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

EE

| Supreme Court, U.S.

91-1802 | FILED

hea ;

APR 21 1992

a @FEICE OF THE CLERK

In the

Supreme Court of the Anited States

OCTOBER TERM, 1991

Cheryl Sorrell, Marty DeLane, Joseph McQueen, Mark

Berry, Ron Severt and Tammy Silvey,

Petitioners,

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 6477 College Park Sq.

(513) 381-2838 Suite 306

Virginia Beach, VA 23464

TRACY LOUISE WINN (804) 424-4242

National Legal Foundation

6477 College Park Sq.

Suite 306

Virginia Beach, VA 23464

(804) 424-4242

eae

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 relationships. 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 tthe 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:

(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 practical

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

ee

corresponding declaratory relief with respect io 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 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 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 protesting the activities conducted

at the Dayton Women’s Health Center, 3460

South Dixie Drive, Dayton, Ohio 45439, who

NN EST”~C

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, 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 time, 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

OX

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]

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 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 their 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.e., stop signs.

12) Using any sign urging motorists to honk.

In accordance with the foregoing, plaintiffs’ motion for

preliminary injunction is SUSTAINED.

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 cn 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]

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:

ls/ 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

ceemeeeeee nearer eee

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

IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY,

OHIO

THE DAYTON WOMEN’S :

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

Plaintiffs : (Judge John M. Meagher)

ie : DECISION, ENTRY &

: ORDER: SUPPLEMENTING

DAVID ENIX, et al., : AND MODIFYING COURTS

Defendants : DECISION, ENTRY &

: ORDER

: OF JANUARY 15, 1987.

This matter comes before the Court on plaintiffs’ motions to

modify the Decision, Entry & Order of January 15, 1987, and for

an order for David Mehaffie to show cause why he should not be

held in contempt of Court and request for attorney fees.

On January 15, 1987, this Court issued a Decision, Entry &

Order certifying this case as a class action and sustaining

plaintiffs’ motion for a preliminary injunction. On February 27,

1987, a hearing was held on plaintiffs’ motions and a temporary

decision was ordered which prohibits any residential picketing or

demonstrations.

The Court now addresses plaintiffs’ motions to modify the

January 15th Order.

Plaintiffs assert through affidavits and the witnesses at the

February 27th hearing, that the defendants have engaged in

various conduct in violation of the injunction and move for an

order to modify the injunction. Plaintiffs request an order

further enjoining the named defendants and the defendant class

members from:

1. Picketing 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.

2. Using any signs or communications that make any

personal reference to any such patients, employees,

or physicians.:

oe

3. Parking or picketing on the west side of South Dixie

Drive within the viewing distance of The Dayton

Women’s Health Center.

4. Picketing at or 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.

The Court will first address plaintiffs’ third and fourth

Proposals in tandem. The January 15th Order enjoined the

defendants from engaging in certain activities, including locking

or interfering with the driveway of The Dayton Women’s Health

Center, trespassing on the property of The Dayton Women’s

Health Center, blocking or interfering with the flow of traffic on,

From or to South Dixie Drive, and picketing on the west side of

South Dixie Drive. The testimony of several witnesses at the

hearing indicates that the defendants were engaged in among

other activities, picketing on the west side of South Dixie Drive

including parking on the west side of South Dixie. The testimony

also indicates continued movement of defendants back and forth

health and safety of the defendants and persons utilizing South

Dixie Drive, the court finds that plaintiffs’ third and fourth

proposals are well taken.

Picketing, as defined in the January 15th Order, includes

"persons present in the are referred to in [the] order who are

carrying protest and informational isgns, 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." Page 7. Thus, "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. Therefore, to clear up any

misunderstanding of the Parties and to reaffirm the intent of the

original order, the defendants and defendant class are further

enjoined from:

1. Picketing in any form including parking, parading, or

demonstrating on the west side of South Dixie Drive within the

2. Picketing in any form including parking, parading, or

demonstrating 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.

Defendants argue that there is a distinction between

picketing and the mere presence of an individual. Although to

some extent these activities are dissimilar, for the purpose of this

injunction, they are considered to be, along with any other form

of demonstration, the same prohibited activity except as

otherwise provided by the order.

The First Amendment does no guarantee the right to

communicate one’s views at all times and places or in any

manner that may be desired. Heffron v. International Soc'y. for

Krishna Consciousness, 452 U.S. 640, 647 (1981). Considering

other ample alternative channels of communication, the court

finds the plaintiffs’ third and fourth proposals do not impede

upon defendants’ First Amendment rights of free speech.

Plaintiffs’ second proposal requests the prohibition of the

use of any signs or communications that make any personal

reference to any such patients, employees, or physicians.

Although the Court finds some merit to plaintiffs, proposal, such

a proscription would not be content neutral. Rules which

restrain speech on the basis of its content presumptively violate

the First Amendment. Renton v. Playtime Theatres, 106 S.Ct.

925, 928 (1986). Such content-based proscriptions “will be

upheld only if narrowly drawn to accomplish a compelling

governmental interest. United States v. Grace, 461 U.S. 171, 177

(1983). In the absence of any compelling governmental interest,

the Court finds that plaintiffs’ second proposal is without merit.

Plaintiffs also request an order proscribing picketing at or

within the viewing distance of the residence of the patients,

employees, and physicians of The Dayton Women’s Health

Center.

The testimony of Anita Wilson and Diane Hoellerman

indicates that residential picketing has occurred on several

occasions. The testimony reveals that such picketing included

harassing the residents, trespassing on the property of certain

residents, picketing in the street, and picketing at night as late as

11:15 p.m. The picketing also occurred on the cul-de-sac outside

of Anita Wilson’s home and at night at the residence of a doctor

in Oakwood. Diane Hoellerman indicated that the picketing at

her residence caused tempers to flare and caused the traffic to

slow and stop outside her home. In short, the testimony shows

that the residential picketing is, to a great extent, interfering with

the peace and sanctity of the home, and to a lesser extent,

41ny

———V—V— NN

accomplishing the goal of picketing, communicating one’s ideas

and concerns. a

The problem before the Court is balancing the right of

citizens to enjoy the quiet, comfort and privacy of their homes

against the right of the defendants to express their beliefs. The

picketers clearly have a right to express their concerns but they

must also honor the rights of others, especially those outside the

controversy and within the tranquility of their homes. "It is well

understood that the right of free speech is not absolute at all

timesandunder all circumstances." Chaplinsky v. New Hampshire,

315 .S. 568, 571 (1942). In fact, the United States Supreme

Court has "regularly rejected the assertion that people who wish

to propagandize protests or views have a constitutional right to

do so whenever and however and wherever they please." United

States v. Grace, 461 U.S. 171, 177 (1983) (quoting Adderly v.

Florida, 385 U.S. 39, 47-48 (1966).

Although courts have given great protection to public streets

and sidewaiks in regards to the dissemination of ideas, the court

is compelled to make a distinction between residential picketing

and business picketing. The nature of the forum and the

conflicting interest involved have remained important in

determining the degree of protection given to speech that is

protected under the First Amendment. Lehman v. City of Shaker

Heights, 418 U.S. 298, 303 (1974).

The rights of a person to enjoy the privacy of his home is

disputed. Poe v. Ullman, 367 U.S. 497, 551 (1961); Griswold y.

Connecticut, 381 U.S. 479 (1965). As Justice Black explained,

"No mandate in our Constitution leaves states and governmental

units powerless to pass laws to protect the public from the kind

of boisterous, threatening conduct that disrupts the tranquility of

spots selected by the people . . . for homes, wherein they can

escape the hurly-burly of the outside business and political world.

. . "Gregory v. City of Chicago, 394 U.S. 111, 118 (1969) (Justice

Black concurring).

Therefore, in accordance with the foregoing, the defendants

and the defendant class are further enjoined 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.

Plaintiffs also move for an order for David Mehaffie to show

cause why he should not be held in contempt of Court and for

attorney fees.

