egress of any individual going to or from

the Plaintiff Center including the driveways of the

Center; and, trespassing.

[No. 86-3120, 2]

5. Redefine "picketing" to include only persons

who are present in the area and carrying protest and

informational signs.

Defendants contend that the current injunction exceeds

the Court’s jurisdiction and powers and therefore

believe that these changes are warranted.

Plaintiffs oppose defendatits’ motions to amend

the injunction. Plaintiffs correctly point out that

defendants’ memorandum of law in support of

defendants’ motions contains no discussion but simply

lists six cases from foreign jurisdictions of which the first

five discuss generally the requirements for certifying a

Page 2

plaintiff's class action. Notwithstanding the cases cited

which discuss certifying class actions, the defendants

have cited no legal authority relevant to the issues

raised in their motions. Moreover, the defendants have

not presented any new evidence or reasons to support

the suggested amendments.

In light of the foregoing, defendants’ motions to

amend pendant injunction are OVERRULED.

Plaintiffs move for an order modifying the

preliminary injunction by adding the following:

“it is further Ordered that the Sheriff of

Montgomery County, Ohio, or any other law

enforcement officer be and he hereby is authorized to

arrest for contempt any defendant or member of the

defendant class observed violating the terms of the

injunctions issued by this Court."

Plaintiffs make this request as an alternative to the

cumbersome

[No. 86-3120, 3]

procedure of motions to show cause.

Page 3

After careful consideration, the Court is satisfied

that the current procedure involving motions to show

cause, although cumbersome, is the appropriate manner

to bring a potential contemner to the Court’s attention.

Accordingly, plaintiffs’ motion to modify the

preliminary injunction is OVERRULED.

Counsel for the parties having submitted this

matter to the Court on the evidence presented at the

various hearings thus far held, it is ORDERED that the

individual defendants and the defendant class previously

certified by the Court and consisting of all individuals

protesting the activities conducted at The Dayton

Women’s Health Center, 3460 South Dixie Drive,

Dayton, Ohio, who have been personally served with

this Entry and Order of Final Judgment or with this

Court’s Entry and Preliminary Injunction of January 15,

1987, 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 Entry and Order of Final Judgment or

this Court’s Entry and Preliminary Injunction of January

Page 4

25, 1987, be and they hereby are permanently enjoined

from:

1. Blocking or interfering with the access or

en © of any individual going to or from The Dayton

omen’s Health Center;

2. Blocking or gain, veal the driveway of

The Dayton Wosen’ s Health Center;

[No. 86-3120, 4]

3. Blocking or interfering with the flow of traffic

on, from or to South Dixie Drive;

4. Using any sign larger than four feet in any

dimension, including signs resembling traffic safety signs,

1.€., stop signs, or using any sign urging motorists to

honk;

5. Speaking, chanting, yelling or verbally

communicating in any manner designed, intended or

having the effect of reaching the staff or patients or

volunteers inside The Dayton Women’s Health Center;

6. Trespassing on the property of The Dayton

Women’s Health Center;

7. Verbal communications, either in person or by

telephone, with employees, staff or volunteers of the

Center unless such communications are with the consent

of such employees, staff or volunteers;

8. Picketing in any form including parking,

parading or demonstrating at or within the viewin

distance of the homes of patients, em aes oyees, staff or

volunteers of The Dayton Women’s th Center or of

eT performing services at The aries Women’s

ealth Center;

Page 5

9. Picketing in any form including parking,

parading or demonstrating at or within the viewing

distance of the offices of a performing services

at The Dayton Women’s Health Center in groups of

more than five individuals;

10. Picketing in any form including parking,

pees or demonstrating on the west side of South

ixie Drive within the viewing distance of The Dayton

Women’s Health Center;

11. Picketing in any form including parking,

parading, or demonstrating within the viewing distance

of The Dayton Women’s Health Center at location

other than the sidewalk bordering the east side of Dixie

Drive in front of the facility;

12. Picketing in any form including parking,

parading, or ee eens | within the viewing distance

of The Dayton Women’s Health Center in groups of

more than ten (10) individuals.

For purposes of this injunction, the term

"picketing" includes, but is not limited to, parading,

parking or any other form of demonstration. In fact,

"picketing" goes to the mere

[No. 86-3120, 5] '

presence of an individual.

It is further ORDERED that members may be

added to the defendant class by effecting service of a

copy of this Order on individuals falling within the

description of the defendant class by the Sheriff of

Page 6

Montgomery County, any other law enforcement

individual or by any employee of The Dayton Women’s

Health Center.

The individual effecting such service shall

thereafter file in this action a signed Certificate of

Service stating the date, time and place of service

together with the name and address of the individual

upon whom such service was made.

All individuals who are members of the

defendant class shall divulge to the individual effecting

such service the name and address of any individual

_ upon whom such service is effected, to the extent such

information is known. If the name and address of the

individual upon whom such service is effected is not

known at the time of service, a photograph of the

individual may be attached to the Certificate of Service

in lieu of such information. Any employee of The

Dayton Women’s Health Center is hereby authorized to

photograph the effecting of any such service.

Counsel should take note that this Decision,

Entry and Order is also in the form of a judgment

Page 7

entry. Therefore, the time for prosecuting an appeal to

the Second District Court of Appeals must be computed

from the date upon which this decision and entry is

filed.

[No. 86-3120, 6]

Costs are to be paid by the defendants.

SO ORDERED:

[s/ John M. Meagher

John M. Meagher, Judge

Copies of this Decision, Entry & Order served

on all Fag indicated below, by ordinary mail this

filing date:

DAVID C. GREER, Attorney for Plaintiffs

DAVID A. HAFFEY, Attorney for Defendants, D.

Enix, D. & K. Mehaffie, D. Sapp, and H.F. Perkins

JAMES J. CONDIT, Attorney for Defendant, James

Mehaffie and for Defendant Class

MONTGOMERY COUNTY SHERIFF

DEPARTMENT

CATHY MILLER, Bailiff

Page 8

IN THE COURT OF APPEALS OF MONTGOMERY

COUNTY, OHIO

THE DAYTON WOMEN’S

HEALTH

CENTER, ET AL

Plaintiffs-Appellees

vs. , CASE NO. 10579

DAVID ENIX, ET AL :

Defendants-Appellants

Rendered on the 5th day of December, 1988

DAVID C. GREER, 400 Gem Plaza, Third and Main

Streets, Dayton, Ohio 45402

Attorney for Plaintiffs-Appellees

DAVID A. HAFFEY, 20 King Avenue, P.O. Box 610,

Xenia, Ohio 45385

Attorney for Defendants-Appellants

THOMAS E. GROSSMAN, 1800 First National Bank

Center, 425 Walnut Street, Cincinnati, Ohio 45202

Attorney for Defendants-Appellants

JAMES J. CONDIT, 305 Dixie Terminal Building,

Cincinnati, Ohio 45202

Attorney for Defendant-Appellant Jim Mehaffie

ROBERT R. MELNICK and KENNETH SHAW,

Rutherford Institute of Ohio, 18 N. Phelps St., Suite

300, Youngstown, Ohio 44503

Attorneys for Amicus Curiae

JOHN W. WHITEHEAD, Rutherford Institute, 9411

Battle Street, Manassas, VA 22110

Attorney .or Amicus Curiae

RICHARD SAPHIRE, mp vy Raton Dayton Law

School, 300 College Park a yton, Ohio 45469

Attorney for Amicus Curiae American Civil

Liberties Union of Ohio Foundation, Inc.

ELINOR R. ALGER, American Civil Liberties Union

of Ohio Foundation, Inc., 360 S. Third Street,

Columbus, Ohio 43215

[No. 10579, 2]

Attorney for Amicus Curiae

DOUGLAS W. DAVIS, The National Legal

Foundation, 6477 College Park oe” Suite 306, P.O.

