Petition for Writ of Certiorari — Hahn v. Villas of St. Therese Assisted Living, Inc.

Supreme Court, U.S.

FILED

O4 170 JUL 26 2004

No. 04- OFFICE OF THE CLERK

In the

Supreme Court of the United States

Marie Hann,

Petitioner,

V.

THE VILLAS AT ST. THERESE

ASSISTED LIvING, INC.,

Respondent.

On Petition for a Writ of Certiorari

to the Ohio Supreme Court

PETITION FOR WRIT OF CERTIORARI

Mariz HAHN

pro se

1267 WESTFALL AVENUE

CoLumsus, OH 43227

(614) 237-3524)

Petitioner pro se

Becker Gallagher Legal Publishing, Inc.

800.890.5001

i

QUESTIONS PRESENTED FOR REVIEW

Whether a state statute, O.R.C. 2505.02(A)(2), which is

in confiict with decisions of the United States Supreme Court,

can preclude immediate appeal of a preliminary injunction

which restrains rights protected by U.S.C.A. Constitutional

Amendment I?

Whether O.R.C. 2505.02(A)(2) is overbroad and/or

unconstitutional as it effects parties not before the Court?

Whether residents of the State of Ohio are entitled to due

process and equal protection of the laws with regard to access

to the Courts of Ohio to appeal preliminary injunctions which

restrain rights protected by U.S.C.A. Constitution

Amendment I?

ii

PARTIES TO THE PROCEEDINGS

All parties do not appear in the caption of the case on the

cover page. A list of all parties to the proceeding in the court

whose judgment is the subject of this petition is as follows:

Petitioner

Marie Hahn

Respondents

The Villas at St. Therese Assisted Living, Inc.; Bishop

James A. Griffin; and the Diocese of Columbus.

TABLE OF CONTENTS

Questions Presented for Review ................. I

a re il

ee eee lil

eT eT eee ee eee eee Vv

Petition for Writ of Certiorari ................. 1

ee eee l

Statement of Jurisdiction ..................... 1

Constitutional Provisions Involved .............. l

Statutory Provisions Involved .................. 2

RO gc we ince ewes’ 5

I. cpuervenw OF Gee Case... ww. wes 5

II. Background of the Case .............. 6

ee eee ee 11

Reasons For Granting the Petition .............. 16

REI AREY ap es er ge 25

iV

Appendix

Appendix A

Entry of Dismissal of the Appeal of the Supreme

Court of Ohio, Dated April 28, 2004 .......... la

Appendix B

Entry of the Supreme Court of Ohio,

See OE ly GD vk as ewe Ree awe 3a

Appendix C

Journal Entry of the Court of Appeals of Ohio, Tenth

Appellate, December 18, 2003 .............. 4a

Appendix D

Journal Entry of Dismissal of the Court of Appeals of

Ohio, Tenth Appellate District,

Dated November 26, 2003 ................. 6a

Appendix E

Order of Preliminary Injunction granted by the

Franklin County Court of Common Pleas, Columbus,

Pe 6 ch eRe RO OEE eae eee eee 8a

Vv

TABLE OF AUTHORITIES

Cases

Aptheker v. Secretary of State, 378 U.S. 500

RR RR Sete Beine tea oe Ale pan re tae 23

Baird v. State Bar of Arizona, 401 U.S. 1 (1971) .. 18

Bd. of Drs. of Rotary Int’l. v. Rotary Club, 481 U.S.

Eh eRe Re ek ee 18

Broadrick v. Oklahoma, 413 U.S. 601 (1973)..... 22

City Council v. Taxpayers for Vincent, 466 U.S. 789

SNE, 8. ia cae wee be ee eee De 22

Cooper v. Aaron, 358 U.S. 1 (1958) .......... 21

Elrod v. Burns, 427 U.S. 347 (1976) .......... 17

Erznoznik v. City of Jacksonville, 422 U.S. 205

EE 6.6's-6- 5 o-kie-0 ds Oe SE 20, 22

Freedman v. Maryland, 280 U.S. 51 (1965) ... 16, 17

Healy v. James, 408 U.S. 169 (1972) ......... 18

Internatl. Diamond v. U.S. Diamond, 70 Ohio App.

ee Ce os ou oe ae ee ee eee 19

Kenmen Engineering v. City of Union, 314 F.3d 468

Cer al, MD xk as 6 ec ews eae tee Vee 21

Keyishian v. Board of Regents, 385 U.S. 589

2, eran eeu ene ner eram ae bret” 23

Louisiana ex rel.Gremillion v. NAACP, 366 U S. 293

SE eS vas ee KK A Re es 18

Maness v. Myers, 419 U.S. 449 (1975) ......... 25

Marsh v. Alabama, 326 U.S. 501 (1945) ........ 24

Lita a aOR

vi

M.1.C. Ltd. v. Bedford Township, 436 U.S. 1341

SE kk a a eR ee ee ee 6, 16

NAACP v. Button, 371 U.S. 415 (1963) ........ 18

NAACP vy. Alabama ex rel. Patterson, 357 U.S. 449

—e ign Aah eae ee Pyare CTT re ere 18

National Socialist Party of America v. Village of

Skokie, 432 U.S. 43 (1977) ......... 6, 13, 16, 19

Nebraska Press Assn. V. Stuart, 423 U.S. 1319

SRE 44 6 kes Cee ee eee 16

New York Times Co. V. United States, 403 U.S. 713

OUTED des 8 eR 17

Polikoff v. Adam, 67 Ohio St.3d 100 (1993) ..... 20

Roberts _v. United States Jaycees, 486 U.S.

es oe eee ee eee 13, 18, 22

United States v. Peters, 5 Cranch 115 .......... 22

United States v. Robel, 389 U.S. 258 (1967) ..... 23

Constitutional Provisions 1

i. Se, Sg SEN eee eee I, 1-2

ea | a OS eee 2

a. Ge OR. 'S, GS 6 ve Se See 2

Statutes

ae abla. Oe ae: 6c kh ce eee l

Ohio Rev. Code § 2505.02(A)(2) ........ 6, 13, 19

Ohio Rev. Code § 2505.02(A)(1)(2) .......... y

Ohio Rev. Code § 2505.02(B)(2) .......... 3, 4,7

ase Rev. Code § 3721.00D)......... 3,4, 7,9

Ohio Rev

Ohio Rev

Ohio Rev

Ohio Rev

Ohio Rev

Vil

. Code § 3721.13(A)(15)

. Code § 3721.13(A)(21)

. Code § 3721.13(B) ...

