Opposition Brief — Condit v. Hamilton County
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Pt Supreme Court, U.S.
FILED
JAN 7 1998
No. 97-961
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1997
JAMES CONDIT, JR., et al.,
Petitioners,
v.
HAMILTON COUNTY, OHIO, et al.,
Respondents.
On Petition For A Writ Or CERTIORARI
To Tue Hamitton County Court OF AppEALs
First Appreciate District Or OnI0
BRIEF OF RESPONDENTS HAMILTON
COUNTY, OHIO; BOARD OF COUNTY
COMMISSIONERS OF HAMILTON
COUNTY, OHIO; LINCOLN STOKES;
SIMON L. LEIS, JR.; DANIEL WOLFANGEL;
AND DANIEL LOSITO IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI
TO THE HAMILTON COUNTY COURT OF
APPEALS, FIRST APPELLATE DISTRICT
OF OHIO
(COUNSEL ON INSIDE COVER)
BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO 800-890-5001
OpposinG COUNSEL:
THomas W. ConpItT
9403 KENwoop Roap
SutrTE C-208
CINCINNATI, OHIO 45242
(513) 985-9333
JOSEPH T. DETERS
PROSECUTING ATTORNEY
HAMILTON County, OHIO
PHILIP L. ZORN, JR.
ASSISTANT PROSECUTING ATTORNEY
HAMILTON COUNTY, OHIO
COUNSEL OF RECORD
230 E. NINTH STREET, SurrE 7000
CINCINNATI, OHIO 45202-2151
(513) 946-3059, rax (513) 946-3018
COUNSEL FOR RESPONDENTS
HAMILTON County, Ou10; BoarRD oF COUNTY
COMMISSIONERS OF HAMILTON COUNTY, OHio;
SIMON L. LEIs, JR.; LINCOLN STOKES; DANIEL
WOLFANGEL; AND DANIEL LosITo
COUNSEL OF RECORD FOR PETITIONERS
OTHER COUNSEL:
Fay D. Dupuis
Crry SOLICITOR
CINCINNATI, OHIO
Juuie F. BIssINGER
Ass'T. Crry SOLICITOR
CINCINNATI, OHIO
COUNSEL OF RECORD
City. oF CINCINNATI, OHIO
214 Crry HALL
801 PLum STREET
CINCINNATI, OHIO 45202
(513) 352-3332
FAX (513) 352-1515
COUNSEL FOR RESPONDENTS
City oF CINCINNATI, LAWRENCE E. WHALEN,
DONALD HuDSON AND DANIEL CAIN
QUESTIONS PRESENTED
DOES THIS COURT HAVE JURISDICTION
TO GRANT THE WITHIN PETITION FOR
A WRIT OF CERTIORARI?
ARE COUNTY LAW ENFORCEMENT
OFFICERS WHO EXECUTE THE VALID
ORDER OF A STATE COURT JUDGE,
AND ARE THEREAFTER SUED IN THEIR
OFFICIAL CAPACITIES PURSUANT TO 42
U.S.C. §1983 FOR SO DOING, AND THE
COUNTY WHICH EMPLOYS THOSE
OFFICERS, ENTITLED TO ABSOLUTE
QUASI-JUDICIAL IMMUNITY FROM
SUIT?
ARE COUNTY LAW ENFORCEMENT
OFFICERS WHO EXECUTE THE VALID
ORDER OF A STATE COURT JUDGE,
AND ARE THEREAFTER SUED IN THEIR
INDIVIDUAL CAPACITIES PURSUANT
TO 42 U.S.C. §1983 FOR SO DOING,
ENTITLED TO ABSOLUTE QUASI-
JUDICIAL IMMUNITY FROM SUIT?
PARTIES TO THE PROCEEDINGS BELOW
Plaintiffs-Appellants: JAMES J. CONDIT, JR., KATHY
CONDIT, ROSEMARY CALLAHAN, DAVID
CALLAHAN, MICHAEL O'BRIEN, NANCY O'BRIEN,
WARREN SMITH, PAMELA SMITH, ANTHONY
TIDWELL, SHEILA TIDWELL, MICHAEL MEYER,
SARA MEYER, THOMAS SINGLETON, JASON MILLER,
CYNTHIA CONKLIN, DAVID CONKLIN, TERRI
CONKLIN, ROGER SPRY, DON JOHNSON, JOSEPH
EDWARD MARTIN, JOHN PARKER, TERRY PARKER,
JOANNE ENGEL, DANIEL ENGEL, and KATHLEEN
ENGEL, a minor by Joanne Engel.