Box 64845, Virginia Bosch, VA 2

Attorney for Amicus Curiae

WILSON, J.

The plaintiff-appellee, Dayton Women’s Health

Center, Inc., provides reproductive health services for

women including abortions. The other two plaintiffs are

K.W. Davis, M.D. and Robert Skipton, M.D. The

doctors are employed by the center and each has a

private practice in Kettering.

Page 2

——eeii

In the fall of 1986, the plaintiffs filed a complaint

alleging that the defendants, David Enix, Jim Mehaffie,

David Mehaffie, Kim Mehaffie, Douglas Sapp, H.F.

Perkins, and other unidentified persons, had engaged in

tortious activity which interfered with the delivery of

medical service at the center and the private offices of

the plaintiff doctors.

The prayer of the complaint was for damages

and injunctive relief. The compliant also sought to have

the case certified as a defendant class action.

After hearings an entry was filed on January 15,

1987 granting a preliminary injunction and certifying the

case as a defendant class action whose class consists of:

"all individuals protesting the activities

conducted at the _—— Women’s Health

Center, 3460 South Dixie Drive, Dayton,

Ohio 45439, who have been personally

served with this Entry and Preliminary

Injunction as well as their officers, agents,

servants, employees, attorneys and those

persons in active concert or participation

with them who receive personal service of

[No. 10579, 3]

the Entry and Preliminary Injunction.”

Page 3

The trial court found that the defendants’

conduct includes:

1) interference with the daily business operations

of the Health Center including trespass upon the

Health Center’s property,

) obstruction of the driveway which enters the

ealth Center’s lot, and

3) interference with the flow of traffic on South

ixie Drive.

The trial court then issued a preliminary

injunction enjoining the defendant class and the named

defendants from:

1) Blocking or interfering with the access or

egress of any individual going to or from the

Dayton Women’s Hea'th Center.

2) Blocking or interfering with the driveway of

the Dayton Women’s Health Center.

3) Speaking, chanting, yelling or verbally

communicating in any manner designed, intended

or having the effect of reaching the staff or

a inside the Dayton Women’s Health

nter.

- Trespassing on the property of the Dayton

omen’s Health Center.

5) Verbal communications, either in person or by

telephone, with employees of the Center unless

Page 4

z

such communications are with the consent of

such employees.

6) Picketing at or — viewing distance of the

homes of such em — in groups of more than

three (3) individ

7) Picketing at or within viewing distance of the

offices of such employees in groups of more than

five (5) individuals.

be Picketing at or within viewing distance of the

yton Women’s Health Center in groups of

more So te ten (10) individuals.

9) Blocking or interfering with the flow of traffic

on, from or to South Dixie Drive.

[No. 10579, 4]

10) Picketing on the west side of South Dixie

Drive.

11) Using any sign larger than four feet in any

dimension, including signs resembling traffic

safety signs, i.¢., stop signs.

12) Using any sign urging motorists to honk.

The order of January 15, 1987 also defined picketing:

For the purpose of this Order, ‘persons

picketing’ and a ‘picket’ include _persons

resent in the area referred to in this

der who are carrying protest and

informational signs, passing out literature,

speaking publicly, or other wise engaged

in activity intended to inform, influence

and persuade the public about matters of

public’ interest, including abortion.

Page 5

The preliminary injunction order of January 15,

1987 was thereafter amended in several respects

including an order dated February 27, 1987 which

provides:

It is the intention of this Court by this

amendment to prohibit any residential

picketing/demonstrations until such time

the Court may fully review all the

evidence presented in the hearing

February 27, 1987.

The order of January 15, 1987 was again

amended by an entry filed March 16, 1987. This order

enjoined the defendants and the defendant class from:

1) Picketing in any form including parkin

pera demonstrating on the west side of

uth Drive within the viewing distance of

The Dayton Women’s Health Center, and

2) Picketing in any form including parking,

parading, os denicnstratin within the viewing

distance of The Dayton Women’s Health Center

at any location other than the sidewalk bordering

the east side of South Dixie Drive in front of the

facility in groups of more than ten (10)

individuals.

The order further made clear that picketing goes

to the mere presence of an individual.

(No. 10579, 5]

Page 6

The Court also enjoined all of the defendants

from:

Picketing in any form including parking,

parading or demonstrating at or within the

viewing distance of the homes of patients

of The Dayton Women’s Health Center,

employees of The Dayton Women’s

Health Center and physicians performing

services at The Dayton Women’s Health

Center.

In the same order, the court refused to enjoin

the defendants from using signs or communications that

make any personal reference to patients or employees

of the center.

Subsequently the plaintiffs voluntarily dismissed

their claims for damages, and all parties then submitted

the permanent injunction issue on the evidence

presented at the previous hearings.

On July 10, 1987 a final order was filed

permanently enjoining the named defendants and the

defendant class from:

1. Biocking or interfering with the access or

egress of any individual going to or from The

Dayton Women’s Health Center;

2. Blocking or interfering with the driveway of

The Dayton Women’s Health Center;

Page 7

i |

3. Blocking or interfering with the flow of traffic

on, from or to South Dixie Drive;

4. Using any sign larger than four feet in any

dimension, including signs resembling traffic

safety signs, i.€., stop signs, of using any sign

urging motorists to honk;

5. Speaking, chanting, yelling or ver

communicating in any manner designed, intended

or having the effect of reaching the staff or

atients or volunteers inside Dayton

omen’s Health Center; _

6. Trespassing on the property of The Dayton

Women’s E Health Center,

[No. 10579, 6]

7. Verbal communications, either in person or

telephone, with employees, staff or volunteers o

the Center unless such communications are with

the consent of such employees, staff or

volunteers;

8. Picketing in any form including parking,

parading or demonstrating at or within the

viewing distance of the homes of patients,

employees, staff or volunteers of Dayton

Women’s Health Center or of physicians

rforming services at The Dayton Women’s

ealth Center;

9. Picketing in any form including parkin

parading or demonstrating at or within t

viewing distance of the s of physicians

rforming services at The Dayton Women’s

ealth Center in groups of more than five

individuals;

Page 8

10. Picketing in any form including parking,

arading or demonstrating on the west side of

uth Dixie Drive within viewing of The Dayton

Women’s Health Center;

11. Picketing in any form includitig parking,

par or demonstrating within the viewin

distance of The Dayton Women’s Health Center

at afly location other than the sidewalk bordering

a of Dixie Drive in front of the

acility;

12. Picketing in any form including parking,

parading, or demonstrating within the viewing

distance of The Dayton Women’s Health Center

in groups of more than ten (10) individuals.

For purposes of this injunction, the term

"picketing" includes, but is not limited to, parading,

parking or any other form of demonstration. In fact,

"picketing" goes to the mere presence of an individual.

The defendants have appealed. They have

presented seven assignments of error. The first is:

THE TRIAL COURT ERRED TO THE

PREJUDICE OF THE DEFENDANTS

AND ALL PERSONS BY CERTIFYING

THE DEFENDANT CLASS AND

ISSUING AN INJUNCTION AGAINST

ITS MEMBERS.

Page 9

The order of January 15, 1987 determining that

this case may be maintained as a class action was a final

appealable order.

[No. 10579, 7]

Amato v. General Motors Corp. (1981), 67 Ohio St. 2d

253. No notice of appeal was filed from that order

within thirty days as required by App. R. 4(A). We

have held that the order determining that a case may

be maintained as a class action cannot be reviewed

after the time for an appeal from the certification order

has expired. State ex rel. Randolph Storm v. The City

of Dayton (Dec. 21, 1981), Mont. App. No. 7308,

unreported.