. Code § 3721.13(C) ...

. Code § 3721.14(E)(3)

eee passim

eres Dy De By Oe

3, 4, 7, 9, i2

l

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition this Court for a writ of

certiorari to review the judgment rendered in this case by the

Supreme Court of Ohio.

OPINIONS BELOW

The opinions of the lower courts in this case have not been

published. The October 14, 2003, Order of Preliminary

Injunction of the Franklin County Court of Common Pleas is

reprinted at App. 8a; the November 26, 2003 Journal Entry

of Dismissal of the Court of Appeals of Ohio Tenth Appellate

District, is reprinted at App. 6a; the December 18, 2003

Journal Entry of the Court of Appeals of Ohio, Tenth

Appellate District is reprinted at App. 4a; the Entry of the

Supreme Court of Ohio is reprinted at App. 3a; the Entry of

Dismissal of the Supreme Court of Ohio is reprinted at

App. la.

STATEMENT OF JURISDICTION

The Supreme Court of Ohio entered its final judgment

denying Petitioner Marie Hahn’s appeal of a preliminary

injunction, on April 28, 2004. Petitioner respectfully invokes

this Court’s jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the following provisions of the United

States Constitution:

Amendment I - Freedom of Religion, Speech and Press;

Peaceful Assembly; Petition of Grievances:

2

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress

of grievances.”

Amendment XIV, Section I, which provides in relevant

part:

“No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty, or property; without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

Article VI, Clause 2. Supreme Law of Land:

“This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land,; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.”

STATUTORY PROVISIONS INVOLVED

This case involves the interpretation and application of

Ohio Revised Code § 2505.02. Specifically

§§ 2505.02(A)(1)(2) and 2505.02(B)(2) are the relevant

statutes in the Petition.

’

§ 2505.02:

“(A) AS USED IN THIS SECTION:

(1) ‘SUBSTANTIAL RIGHT” MEANS A RIGHT

THAT THE UNITED STATES CONSTITUTION,

THE OHIO CONSTITUTION, A STATUTE, THE

COMMON LAW, OR A RULE OF PROCEDURE

ENTITLES A PERSON TO ENFORCE OR

PROTECT.

(2) ‘SPECIAL PROCEEDING” MEANS AN

ACTION OR PROCEEDING THAT IS SPECIALLY

CREATED BY STATUTE AND THAT PRIOR TO

1853 WAS NOT DENOTED AS AN ACTION AT

LAW OR A SUIT IN EQUITY.

(B) AN ORDER IS A FINAL ORDER THAT MAY

BE REVIEWED, AFFIRMED, MODIFIED, OR

REVERSED, WITH OR WITHOUT RETRIAL,

WHEN IT IS ONE OF THE FOLLOWING:

(2) AN order that affects a substantial right made

in a special proceeding or upon a summary application

in an action after judgment . . .”

This case also involves the application of Ohio Revised

Code 3721.13; the Patient’s Bill of Rights. Specifically

§§ 3721.13(A)(15), 3721.10(D), 3721.13(B), 3721.14(E)(3),

3721.13(A)(21), 3721.13(C) are the relevant statutes involved

in this Petition.

4

§ 3721.13(A)(15) provides:

“(A) The rights of residents of a home shall include,

but are not limited to: the following:

(15) The right to exercise all civil rights, unless the

resident has been adjudicated incompetent pursuant to

Chapter 2111. of the Revised Code and has not been

restored to legal capacity, as well as the right to the

cooperation of the home’s administrator in making

arrangements for the exercise of the right to vote;”

§ 3721.10(D) provides:

“(D) ‘Sponsor’ means an adult relative, friend, or

guardian of a resident who has an interest or

responsibility in the resident’s welfare.”

§ 3721.13(B) provides:

“(B) A sponsor may act on a resident’s behalf to

assure that the home does not deny the residents’

rights under section 3721.10 to 3721.17 of the

Revised Code.”

§ 3721.14(E)(3) provides:

“To assist in the implementation of the rights granted

in division (A) of section 3721.13 of the Revised

Code, each home shall provide:

(E) Access to the following persons to enter the home

during reasonable hours, except where such access

would interfere with resident care or the privacy of

residents:

(3) A resident’s sponsors;”

§ 3721.13(A)(21) provides:

“(A) The rights of residents of a home shall include,

but are not limited to, the following:

(21) The right upon reasonable request to private and

unrestricted communications with his family, social

worker, and any other person, unless not medically

advisable as documented in his medical record by the

attending physician, except that communications with

public officials or with his attorney or physician shall

not be restricted. Private and _ unrestricted

communications shall include, but are not limited to,

the right to:

(c) Private visits at any reasonable hour.”

§ 3721.13(C) provides:

“(C) Any attempted waiver of rights listed in division

(A) of this section is void.”