Defendants-Appellees: HAMILTON COUNTY, OHIO;
BOARD OF COUNTY COMMISSIONERS OF HAMILTON
COUNTY, OHIO; SIMON L. LEIS, JR.; LINCOLN
STOKES; DANIEL WOLFANGEL; DANIEL LOSITO;
CITY OF CINCINNATI, OHIO; LAWRENCE E.
WHALEN; DONALD HUDSON; AND DANIEL CAIN.
TABLE OF CONTENTS
QUESTIONS PIRGGUE ED 6 eee ewe. i
PARTIES TO THE PROCEEDING BELOW ....... ii
peo Re ee a iii
pe as tee: ot ee Vv
NTS 9g Sigal es itis onic OSE aS + ees 1
STATEMENT OF THECASE ................ 1
A. Pen I i eee ce. 1
B. Facts Material to the Consideration of
the Questions Presented ........... 5
RU istic akan Whee A S45 a 12
Issue # 1. The Court Does Not Have
Jurisdiction to Grant the Within Petition for a
[ll ae 12
Issue # 2. County Law _ Enforcement
Officers Who Enforce the Valid Order of a -
State Court Judge, and Are Thereafter Sued in
Their Official Capacities Pursuant to 42
U.S.C. § 1983 for so Doing, and the County
Which Employs Those Officers, Are Entitled
to Absolute Quasi-Judicial Immunity From
WR. ee ae Re ee ces Vane ence wee 15
Issue # 3. County Law Enforcement
Officers Who Execute the Valid Order of a
State Court Judge, and Are Thereafter Sued in
Their Individual Capacities Pursuant to 42
U.S.C. § 1983 for So Doing, Are Entitled To
Absolute Quasi-Judicial Immunity From Suit. . 23
UR rca ty mney eee ee eee 26
APPENDIX
Appendix A
Order from Association for Children for
Enforcement of Support, Inc.. et al v. Ronald
Panioto, et al., No. C-1-85-1219,
United States District Court, Southern District
of Ohio, J. Spiegel, Dec. 18, 1986
ee Os ae a eR Ee es Al
Appendix B
Order From Bachelier, et al. v. Hamilton
County, Ohio, et al., No. 90-3725
United States Court of Appeals for the Sixth
Circuit, April 30, 1991 (unreported) ...... Al3
iV
TABLE OF AUTHORITIES
Cases
) ‘ation for Children f
Enforcement of Support, Inc.. et al.
y. Ronald Panioto, et al.,
No. C-1-85-1219 (S.D. Ohio Dec. 18,
1986, J. Spiegel; unreported) .........
No. 90-3725 (6th Cir. April 30, 1991;
a Se a nS an
Baker v. McCollan,
EE Foy, ra
Doe v. McFaul,
599 F.Supp. 1421 (N.D. Ohio 1984)
Echols v, Parker,
us F260 t90 (Gs Cir. 1990) 2... 2...
Graham v. O’Connor,
a
Hill v. California.
os 0) Irae are
Johnson v. Granholm,
662 F.2d 449 (6th Cir. 1981), cert. denied,
OT Wie Iv vere eae ve Wes
: "aay a aay Be
Kelly v. Whiting (1985),
17 Ohio St.3d 91, U.S. cert, denied,
105 GR Sa reek EE 20, 21
Kings Powder Co. v, Thrasher,
20 ONP NS 401, 28 O.Dec. 356;
23 O.Jur.3d, Courts and Judges §515 ............ 13
Leatherman v. Tarrant County Narcotics
intelli | Coordination Unit.
SOT UEP Xba S owes we cee 16, 17, 18, 19
Linkensdorfer v. Wenizel,
BC BS i ines os ince w eee 13 -
ee pc ca was wee eee 3
So EE ere se ee eee me 18, 22
Monroe vy. Pape,
Ps os os os ose RO mats 17, 18
Owens v, City of Independence,
ee i ns yn winnie o's 17, 18
PI rt: ey ¢ Cincinnati. I
y. Project Jericho (1990),
ee ee ae ee ee 2, 5, 20
vi
Pugh v. Parrish of St. Tammany,
oe 21
Pusey v. City of Youngstown,
11 F.3d 652 (6th Cir. 1993), cert. denied,
i ae Sp. a 4
Scarso v. Cuyahoga County Dept. of
Human Services,
747 F.Supp. 381 (N.D. Ohio 1989) ............. 21
Scott v. O’Grady,
975 F.2d 366 (7th Cir. 1992), cert. denied,
pee SN ee i.) 4
Stump v. Sparkman,
Ge eee ETD. kc we eee cee cess 19, 20, 21, 25
Wholesale Electric Supply v. Robusky (1970),
EE ee 21
Will v. Michigan Dep't. of State Police.