The first assignment of error is overruled.

The second assignment of error provides:

THE TRIAL COURT ERRED TO THE.

PREJUDICE OF THE DEFENDANTS

AND DEFENDANT CLASS MEMBERS

BY ISSUING UNCONSTITUTIONALLY

VAGUE AND CONTENT BASED

RESTRICTIONS ON EXPRESSIVE

ACTIVITY.

We agree with the appellants that the trial court

recognized that time, place and manner restrictions on

Page 10

w Hrs cometetled sil iil

expressive activity must be content neutral to meet

constitutional standards. United States v. Grace (1983),

461 U.S. 171. However, we disagree with the

appellants’ assertion that the injunction in this case was

a content based restriction simply because its

application was limited to the right-to-life advocacy

defendants and pro-choice advocates were not so

limited. Appellants have cited no authority in support

of their view and we have found none. The second

assignment of error is overruled.

In their third assignment of error, the appellants

State:

THE TRIAL COURT ERRED TO THE

PREJUDICE OF THE DEFENDANTS

AND DEFENDANT CLASS MEMBERS

BY ISSUING AN INJUNCTION BASED

UPON INADEQUATE FACTUAL

FINDINGS WHICH WERE NOT

SUPPORTED BY

[No. 10579, 8]

THE RECORD.

Under this assignment of error, the appellants

contend that the injunction fails to comply with the

Page 11

specificity requirements of Civ. R. 65(D). They also

contend that the findings of the trial court are contrary

to the manifest weight of the evidence.

In our view the record reflects substantial

compliance with Civ. R. 65(D) and the findings are

supported by competent evidence. Season Coal Co. v.

Cleveland (1984), 10 Ohio St. 3d 77.

The fourth assignment of error provides:

THE TRIAL COURT ERRED TO THE

PREJUDICE OF THE DEFENDANTS

AND DEFENDANT CLASS MEMBERS

BY BANNING VERBAL

COMMUNICATIONS WITH DWHC

EMPLOYEES.

Paragraph 7 of the injunction prohibits the

_ defendants from making "Verbal communications, either

in person or by telephone, with employees, staff or

volunteers of the Center unless such communications

are with the consent of such employees, staff or

volunteers."

We agree with the appellants that paragraph 7 is

not a time, place, or manner restriction. It in effect

prohibits all speech, including public issue speech, in

Page 12

. + eve eS

any forum, including a traditional public forum. This

prohibition of protected speech constitutes a prior

restraint on speech.

States and courts do not have the power to

prohibit peaceful political activity. NAACP v. Claiborne

Hardware Co. (1982), 458 U.S. 886.

[No. 10579, 9]

The United States Supreme Court has repeatedly

held that there is "a profound national commitment to

the principle that debate on public issues should be

uninhibited, robust, and wide open." New York Times

Co. v. Sullivan (1964), 376 U.S. 254 at 270. This case

also makes clear that restrictions in public issue

picketing are subject to careful scrutiny.

The fourth assignment of error is sustained.

The fifth assignment of error follows:

THE TRIAL COURT ERRED TO THE

PREJUDICE OF THE DEFENDANTS

AND DEFENDANT CLASS MEMBERS

BY IMPOSING NUMBERS AND

PLACE RESTRICTIONS UPON

PICKETING AT THE DWHC AND

THE PRIVATE OFFICES OF THE

PLAINTIFFS WHICH WERE NOT

SUPPORTED BY THE EVIDENCE

Page 13

AND WHICH ARE

UNCONSTITUTIONALLY

OVERBROAD AND VAGUE.

The appellants under this assignment of error are

objecting to what appears to us to be content neutral

time, place and manner restrictions.

The fifth assignment of error is overruled.

Akron Women’s Clinic v. Right to Life of Greater

Akron (May 14, 1985), summit App. No. 12394,

unreported. Akron Center for Reproductive Health v.

North Coast Christian Community (July 9, 1986),

Summit App. No. 12414, unreported.

The appellants sixth assignment of error

provides:

THE TRIAL COURT ERRED TO THE

PREJUDICE OF THE DEFENDANTS

AND DEFENDANT CLASS MEMBERS

BY IMPOSING A BAN ON ANY

PICKETING WITHIN VIEWING

DISTANCE OF THE HOMES OF

DWHC’S STAFF AND EMPLOYEES.

The total ban on residential picketing contained

in the February 27, 1987 amendment to the preliminary

injunction was not

[No. 10579, 10]

Page 14

i

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:

specifically included in the permanent injunction.

However, paragraph 8 of the permanent injunction

prohibited picketing at or within the viewing distance of

the homes of patients, employees, staff or volunteers of

the Center. The order further defined "picketing" in

broad terms to include "the mere presence of an

individual."

The record does not reflect where all of the

employees or any of the patients of the center reside.

There was testimony that the center has approximately

fifty patients per week and that the center has been

operating since 1973.

It is reasonably clear that one of the purposes of

the injunction in this case was to preserve privacy and

tranquility in the home. It is also reasonably clear that

speech involved in this case was essentially public issue

speech, Le., speech that participates in the process of

representative democracy.

It may be that the mere fact that streets are

residential might support more stringent restrictions on

public issue picketing than non-residential street;

Page 15

however, it is "clear that a public street does not lose its

Status as a traditional public forum simply because it

runs through a residential neighborhood." Frisby v.

Schultz (1988), 101 L.Ed 2d 420.

In Frisby v. Schultz, the Supreme Court upheld

an ordinance banning "picketing before or about the

residence or dwelling of any individual in the Town of

Brookfield." Employing the principle that legislatiou

should be given a narrow construction

[No. 10579, 11]

sO as to avoid constitutional difficulties, the Supreme

Court interpreted "picketing" to be "posting at a

particular place," to wit: a particular residence. So

interpreted, the picketing prohibited by the ordinance

would consist of “having the picket proceed on a

definite course or route in front of a [particular] home."

101 L.Ed. 2d 431.

General marching through residential

neighborhoods, or even walking a route in froht of an

entire block of houses, was held not to have been

prohibited by the ordinance. Id. The significance of this

Page 16

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interpretation of the ordinance was that, as so

interpreted, the ordinance permiited the more general

dissemination of a message. Only focused picketing

taking place solely in front of a particular residence was

prohibited. The Supreme Court held that the limited

prohibition contained in the ordinance appropriately

balanced the picketers’ free speech interests with the

resident’s right to privacy, because it achieved the latter

interest without impermissibly infringing the former.

In the case before us, the trial court’s express

definition of picketing, and the express scope of the

restrictions on picketing, are much broader. Picketing is

defined in the order to include the dissemination of

literature and oral speech, activities not by their nature

directed toward a particular residence. The order

prohibits picketing, so defined, "at or within the viewing

distance of the homes of patients * * *, employees * *

* and physicians * * * at The Dayton Women’s Health

{[No. 10579, 12]

Center."

Page 17

By its express terms, the trial court’s order is too

broad to be saved by a narrowing construction, as in

Frisby v. Schultz. The general, door-to-door residential

campaign, not directed at any particular residence,

envisioned in Frisby as being an available alternative

exercise of free speech rights, is not available in the

case before us, since the order, by its express terms,

prohibits such activity within viewing distance of the

homes of the patients, employees and physicians at the

_ Center, and the defendant has no way of determining

where those homes are located.

The injunction in this case in effect prohibits a

prudent defendant from public issue picketing on public

_ Street in residential areas, and as such, impermissibly

infringes upon a prudent defendant’s exercise of his

First Amendment right of free speech.

The sixth assignment of error is sustained.