STATEMENT OF THE CASE

I. Overview of the Case

Appeal of a preliminary injunction which restrains the

First Amendment right of freedom of association was denied

Petitioner, Marie Hahn, by both the Court of Appeals of

Franklin County, Ohio, Tenth Appellate District, and the

Supreme Court of Ohio. The Court of Appeals and the

Supreme Court of Ohio also denied Petitioner’s Motions For

Stay of Preliminary Injunction. These rulings pertaining to

6

Constitutional questions are in conflict with relevant decisions

of the Supreme Court of the United States in National

Socialist Party of America v. Village of Skokie, 432 U.S. 43

(1977) and M.LC., Ltd. v. Bedford Township, 463 U.S. 1341

(1983).

Ohio Revised Code 2505.02(A)(2) is unconstitutional

and/or overbroad as it precludes appeal of a preliminary

injunction which restrains First Amendment rights including

First Amendment rights of parties not before the Court.

Residents of the State of Ohio, including Petitioner, Marie

Hahn, are entitled to due process and equal protection of the

laws, which includes immediate appeal of a preliminary

injunction which restrains First Amendment rights, or a stay

of the preliminary injunction pending appeal.

In the matter before the Court there has not been

separation of Church and State as -required by the

Constitution.

II. Background of the Case

Petitioner, Marie Hahn, and her husband, Michael Hahn,

have known Monsignor Clement Faistl and become his close

friends since 1995 when he resided at his former parish of

Christ the King. Petitioner and her husband assisted

Monsignor Faistl at Christ the King and provided assistance

to him at The Villas at St. Therese, a state licensed assisted

living facility, since he moved there in March, 2002.

Monsignor Faistl signed his own contract with

Respondent, The Villas and agreed to pay the monthly rental

fee of $2,650.00. Pursuant to the contract which Monsignor

Faistl signed with Respondent, The Villas, he could terminate

the Agreement if he wished. The term of the Agreement was

7

for a month to month basis. As part of his contract with The

Villas, Monsignor Faistl was provided a copy of the Rights of

Residents Of A Home, (Patients’ Bill of Rights), O.R.C.

3721.13, which guaranteed him among other things, the right

to exercise his civil rightsr (O.R.C. 3721.13(A)(15)), which

would include the right to leave if he wished and be free from

false imprisonment.

Any “sponsor” of Monsignor Faistl as defined in O.R.C.

3721.10(D), pursuant to O.R.C. 3721.13(B), is guaranteed

the right to “act on a resident’s behalf to assure that the home

does not deny the resident’s rights under section 3721.10 to

3721.17 of the Revised Code.” Pursuant to O.R.C.

3721.14(E)(3), aresident’s “sponsor” is to be provided access

to the resident. At the hearing on the preliminary injunction

on October 10, 2003, the trial judge ruled from the bench that

Petitioner, Marie Hahn, is a “sponsor” as defined in the Ohio

Revised Code.

Respondent, The Villas also provided Monsignor Faistl as

part of their contract with him a copy of their own Residents

Rights which included, among other things, the right to:

“communicate and socialize freely with individuals of their

own choosing” and “live free from involuntary confinement

”

Petitioner, Marie Hahn, had had a personal private

religious association with Monsignor Faistl for at least

eighteen months since he moved to The Villas. Monsignor

Faistl has been Petitioner’s religious advisor and counselor on

a daily basis. He has also been her Confessor. Petitioner

placed her trust in his guidance and his advice to her was held

in the utmost confidence. Petitioner assisted Monsignor Faistl

with saying his Mass everyday in his room on a one to one

basis and Petitioner prayed with him consistently. The

8

evidence in the record supports the fact that because of the

preliminary injunction, Monsignor Faistl has been deprived of

his First Amendment right of freedom of association with

Petitioner and therefore, he has been deprived of saying his

own Mass.

On August 7, 2003, the Administrator of The Villas,

Sister Michael Sweeney, and Sister Lois Baniewicz restricted

Petitioner, Marie Hahn’s visitation with Monsignor Faistl in

violation of O.R.C. 3721.13(A)(21), because of an

unsubstantiated accusation that Sister Lois heard Petitioner

raise her voice to Monsignor Faistl through his closed door.

Monsignor Faistl is hearing impaired and his hearing aids

were not working on the day in question as confirmed by his

hearing doctor in a letter which is part of the evidence in the

record.

Monsignor Faistl verbally requested to the Administrator

that the restrictions on his visitation with Petitioner be lifted

and when he was refused, he wrote a letter to the

Administrator in accordance with O.R.C. 3721.13(A)(21)

requesting that the restrictions be lifted and affirming that

Marie Hahn had never abused him in any way. The

Administrator did not respond to Monsignor Faistl’s letter.

Following O.R.C. 3721.13(B), and with Monsignor

Faistl’s approval, Petitioner contacted the Ombudsman’s

Office of the Ohio Department On Aging. The State

Ombudsman assigned a Regional Ombudsman, Rita Allen,

who works for the Diocese of Columbus, to the case. Rita

Allen did not report the matter to the Ohio Department of

Health as she stated was her usual procedure, but on August

22, 2003, she stopped Petitioner’s and her husband’s

visitation of Monsignor Faistl at the instruction of the Bishop

of Columbus. She stated that she was submitting her findings

OOOO eoee

9

to the Bishop to make the decision concerning Monsignor

Faistl’s right of unrestricted visitation pursuant to O.R.C.

3721.13(A)(21), who had no legal authority to do so. The

Bishop of Columbus banned Petitioner from all visitation of

Monsignor Faistl on August 26, 2003t in a letter. The Ohio

Department of Health cited The Villas for violation of O.R.C.

3721.13(A)(21), referring to the Bishop’s letter as evidence

that Respondent, The Villas was planning to continue to

restrict Petitioner’s visitation with Monsignor Faistl. In

Respondents” answer to Petitioner’s amended Verified

Counterclaim they state “. . . Plaintiffs admit that the Bishop

of Columbus cannot waive Monsignor Faistl’s state rights

under the Patient’s Bill of Rights.” This includes Monsignor

Faistl’s right to exercise all civil rights. (O.R.C. 3721.13(15).