ee cee eee en 3
Statutes
te ew hese ies 2, 4, 15, 16,
SAR OREN rene heer Ft Pee A 19, 22, 23, 25
ee eC awe ecceeeen 2
ee TS ee ee 3
ey Be 10
Vii
Other
Ohio Constitution, ArticleIV§3 ............... 13
Rule 10 of Rules of Supreme Court of
ee ee ee ss 6 hie Se rece ke Sek Liab.
Vill
ti Si a mene a cata tl lit lt tt ION te carting te
JURISDICTION
Judge Thomas Crush of the Hamilton County (Ohio)
Court of Common Pleas entered his decision on the parties’
cross-motions for summary judgment on January 16, 1996
(see Appendix E to petitioners’ within petition for a writ of
certiorari, hereinafter the "petition"), and his final judgment
on January 25, 1996. The Hamilton County Court of
Appeals, First Appellate District of Ohio, affirmed the
judgment on February 26, 1997 (see Appendix D to the
petition). The Supreme Court of Ohio declined to exercise
jurisdiction of petitioners’ appeal and denied review of the
judgment of the court of appeals on June 18, 1997 (see
Appendix C to the petition), and denied petitioners’ motion
for reconsideration on September 3, 1997 (see Appendix B to
the petition).
The considerations governing this Court’s jurisdiction
on a writ of certiorari are enumerated in Rule 10 of the Rules
of the Supreme Court of the United States. That rule clearly
states, in relevant part, "A petition for a writ of certiorari will
only be granted for compelling reasons." In light of the
considerations enumerated in Rule 10, this Court does not
have jurisdiction to grant the within petition, and thus the
. petition must be denied. In addition, respondents state that
there is no compelling reason for the petition to be granted.
STATEMENT OF THE CASE
A. PROCEDURAL POSTURE.
Petitioners herein (plaintiffs below) filed their
complaint in the underlying case (James J. Condit, Jr., et al
y. Planned Parenthood Association of Cincinnati, et al.) on
June 26, 1987, in the Hamilton County (Ohio) Court of
]
Common Pleas. The case was assigned to Common Pleas
Court Judge Thomas Crush. As a matter of law, judges of a
Court of Common Pleas in Ohio are, for 42 U.S.C. §1983
purposes, considered to be state, not county, officials.
Petitioners' complaint was later amended twice.
Defendants below included:
i Hamilton County, Ohio; the Board of County
Commissioners of Hamilton County, Ohio (Hon. Guy C.
Guckenberger, Hon. John Dowlin and Hon. Robert
Bedinghaus); Hon. Simon L. Leis, Jr., the Hamilton County
Sheriff; deputy sheriff Col. Wolfangel; deputy sheriff Daniel
Losito (the "County defendants", and respondents herein);
a. City of Cincinnati, Lawrence E. Whalen,
Donald Hudson and Daniel Cain (the "City defendants", and
respondents herein); and
3. Planned Parenthood Association of Cincinnati,
Inc., Ann Mitchell, Robert Hatfield, Lynn Estomin, Robert
Laufman, Timothy Black and Phil Bonham (the "Planned
Parenthood defendants").
The action was filed pursuant to 42 U.S.C. §§1983 and 1985,
and state tort law. The gist of the second amended complaint
was that respondents violated petitioners’ civil and other legal
rights when, pursuant to a direct order issued to respondent
Sheriff by Judge Crush in another case (Planned Parenthood
vy. Project Jericho) to enforce his injunction in that case
regulating abortion protests, respondents arrested petitioners
on June 28, 1986, for protesting in violation of the injunction.
All defendants filed respective motions to consolidate
the two cases, which Judge Crush granted. Shortly thereafter,
2
petitioners filed a motion for Judge Crush to recuse himself
from the cases, which motion was denied.
Subsequently, all the defendants in the cases filed
motions to dismiss under Civ. R. 12(b)(6). The trial court did
not dismiss the case as to all claims, but it did grant the
dismissal as to certain plaintiffs in regard to certain claims, to-
wit: Rosemary and David Callahan, Michael and Nancy
O'Brien, Michael and Sara Meyer, Joanne and Daniel Engel
and John and Terry Parker, with regard to Causes of Action
nos. 1, 2, 3, 5, 6, 8, 9, 12, 13 and 14.
