# Appendix — Sorrell v. Dayton Women's Health Center, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0632%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1992 - **Citation:** 505 U.S. 1221 ## Text 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 defe [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0632%3A2. Public record. Not legal advice.