O.R.C. 3721.13°) states:

“(C) Any attempted waiver of the rights listed in

division (A) of this section is void.”

However, the Bishop did not follow this in this case

because there was no separation of Church and State.

The Bishop of Columbus violated Petitioner’s

Constitutional rights and her state rights under O.R.C.

3721.13(B) and 3721.13(E)(3) as a “sponsor” because there

was no separation of Church and State.

On August 30, 2003, Monsignor Faistl attempted to leave

The Villas on his own and he was prevented from leaving by

Respondent, The Villas. On at least two occasions he

requested that Attorney Don Chapin assist him in leaving The

Villas. Attorney Chapin was denied access to Monsignor

Faistl and the police were called. On one occasion, Mr.

Chapin witnessed intimidation of Monsignor Faistl in his

presence. If Monsignor Faistl was not allowed to leave at that

10

time on his own and an attorney could not help him leave, no

one could have helped him and thus he was being falsely

imprisoned against his will.

Attorney Don Chapin filed a lawsuit in Monsignor Faistl’s

name and his own name against The Villas and the Diocese of

Columbus stating in part in his Complaint, which is part of

the evidence in the record in this case:

“Defendants have taken additional steps to isolate and

intimidate Father Faistl. They have changed his

telephone number and refused to give him the new

number. As a result, no one is able to call Father

Faistl. They have also prevented him from using the

telephone to call out. They have illegally barred

Father Faistl’s friends from visiting him at the facility.

Father Faistl has also been warned that, should he

leave, he will not be permitted to take with him the

accoutrements necessary for him to perform the Mass,

a profound threat to a devout priest.”

Attorney Chapin’s lawsuit is still pending.

Fearing that Monsignor Faistl was in imminent danger, on

September 25, 2003, Petitioner, Marie Hahn, went to The

Villas, to visit Monsignor Faistl. He opened the door to the

outside in the hall to let her in to visit. He informed Petitioner

that he could not leave The Villas and that he was not allowed

to use his telephone. Monsignor Faistl appeared to be in poor

physical condition to Petitioner. An aide came by Monsignor

Faistl’s room and threatened Petitioner, to hold her against

her will. Petitioner, Marie Hahn, left the premises

11

III. Proceedings Below

On September 26, 2003, the attorney for Respondent, The

Villas, left a message on Petitioner, Marie Hahn’s voice mail

less than an hour before he said that he was going before a

judge to file an action against her. He did not inform

Petitioner of the courtroom or the name of the judge. It would

have been impossible for Petitioner to even get to the Court

downtown in time, even if she had played the message

immediately and knew which courtroom was involved.

Respondents, The Villas, filed a Verified Complaint for

Trespass and Injunctive Relief and a Motion for a Temporary

Restraining Order, to enjoin Petitioner from entering the

premises of The Villas and from taking any action to remove

Monsignor Faistl from The Villas even though he has no

guardian and he should have been free to leave The Villas if

he wished, on September 26, 2003, in the Court of Common

Pleas of Franklin County. The restraining order was granted.

(Appendix F, Order of Preliminary Injunction granted by the

Franklin County Court of Common Pleas, Columbus, Ohio).

Petitioner Marie Hahn filed a Motion To Dissolve Temporary

Restraining Order on October 1, 2003, based on the fact that

Respondent was violating O.R.C. 3721.13(A)(21), the right

of a resident of a “home” to unrestricted visitation and had

“unclean hands” when Respondent came to the trial court for

a temporary restraining order, and based on the fact that

Monsignor Faistl is his own person and free to make his own

decisions. (On September 30, 2003, the Ohio Department of

Health issued a citation to Respondent, The Villas, for

violation of O.R.C. 3721.13(A)(21))o Monsignor Faistl was

entitled to unrestricted visitation as a matter of law when

Petitioner, as his “sponsor,” visited him on September 25,

2003. Respondent did not respond to Petitioner’s Motion To

Dissolve, which was overruled by the trial court in granting

12

the preliminary injunction to Respondent at the hearing on

October 10, 2003.

Petitioner filed an Answer on October 9, 2003, asserting

her rights as a “sponsor,” pursuant to O.R.C. 3721.13(B) and

O.R.C. 3721.14(E)(3). Pursuant to O.R.C. 3721.14(E)(3),

as a “sponsor,” Petitioner was to be provided access to

Monsignor Faistl. Petitioner filed a Motion To Join An

Additional Defendant To Her Counterclaim on October 9,

2003; Bishop James A. Griffin and the Diocese of Columbus.

Petitioner also filed a Motion For Temporary Restraining

Order on October 9, 2003, informing the court of Monsignor

Faistl’s deteriorating physical condition which she observed

on September 25, 2003 and that he had not seen five of his

doctors, because The Villas did not assume Petitioner’s

responsibility for taking him to his doctors for tests,

evaluation, treatment, and any changes in medication.

Petitioner’s Motion For Temporary Restraining Order was

overruled by the trial court in granting the preliminary

injunction to Respondent.

On October 21, 2003, Petitioner filed an Amended

Verified Counterclaim for Injunctive Relief, which set forth

Count Three - Violation of Defendant’s Right of Freedom of

Association Guaranteed by The First Amendment. On

October 23, 2003, Petitioner filed a Motion For

Reconsideration, which included law and argument supporting

her Constitutional right of freedom of association with

Monsignor Faistl to further their religious beliefs.

No notice of the filing of the Preliminary Injunction was

sent to Petitioner by Respondents. Because Petitioner had no

knowledge that the 30 days had begun to run on October 14,

2003, Petitioner expediently filed an appeal with the Court of

13

Appeals of Franklin County, Ohio, Tenth Appellate District,

on November 12, 2003.