Adequate testimony was presented on which the Court could

find that David Mehaffie and other defendants were in contempt

of the January 15th Order. However, other testimony indicates

that the defendants were attempting to comply with the Order,

but were unclear as to some of its limitations. The court will

resolve this doubt in favor of the defendants. Yet, if brought

back before the Court and if shown to be held in contempt, the

defendants shall pay the plaintiffs’ attorney fees incurred in

connection with this proceedingandsuch future proceeding.

SO ORDERED:

\s\

John M. Meagher, Judge

Copies of this Decision, Entry & Order served on all parties,

indicated below, by ordinary mail this filing date:

DAVID GREER/JOHN HAVILAND, Attorneys for Plaintiffs

DAVID HAFFEY, Attorney for Defts., David Enix, David &

Kim Mehaffie, Douglas Sapp, and H. Fred Perkins

JAMES CONDIT, Attorney for Defendant, Jim Mehaffie

MONTGOMERY COUNTY SHERIFF DEPARTMENT

12

IN THE COMMON PLEAS COURT OF MONTGOMERY

COUNTY, OHIO

THE DAYTON

WOMEN’S HEALTH :

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

Plaintiffs, : (Judge John M. Meagher)

v. : DECISION, ENTRY &

: ORDER OVERRULING

: DEFENDANTS’ MOTIONS TO

: AMEND PENDANT

: INJUNCTION OVERRULING

: PLAINTIFFS’MOTION TO

DAVID ENIX et al., : MODIFY THE

: PRELIMINARY

: INJUNCTION; ORDERING

: DEFENDANTS AND

Defendants : 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 [sic] 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.

13

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 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

14

[No. 86-3120, 3]

procedure of motions to show cause.

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, attommeys 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 25, 1987, be and

they hereby are permanently 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;

[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, i.e., stop signs, or

using any sign urging motorists to honk:

e

15

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 viewing distance of the homes of

patients, employees, staff or volunteers of The Dayton Women’s

Health Center or of physiciams performing services at The

Dayton Women’s Health Center;

9. Picketing in any form including parking, parading or

demonstrating at or within the viewing distance of the offices of

physicians performing services at The Dayton Women’s Health

Center in groups of more than five individuals;

10. Picketing in any form including parking, parading or

demonstrating on the west side of South Dixie 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 any 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

demonstrating within the viewing distance of The Dayton

Women’s Health Center in groups of more than ten (10)

individuals.

16

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 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 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, J udge

17

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

18

a

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

OPINION

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, a Terminal Building, Cincinnati,

Ohio 45202

Attorney for Defendant-Appellant Jim Mehaffie

19

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 for Amicus Curiae

RICHARD SAPHIRE, University of Dayton Law School, 300

College Park Drive, Dayton, 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 Square, Suite 306, P.O. Box 64845, Virginia Beach,

VA 23464

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.

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

ieee

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 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

[No. 10579, 3]

the Entry and Preliminary Injunction."

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,

2) obstruction of the driveway which enters the Health

Center’s lot, and

3) interference with the flow of traffic on South Dixie

Drive.

The trial court then issued a preliminary injunction

enjoining the defendant class and the named defendants from:

71

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 the siaff or patients inside the Dayton Women’s

Health Center.

4) Trespassing on the property of the Dayton Women’s

Health Center.

5) Verbal communications, eithe: 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.

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 Dide Drive.

11) Using any sign larger than four feet in any dimension,

including signs resembling traffic safety signs, i.e., 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 present in the area

referred to in this Order 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.

The preliminary injunction order of J anuary 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 parking, parading, or

demonstrating on the west side of South Dixie Drive

within the viewing distance of The Dayton Women’s

Health Center, and

2) Picketing in any form including parking, parading, or

demonstrating 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]

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. 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. 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.e., stop

signs, or using any sign urging motorists to honk;

24

—

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;

[No. 10579, 6]

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 viewing distance of the

homes of patients, employees, staff or volunteers of The

Dayton Women’s Health Center or of physicians

performing services at The Dayton Women’s Health

Center;

9. Picketing in any form including parking, parading or

demonstrating at or within the viewing distance of the

Offices of physicians performing services at The Dayton

Women’s Health Center in groups of more than five

individuals;

10. Picketing in any form including parking, parading or

demonstrating on the west side of South Dixie Drive

within viewing 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 any 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

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.

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

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 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.

27

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 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 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]

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

casé was essentially public issue speech, ie., 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; 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 legislation 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 front of an entire block of houses, was

held not to have been prohibited by the ordinance. Id. The

significance of this interpretation of the ordinance was that, as so

interpreted, the ordinance permitted 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 * *:* ang

physicians * * * at The Dayton Women’s Health

[No. 10579, 12]

Center."

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

PREJUDICE OF DEFENDANTS AND

DEFENDANT CLASS MEMBERS’ BY

IMPOSING VCLUME RESTRICTION UPON

THEIR SPEECH WHICH WERE NOT

SUPPORTED BY ITS FINDINGS AND

WHICH ARE UNCONSTITUTIONALLY

VAGUE AND OVERBROAD.

Paragraph 5S 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 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.LW. 2239. We are 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 verbally

communicating in any manner designed or

intended to reach the staff or patients or

volunteers inside The Dayton Women’s Health

Center, or in such a volume that it is reasonably

apparent that the communications, are 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 paragravh numbered 5 as set 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,

fourth, sixth, ninth, and twelfth parts of the injunctive order, but

in my opinion, the fifth, seventh, eighth, tenth, and eleventh

parts of the injunction are too vague and overbroad to survive

32

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.

33

Filed December 8, 1988

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

The Dayton Women’s Health :

Center, et al. :

Plaintiffs-Appellees : Case No. 10579

Vv.

David Enix, et al. : FINAL ENTRY

Defendant-Appellants

Pursuant to the opinion of this court rendered on the 5th day

of December, 1988, the permanent injunction issued by the trial

court on July 10, 1987 is amended by deleting paragraphs

numbered 7 and 8, and by amending paragraph numbered 5 to

read as follows:

5. Speaking, chanting, yelling or verbally

communicating in any manner designed or

intended to reach the staff or patients or

volunteers inside The Dayton Women’s Health

Center, or in such a volume that is is reasonably

apparent that the communications are likely to

be heard by the staff or patients or volunteers

inside The Dayton Women’s Health Center.

As modified, the permanent injunction issued by the trial court

on July 20, 1987, is Affirmed.

JOSEPH D. KERNS, Pres. Judge

ls/

RICHARD K. WILSON, Judge

ls/

MIKE FAIN, Judge

a

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

David Enix et al., : COURT OF APPEALS

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 expended; and that a mandate by

[sic] 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/ Thomas J. Moyer

Thomas J. Moyer

Chief Justice

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

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. General Motors Corp. [1981], 67 Ohio

St. 2d 253, 21 O.O. 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.

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 Seer

who have been personally served with this entry " and

issued a preliminary injunction against appellants which included

the certified class. Subsequently, on January 22, 1987, the court

issued a supplemental 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 claims 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

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

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 wa Class:

- 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 conducted at The Dayton Women’s Health Center.

37

appellants, who also represented ihe 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 appeal 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. 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

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 right 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

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.

eT ee ae ee

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 without retrial. " (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 0.0. 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 final, appealable order, pursuant to

R.C. 2505.02." In deciding that class 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." Jd. 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 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, N.E. 2d __. (Plaintiff

requested that defendant class action be certified in order to

39

enjoin the defendant class from engaging in certain conduct.)

Usually, defendant class actions are requested in suits secking

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 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 plaintiff's 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, atfn.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: "Ina

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. .

(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,

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 case.

they chose to appeal the propriety of the certification on J uly 10,

1987, when the trial court issued a decision and entry

permanently enjoining the defendant class members.

Consequently, appellants waived their right to challenge the class

certification on appeal.4

[52 Ohio St. 3d. 71]

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., WRIGHT and H. BROWN, JJ., concur.