Ultimately, cross-motions for summary judgment were
filed, and the parties jointly filed certain stipulations.
Respondents' motion for summary judgment was based on
five (5) separate grounds: 1) absolute quasi-judicial immunity
on all claims; 2) Eleventh Amendment immunity on the
federal claims; 3) qualified immunity on the federal claims; 4)
lack of an actionable county policy or custom on the federal
claims; and 5) statutory immunity on the state law claims. '
' The second ground for the motion, the Eleventh
Amendment immunity argument, was withdrawn by the County
defendants on appeal as inapplicable in a state court proceeding.
Will v. Michigan Dep't. of State Police, 491 U.S. 58, 63-64
(1989), quoting Maine v. Thiboutot, 448 U.S. 1, 9, n. 7 (1980).
In its place, respondents attempted to argue what they should
have argued in the first place; namely, that, in executing the
order of a state court judge, the county law enforcement officers
were acting as agents of the state, and not of the county;
therefore, as a matter of law, plaintiffs’ official capacity §1983
suit against them must be treated as a suit against the State of
Ohio, and not as a suit against Hamilton County; however, a
State is not a "person" within the meaning of that term as it is
used in 42 U.S.C. §1983; and thus, since §1983 only operates to
3
On January 16, 1996, Judge Crush issued his decision
in the case denying the petitioners' motion for partial
summary judgment and granting the respondents' motions for
summary judgment. Judge Crush apparently granted the
respondents’ motions for summary judgment solely on the
ground of absolute quasi-judicial immunity from suit on all
claims. See the trial court's decision, appended to petitioner's
within petition as Appendix E. On January 25, 1996, Judge
Crush entered final judgment in the matter. On February 23,
1996, petitioners appealed to the Hamilton County Court of
Appeals, First Appellate District of Ohio, which affirmed the
judgment of the trial court on February 26, 1997. Again,
despite respondents arguing all of their other grounds for
summary judgment to the court of appeals, the court of
appeals appeared to affirm solely on the ground of absolute
quasi-judicial immunity from suit on all claims. See the court
of appeals' decision, appended to the petition as Appendix D.
On April 14, 1997, petitioners appealed to the Supreme Court
of Ohio, which declined jurisdiction on June 18, 1997. See
redress the actionable conduct of a "person", plaintiffs’ federal
claims against Hamilton County, and against the other County
defendants in their official capacities, brought pursuant to §1983
(i.e., plaintiffs’ §1983 claims against the state), cannot be
maintained. Will, supra; ee eer 11
F.3d 652 (6th Cir. 1993), cert. denied, _ , 114 S.Ct.
2742 (1994); Scott v. O'Grady, 975 F.2d oH (7th Cir. 1992),
cert. denied _ U.S. _, 113 S.Ct. 2421 (1993); Echols v.
Parker, 909 F.2d 795 (Sth Cir. 1990); Association for Children
for Enforcement of Support, Inc., et al. v. Ronald Panioto, et
al., No. C-1-85-1219 (S.D. Ohio Dec. 18, 1986, J. Spiegel;
unreported; copy of case located at Appendix A of this brief);
Bachelier, et al. v. Hamilton County, et al., No. 90-3725 (6th
Cir. April 30, 1991; unreported; copy of case located at
Appendix B of this brief).
the Supreme Court of Ohio's entry, appended to the petition
as Appendix C. On June 28, 1997, petitioners filed a request
for reconsideration, which the Supreme Court of Ohio denied
on September 3, 1977. See the Supreme Court of Ohio's
reconsideration entry, appended to the petition as
Appendix B.
Petitioners filed their within petition for a writ of
certiorari on December 2, 1997, and it was placed on the
docket on December 10, 1997.
B. FACTS MATERIAL TO THE CONSIDERATION
OF THE QUESTIONS PRESENTED.
The following facts were in the record before all of the
lower courts.
In January of 1986, Planned Parenthood Association
of Cincinnati, Inc. ("Planned Parenthood") moved The
Margaret Sanger Center, a clinic where abortions and other
medical services were provided, to 3332 Vine Street in
Cincinnati, Ohio. Shortly thereafter, the number of protestors
picketing against abortion each week increased significantly.