The appellants last assignment of error is:

THE TRIAL COURT ERRED TO THE

DEFENDANT CLASS MEMBERS BY

IMPOSING VOLUME RESTRICTION ©

UPON THEIR SPEECH WHICH WERE

Page 18

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pr esiont sum BY ITS FINDINGS

AND OVERBROAD.

Paragraph 5 of the injunction prohibits the

defendants from “speaking, chanting, yelling or verbally

communicating in any manner designed, intended or

having the effect of reaching the staff or patients or

volunteers inside the Dayton Women’s Health

[No. 10579, 13]

Center."

This volume restriction of speech is content

neutral. It focuses on the manner of expression.

We agree with appellants, however, that as

written, paragraph 5 of the injunction is overbroad. It

prohibits verbal communications outside the Center that

are heard within, even though it is not reasonably

foreseeable that they would be heard within.

Appellants point out that the Center has been known to

open its windows during the summer months.

Faced with otherwise reasonable volume

restrictions that it found to be overbroad, the United

States Court of Appeals for the Ninth Circuit in a

] Page 19

recent case modified the order consistently with its

overbreadth concerns. Portland Feminist Women’s

Health Center v. Buhler (Oct. 6, 1988), 9th Cir. No. 86-

4102, 57 U.S.L.W. 2239. We ate permitted to do the

same in the case before us, by virtue of App. R. 12(A),

which provides that a court of appeals may modify the

judgment of a trial court. Accordingly, we elect to

modify paragraph numbered 5 of the injunction to read

as follows:

5. Speaking, chanting, yelling or toe

communicating in any manner designed or

intended to reach the staff or nts or

volunteers inside The Dayton Women’s

Health Center, or in such a volume that it

is reasonably apparent that the

communications, ate likely to be heard by

the staff or patients or volunteers inside

The Dayton Women’s Health Center.

So modified, the restrictions contained in

paragraph 5 are

[No. 10579, 14]

reasonable.

The last assignment of error is sustained.

The permanent injunction issued July 10, 1987 is

amended by amending paragr’ph numbered 5 as set

Page 20

forth above, and by deleting paragraphs numbered 7

and 8. As amended, the order is affirmed.

FAIN, J., concurs

KERNS, J., dissenting in part and concurring in

part:

While the residential character of a street may

support reasonable time, place, and manner restrictions,

it is beyond the power of government, including the

courts, to completely close a public forum to

constitutionally protected first amendment rights. Frisby

v. Schultz, 101 L.Ed 2d 420. Hence, this case turns

upon the reasonableness of the proscriptions contained

in the injunction entered by the Common Pleas Court

on July 10, 1987.

In balancing the first amendment rights and

privacy rights of the plaintiffs and defendants, I have

encountered no difficulty with the restrictions imposed

by the first, second, third, foarth, sixth, ninth, and

twelfth parts of the injunctive order, but in my opinion,

the fifth, seventh, eighth, tenth, and eleventh parts of

Page 21

the injunction are too vague and overbroad to survive

constitutional scrutiny. In fact, the notation in the

injunction order itself that picketing "goes to the mere

presence of an individual" appears to infringe

unnecessarily and impermissibly upon free speech.

[No. 10579, 15]

Accordingly, I would overrule the first and

second assignments of error and sustain the third,

fourth, fifth, sixth and seventh assignments of error.

Then, pursuant to Civ. R. 65(D), the cause should be .

reversed and remanded to the trial court for an

injunction which describes in detail the acts sought to be

restrained and gives specific guidance to the parties to

the action.

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The Supreme Court of Ohio

1990 TERM

To wit: June 20, 1990

Dayton Women’s

Health Center et al., :

Appellees, : Case No. 89-221

v. : MANDATE

David Enix et al.,

Appellants.

To the Honorable Court of Appeals

Within and for the County of Montgomery, Ohio.

The Supreme Court of Ohio commands you to

proceed without delay to carry the following judgment

in this cause into execution:

Judgment of the court of appeals is affirmed

consistent with the opimion rendered herein.

COSTS:

Motion Fee, $20.00, paid by Melinda Berry.

(Court of Appeals No. 10579)

The Supreme Court of Ohio

1990 TERM

To wit: June 20, 1990

Dayton Women’s

Health Center et al., :

Appellees, : Case No. 89-221

v. : JUDGMENT ENTRY

: CERTIFIED BY THE

: COURT OF APPEALS

David Enix et al., :

Appellants.

This cause, here on certification of conflict by the

Court of Appeals for Montgomery County, was

considered in the manner prescribed by law. On

consideration thereof, the judgment of the court of

appeals is affirmed consistent with the opinion rendered

herein.

It is further ordered that the appellees recover

from the appellants their costs herein op seca and

that a mandate by sent to the Court of Appeals for

Montgomery County to carry this judgment into

execution; and that a copy of this entry be certified to

the Clerk of the Court of Appeals for Montgomery

County for entry.

(Court of Appeals No. 10579)

S as J. er

Thomas J. Moyer

Chief Justice

DAYTON WOMEN’S HEALTH CENTER ET AL., APPELLEES,

Vv. ENIX ET AL., APPELLANTS.

[Cite as Dayton Women’s Health Ctr. v. Enix (1990), 52

Ohio St. 3d 67.]

Civil procedure - Class actions-Determination that

action shall or shall not be maintained as class

action is a final appealable order-Civ. R. 23(C)

and App. R. (A).

O.Jur 3d Appellate Review Sec. 64.

An order of a trial court, pursuant to Civ. R. 23(C),

determining that an action shall or shall not be

maintained as a class action, is a final appealable

order, and a party must appeal such an order

within thirty days pursuant to App. R. 4(A).

(Amato v. Genera] Motors Corp. [1981], 67 Ohio

St. 2d 253, 21 0.0. 3d 158, 423 N.E. 2d 452,

syllabus, approved and followed; Roemisch v.

Mutual of Omaha Ins. Co. [1974], 39 Ohio St. 2d

119, 68 O.O. 2d 80, 314

[52 Ohio St. 3d 68]

N.E. 2d 386, syllabus, approved and followed; R.C.

2505.02, construed and applied.)

(No. 89-221-Submitted February 14, 1990 - Decided

June 20, 1990.)

CERTIFIED by the Court of Appeals for Montgomery

County, No. 10579.

The Dayton Women’s Health Center, Inc.

("DWHC") is a non-profit corporation located in

Dayton, Ohio. The DWHC provides reproductive

health care services, including pregnancy tests, pelvic

examinations, medical evaluations, and early pregnancy

terminations (abortions).

Beginning in June 1986, defendants-appellants,

David Enix, Jim Mehaffie, David Mehaffie, H.F. Perkins

and other unnamed individuals began picketing at the

DWHC. Allegedly, appellants began trespassing,

threatening others with violence, and creating excessive

noise which interfered with the center’s operations.

Before the lawsuit was filed, there were as many as

seventy persons or more demonstrating at or around the

DWHC.

PAGE 2

On October 14, 1986, plaintiffs-appellees, Dayton

Women’s Health Center and its staff doctors, K.W.

Davis, M.D., and Robert Skipton, M.D., filed a

complaint, later amended, requesting that a preliminary

and permanent injunction be issued, as well as damages

assessed, against appellants. At that time, appellees

moved to have the case certified as a defendant class

action.

The trial court then conducted hearing son

appellants’ motion to strike the class allegations and

appellees’ motion for a preliminary injunction. On

January 15, 1987, the court certified a defendant class

defined as "all individuals protesting the activities

* *

conducted at the Dayton Women’s Health Center :

who have been personally served with this entry a *

and issued a preliminary injunction against appellants

which included the certified class. Subsequently, on

January 22, 1987, the court issued a supplemental

PAGE 3

order which detailed a procedure for adding members

to the defendant class. !