H. Brown, J., concurs separately.

Sweeney, Douglas and Resnick, JJ., dissent.

H. BROWN, J., concurring. ‘I 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. General Motors Corp. (1981), 67 Ohio St. 2d 253, 21

0.0. 3d 158, 423 N.E. 2d 452. That decision has stood for nine

years and has neither 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.

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 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 appellant to take any

step other than the timely filing of a notice of appeal does not affect the validity

of the appeal, but is ground only for such action as the court of appeals deems

appropriate, which may include dismissal of the appeal. :

Al

On the other hand, if certification orders are

immediately 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 io 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.

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 nonappealable

(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:

"(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

ss seiiinialaciiniaiin ceinaiaaaaiaiaseanaiecmea me

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. 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.

DOUGLAS, J., dissenting. Amato v. General Motors Corp.

(1981), 67 Ohio St. 2d 253, 21 0.0. 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 I stand ready to

do so.

RC. 2205.03(A) states, in relevant, part, that "[e]very

final order may be reviewed on appeal .

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

5. RC. 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.”

43

affecting a substantial right made in a special proceeding or made

upon summary application after judgment.

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 "* * * 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." Id. at 258, 21 O.O. 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 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 right 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 makes the filing of a notice of appeal like

6. Sce App. R. 4{A).

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.

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 e.g., Black’s Law Dictionary (5 Ed. 1979)

1253. In State v. Thomas (1980), 61 Ohio St. 2d 254, 15 O.O. 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 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, I believe that:

"A special proceeding is an action

[52 Ohio St. 3dl 74]

7. For an additional case, not based on cither the Civil or Criminal Rules,

creating yet another exception to the final appealabie order rule, see Tilberry v.

Body (1986), 24 Ohio St. 3d 117, 24 OBR 308, 493 N.E. 2d 954.

45 ‘

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. Examples

would be forcible eptry and detainer, declaratory judgment,

* -

appropriation or 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

equitable bills of peace.® Accordingly, the proceeding in

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 (5 Ed. 1941), Sections 245 et

$€q.; 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

fwo ears of corn, or two blades of grass to grow upon a spot of ground where

Only one grew before, would deserve better of mankind, and do more essential

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

equity.”); and 27 American J urisprudence 2d (1966) 574-575, Equity, Section

51.

question not only fails the first prong of the special 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 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.

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 $s 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 in Smith v. Swormstedt [(1853), 57 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. Authority

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

Newberg on Class Action (2 Ed. 1985) 373-375, Section 4.45.

Co. (1974), 39 Ohio St. 2d 119, 122, 68 O.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; whereas, an order

granting class certification is not a fina! 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.

For the foregoing reasons, I dissent.

SWEENEY, J., concurs in the foregoing dissenting opinion.

ALICE ROBIE RESNICK, J., dissenting. I respectfully

dissent from the majority’s holding that an order, "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 Be

(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 0.0. 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 certification affects a substantial right. However, I do

not agree that it is done in a "special proceeding." Additionally, I

can find no

PR BED CRO RMT Leib St A.

[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 certification 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 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.

For some purposes, a judgment is not regarded as final

until expiration of the period which the judgment remains wgthin

the inherent power of the court to modify or vacate

49

a

(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 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

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,

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

sethantes” aemmdiaes ane

EMP a -

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 (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, 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.

51

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 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 one 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. When the trial 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, U.S. Code.

52

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 opinion rendered herein.

COSTS:

Motion Fee, $20.00, paid by Melinda Berry.

(Court of Appeals No. 10579)

(s/ Thomas J .Moyer

Thomas J. Moyer

Chief Justice

53

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. : REHEARING ENTRY

David Enix et al., : (Montgomery County)

Appellants. :

IT IS ORDERED by the Court that rehearing in this

case be, and the same is hereby, denied.

(Court of Appeals No. 10579)

S omas J. Moye

THOMAS J. MOYER

Chief Justice

rn eee

IN THE COURT OF COMMON PLEAS

MONTGOMERY COUNTY, OHIO

THE DAYTON WOMEN’S :

HEALTH CENTER, : CASE NO. 86-3620

et al., :

Plaintiffs, : (Judge John M. Meagher)

v. - DECISION, ENTRY & ORDER

: SUSTAINING PLAINTIFF'S

- MOTIONS FOR CONTEMPT IN

DAVID ENIX, : PART; OVERRULING IN PART;

et al, - AWARDING ATTORNEY FEES;

Defendants. : MODIFYING INJUNCTION;

- OVERRULING DEFENDANTS’

: MOTION TO DISMISS

- AND STAY PROCEEDINGS.

This matter is before the Court on plaintiffs’ motions for

contempt, sanctions, and modification of the Court’s injunction

with regard to residential picketing; and on defendants’ motions

to dismiss and to stay these proceedings.

The Court will first address defendants’ motion to stay. After

careful consideration, the Court finds that defendants’ motion is

unfounded. The motions before this Court are ripe for decision

and it is no longer necessary or proper to delay their resolution.

Accordingly, defendants’ motion to stay is overruled.

On December 5, 1988, the Court of Appeals of Montgomery

County, Ohio, in The Dayton Women’s Health Center v. David

Enix, No. 10579, unreported, (C.A. Ohio Dec. 5, 1988), rendered

its opinion concerning defendants’ challenge to this Court's

55

ae

permanent injunction of July 10, 1987. The Court of Appeals

ordered that Paragraph 5 be amended by adding the phrase, "in

such a volume that it is reasonably apparent that

communications are likely to be heard by staff or patients or

volunteers inside The Dayton Women’s Health Center."

Paragraph 5 to this Court’s permanent injunction is so amended.

On September 13, 1988, Tammy Silvey and Corina Sumner,

while picketing behind The Dayton Women’s Health Center in

violation of this Court’s injunction, raised their voices to such a

level that a woman inside an adjoining building approximately

thirty feet away orally complained to both Ms. Silvey and Ms.

Sumner that it was extremely difficult to concentrate while they

alternately yelled, screamed, and otherwise raised their voices

toward patients and staff inside plaintiffs’ building. This conduct

was not in violation of the Court’s permanent injunction of July

10, 1987, because of the Court of Appeals’ finding that

paragraph 5, as written, was overbroad. However, paragraph 5,

as modified by the Court of Appeals, now clearly forbids this

conduct.

The Court of Appeals also found Paragraphs 7 and 8 of this

Court’s injunction to be objectionable. Paragraph 7 is now so

deleted.

Although the Court of Appeals found that Paragraph 8’s

purpose was constitutional, as written, it was too broad and

would not withstand constitutional scrutiny. This Court sustains

plaintiffs’ motion to modify Paragraph 8 in order to make it

consistent with the Court of Appeals’ opinion. Paragraph 8,

which is renumbered as Paragraph 7, is hereby modified to read

as follows:

Picketing in any form, including parking, parading or

demonstrating which is /united to the homes of patients,

employees, staff, or volunteers of The Dayton Women’s

Health Center or the physicians performing services at

The Dayton Women’s Health Center; (emphasis added.)

This paragraph prohibits picketing which is limited to a

particular home of a patient, employee, staff member, volunteer,

or physician of The Dayton Women’s Health Center. This

language also covers picketing on a definite course or route in

front of a particular home of a patient, employee, staff member,

volunteer, or physician of The Dayton Women’s Health Center.

On the other hand, general marching through residential

neighborhoods, or walking a route in front of an entire block of

houses is not prohibited.

The Court also finds it necessary to modify Paragraph 4 of

the permanent injunction. On various occasions defendants

have moved their arms in an up an down motion to oncoming

traffic, thereby urging traffic to honk their horns at a place

immediately in front of The Dayton Women’s Health Center.

Such behavior is a safety hazard and a threat to the public health

and safety of those who are peaceably utilizing South Dixie

Drive.