Petitioner also filed with the Court of Appeals a Motion

To Dissolve Preliminary Injunction Granted To Plaintiffs, The

Villas, and a Motion To Grant Preliminary Injunction to

Petitioner on November 13, 2003, setting forth that the

preliminary injunction is a final appealable order as it imposes

restraint on the exercise of freedom of association and it is an

order that affects a substantial right made in a special

proceeding. Petitioner cited United States Supreme Court

decisions, which included Nationalist Socialist Party v.

Skokie, 432 U.S. 43, 44 (1977) and Roberts v. United States

Jaycees, 468 U.S. 609 (1984), which sets forth the two types

of freedom of association guaranteed by the First Amendment.

Petitioner also asserted that Respondent, The Villas, had no

clear right to be entitled to an injunction because Monsignor

Faistl has no guardian and would be free to leave if he wishes.

Respondents filed a Motion To Dismiss and Memorandum In

Opposition on November 24, 2003, setting forth argument

that O.R.C. 2505.02(A)(2) precludes appeal of the

preliminary injunction. On November 26, 2003, the Court of

Appeals dismissed Petitioner’s appeal (Appendix E, Journal

Entry of Dismissal of the Court of Appeals of Ohio, Tenth

Appellate District, November 26, 2003 “for lack of a final

appealable order. . .”)

On December 8, 2003, Petitioner filed an Application For

Reconsideration and an Expedited Decision and Motion For

Stay of Preliminary Injunction.

Attached as Exhibit B to Petitioner’s Application For

Reconsideration is an affidavit of Monsignor Faistl which

states in part: “I wish to associate with Marie Hahn as a priest

to help her spiritually;” “I wish to have Marie Hahn assist me

14

with my daily Mass and prayers;” “Marie Hahn has never

attempted to remove me from The Villas against my will.”

Attached to the Application For Reconsideration as

Exhibit C is an affidavit of Sydney Lewis, who visited

Monsignor Faistl. Monsignor Faistl directly expressed to Mr.

Lewis his wish to associate with Marie Hahn as a priest.

Also attached as Exhibit E to Petitioner’s Application For

Reconsideration is a second affidavit of Monsignor Faistl in

which he states: “In addition, I was unaware that The Villas

had obtained a restraining order against Marie Hahn. I do not

agree with the restraining order as I wish to associate with

Marie Hahn as a priest.”

On December 18, 2003, the Court of Appeals denied

Petitioner’s Application For Reconsideration, overruling

Petitioner’s Motion For Stay. (Appendix D, Journal Entry of

the Court of Appeals of Ohio, Tenth Appellate District,

December 18, 2003).

On December 24m 2003, Petitioner filed a Motion For

Stay of Preliminary Injunction and An Expedited Decision in

the Supreme Court of Ohio. The Supreme Court of Ohio

denied Petitioner’s Motion To Stay on January 21, 2004.

(Appendix B, Entry of the Supreme Court of Ohio, January

21, 2004).

Petitioner filed a Memorandum In Support of Jurisdiction

in the Supreme Court of Ohio on February 2, 2004. The

Supreme Court of Ohio dismissed the appeal on April 28,

2004 “as not involving any substantial constitutional

question.” (Appendix A, Entry of dismissal of the appeal of

the Supreme Court of Ohio, April 28, 2004).

™“- —_

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15

After Petitioner received a report on or about October 30,

2003 from the Ohio Department of Health affirming that

Respondent, The Villas, had been issued a citation for

violation of O.R.C. 3721.13 (A)(21), Petitioner’s husband,

Michael Hahn, went to The Villas in early November to visit

Monsignor Faistl. Only because of the citation issued by the

Ohio Department of Health was he able to enter The Villas.

Despite continued hostility from The Villas, he continued to

visit Monsignor Faistl and support him with his assistance as

Petitioner had done. Michael Hahn was concerned about

Monsignor Faistl’s health and well being at The Villas. When

Monsignor Faistl was asked by Michael Hahn if he wished to

leave The Villas, he said yes. Michael Hahn removed

Monsignor Faistl and his possessions from The Villas on or

about January 11, 2004, to another place of residence of

Monsignor Faistl’s choosing and Monsignor Faistl signed his

own lease. After Monsignor Faistl left The Villas, the Bishop

of Columbus, through his attorney, stated publicly on January

24, 2004 in the newspaper: “‘We felt that the place for him

was at the Villas and we wanted very much for him to be

there,’ Dan Ritter said. ‘However, if he subsequently decided

he wanted to go with Mr. Hahn, that’s his choice. ... We

hope that he’s getting care wherever he is.’”

16

REASONS FOR GRANTING THE PETITION

The Supreme Court of Ohio has denied Petitioner’s

Motion For Stay Of Preliminary Injunction which restrains

her right of free dom of association under the First

Amendment and the Supreme Court of Ohio has dismissed

Petitioner’s appeal “. . . as not involving any substantial

constitutional question. . .” These rulings decided important

federal questions in conflict with United States Supreme Court

decisions which state that when First Amendment rights are

restrained by an injunctionr either immediate appellate review

or a stay of the injunction must be provided. See National

Socialist Party of America v. Village of Skokie, 432 U.S. 43,

44 (1977):

“. . . It finally determined the merits of petitioners’

claim that the outstanding injunction will deprive them

of rights protected by the First Amendment during the

period of appellate review which, in the normal

course, may take a year or more to complete. Ifa

State seeks to impose a restraint of this kind, it must

provide strict procedural safeguards; Freedman _v.

Maryland, 380 U.S. 51 (1965), including immediate

appellate review, see Nebraska Press Assn. v. Stuart,

423 U.S. 1319,1327 (1975) (BLACKMUN, J. in

chambers). Absent such review, the State must instead

allow a stay. . .”