Next, appellees filed a motion to modify the

court’s injunction in order to conform to certain alleged

misconduct by appellants. On March 16, 1987, the

court issued its decision and entry supplementing and

modifying its original injunctive order.

After the filing of various contempt motions, and

motions to dismiss and to compel discovery, the

_ appellees voluntarily dismissed their clairis for money

damages pursuant to Civ. R. 41(A)(1), and allowed the

case to be submitted to the court on their request for a

permanent injunction on the evidence submitted at the

previous evidentiary hearings. On July 10, 1987, the

court issued a decision and entry ordering the

1 The trial court provided in its supplemental order that

"[t]he Dayton Women’s Health Center employ the

following procedure for adding members to the

defendant class:

"1. Any employee of The Dayton Women’s Health

Center is hereby designated as an agent of this Court

for the purpose of personally serving a copy of this

Entry and Preliminary Injunction on any individual

found to be protesting the activities gqnducted at The

Dayton Women’s Health Center. ¥

PAGE 4

oe

appellants, which included the defendant class members,

permanently enjoined in accordance

{52 Ohio St. 3d 69]

with the previous orders of the court. In its entry the

court also overruled appellants’ motion to decertify the

class. The appellants, who also represented the

defendant class members, then appealed the trial court’s

decision.

The court of appeals modified and affirmed the

permanent injunction, and further held that the

defendant class members failed to properly bring an

appeai of their class certification. Specifically, the court

held the January 15, 1987 order certifying the defendant

class was a final appealable order, which required the

class members to appeal within thirty days of the

certification under App. R. 4(A).

The court of appeals, finding its decision to be in

conflict with the decision of the Court of Appeals for

Hamilton County in Planned Parenthood Assn. of

Cincinnati, Inc. v. Project Jericho (June 27, 1986), No.

PAGE 5

C-860430, unreported, certified the record of the case to

this court for review and final determination.

Bieser, Greer & Landis and David C. Greer, for

appellees.

Thomas E. Grossmann and Robert Huffman, for

appellants.

Robert R. Melnick, Kenneth Shaw and John W.

Whitehead, urging reversal for amicus curiae,

Rutherford Institute of Ohio.

HOLMES, J. The sole issue certified for our

review is whether the certification of a defendant class

action is a final appealable order that must be

appealable within the time allotted under App. R.

4(A).2 For the reasons which follow, we decide that

such class certifications are final appealable orders

2 Although appellants argue several propositions of law

related to the range and extent of the permanent

injunction, we choose only to address the sole question

certified to us by the court of appeals.

PAGE 6

which must be appealed within thirty days pursuant to

App. R. 4(A).

"Final appealable orders" are defined in R.C.

2505.02, as follow:

"An order affecting a substantial mght in an

action which in effect determines the action and

prevents a judgment, an order affecting a substantial

right made in a special proceeding or upon a summary

application in an action after judgment, or an order

vacating or setting aside a judgment and ordering a new

trial is a final order that may be reviewed, affirmed,

modified, or reversed, with or withcut retrial. aieitlinn

(Later amended March 1987.)

This court addressed the issue of the

appealability of class certifications in Amato v. General

Motors Corp. (1981), 67 Ohio St. 2d 253, 21 O.O. 3d

158, 423 N.E. 2d 452, syllabus, by holding that "[a]n

order of a trial court, pursuant to Civ. R. 23(C)(1),

determining that an action may be maintained as a

[plaintiff] class action is a finai, appealable order,

pursuant to R.C. 2505.02." In deciding that class

PAGE 7

certifications are in effect special proceedings under

R.C. 2505.02, the Amato court announced a balancing

test to be applied in theses proceedings:

"This test weighs the harm to the ‘prompt and

orderly disposition of litigation,’ and the consequent

waste of judicial resources, resulting from the allowance

of an appeal, with the need for immediate review

because appeal after final judgment is not practicable."

Id. at 258, 21 O.O. 3d at 161, 423 N.E. 2d at 456.

Similarly, in Roemisch v. Mutual of Omaha Ins.

Co. (1974), 39 Ohio St. 2d 119, 68 O.O. 2d 80, 314 N.E.

2d 386, syllabus, this court held that an order denying

plaintiff class action status was a final appealable order

under

[52 Ohio St. 3d. 70]

R.C. 2505.02, since "such [an] order clearly affects a

‘substantial right’ of the class which ’in effect determines

the action and prevents a judgment’ adverse or

favorable to the class." (Emphasis sic.) Id. at 122, 68

O.O. 2d at 81, 314 N.E. 2d at 388. Therefore, pursuant

PAGE 8

to R.C. 2505.02 an appeal will lie directly from an order

certifying or denying class action status.

Although Amato and Roemisch dealt with the

appealability of plaintiff class actions, we find little

reason not to apply the holding in those cases to

defendant class actions. Clearly, the potential plaintiff

or defendant will be equally prejudiced in asserting his

or her rights in a defendant or plaintiff class action

depending on the certification ruling by the trial court.

See, e.g, Planned Parenthood Assn. of Cincinnati v.

Project Jericho (1990), 52 Ohio St. 3d 56, ss NE. 2d

___. (Plaintiff requested that defendant class action be

certified in order to enjoin the defendant class from

engaging in certain conduct.) Usually, defendant class

actions are requested in suits seeking injunctive relief

under Civ. R. 23 (B)(2) when there are several

defendants who have been charged with a common

responsibility for implementing or enforcing a particular

challenged code provision or who have otherwise acted

in common under an industry-wide practice or collective

bargaining agreement, or have had some _ other

PAGE 9

interrelationship to one another that bears directly on

the challenged conduct in the litigation. 1 Newberg,

Newberg on Class Actions (2 Ed. 1985) 133, Section

3.02. Both plaintiff and defendant class actions arise

because of the litigation strategies adopted primarily by

the plaintiffs counsel under’ the particular

circumstances. Furthermore, "[w]hether the action is

claimed to be a class action is solely of plaintiff's

choosing, although the defendant may request class

treatment in unusual circumstance." Alpert, Class

Action Manual (National Consumer Law Center 1977)

190, quoted in Newberg on Class Actions, supra, at fn.

23.

Appellants assert that although a_ class

determination is a final appealable order, "an immediate

appeal from an order certifying a defendant class is

permissive, not mandatory." We disagree. Ohio’s App.

R. 4(A) states in pertinent part that: "In a civil case the

notice of appeal required by Rule 3 shall be filed with

the clerk of the trial court within thirty days of the date

of the entry of the judgment or order appealed from. :

PAGE 10

a. (Emphasis added.) Clearly, App. R. 4(A) requires

that an appeal be filed within thirty days of a final

appealable order.? Thus, an order of a trial court,

pursuant to Civ. R. 23(C), determining that an action

shall be maintained as a class action, is a final

appealable order, and a party must appeal such an

order within thirty days of the date of entry pursuant to

App. R. 4(A).

In the case sub judice appellants failed to appeal

the January 15, 1987 certification of the defendant class.

Instead, they chose to appeal the propriety of the

certification on July 10, 1987, when the trial court issued

a decision and entry permanently enjoining the

defendant class members. Consequently, appellants

waived their right to chalienge the class certification on

appeal.4

3 We recommend that the rules Advisory Committed

appointed by this court review whether an amendment

to App. R. 4(A) should be adopted in order for a party

to have the option of appealing an interlocutory final

appealable order after final judgment is rendered in a

4 Under App. 3(A) the court of appeals is permitted

to dismiss cases where appellants have failed to timely

file their appeals. App.R.3(A) provides: "An appeal as

PAGE 11

[52 Ohio St. 3c. ~

Therefore, for the foregoing reasons. the decision

of the court of appeals is affirmed as to the issue on

certification.

Judgment affirmed.

Moyer, C.J., WrRiGHT and H. Brown, JjJ.,

concur.