Paragraph 4 is hereby modified to read as follows:

Using any sign larger than four feet in any dimension,

including signs resembling traffic safety signs; i.e., stop

signs, or using any sign urging motorists to honk their

horns, including hand and arm signals;

On numerous occasions, defense counsel has misinterpreted

Paragraph 6 of this Court’s permanent injunction. Therefore,

the Court will clarify defense counsel's misinterpretation.

Trespassing "on the property of" the Dayton Women’s Health

Center is located. If a picketer walks onto the parking lot

owned, belonging to, or utilized by the Dayton Women’s Health

Center, that picketer is trespassing in violation of Paragraph 6.

As to paragraph 1, 2, and 3 of this Court’s injunction, the

Court will allow defendants temporary interaction with vehicles

entering and exiting the Dayton Women’s Health Center in

limited situations. Specifically, if a vehicle stops of its own

volition to receive a piece of literature from a picketer or to say

57

CE

something briefly to a picketer, this would be permissible under

the Court’s order. If, however, that evolves into a situation

where acceptance of literature or conversation continues for a

period of time such that other vehicles cannot enter or leave the

Dayton Women’s Health Center, this would result in a violation

of paragraphs 1, 2, or 3 of this Court’s injunction.

Before this Court are two sets of plaintiffs’ motions for

contempt. The first set of motions, filed on September 19, 1988,

were continued by this Court by agreement of the parties on

October 26, 1988. (See this Court’s oral decision rendered on

October 26, 1988, and subsequently journalized on December

20, 1988.) The Court and the parties agreed at that time to await

a ruling from the Court of Appeals before undertaking a review

of the contempt motions. Plaintiffs’ second set of contempt

motions were filed on January 20, 1989, and combined with those

motions filed on September 19, 1988. This Court received

evidence on the contempt motions on February 9, 10, 13, 14 and

15.

The Court, pursuant to Rule 52 of the Ohio Rules of Civil

Procedure, and after careful review of all the evidence

presented, makes the following findings of fact and conclusions

of law:

I. The following nineteen defendants are before this Court

pursuant to lawful notice of plaintiffs’ charges of contempt:

David Mehaffie, Kym Mehaffie, James Mehaffie,

Tammy Silvey, Corina Sumner, Mindy Berry,

Bruce Moore, Fred Perkins, Douglas Sapp,

Marty Delane, Joseph McQueen, Dawn Thomas,

Ron Severt, Mark Berry, Lori Delane, David

Enix, Cheryl Sorrell, Mary Gigandet and Renate

Shroyer.

By agreement between the parties and the Court, Renate

Shroyer’s case was bifurcated and will be heard at a later date.

I. Plaintiffs have adequately notified each defendant of the

nature of the contempt charges and each defendant had ample

opportunity to respond to these charges. Each defendant was

adequately represented by counsel, and at no time has any

defendant objected to such notice, other than in regard to

whether such notice was civil or criminal in nature. Lastly,

defendants have presented no evidence regarding prior notice.

IIL. Plaintiffs’ motions for contempt were filed in good faith

and , contrary to defendants’ contentions, were not frivolous.

The Court therefore overrules defendants’ motions to dismiss

plaintiffs’ motions for contempt and for sanctions.

IV. Plaintiffs have withdrawn all motions for contempt

relating to any oral communications with the staff of the Dayton

Women’s Health Center.

V. Plaintiffs have withdrawn all contempt motions relating

to claims of blocking the driveway of the Dayton Women’s

Health Center.

VL. Although a number of claimed violations involved

defendants placing themselves at a point south of the northern

side of the south driveway, the Court finds that all such incidents

occurred prior to this Court's oral clarification of October 26,

1988, and, therefore, the Court finds none of the defendants in

this regard intended to violate the Court’s original order.

VIL This Court’s original order regarding place

restrictions is reaffirmed, to wit: the sidewalk directly in front of

the clinic between the south side of the north driveway and the

north side of the south driveway. Picketing at locations on the

adjacent north, south or back sides of the clinic within viewing

distance of the Dayton Women’s Health Center is prohibited.

VIIL This Court’s original numbers limitation as contained

in Paragraph 12, which is renumbered as Paragraph 11, is

affirmed. The Court finds it necessary to further amend its

original order and oral statement of October 26, 1988,

59

4

attempting to allow for defendants with small children to

exercise their right to demonstrate by not including children in

strollers, etc., toward the limitations. Henceforth, any time a

child leaves either a stroller, etc. or the arms of the

demonstrator, within the area designated by the Court for

picketing, then at that moment the child will be counted against

the numbers limitations. The fact that the child returns to the

arms of the demonstrator or to a stroller, etc. will make no

difference.

IX. On numerous occasions, a number of defendants have

engaged in the blowing of their automobile horns in close

proximity to the clinic in a manner that clearly exceeds the spirit

of this Court’s order in regard to noise volume restrictions. The

Court specifically refers to the testimony of defendants, David

Mehaffie and Douglas Sapp, who proudly, if not sarcastically,

acknowledged that the blew their car horns on multiple

occasions. The offered no excuse for their actions, since horn

blowing was not specifically prohibited by this Court’s injunction.

Such conduct may not have violated the precise letter of the

Court’s injunction, but it clearly violated the spirit of the

injunction. To that end, this Court will not hold defendants in

contempt of court for such horn blowing. However, Paragraph 5

has been modified, by deleting the word "verbally" and

substituting the word "mechanically," in order to prevent such

conduct in the future.

X. The Court finds that the following defendants engaged in

picketing at locations other than the area designated by this

Court’s permanent injunction. The Court finds that on each of

these occasions a direct violation of the Court’s order has

occurred. The following specific conduct was in violation of this

Court’s order:

1. Tammy Silvey, on September 13, 1988, was picketing

at the back door of the Dayton Women’s Health

Center building, by the back door, in violation of this

Court’s injunction. Tammy Silvey, on October 7,

1988 and December 6, 1988, was picketing by a

dumpster in the back of the Dayton Women’s Health

Center building in violation of this Court's injunction.

Tammy Silvey, on January 13, 1989, was picketing at

the southwest side of the Dayton Women’s Health

Center in violation of this Court’s injunction. Tammy

Silvey, on January 17, 1989, was picketing in the

parking lot in back of the Dayton Women’s Health

Center in violation of this Court’s injunction. These

violations constitute place violations.

The court fines Tammy Silvey $500 for each of her violations.

2 Corina Sumner, on September 13, 198, was picketing

at the back of the Dayton Women’s Health Center

building, by the back door, in violation of this Court's

injunction. Corina Sumner, on October 7, 1988, was

picketing by a dumpster in the back of the Dayton

Women’s Health Center building in violation of this

Court’s injunction. These violations constitute

trespassing and place violations.

The Court fines Corina Sumner $500 for each of her

violations.

3. Mindy Berry, on December 13, 1988, was picketing

behind the Dayton Women’s Health Center building

in violation of this Court’s injunction. This violation

constitutes a place violation.

The Court fines Mindy Berry $500 for her violation.

The above fines assessed against defendants Tammy Silvey,

Corina Sumner, and Mindy Berry are suspended upon the

condition that these defendants comply henceforth with this

Court’s orders.

XI The Court finds that the following conduct was in

violation of the Court’s order:

61

1. The following defendants, to wit: David Mehaffie,

Kym Mehaffie, James Mehaffie, Mindy Berry, Dawn

Thomas, Corina Sumner, Bruce Moore, Tammy

Silvey, Lori Delane, and Mary Gigandet, directly

participated in mass picketing by over two hundred

people at the clinic site on December 9, 1988. The

Court specifically rejects defendant David Mehaffie’s

explanation as to why he felt justified in participating

in the December 9, 1988 demonstrations. None of

the other defendants offered any evidence justifying

their participation in the demonstration. This

demonstration exceeded the numbers limitation set

by this Court’s injunction.

The Court fines the above defendants $500 each for their

participation in the mass demonstration.

The above fines assessed against defendants are suspended

upon the condition that they comply henceforth with the Court’s

orders.