See M.LC., Ltd. v. Bedford Township, 463 U.S. 1341,

1342 1343 (1983) :

“. . . By its terms, the preliminary injunction was to

continue in effect until a full trial on the matter was

held or until further order of the court.”

17

“.. . Because of the delay involved, this prohibitation

will remain in effect for a considerable period without

any final judicial review of the trial court’s order. In

these circumstances, the requirement imposed by the

First Amendment that a State provide procedures to

‘assure a prompt final judicial decision,’ Freedom v.

Maryland, supra, at 59, has not been satisfied.”

Petitioner, Marie Hahn, has been unable to obtain either

immediate appellate review or a stay of the preliminary

injunction from both the Court of Appeals of Franklin

Countyr Ohio, Tenth Appellate District and the Supreme

Court of Ohio. Petitioner petitions this Court for a writ of

certiorari to review the judgments rendered in the state courts

in this case, which depart from United States Supreme Court

decisions and which have decided that prompt final judicial

decisions as to the validity of the prior restraint on

Petitioner’s First Amendment rights is not necessary and that

the restraint of her Constitutional rights can wait until after

trial. These judgments are in conflict with the United States

Supreme Court ruling in Elrod v. Burns, 427 U.S. 347, 373,

374 (1976):

“_.. The loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes

irreparable injury. See New York Times Co. v.

United States, 403 U.S. 713 (1971).”

Monsignor Faistl is approaching 92 years of age and even

though he no longer resides at The Villas and his health needs

are now being properly taken care of and he has been able to

resume his priestly duties with Petitioner’s assistance, the

pending lawsuit and the preliminary injunction which

Respondents have against Petitioner are undermining his well

being ° Petitioner has a stigma caused by the invalid injunction

le

18

and the publicity of the matter in the newspaper, and,

consequently, she is no longer accepted in the Catholic

Community and neither is Monsignor Faistl, as he chose to

uphold his Constitutional rights of freedom which he fought

for in two foreign wars, because they were taken away from

him due to a lack of separation of Church and State in this

case.

Petitioner, Marie Hahn and Monsignor Faistl formed a

personal private association at The Villas to further their

religious beliefs. This association meets the criteria set forth

in Roberts v. United States Jaycees, 486 U.S. 609 (1984),

which has been followed and upheld in Bd. of Drs. of Rotary

Int’] v. Rotary Club, 481U.S. 537, 545 (1987). Monsignor

Faistl depends daily on Petitioner’s assistance to perform his

priestly duties and Petitioner depends on Monsignor Faistl’s

spiritual guidance and advice. _

In Healy v. James, 408 U.S. 169, 181 (1972), the United

States Supreme Court set forth the principle of freedom of

association:

“Among the rights protected by the First Amendment

is the right of individuals to associate to further their

personal beliefs. While the freedom of association is

not explicitly set out in the Amendment, it has long

been held to be implicit in the freedoms of speech,

assembly, and petition. See, e.g. Baird v. State Bar of

Arizona, 401U.S. 1, 6(1971); NAACP v. Button, 371

U.S. 415, 430 (1963); Louisiana ex rel. Gremillion v.

NAACP, 366 U.S. 293, 296 (1961); NAACP v.

Alabama __ex__rel. Patterson, 357 U.S. 449

(1958)(Harlan, J., for a unanimous Court).

a eee

——— lt”

19

Petitioner has argued in this case that the preliminary

injunction affects a substantial right made in a special

proceeding and that it is a final appealable order and

Petitioner cited Internati. Diamond v. U.S. Diamond (1991),

70 Ohio App.3d 667, 671 in which the Court of Appeals

followed National Socialist Party of America v. Village of

Skokie, 432 U.S. 43, 44 (1977) and stated:

“Given that an immediate appellate forum for

review of an order that imposes a prior restraint upon

the exercise of free speech is necessitated by the

federal Constitution, we hold that in such cases it is

not practical for the appellant to wait until the case has

been concluded in the trial court before he may

challenge the order. . .”

“Because the preliminary injunction appealed from

in this case imposes a prior restrain upon the exercise

of free speech, we hold that it is an order that affects

a substantial right made in a special proceeding and is,

therefore, a final appealable order. . .”

Respondents argued that the amendment to O.R.C.

2505.02 precluded appeal of a preliminary injunction that

restrains First Amendment rights. O.R.C. 2505.02 as

amended states in part: .

“(A) AS USED IN THIS SECTION:

(1) ‘SUBSTANTIAL RIGHT’ MEANS A RIGHT

THAT THE UNITED STATES CONSTITUTION,

| THE OHIO CONSTITUTION, A STATUTE, THE

| COMMON LAW, OR A RULE OF PROCEDURE

| ENTITLES A PERSON TO ENFORCE OR

PROTECT.

20

(2) “SPECIAL PROCEEDING” MEANS AN

ACTION OR PROCEEDING THAT IS SPECIALLY

CREATED BY STATUTE AND THAT PRIOR TO

1853 WAS NOT DENOTED AS AN ACTION AT

LAW OR A SUIT IN EQUITY.

(B) AN ORDER IS A FINAL ORDER THAT

MAY BE REVIEWED, AFFIRMED, MODIFIED,

OR REVERSED, WITH OR WITHOUT RETRIALt

WHEN IT IS ONE OF THE FOLLOWING:

(2) AN order that affects a substantial right made

in a special proceeding or upon a summary application

in an action after judgment,. . .”

This amendment was passed as a result of the decision made

by the Supreme Court of Ohio in Polikoff v. Adam (1993), 67

Ohio St.3d 100, 108, which states at Footnote 8:

“. . . In determining appealability pursuant to R.C.