H. Brown, J., concurs separately.

Sweeney, Douglas and Resnick, JJ., dissent.

H. Brown, J., concurring. | join the syllabus and

opinion. An order certifying a class action, if it affects a

substantial legal right, qualifies as a special proceeding

under R.C. 2505.02 and is thus appealable. This was

the holding in Amato v. Genera! Motors Corp. (1981),

67 Ohio St. 2d 253, 21 O.O0. 3d 158, 423 N.E. 2d 452.

That decision has stood for nine years and has neither

of right shall be taken by filing a notice of appeal with

the clerk of the trial court within the time allowed by

Rule 4. Failure of an —_—- to take any step other

than the timely filing of a notice of appeal does not

affect the validity of the 0 ei but is ground only for

such action as the court of appeals deems apprgpriate,

which may include dismissal of the appeal.

PAGE 12

undermined the stability of the law nor bred great

confusion. I am not prepared to overrule Amato.

I write separately because I believe the Ohio law

with respect to final appealable orders presents a

dilemma when applied to class action issues. If the

order certifying a class action is not immediately

appealable, the results of a protracted, complex trial

(which class actions usually are) could by nullified by an

error in the certification which bears no relationship to

the validity of the claims of class members (perhaps

numbering into the thousands) on the merits.

On the other hand, if certification orders are

iminediately appealable, an appeal could be used as a

tool to delay proceedings.

There is the further problem presented by

amendments to class certification. Each time a

modification is made to a class order, is_ that

appealable? I do not read today’s decision as a

definitive resolution of all appealability questions which

may arise from. class action determinations.

PAGE 13

The problem, as applied to class actions, stems

from the requirement in Ohio that an order be

classified as appealable (in which case an appeal must

be taken or lost) or nonappeaiable (in which case no

appeal may be taken) regardless of the desirability of

having the issue determined before the resources of the

parties and the court are expended on the merits.

What is needed is a rule which would make

immediate appeals of class certifications permissible but

not mandatory. Discretion should be given to the trial

judge to determine when the interests of justice and

judicial economy will be served by review of a class

action order before launching into the trial on the

merits.

Such an approach is permitted in the federal

courts. Federal district courts may certify for appeal to

the courts of appeals an order certifying a class,

pursuant to Section 1292, Title 28, U.S. Code, which

States in part:

PAGE 14

"(b) When a district judge, in making in a civil

action an order no otherwise appealable under this

section, shall be of the opinion that such order involves

a controlling question of law as to which there is

substantial ground for difference of opinion and that an

immediate appeal from the order may

[52 Ohio St. 3d. 72]

materially advance the ultimate termination of the

litigation, he shall so state in writing in such order. The

Court of Appeals which would have jurisdiction of an

appeal of such action may thereupon, in its discretion,

permit an appeal to be taken from such order, if

application is made to it within ten days after the entry

of the order: Provided, however, That application for

an appeal hereunder shall not stay proceedings in the

district court unless the district judge. or the Court of

Appeals or a judge thereof shall so order."

Other states have adopted rules which attempt to

solve the peculiar "appealability" problems presented in

class actions. See, e.g, Ar. App. R. 2(a)(9); Ga. Ct.

PAGE 15

App. R. 29; Ill. Supreme Court Rule 308; Ind. App. R.

4(B)(6); and Tex. App. R. 43(a).

I urge the consideration of a rule in Ohio which

would avoid the necessity of choosing between the

positions taken in today’s case by the majority and

dissenting opinions. Until such time as a rule change is

accomplished, however, I believe that we should adhere

to precedent and that orders certifying a class action are

appealable under the "special proceeding" language of

R.C. 2505.02.

Douctas, J., dissenting. Amato v. General

Motors Corp. (1981), 67 Ohio St. 2d 253, 21 O.O. 3d

158, 423 N.E. 2d 452, was improperly decided by this

court and the majority’s continued reliance upon it

breeds confusion and promotes uncertainty in an area

of law which is in great need of clarification and

stability. In my judgment, Amato should be overruled,

and [| stand ready to do so.

R.C. 2505.03(A) states, in relevant part, that

"[e]very final order ~ ae may be reviewed on appeal °

* *

"

PAGE 16

R.C. 2505.02° defines what types of orders are

final: (1) an order affecting a substantial right in an

action which in effect determines the action and

prevents a judgment; (2) an order affecting a substantial

right made in a special proceeding or made upon

summary application after judgment; or (3) an order

vacating or setting aside a judgment or granting a new

trial See Chef Italiano Corp. v. Kent State Univ.

(1989), 44 Ohio St. 3d 86, 87-88, 541 N.E. 2d 64, 67.

The issue presented in the case at bar concerns only the

second part of R.C. 2505.02 - an order affecting a

substantial right made in a special proceeding or made

upon summary application after iudgment.

The court in Amato announced a "balancing test"

to be utilized in determining whether an order is made

in a "special proceeding." The balancing test "* * *

5 R.C. 2505.02 provides in relevant part:

"An order that affects a substantial right in an

action which in effect determines the action and

prevents a judgment, an order that affects a substantial

right made in a special proceeding or upon a summary

application in an action after judgment, or an order that

vacates or sets aside a judgment or grants a new trial is

a final order that may be reviewed, affirmed, modified,

or reversed, with or without retrial."

PAGE 17

weighs the harm to the ’prompt and orderly disposition

of litigation, and the consequent waste of judicial

resources, resulting from he allowance of an appeal,

with the need for immediate review because appeal

after final judgment is not practicable." Jd. at 258, 21

0.0. 3d at 161, 423 N.E. 2d at 456. Certainly, this

court can devise a definition for "special proceeding"

which will not depend upon which way the Amato scale

of justice tips on any given day. The Amato balancing

test is comprised of nothing

[52 Ohio St. 3d. 73]

more than meaningless verbiage to the practicing

attorney who has received an order and must decide

whether or not to file a notice of appeal.

According to Amato, a proceeding is defined as

"special" (or not "special") only when a majority of a

reviewing court finds that the balance tips in favor of

review, and when the reviewing court is a court of

appeals even that decision can be changed by this court

on appeal. If the balance tips in favor of review, any

order affecting a substantial right which was rendered in

PAGE 18

a civil proceeding is a final appealable order which must

be appealed within thirty days.® What about members

of the bar in this state who never timely file notices of

appeal regarding an order made in a _ proceeding

thinking all the while that the Amato balancing test

would tip in one direction and then, sometime

thereafter, a reviewing court rules that the proceeding

was "special"? The answer is, of course, that appeal

rights are forever lost and colorable claims for

malpractice arise. Hence, there are two lessons to be

learned from Amato. First, every order that affects a

substantial mght in any proceeding should immediately

be appealed since what may be defined as an order

made in a "special proceeding" may change day to day

under Amato. In this vein, Amato mekes the filing of a

notice of appeal like attempting to shoot a moving

target. The other lesson Amato teaches us is that the

payment of malpractice insurance. premiums for

practicing attorneys is essential.

6 See App. R. 4{A).

PAGE 19

in my judgment, this court should strive to

promote clarity and stability in the law. Today’s

majority opinion simply runs afoul of these notions by

relying on Amato.

The General Assembly has determined that

orders affecting a substantial right made in a "special

proceeding" are final orders which may be appealed.

On occasion, this court has made certain proceedings

"special proceedings" regardless of whether the given

proceeding was "special" at all. Today, the majority

takes what may be the ultimate step in this dangerous

direction.