XII. The Court finds that with regard to the mass picketing

at the clinic site on February 10, 1989, no specific charges are

before this Court claiming defendants violated the Court’s order

on that date.

XII. There was conflicting testimony regarding the

involvement of David Mehaffie, James Mehaffie, Kym Mehaffie

and Dawn Thomas in organizing, soliciting, and/or inducing third

parties to participate in the mass picketing that occurred at the

clinic site on December 9, 1988. The Court, while reaffirming

the fact that it is a violation of this Court’s order to organize,

solicit and/or induce third parties to participate in mass picketing

within viewing distance of plaintiffs clinic, finds that the

evidence is insufficient to establish violations in regard to the

December 9th demonstration.

XIV. The Court finds that the plaintiffs are entitled to

receive reimbursement for attorney fees from respective

defendants found to have violated the Court’s orders. The Court

will set those issues for hearing at a later date.

XV. As to plaintiffs; remaining allegations of contempt, the

Court finds the evidence is insufficient to establish violations of

this Court’s injunction.

XVL The evidence received by this Court reaffirms the need

for and the propriety of this Court’s original injunctive order.

That order has been reviewed and affirmed in all respects except

as previously noted by the Court of Appeals and this Court’s

subsequent modifications.

Counsel for the parties having submitted this matter to the

Court on the evidence presented at the various hearings thus far

held, 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 Dayton

Women’s Health Center, 3560 South Dixie Drive, Dayton, Ohio,

who have been personally served with this Decision, Entry, and

Order, as well as their officers, agents, servants, employces,

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 25, 1987, be and they hereby are

permanently enjoined from:

1. Blocking or interfering with he 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. 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, ie,

stop signs, or using any sign urging motorists to honk

their horns, including hand and arm signals;

10.

11.

Speaking, chanting, yelling or mechanically

communicating in any manner designed or intended

to reach the staff or patients or volunteers inside the

Dayton Women’s Health Center, or in such a manner

that it is reasonably apparent that the

communications are likely to be heard by the staff or

patients or volunteers inside the Dayton Women’s

Health Center.

Trespassing on the property of the Dayton Women’s

Health Center;

Picketing in any form, including parking, parading, or

demonstrating, which is limited to the homes of

patients, employees, staff, or volunteers or the

Dayton Women’s Health Center or the physicians

performing services at the Dayton Women’s Health

Center;

Picketing in any form including parking, parading or

demonstrating at or within the viewing distance of

the offices of physicians performing services at the

Dayton Women’s Health Center in groups of more

than five individuals;

Picketing in any form including parking, parading or

demonstrating on the west side of South Dixie Drive

within viewing of the Dayton Women’s Health

Center;

Picketing in any form including parking, parading, or

demonstrating within the viewing distance of the

Dayton Women’s Health Center at any location

other than the sidewalk bordering the east side of

Dixie Drive in front of the facility; more specifically,

between the south side of the driveway just north of

the clinic building and the north side of the driveway

just south of the clinic building.

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.

12. 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.

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 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 video recording 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 or any law enforcement agency authorized by the

Court is hereby authorized to photograph the effecting of such

service.

Many of the defendants have, by their words and actions,

displayed disrespect for the Court’s orders. This Court’s initial

injunction attempted to create a framework within which both

parties could exercise their constitutionally protected rights.

Defendants, while proclaiming their night to unfettered First

Amendment protection, have disregarded plaintiffs’

constitutional rights. This Court will continue to make every

effort to insure that everyone who would be included in this

Court’s orders are fairly notified of what is expected of them and

given ample opportunity to avoid being charged with an offense.

Lastly, future violations will be viewed both criminally and civilly.

ee

In conclusion, this Court finds that in order to properly

supervise the orders of this Court and insure the protection of

the rights of all parties to this lawsuit, it is necessary to appoint

the Montgomery County Sheriff as this Court’s eyes and ears at

the site of the controversy.

Therefore, the Court will order the Montgomery County

Sheriff to make available to the Court all necessary personnel

and equipment for the purpose of enforcing this Court’s

permanent injunction. The Court will, by separate entry, provide

detailed instructions to the Montgomery County Sheriff and/or

his designees governing their supervision of this Court’s

permanent injunction. The Court will also reserve the right to

from time to time amend and/or add to or delete from these

instructions.

SO ORDERED:

John M. Meagher, Judge

A copy of the foregoing Decision, entry and Order has been

served upon all parties as listed below this date of filing:

DAVID C. GREER and JOHN F. HAVILAND, Attorneys for

Plaintiffs

THOMAS E. GROSSMAN and ROBERT HUFFMAN,

Attorneys for Defendants

IN THE COMMON PLEASE COURT OF

MONTGOMERY COUNTY, OHIO

Civil Division

THE DAYTON WOMEN'S. :

HEALTH CENTER, : CASE NO. 86-3120

et al., :(Judge John M. Meagher)

Plaintiffs ;

Vv.

: DECISION, ENTRY AND

DAVID ENIX, : ORDER SUSTAINING

et al., : THE PLAINTIFFS’

Defendants - MOTION FOR CONTEMPT

This matter came to be heard on plaintiffs’ motion for an

order for Tammy Silvey to show cause why she should not be

held in contempt of court and request for attorney fees.

Evidence was taken by the Court on plaintiff's motion on June 2,

1989. After considering the evidence presented to the Court,

and the arguments of counsel, the Court finds the plaintiffs’

motion for contempt to be well taken. The Court finds that on

April 25, 1989, the defendant Tammy Silvey engaged in picketing

at locations other than the area designated by this Court's

permanent injunction. The Court finds that defendant Tammy

Silvey’s conduct was a direct violation of the Court’s order.

The Court hereby fines Tammy Silvey $500 for her violation

of this Court’s permanent injunction on April 25, 1989. Further,

since the defendant Tammy Silvey has on previous occasions

been found to have engaged in conduct in violation of this

Court’s permanent injunction, the Court further ORDERS the

defendant Tammy Silvey to pay $500 fines previously imposed

and suspended by this Court’s Decision, Entry, and Order of

March 14, 1989, at which time the defendant, Tammy Silvey, was

found to have engaged in numerous acts of conduct in violation

of this Court’s order.

inca

The Court further finds that the plaintiffs are entitled to

receive reimbursement for attorney fees incurred due to the

defendant Tammy Silvey’s violation of the Court’s order.

Counsel for the plaintiffs is ORDERED to submit their

statement for fees forthwith.

The fines assessed against defendant Tammy Silvey shall be

paid to the Montgomery County Common Pleas Court by 4:30

p.m. on June 9, 1989.

It is SO ORDERED.

The Honorable John M. Meagher

A copy of the foregoing Decision, Entry, and Order has been

served upon all parties as listed below this date of filing:

DAVID C. GREER and JOHN F. HAVILAND, Attorneys for

Plaintiffs

THOMAS E. GROSSMAN and ROBERT J. HUFFMAN,

Attorneys for Defendants

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

DAYTON’S WOMEN

HEALTH CENTER, :

et al. - CASE NO. 11545, 11637,

Plaintiffs-Appellees : 11685

[sic] : CP. NO. 86-3120

VS.

DAVID ENIX, et al.

Defendants-Appellants :

OPINION

Oral argument heard on the 10th day of June, 1991.

Rendered on the 27th day of August, 1991.

David C. Greer

John F. Haviland

400 Gem Plaza

Third and Main Streets

Dayton, Ohio 45402

Attorneys of Plaintiffs-Appellees

Thomas E. Grossman

1800 Star Bank Center

Cincinnati, Ohio 45202

Robert Huffman

103 N. Miami Street

West Milton, Ohio 45383

James J. Condit

5041 Oaklawn Drive

Cincinnati, Ohio 45227

Attorneys for Defendants-Appellants

Chris R. VanSchaik

Victor T. Whisman

Montgomery County Prosecutors’ Office

Suite 500

301 W. Third Street

Dayton, Ohio 45402

69

a a

PER CURIAM

This matter, which comes before us for a second time, is a

consolidation of three appeals: Case Nos. 11545, 11637, and

11685. Before addressing the specific issues in each individual

case, we will briefly restate the procedural and factual history of

the entire matter.