2505.02, under the circumstances of this case, the first

inquiry for any reviewing court is whether the order

was entered in a special proceeding. If it was, the

court must then inquire as to whether the order

affected a substantial right.”

By so ruling the Supreme Court of Ohio has eliminated the

necessity of inquiry as to substantial rights/Constitutional

rights, which are being violated and restrained by a

preliminary injunction, thus depriving residents of Ohio due

process and equal protection of the laws by not providing

access to Ohio’s courts for immediate appeal of a preliminary

injunction which restrains First Amendment rights as directed

by the United States Supreme Court decisions. See Erznoznik

v. City of Jacksonville, 422 U.S. 205, 215:

EE ae

21

“_.. Thus, under the Equal Protection Clause, not to

mention the First Amendment itself,’ id., at 96 even

a traffic regulation cannot discriminate on the basis of

content unless there are clear reasons for the

distinctions. . .”

Petitioner has researched the statutes pertaining to the

appealability of preliminary injunctions in numerous states

and she has found that the states researched unanimously

allow for appeal of preliminary injunctions which follows

United States Supreme Court rulings, (As an example,

Petitioners cites Kenmen Engineering v. City of Union, 314

F.3d 468, 474 (10th Cir. 2002):

“_. . Finally, even if the state court granted only a

temporary injunction, a ‘temporary injunction’ is an

appealable order under Oklahoma state law. 12

OKLA. STAT. ANN. § 993.(‘When an order... .

grants a temporary or permanent injunction . . . the

party aggrieved thereby may appeal the order to the

Supreme Court without awaiting the final

determination in said cause.’)

and therefore, there is no equal protection of the laws in Ohio

because O.R.C. 2505.02(A)(2) is overbroad/unconstitutional.

See Cooper v. Aaron, 358 U.S. 1, 3 (1958):

“8. The interpretation of the Fourteenth

Amendment enunciated by this Court in the Brown

case is the supreme law of the land, and Art. VI of the

Constitution makes it of binding effect on the States

‘any Thing in the Constitution or Laws of any State to

the Contrary notwithstanding.’”

Co

22

“Article VI of the Constitution makes the Constitution

the ‘supreme Law of the Land.’. . .”

“_.. ‘If the legislatures of the several states may,

at will, annul the judgments of the courts of the United

States, and destroy the rights acquired under those

judgments, the constitution itself becomes a solemn

mockery . . . .’ United States v. Peters, 5 Cranch 115,

| ee

The statute is overbroad because it affects parties not before

the Court in Ohio when they are involved in associations

protected by the First Amendment which are restrained by a

preliminary injunction. These associations could involve the

small private personal associations or associations to engage

in activities protected by the First Amendment, such as

speech, assembly, petition for redress of grievances and the

exercise of religion which could include substantial numbers

of residents of Ohio, set forth in Roberts v. United States

Jaycees, 486 U.S. 609 (1984). See City Council v. Taxpayers

for Vincent, 466 U.S. 789, 801 (1984):

“...Inshort, there must be a realistic danger that the

statute itself will significantly compromise recognized

First Amendment protections of parties not before the

Court for it to be facially challenged on overbreadth

grounds. See Erznoznick v. City of Jacksonville, 422

U.S. 205, 206 (1975). . .”

See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973):

“. . . Overbreadth attacks have also been allowed

where the Court thought rights of association were

ensnared in statutes which, by their broad sweep,

might result in burdening innocent associations. See

23

Keyishian v. Board of Regents, 385 U.S. 589 (1967);

United States _v. Robel, 389 U.S. 258 (1967);

Aptheker v. Secretary of State, 378 U.S. 500 (1964);

Shelton v. Tucker, supra

The United States Supreme Court has upheld appeal of a

preliminary injunction in an action which was brought for

common-law nuisance in M.I.C., Ltd. v. Bedford Township,

463 U.S. 1341 (1983).

Respondents filed an action against Petitioner for trespass.

As a State licensed facility Respondent, The Villas, has an

obligation to follow Constitutional rights and the Patient’s Bill

of Rights, O.R.C. 3721.13, for each resident who resides in

their facility. The Villas has opened up their facility by

renting apartments to residents who choose to live there and

therefore, under the Patients’ Bill of Rights, The Villas has to

permit visitors, which includes “sponsors” and friends, such

as Petitioner, family members, attorneys, clergy, etc., and

consequently, The Villas could not bring a common-law

trespass action against Petitioner for visiting a resident at his

invitation. This illustrates the illegality of the preliminary

injunction granted to Respondents, The Villas, against

Petitioner and upheld by the state courts. Respondents used a

letter written by the Bishop of Columbus to Petitioner as a

basis for their trespass claim. The letter which is part of the

evidence in the record in this case, states in part “Therefore,

I want to inform you that the restrictions placed on your

contact with Monsignor Faistl are to continue indefinitely.”

Respondent did not follow the law as set forth in the

Constitution and O.R.C. 3721.13 which includes not only

Monsignor Faistl’s rights, who is not before the Court, but

Petitioner’s rights as Monsignor Faistl’s “sponsor,” The

Villas followed the direction of the Bishop of Columbus,

eliminating the separation of Church and State in a state

24

licensed facility. See Marsh v. Alabama, 326 U.S. 701, 506,

510 (1945):

“. . . Ownership does not always mean absolute

dominion. The more an owner, for his advantage,

opens up his property for use by the public in general,

the more do his rights become circumscribed by the

statutory and constitutional rights of those who use it.

Cf. Republic Aviation Corp. v. Labor Board, 324

U.S. 793, 798, 802, n. 8. . .”

“_. . But when decisions by State courts involving

local matters are so interwoven with the decision of

the question of Constitutional rights that one

necessarily involves the other, State determination of

local questions cannot control the Federal

Constitutional right.”