A "special" proceeding is a proceeding which is

unusual or extraordinary. See eg. Black’s Law

Dictionary (5 Ed. 1979) 1253. In State v. Thomas

(1980), 61 Ohio St. 2d 254, 15 O.0. 3d 262, 400 N.E. 2d

897, paragraph one of the syllabus, this court held that

denial of a motion to dismiss a criminal charge, based

upon a claim of double jeopardy, is a_ special

proceeding. This court has also granted a party the

right to immediately appeal an adverse ruling on a

PAGE 20

discovery matter, as an order made in a special

proceeding. See Humphrey v. Riverside Methodist

Hospital (1986), 22 Ohio St. 3d 94, 22 OBR 129, 488

N.E. 2d 877. Now the majority of this court holds that

an order, pursuant to Civ. R. 23, granting class action

status is an order made in a special proceeding.

There is absolutely nothing "special" about

proceedings under the Rules of Criminal or Civil

Procedure. There is nothing unusual or extraordinary

about proceedings that are a part of our everyday civil

or criminal practice. ?

As I have stated on a previous occasion, |

believe that:

"A special proceeding is an action

[52 Ohio St. 3dl 74]

not recognized at common law or part of our standard

civil practice. It is one that has been brought about by

specific legislation which creates a special type of action.

7 For an additional case, not based on either the Civil

or Criminal Rules, creating yet another “~~ ry to the

final appealable order rule, see Tilberry (1986),

24 Ohio St. 3d 117, 24 OBR 308, 493 N N. E. 2d 54.

PAGE 21

Examples would be forcible entry and detainer,

deciaratory judgment, appropriation or aire oe

arbitration." Stewart v. Midwestern Indemn. Co. (1989),

45 Ohio St. 3d 124, 128, 543 N.E. 2d 1200, 1204

(Douglas, J., dissenting).

Therefore, a special proceeding is an action: (1)

which has been brought about by specific legislation

creating a special type of action; (2) and is either (a)

not recognized at common law, or (b) not part of our

standard civil (or criminal) practice. An order granting

certification of a defendant (or plaintiff) class does not

meet this definition.

Class actions are governed by Civ. R. 23. Civ. R.

23 was created not by specific legislation but, rather,

was adopted in Ohio by legislative inaction. See Section

5(B), Article IV, Constitution. As such, a class action

proceeding is not a special proceeding. Further, merely

for purposes of discussion, the class action proceeding

in question is part of our standard civil practice and a

proceeding in the nature of granting certification of a

defendant class did exist at common law in the form of

PAGE 22

equitable bills of peace.® Accordingly, the proceeding

in question not only fails the first prong of the special

8 At common law, a bill of peace could be sought to

avoid a multiplicity of legal actions. The bill provided a

mechanism in which similar claims asserted by a

plaintiff against a multitude of defendants could be

determined in one equity suit. See 1 Pomeroy Equity

Jurisprudence © Ed. 1941), Sections 245 et seq;

Chafee, Bills of Peace With Multiple Parties (1932), 45

Harv. L. Rev. 1297 ("The King of Brobdingnag gave it

for his opinion that, whoever could make two ears of

corn, or two blades of grass to grow upon a spot of

ground where ond one grew before, would deserve

better of mankind, and do more essential service to his

country than the whole race of fang ee put together.’

In matters of justice, however, the benefactor is he who

makes one lawsuit grow where two grew before. A

potent device for this purpose is the bill of peace in

rere My and 27 American Jurisprudence 2d (1966)

574-575, Equity, Section 51.

The granting of the bill of peace would, in effect,

result in the joinder of multiple defendants and the

plaintiffs claims against all defendants could be

maintained in one consolidated lawsuit. The granting of

a bill of peace was, therefore, much like the granting of

certification of a defendant class. See Civ. R. 23.

Indeed, it has been said that Fed. R. Civ. P. 23 is a

product,of the equitable bill of peace:

Defendant class actions have a long and

rich history in English common law. The earliest class

actions, or bills of peace in the nature of class actions,

brought in English Chancery Courts of the seventeenth

and eighteenth centuries were largely defendant class

actions in which the plaintiff needed to join numerous

parties defendant in order to receive an effective

remedy., .

"Defendant class actions have a long history in

the United States. As early as 1853, the Supreme court

PAGE 23

proceeding test outlined above (which is dispositive of

the matter) but also fails both alternative parts of the

second prong.

I agree with today’s majority that the denial of a

class certification is ap-

[52 Ohio St. 3d. 75]

pealable as a final order. In my view, the issue

concerning the denial of class certification was not

properly before this court given the facts of the case

sub judice, but I pass judgment on the issue only to

clarify the distinction between granting and denying

Class certification.

As indicated, there are three types of orders

which are final. An order granting or denying class

certification is not a final order of the second type (an

in Smith v. Swormstedt \Goerks , 97 U.S. (16 How.) 288]

upheld an action by a plaintiff class against a defendant

Class noting the well-established common law rule which

permits such class suits. se neeyring | for plaintiff and

defendant classes was codified in Federal Equity Rule

38, recodified in Federal Rule of Civil Procedure 23,

and carried forward to current Rule 23 in the 1966

amended version." (Footnotes omitted.) Newberg, 1

ei on Class Action (2 Ed. 1985) 373-375, Section

4.45.

PAGE 24

order affecting a substantial right made in a special

proceeding) because such an order is made in a

proceeding which is not “special.” Nor is an order

granting class certification a final order of the first type

(an order affecting a substantial right in an action which

in effect determines the action and prevents a

judgment). An order allowing a _ lawsuit to be

maintained as a class action does not determine the

action or prevent a judgment. The order simply does

neither but, rather, the order granting class status is a

necessary step to a final determination of the class

action lawsuit.

Conversely, an order denying class certification is

a final order of the first type because the order affects

a substantial right of the class and in effect determines

the action and prevents a judgment for the class. See

Roemisch v. Mutual of Omaha Ins. Co. (1974), 39 Ohio

St. 2d 119, 122, 68 0.0. 2d 80, 81, 314 N.E. 2d 386,

388. Therefore, an order denying class certification is a

final order of the first type, but not the second;

PAGE 25

whereas, an order granting class certification is not a

final order of either the first or second type.

Finally, even if I were to accept the balancing

test of Amato as a determinant of whether a given

order is made in a special proceeding, I believe that the

test as applied to orders granting class certification

balances in favor of no immediate review. If an order

granting class certification is immediately appealable,

the class action lawsuit may never be finally litigated. A

certification order can be altered, amended, modified or

vacated and each change in the class or creation of a

new subclass would result, if objected to, in numerous

new appeals. Delays in the class action lawsuit could

last indefinitely. Such delays and the consequent waste

of judicial resources, if the class is decertified or the

order is vacated, weigh heavily against permitting

immediate appeals. On the other hand, review after

final judgment is practicable, in that it would promote

the prompt and orderly disposition of the litigation, and

far fewer judicial resources would be used, with none

being wasted.

PAGE 26

For the foregoing reasons, I dissent.

SWEENEY, J., concurs in the foregoing dissenting

opinion.

ALICE RosBIE RESNICK, J., dissenting. |

respectfully dissent from the majority’s holding that an

order, "pursuant to Civ. R. 23(C) determining that an

action shal/ or shall not be maintained as a class action,

is a final appealable order as. (Emphasis added.) A

ruling that an action may be maintained as a class

action is totally different from the denial of certification.

Hence, I cannot initially accept that they both should be

treated the same on the issue of appealability as final

orders.

The majority bases its holding on Amato v.

General Motors Corp. (1981), 67 Ohio St. 2d 253, 21

O.O. 3d 158, 423 N.E. 2d 452, wherein it was held that

certification affects a substantial right and is made in a

special proceeding. I agree that class c* tification

affects a substantial right. However, I do not agree that

PAGE 27

it is done in a "special proceeding." Additionally, I can

find no

[52 Ohio St. 3d. 76]

support for such a holding concerning class certification

either in Ohio or other jurisdictions.