I

PROCEDURAL AND FACTUAL POSTURE

In October, 1986, Plaintiffs-Appellees Dayton Women’s

Health Center, Inc., K.W. Davis, M.D., and Robert Skipton,

M.D., (hereinafter collectively referred to as "DWHC"), filed a

complaint against Defendants-Appellants David Enix, Jim

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

Perkins, and other unidentified persons. DWHC alleged that the

defendants had engaged in tortious activity that interfered with

the delivery of medical services at the health center. The prayer

of the complaint was for damages and injunctive relief. The

complaint also sought to have the case certified as a defendant

class action.

In January, 1987, the trial court certified the case as a

defendant class action and issued a preliminary injunction. The

defendant class was defined as “all individuals protesting the

activities conducted at the [health center], who have been

personally served **** with the trial court’s entry.

Despite the preliminary injunction, the defendants continued

to engage in activities that violated the letter and spirit of the

court’s order. Accordingly, in response to the defendants’

conduct, the trial court supplemented and modified its original

injunctive order. Finally, in July, 1987, the trial court issued a

permanent injunction enjoining the defendant class from:

1. Blocking or interfering with the access or

egress of any individual going to or from

The Dayton’s Women’s Health Center;

70

2. Blocking or interfering with the driveway of

The Dayton Women’s Health Center,

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 sign, ie., 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 viewing distance of the homes of

patients, employees, staff or volunteers of

The Dayton Women’s Health Center or

of physicians performing services at The

Dayton Women’s Health Center;

9. Picketing in any form including parking,

parading or demonstrating at or within

the viewing distance of the offices of

physicians performing services at The

Dayton Women’s Health Center in

groups of more than five individuals;

10. Picketing in any form including parking,

parading or demonstrating on the west

side of South Dixie Drive within viewing

of The Dayton Women’s Health Center;

11. Picketing in any form including parking,

parading, or demonstrating within the

71

viewing distance of The Dayton Women’s

Health Center at any 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 demonstrating within the

viewing distance of The Dayton Women’s

Health Center in groups of more than ten

(10) individuals.

The defendants appealed from the trial court’s order. On

December 5, 1988, we rendered an opinion in which we affirmed

virtually all of the court’s permanent injunction and determined

that the defendants waived their right to challenge the class

certification order for failure to file a timely appeal. However,

we did strike from the injunction paragraphs numbered 7 and 8

concerning verbal communications with health center employees

and residential picketing, respectively. We also modified

paragraph 5 dealing with the acceptable noise level of

demonstrations carried on at the clinic. The defendants filed a

motion for reconsideration, which we denied on January 6, 1989.

A notice of appeal was subsequently filed, along with a

motion to certify the case based upon five alleged conflicts with

other appellate districts. We found that we were in conflict on

only one issue, that being the appealability of the class

certification order. Accordingly, we ordered that the record in

the case be certified to the Supreme Court for review and

determination.

In their brief to the Supreme Court, the defendants argued

several propositions of law related to the "range and extent of

the permanent injunction.". However, the Court chose only to

address only the sole question certified to it. On June 20, 1990,

the court affirmed our decision and held that an order of a trial

court, pursuant to Civ. R. 23(C), is a final appealable order from

which a party must appeal within thirty days. Dayton Women’s

Health Center v. Enix (1990), 52 Ohio St.3d 67, reh’g denied 53

Ohio St. 3d 706, cert. denied sub nom Enix v. Dayton Women’s

Health Center (1991), US.

While the appeal from our decision of December 5, 1988,

was pending, contempt charges were brought against the

defendants in each of the three appeals now before us. The facts

of each case are as follows:

A. CASE NO. 11545

In this case, over 200 contempt citations were filed against

eighteen defendants for allegedly violating various provisions of

the permanent injunction. From February 9 to February 15,

1989, the citations were tried. On March 14, 1989, the trial court

found that ten of the eighteen defendants were in contempt on

seventeen of the citations. The remaining citations were

dismissed for lack of sufficient evidence to establish that actual

violations of the order had occurred. The defendants who were

found to be in contempt were fined $500 for each violation of

the order. The fines were then suspended upon the condition

that the defendants "comply henceforth with the Court's orders."

In addition to addressing the specific contempt charges in its

judgment, the trial court renewed its restriction on residential

picketing. The order prohibited “[p]icketing in any form

including parking, parading or demonstrating which is limited to

the homes of patients, employees, staff or volunteers of The

Dayton Women’s Health Center of the physicians performing

services at The Dayton Women’s Health Center." (Emphasis

ours). The trial court also rejected the defendants’ claim that the

vast majority of the contempt citations were frivolous.

B. CASE NO. 116376

In this case, a contempt citation was filed against defendant

Tammy Silvey, who is also a defendant in Case No. 11545, for

allegedly violating the provision in the permanent injunction

which limits picketing to a small strip of sidewalk on the east side

of South Dixie Drive in front of the health center. On April 25,

1989, while picketing at the clinic, Silvey allegedly left the

sidewalk, approached an automobile turning into the clinics’

driveway, and followed the car about thirty-five or forty feet onto

another building’s parking lot. After a hearing on the merits, the

trial court found that Silvey had "engaged in picketing at

locations other than the area designated by [the] * * *

permanent injunction", and that such conduct was in direct

violation of the order. Silvey was fined $500 for the April, 1989,

violation of the permanent injunction, and was also ordered to

pay $500 in fines previously imposed and suspended by the trial

court.

C. CASE NO. 11685

In this appeal, contempt charges were brought against

twenty-two defendants for trespassing at The Dayton Women’s

Health Center on March 24, 1989. These defendants were not

involved in the original class action and were alleged to have

been unaware of the permanent injunction. However, all

twenty-two defendants received a copy of the court’s order when

they arrived at the clinic, and they were also given oral notice by

sheriffs deputies that they were trespassing on the health

center’s property in violation of the court order.

The defendants were given approximately two hours to read

the order and comply with its requirements. They refused to

obey. Asa result, the defendants were arrested and charged with

criminal trespass. They were then taken to Kettering Municipal

Court where they entered pleas of no contest and were convicted

and sentenced accordingly.

subsequent to the criminal trespass proceedings in Kettering,

a hearing was held in Montgomery County Common Pleas Court

on the contempt charges. Based upon the evidence present, the

trial court found that the defendants had violated its order by

trespassing on the clinic’s property. The court then imposed a

$1,000 fine on each defendant, $500 of which was suspended “on

the condition that each defendant comply henceforth” with the

provisiors of the permanent injunction.

4

II

SS R Ww

In each of the cases now before us several issues have been

presented for review. We will address each case individually.

A. CASE NO. 11545

In this case the defendants have raised fifty-three

assignments of error. Many of the arguments pertain tot similar

issues and will therefore be consolidated. Other arguments will

be addressed individually.

1. Class Certification

In assignments of error one through four, six through seven,

sixteen through twenty-seven, and twenty-eight through thirty-

three, the defendants (1) challenge the trial court’s order

certifying this matter as a class action and (2) argue that they

cannot be bound by an injunction limiting or prohibiting

unlawful activity by a class of which they were not a member

when the injunction issued.

As to the first argument, we held in our decision of

December 5, 1988, that the failure of these defendants to raise

the issue of certification within thirty days of the trial court's

order waived their right to challenge the court’s order of

certification. That judgment has been affirmed on appeal and is

now the "law of the case". Nolan v. Nolan (1984), 11 Ohio St. 3d,

1. Weaver v. Motorist’s Mutual Insurance Co. (October 4, 1990),

Montgomery App. No. 11676, unreported. The certification may

not now be questioned.