Respondent, The Villas, was issued a citation for violation

of O.R.C. 3721.13(A)(21), by the Ohio Department of Health

because The Villas decided not to follow the law, but to

follow the Bishop’s order. Respondents’ violation of the law

caused any disruptions which they claim took place and which

they alleged as a basis for their trespass action. Petitioner

assisted Monsignor Faistl for approximately 18 months at The

Villas. Respondent has produced no evidence of any

disruptions caused by Petitioner as a “sponsor.” Petitioner

attempted to protect Monsignor Faistl’s Constitutional and

state rights which Respondents were violating. Pursuant to

O.R.C. 3721.13, that is a matter of law, not a disruption.

Respondent, The Villas, has been issued a second citation for

violation of O.R.C. 3721.13(A)(21) in Monsignor Faistl’s

case.

25

Petitioner had no choice but to appeal the invalid order of

preliminary injunction issued by the trial court because appeal

is the proper procedure proscribed by the United States

Supreme Court. See Maness v. Meyers, 419 U.S. 449, 458

(1975):

“.. . Ifa person to whom a court directs an order

believes that order is incorrect the remedy is to

appeal, but, absent a stay, he must comply promptly

with the order pending appeal. . .”

CONCLUSION

For the foregoing reasons: Petitioner respectfully requests

that this Court grant the petition for writ of certiorari.

Respectfully submitted,

Marie Hahn, Petitioner

Pro Se

1267 Westphal Avenue

Columbus, Ohio 43227

(614) 237-3524

Dated this 26th day of July, 2004

la

APPENDIX A

THE SUPREME COURT OF OHIO

Case No. 03-2200

[Filed April 28, 2004]

The Villas at St. Therese Assisted Living, )

Appellee, )

)

Vv. )

)

Marie Hahn, )

Appellant. )

)

ENTRY

Upon consideration of the jurisdictional memoranda filed

in this case, appellee’s motion to strike notice of appeal, and

appellee’s motion to dismiss Marie Hahn’s request for

jurisdiction, the Court declines jurisdiction to hear the case,

dismisses the appeal as not involving any substantial

constitutional question, and denies the motion to strike and

motion to dismiss as moot.

COSTS:

Docket Fee: $40.00, paid by Hahn’s Electric Company.

(Franklin County Court of Appeals; No. 03AP1126)

2a

/s/

THOMAS J. MOYER

Chief Justice

3a

APPENDIX B

THE SUPREME COURT OF OHIO

Case No. 03-2200

[Filed January 2} 2004]

The Villas at St. Therese Assisted Living,

Appellee,

V.

Marie Hahn,

Appellant.

i a a a a a a

ENTRY

This cause is pending before the Court as a discretionary

appeal and claimed appeal of right. Upon consideration of

appellant’s motion for stay of preliminary injunction,

IT IS ORDERED by the Court that the motion for stay of

preliminary injunction be, and hereby is, denied.

(Franklin County Court of Appeals; No. 03AP1126)

/s/

THOMAS J. MOYER

Chief Justice

4a

APPENDIX C

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Case No. 03AP-1126

(Regular Calendar)

[Filed December 18, 2003]

The Villas at St. Therese Assisted Living, )

Plaintiff-Appellee,

V.

Marie Hahn,

Defendant-Appellant.

le A i i a a

JOURNAL ENTRY

Appellant’s pro se December 8, 2003 motion for

reconsideration of this court’s November 26, 2003 entry of

dismissal is denied.

/s/

Judge Peggy Bryant

/s/

Judge Donna Bowman

Sa

/s/

Judge William A. Klatt

6a

APPENDIX D

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Case No. 03AP-1126

(REGULAR CALENDAR)

[Filed November 26, 2003]

The Villas at St. Therese Assisted Living, )

Plaintiff-Appellee,

V.

Marie Hahn,

Defendant-Appellant.

ee a a a a a

JOURNAL ENTRY OF DISMISSAL

Appellant has not demonstrated that an appeal .from the

trial court order granting appellee a preliminary injunction

would not afford appellant a meaningful or effective remedy

following final judgment by the trial court. Accordingly,

appellant’s November 14, 2003 motion, to dissolve

the.preliminary injunction granted by-the trial court is denied.

Appellee’s November 24, 2003 motionto dismiss is granted.

This appeal is dismissed for lack Of a final, appealable order.

Further, a motion to dissolve a preliminary.injunction is not

an. appropriate attack on the trial court judgment.

/s/

Judge Peggy Bryant

/s/

Judge Susan Brown

/s/

Judge William A. Klatt

Ta

8a

APPENDIX E

IN THE FRANKLIN COUNTY COURT

OF COMMON PLEAS

COLUMBUS, OHIO

Case No. 03-CVC9 10620

JUDGE CAIN

[Filed October 14, 2003]

THE VILLAS AT ST. THERESE __)

ASSISTED LIVING, INC. )

Plaintiff, )

)

V. )

)

MARIE HAHN, )

Defendant. )

)

ORDER OF PRELIMINARY INJUNCTON

This cause came on to be heard on Plaintiffs Verified

Complaint for Injunctive Relief, Plaintiff's request for

preliminary injunction, and evidence and testimony offered

during tim preliminary injunction hearing held on October 10,

2003, and it appearing to the Court that there is good cause

for granting Plaintiff's request for preliminary injunction, and

that Plaintiff will suffer irreparable harm if said motion is not

granted, the Court hereby Orders that:

9a

1. Marie Hahn is hereby enjoined from entering upon

the premise of The Villas; and

2. Marie Hahn, and any one on her behalf, is hereby

enjoined from taking any action to remove

Monsignor Faistl from the Villas;

This Order shall remain in effect during the pendency of

this action or until further order of this Court.

IT IS SO ORDERED.

/s/

Judge David E. Cain