Recently this court determined that an order in a

declaratory judgment action pursuant to R.C. Chapter

2721 affected a substantial right in a special proceeding

in General Acc. Ins. Co. v. Insurance Co. of North

America (1989), 44 Ohio St. 3d 17, 540 N.E. 2d 266.

However, a declaratory judgment is an independent

action determining legal rights. This is not the case

with certificet.on of a class action, which is a

preliminary procedure. To term a_ preliminary

procedure provided by rule a special proceeding would

consequently have broad ramifications and open the

door to a flood of piecemeal appeals.

Consequently, if class certification is not a special

proceeding, in order for it to be a final order, we must

consider the remaining criteria found in R.C. 2505.02

which define final orders other than ones made in

PAGE 28

special proceedings. R.C. 2505.02 defines "final order"

as including "[a]n order that affects a substantial right in

an action which in effect determines the action and

prevents a judgment * * * ." Class certification does

neither. We simply have to look to Civ. R. 23(C)(1),

which provides as follows:

"As soon as practicable after the commencement of an

action brought as a class action, the court shall

determine by order whether it is to be so maintained.

An order under this subdivision may be conditional, and

may be altered or amended before the decision on the

merits." An order which may be changed or modified is

interlocutory.

“An interlocutory judgment is provisional or

preliminary; it is made before a final decision, for the

purpose of ascertaining a matter of law or fact

preparatory to a final judgment, or it determines some

preliminary or subordinate point or plea, or settles

some step, question, or default arising in the progress of

the cause, but does not adjudicate the ultimate rights of

the parties or finally put the case out of court.

PAGE 29

x * *

For some purposes, a judgment is not regarded

as final until expiration of the period which the

judgment remains within the inherent power of the

court to modify or vacate igi Pi (Footnotes omitted;

emphasis added.) 47 American Jurisprudence 2d (1969)

123-124, Judgments, Section 1053.

From this it can be seen that certification of a

class neither determines the action nor prevents a

judgment. At any time during the proceedings the court

can decertify part or all of the class. It would be wholly

inconsistent with a considerable line of cases to hold

that if a party opposing certification does not appeal

within thirty days of certification its right to appeal is

lost. The reason is that at any time during trial of the

certified class action the court may change its previous

order. There would be no reason for a party to

attempt an appeal from such an obviously interlocutory

order.

Other jurisdictions have held that certification of

a class action is not immediately appealable. The court

PAGE 30

in Pincus v. Mut. Assurance Co. (1974), 457 Pa. 94, 321

A. 2d 906, stated:

"We note at the outset that an order permitting a

Suit to proceed as a class action is not only an

interlocutory order, but also that it is the type of

interlocutory order which is not usually appealable.

Piltzer v. Independence Federal Savings and Loan

Association, 452 Pa. 402, 319 A. 2d 677 (1974). See

also Thill Securities Corp. v. New York Stock Exchange,

469 F.2d 14, 17 (7th Cir. 1972); Walsh v. Detroit, 412

F.2d 226 (6th Cir. 1969); 9 J. Moore, Federal Practice

110.13[9], at 184-87 (2d Ed. 1973)." Id. at 96-97, 321 A.

2d at 908.

"Since the appellants’ claim is, in

[52 Ohio St. 3d. 77]

reality, an objection to the propriety of the class action,

it can properly be resolved on appeal after final

judgment below. To hold otherwise would encourage

piecemeal determinations and consequent protraction of

litigation. Piltzer, supra." Id. at 98, 321 A. 2d at 909.

PAGE 31

Arizona has a statute similar to Ohio’s as to final

judgments. = Section 12-2101, Ariz. Rev. Stat.

Additionally, Arizona R. Civ. P. 23(c)(1) is identical to

Ohio’s in that it provides that such an order "may be

altered or amended before the decision on the merits."

Arizona has also held that denial of a motion for

decertification of a class is an interlocutory order and

cannot be immediately appealed since it neither

determines the action nor prevents a judgment. See

Eaton v. Unified School Dist. No. 1 of Pima Cty. (App.

1979), 122 Ariz. 391, 595 P. 2d 183, affirmed (1979),

122 Ariz. 377, 595 P. 2d 169.

This court in Roemisch v. Mutual of Omaha Ins.

Co. (1974), 39 Ohio St. 2d 119, 68 O.O. 2d 80, 314 N.E.

2d 386, held in the syllabus that: "An order of a trial

court, pursuant to Civ. R. 23(C)(1), determining that an

action may not be maintained as a class action is a final,

appealable order, pursuant to R.C. 2505.02." Other

jurisdictions have similarly held that denial of class

certification is final. See Darr v. Yellow Cab Co.

(1967), 67 Cal.2d 695, 63 Cal. Rptr. 724, 433 P. 2d 732

PAGE 32

(the California Supreme Court concluded that a class

action termination order was in legal effect a final

judgment from which an appeal lies); Reader v.

Magma-Superior Copper Co. (1972), 108 Ariz. 186, 494

P.2d 708; McConnell v. Commonwealth of Pennsylvania,

Dept. of Rev. (1983), 503 Pa. 322, 469 A. 2d 574; In re

Estate of Freedman (1982), 307 Pa. Super. 413, 453 A.

2d 651. The reasoning that such orders are final is

usually based upon the "death knell" theory which was

rejected in Coopers & Lybrand v. Livesay (1978), 437

U.S. 463, 477, wherein the court stated that:

"Accordingly, we hold that the fact that an

interlocutory order may induce a party to abandon his

claim before final judgment is not sufficient reason for

considering it a final decision’ within the meaning of

1291 [, Title 28, U.S.]." Thus, this issue was settled in

the federal courts. The Livesay decision also

commented on the fact that under Fed. R. Civ. P. 23

(c)(1) an order involving class status may be “altered or

amended before the decision on the merits." Jd. at 469,

PAGE 33

fn. 11. Even if a denial of certification of a class were

immediately appealable on the basis that the denial

prevented a judgment and was a death knell to the

action, there is no basis for similar treatment of a grant

of certification.

In the instant case the trial court certified the

class of defendants. The defendants proceeded with the

case and did not attempt to seek an immediate appeal.

The majority now chooses to affirm the dismissal of

defendants’ appeal, relying on the holding of Amato,

supra.

If we were to accept that class certification is a

special proceeding we still would not have a final

appealable order since the trial court pursuant to Civ.

R. 23(C)(1) may change its order of certification at any

time prior to a decision on the merits. Such an order is

clearly interlocutory and cannot be considered a final

appealable order under R.C. 2505.02. It is interesting

to note that an Illinois Supreme Court Rule succinctly

PAGE 34

——7=—

accomplishes what this court is trying to do through

case law.?

[52 Ohio St. 3d. 78]

To allow this appeal now is for this court to engage in

judicial legislation. R.C. 2505.02 was never intended to

apply to actions such as the cne before this court.

Based upon the foregoing, I would allow the

appellant the right to raise the issue of class

certification and would decide this issue upon the

merits.

9 The Illinois Supreme Court has adopted Supreme

Court Rule 308 which allows interlocutory appeals in

certain circumstances.

"Interlocutory Appeals by Permission

"(a) Requests. en the triai court, in making

an interlocutory order not otherwise appealable, finds

that the order involves a question of law as to which

there is substantial ground for difference of opinion and

that an immediate appeal from the order may

materially advance the ultimate termination of the

litigation, the court shall so state in writing, identifying

the question of law involved. Such a statement may be

made at the time of the entry of the order or thereafter

on the court’s own motion or on motion of any party.

The Appellate Court may thereupon in its discretion

allow an appeal from the order." Cf. Section 1292(b),

Title 28, us. Code.

PAGE 35