Appellants’ second argument is without merit. The court

acted on its inherent power to preserve the effect of its orders

and to protect the rights determined therein from intentional

interference by other persons. .S. v. Hall (Sth Cir., 1962), 474 F.

2d 261. This power extends to persons who were not before the

court when it made its prior order but who, after notice of the

order, act in violation of its terms and restrictions. Planned

Parenthood v. Project Jericho (1990), 52 Ohio St. 3d 56. The

court has the power to punish such acts as contempt. Id.

Appellants" reliance on NAACP v. Claiborne Hardware Co.

(1982), 458 U.S. 886, is misplaced: The court’s order does not

impose liability on members of a class or by reason of mere

association. Any liability arises after individual notice and

violation of the order. Lastly, the order is not "content" bases

and thus does not violate the First Amendment precepts of

Carey v. Brown (1980), 447 U.S. 455 and Police Department of

Chicago v. Mosley (1972), 408 U.S. 92.

Based upon the foregoing, the defendants’ First through

Fourth, Sixth and Seventh, Sixteenth through Twenty-Seventh,

and Twenty-Eighth through Thirty-Third Assignments of Error

are overruled.

2. Provisions of Permanent Injunction

In six of their Assignment of Error, specifically, assignments

numbered nine through ten and twelve through fifteen, the

defendants assert that the trial court’s permanent injunction, as

drafted, is vague, overbroad, and improper. Essentially, the

defendants contend that the prohibition contained within the

injunction are not reasonable time, place, and manner

restrictions. We disagree. We have already determined that,

with the exception of the trial court’s complete ban on

residential picketing and verbal communications with health

center personnel, the trial court’s order contained content-

neutral time, place, and manner restrictions. Because the Ohio

Supreme Court denied cert. as to this issue, our prior

determination remain the "law of the case" and will not be

reexamined. Nolan v. Nolan, supra; Weaver v. Motorists Mutual

Insurance Co., supra.

Accordingly, the defendants’ Ninth and Tenth, and Twelfth

through Fifteenth Assignments of Error are overruled.

3. Residential Picketing

In their Eleventh Assignment of Error, the defendants

contend that the trial court erred by renewing its restriction on

residential picketing, at paragraph eight of its Order. That

restriction is limited to picketing focused on specific residences.

It does not ban picketing throughout residential area. It does

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& &

not prohibit residential anti-abortion picketing while permitting

residential picketing having other aims. Therefore, the order is

content-neutral and sufficiently narrow to protect the interests of

those who are presumptively unwilling to receive this form of

speech and have the right not to, while leaving open ample

alternative channels of communication. It is not in violation of

the rights of these defendants protected by the First

Amendment. See, Perry Education Assn. V. Perry Local

Educators’ Assn. (1983), 460 U.S. 37, 103 S. Ct. 948, 74 L.Ed. 2d

7194; Frisby v. Schultz (1988), __U.S.__, 108 S. Ct. 2495.

Accordingly, the defendant’s Eleventh Assignment of Error

is overruled.

4. Equal Protection

In Assignments of Error five and eight, the defendants assert

that the permanent injunction violates the equal protection

clause of the Fourteenth Amendment because the “only type of

picketer enjoined is one who protests what [the health center]

does." Again, we disagree, and for the same reason enunciated

in Sections II A 1 and II A 2 of this opinion.

In our opinion dated December 5, 1988, we addressed the

equal protection argument and held that the permanent

injunction was not constitutionally infirm for the same reason

presented here. Because the Ohio Supreme Court decided not

to address this issue, our holding has become the "law of the

case." Nolan v. Nolan, supra; Weaver Vv. Motorists Mutual

Insurance Co., supra.

The defendants’ Fifth and Eighth Assignments of Error are

overruled.

5. Contempt Citations Frivolous

Defendants argue in Assignments thirty-four through forty-

seven that the vast majority of contempt citations filed against

them were frivolous and that the trial court, instead, should have

imposed sanctions against DWHC for bringing such actions. We

disagree.

Our review of the record indicates that although many of the

contempt charges filed by DWHC were for less than "gross"

violations of the injunction, the defendants have now shown that

ee ey

those charges were baseless| Based upon our review of the

record, we cannot conclude that it was an abuse of discretion to

impose sanction on the defendants. If anything, it appears to us

that the trial court has handled this case fairly and attentively in

light of the sheer magnitude of documents and testimony that it

has had to analyze and rule upon. Defendants have failed to

portray error.

Based upon the foregoing, defendants’ Thirty-Fourth

through Forty-Seventh Assignments of Error are overruled.

6. empt ing to

Assignments of Error forty-eight through fifty-three deal

exclusively with defendant Tammy Silvey. In these assignments,

the defendants essentially contend that:

(1) the trial court erred in finding Silvey in contempt of its order

when the provisions of that order were invalid and when Silvey

had not been served with a copy of the order;

(2) the trial court erred in finding Silvey in contempt when it was

shown that DWHC proceeded with "unclean hands"; and (3)

Silvey should not have been found in contempt for activities at

the health center on April 25, 1989.

With regard to the arguments concerning the validity of the

injunction and DWHC’s “unclean hands", we have already

determined, in our analysis of assignments numbered nine

through fifteen and thirty-four through forty-seven, that the

provisions for the underlying order are not invalid and that

DWHC has not violated "good faith". Accordingly, defendants’

arguments on these points are without merit.

Likewise, defendants’ argument regarding Silvey’s notice of

the court’s order is meritless’ In her brief in Case No. 11637,

Silvey notes that the parties stipulated before the trial court that

she had received notice of the injunctive order.

Finally, with regard to the defendants’ argument that Silvey

did not violate the permanent injunction on April 25, 1989, our

review of the record indicates that Silvey trespassed on property

adjoining the health center. Clearly, this is a violation of the

injunctive order, and it was not an abuse of discretion for the

trial court to find Silvey in contempt for such activities.

The defendants’ Forty-Eighth through Fifty-Third

Assignments of Error are overruled.

B. CASE NO. 11637

This case involves only one defendant, Tammy Silvery, and

only one issue, whether the trial court erred in finding Silvey in

contempt for her activities at the health center on April 25, 1989.

Essentially, Silvey contends that because her actions only

amounted to a technical infraction of the court’s order, and

because she did not actually intend to violated the order, it was

error the trial court to find her in contempt. We do not find

these arguments persuasive.

As noted in Section II A 6 of this opinion, the trial court

found that Silvey deliberately left the area where picketing was

permitted and trespassed upon an adjoining landowner’s parking

lot. Our review of the trial transcript indicates that the court's

decision was supported by competent and credible evidence.

Therefore, in light of the fact that Silvey’s actions were violative

of the permanent injunction, it was not error for the trial court to

hold her in contempt and fine her accordingly.

Silvey’s sole Assignment of Error is overruled.

C. CASE NO. 11685

The twenty-two defendants in this case raise five assignments

of error.

1. Double Jeopardy

In their first assignment, the defendants contend that the

trial court violated the double jeopardy clause of the US.

Constitution by finding them in contempt for trespassing at the

health center after they had been charged

under two criminal statutes or impose successive criminal

punishments for the same act or transaction. Blockburger v.

United States (1932), 284 U.S. 299. A subsequent prosecution is

ee

barred if, to establish an essential element of an offense charged

in that prosecution, the government will prove conduct that

constitutes an offense for which the defendant has already been

prosecuted and convicted. Grady v. Corbin (1990), __ US.

110 S.Ct. 2084.

In the case before us the defendants were charged and

convicted in Kettering, Ohio, under its criminal trespass

ordinance for activities carried our DWHC on March 24, 1989.

subsequent to those proceedings, contempt charges alleging a

violation of the trial court’s permanent injunction based on and

for the same acts were filed in the Court of Common Pleas

Against those same persons.

After a hearing on the merits, the trial court found that the

defendants had trespass upon the health center’s property and

were in contempt of its injunctive order. The court fined each of

the defendants $1,000, but suspended $500 of the fine on the

condition that the defendants comply with the order in the

future. The court characterized the remaining $500 fine as a civil

penalty and dismissed defense counsel’s argument that the court

was actually imposing a successive criminal penalty upon the

defendants in violation of their double jeopardy rights.

"Criminal contempt is a crime in the ordinary sense; it is a

violation of the law, a public wrong which is punishable by fine or

imprisonment or both." Bloom v. Illinois (1968), 391 U.S. 194,

201, 20 LEd. 2d 522, 528. Fundamental constitutional

safeguards required in criminal trials are also required in

criminal contempt proceedings. State v. Kilbane (1980), 61 Ohio

St. 2d 201. Brown v. Executive 200, Inc. (1980), 64 Ohio St. 2d

250. Therefore, double jeopardy protections apply to any

contempt which is determined to be criminal.

Whether a contempt is civil or criminal depends largely on

the character of the sanction imposed. If it is for civil contempt

the punishment is remedial and for the benefit of the

complainant. But if it is for criminal contempt the sentence is

punitive, to vindicate the authority of the court. Gompers Vv.

Bucks Stove Range Co. (1911), 221 U.S. 418, 441, 55 L-Ed.797,

806. Sanctions for criminal contempt thus share three traditional

characteristics: (1) the sanction is a punishment; (2) the sanction

is imposed for conduct that has occurred in the past; and (3) the

purpose of the sanction is to uphold the authority of the court.

Civil contempt produces a remedial sanction, which is one

intended to coerce the termination of specific misconduct which

constitutes a continuing contempt of court.*

If the relief provided is a sentence of

imprisonment, it is remedial if "the defendant

stands committed unless and until he performs

the affirmative act required by the court’s order,”

and is punitive if "the sentence is limited to

imprisonment for a definite period.”

***

If the relief provided is a fine, it is remedial when

it is paid to the complainant, and punitive when it

is paid to the court, though a fine that would be

payable to the court is also remedial when the

defendant can avoid paying the fine simply by

performing the affirmative act required by the

court’s order.

Hicks v. Feiock (1988), 485 U.S. 624, 632, 99 LEd. 2d 721, 731,

citing Gompers v. Bucks Stove, supra, 221 U.S., at 442.

The $500 fine imposed on these Appellants constituted a

punishment for past conduct imposed for the purpose of

upholding the authority of the court. The fine was payable to the

court. The Appellants could not avoid paying the fine by

performing an affirmative act. The sanction was, therefore,

punitive. It could not be imposed for the same conduct which

supported Appellant’s prior conviction for criminal trespass, for

to do so placed Appellant's in jeopardy twice. Grady v. Corbin,

supra.

We conclude that an essential element of the charge of

contempt brought against Appellants required proof of conduct

which constituted the offense of criminal trespass for which they

had previously been prosecuted ‘an convicted. The portion of

their punishment which constitutes a criminal penalty is,

*See, Martineau, Contempt of Court: Eliminating the Confusion Between Civil

and Criminal Contempt (1981), 50 Cin. L. Rev. 677, at 693-4.

therefore, barred by double jeopardy. The portion of the fine in

the amount of $500 ordered suspended was, in contrast, a civil

penalty, not because it was suspended but because it was

imposed to coerce certain behavior an can be avoided by

Appellants by compliance with the court’s order. It was purely

"remedial" and thus did not put Appellants in jeopardy of

criminal proceedings or criminal punishment twice.

Based on the foregoing, the Appellant’s First Assignment of

Error is sustained.

2. Personal Jurisdiction/Class Certification

In their Second and Third Assignments of Error, the

defendants essentially argue that the trial court erred be

improperly including them in the defendant class and finding

them in contempt of the permanent injunction. These

arguments are not persuasive.

We conclude that in looking at the peculiar facts of this

appeal class certification is not at issue. The evidence indicates

that after the defendants’ arrival at the health center each was

served with a copy of the court’s order and were informed by the

deputies that their actions were in violation of that order. Had it

not been a violation of the double jeopardy clause to do so, the

trial court could have found each defendant in contempt of its

order for their individual acts.

The defendants’ Second and Third Assignments of Error are

overruled.

3. Clarity of Order

Defendants argue in their Fourth Assignment that the trial

court erred in enforcing an order that was “vague, overbroad,

and beyond the comprehension of persons of ordinary

intelligence." Based upon the record before us, we do not agree.

There is ample evidence in the record to indicate that all of

the defendants were served with the order and that the deputies

— s aaiattaal

|

made them aware of it provisions. The defendants’ purported

inability to understand the order is not persuasive.

Accordingly, the defendants’ Fourth Assignment of Error is

overruled.

4. Recusal

In their final assignment, the defendants contend that the

trial court erred in not recusing itself after engaging in the

prosecutorial act of instituting the contempt charges against

them.

First of all, there is no evidence in the record supporting the

defendants’ contention that the trial court acted as both

prosecutor and trier of fact. It was the county prosecutor's

office, not the trial judge, that acted as advocate.

Secondly, the defendants have not shown why it was error for

the trial court to refuse to recuse itself so that it could enforce its

own order. Although there is evidence in the record to indicate

that the trial judge reviewed tapes of the defendants’ conduct

and was involved in meetings with the prosecutors and deputies

prior to trial, there is no showing that the trial judge was unable

to maintain his objectivity when the contempt charges were

brought before him on the merits.

Based upon the foregoing, the defendants’ Fifth Assignment

of Error is overruled.

Ill

CONCLUSION

A. CASE NO. 11545

All of their Assignments of Error having overruled, the

judgment of the trial court dated March 14, 1989, finding Tammy

Silvey, Corina Sumner, Mindy Berry, David Mehaffie, Kym

Mehaffie, James Mehaffie, Dawn Thomas, Bruce Moore, Lori

Delane, and Mary Gigandet in contempt, will be affirmed.

B. CASE NO. 11637

Tammy Silvey’s sole Assignment of Error having been

overruled, the judgment of the trial court finding her in

contempt and assessing fines will be affirmed.

C. CASE NO. 11685

Their First Assignment of Error having been sustained, the

judgment of the trial court finding Virginia A. Bachelier, John V.

Bertrand, Elaine V. Deaton, Kathleen M. Dewey, Thomas P.

Drake, Geraldine M. Dzikowski, Margaret J. Geis, Robert P.

Geis, Kevin S. Gordon, Mark E. Hayden, Constance M. Huricr,

Mathew Keck, David B. Leach, Francis Lieuwen, Raymond E.

Loebker, James M. Martin, John D. Parker, Estelle Quallen,

Robert P. Rust, Marcella L. Tilford, Lewis H. Urling, and Paul F.

Weckenbrock in contempt and assessing fines against them, will

be ordered modified, and that portion of the penalty in the form

of a fine in the amount of $500 not suspended upon further

compliance is vacated. The portion of the order concerning the

suspended fine in the amount of $500 is affirmed and continued.

FAIN, P.J., WOLFF, J., and GRADY, J., concur.

Copies mailed to:

David C. Greer, Esq.

John F. Haviland, Esq.

Thomas E. Grossman, Esq.

Robert Huffman, Esq.

James J. Condit, Esq.

Chris R. VanSchaik, Esq.

Victor T. Whisman, Esq.

Honorable John M. Meagher

‘he Supreme Court of Ohio

1992 TERM

To wit: January 22, 1992

Dayton Women’s Health

Center, et al., : Case No. 91-2141

Appellees, ;

V.

David Enix, et al.,

Appellants.

Upon consideration of the motion for an order directing the

Court of Appeals of Montgomery County to certify its record,

and the claimed appeal as of right from said court, it is ordered

by the Court that said motion is overruled and the appeal is

dismissed sua sponte for the reason that no substantial

‘constitutional question exists therein.

COSTS:

Motion Fee, $40.00, paid by James E. Mahaffey.

(Court of Appeals Nos. 11545 & 11637)

{

(s/

THOMAS J. MOYER

Chief Justice