On March 26, 1986, Planned Parenthood filed a
complaint in the Hamilton County Court of Common Pleas
against Americans Against Abortion, Right to Life of Greater
Cincinnati, Inc., Jericho Project, Tracy Antczak, Jonathan
Brockhoeft, Raymond Loebker, and petitioner James Condit,
Jr. (Planned Parenthood vy. Project Jericho). The lawsuit
was assigned to Hamilton County Common Pleas Court Judge
Thomas Crush, and it sought injunctive relief, alleging that
the named defendants and other unnamed persons had engaged
in a variety of tortious acts. The parties to this case were all
private parties, and there were no Hamilton County agencies,
5
boards, officials, employees, agents or other representatives
who were parties. Hearings on Planned Parenthood's request
for an injunction were held in March and April, 1986, during
which time Planned Parenthood filed an amended complaint
with class action allegations and a motion to certify a
defendant class.
On June 20, 1986, Judge Crush granted Planned
Parenthood's second motion to amend the complaint and the
motion to certify a defendant class. Judge Crush issued a six-
page preliminary injunction (hereinafter "the injunction")
defining the class and setting out the prohibitions for
defendant class members. A true and accurate copy of the
injunction is appended to petitioners’ within petition as
Appendix F.
Respondent Daniel Wolfangel ("Wolfangel") is a duly
appointed, qualified and acting deputy sheriff of Hamilton
County, Ohio, and has held that position continuously since
prior to 1986.
In June of 1986, Wolfangel held the rank of colonel in
the Hamilton County Sheriff's Office, and was serving as the
commander of the Sheriff's Court Services Division. Service
and enforcement of court orders were functions of his
division.
On the morning of Friday, June 27, 1986, Wolfangel
was present at a hearing that Judge Crush held in the case
wherein the judge stated, among other things, that he intended
to issue an order to the Sheriff concerning enforcement of the
injunction on Saturday, June 28, 1986. Judge Crush stated
further that he was going to require all of the following things
to occur before an individual could be arrested by the Sheriff
for violation of the injunction: service of the injunction by
6
the Sheriff on the individual; videotaping by Planned
Parenthood of the individual’s subsequent violation(s); and an
affidavit, to be "signed on the spot by someone who knows
the facts", and delivered to the Sheriff, charging the
individual with the violation(s).
Later that day, Judge Crush issued an "Order To The
Sheriff" in the case ("the order"), which ordered the Hamilton
County Sheriff to be present at the vicinity of 3332 Vine
Street Cincinnati, Ohio (the vicinity of the Margaret Sanger
Center) the next day, Saturday, June 28, 1986, between the
hours of 8:00 A.M. and 1:00 P.M., and during those hours to
enforce the injunction by service of it and arrest of violators,
if any, upon whom it had at any time been served. The order
further authorized such enforcement at any appropriate time
on any day. A true and accurate copy of the order is
appended to petitioners’ within petition as Appendix G.
As commander of the Sheriff's Court Services
Division, it was Wolfangel's responsibility to plan, coordinate
and oversee compliance with the order and enforcement of the
injunction, subject to the superior authority of the Chief
Deputy Sheriff and/or the Sheriff.
At no time between the issuance of the order on
Friday, June 27, 1986, and 8:00 A.M. on Saturday, June 28,
1986, did the attorneys for the defendants in the case ever
attempt to contact Wolfangel or any other representative of
the Sheriff's Office to discuss the order, the Sheriff's intended
manner of compliance with it, enforcement of the injunction,
or any other matter.
At some point on Friday, June 27, 1986, after Judge
Crush had issued the order, plaintiff's (i.e., Planned
Parenthood's) attorneys came to Wolfangel's office to discuss
7
and coordinate compliance with the order and enforcement of
the injunction. It was felt that the only way to properly
comply with the order and to enforce the injunction would be
to follow Judge Crush's verbal requirements stated in open
court earlier that day (and as set forth hereinabove) as closely
as possible, to wit: for the deputies on site to attempt to serve
all persons in the area with a copy of the injunction as they
arrived; thereafter, for Planned Parenthood staff to determine
who of those served, if anyone, was violating the injunction,
and to videotape those violations(s); thereafter, for the
Planned Parenthood staffer who observed and determined the
violation(s) to execute an affidavit charging the violator with
the violation(s), and to deliver the affidavit to a representative
of the Sheriff's Office; thereafter, for the Sheriff or a deputy
to effect the arrest of the violator so charged on the basis of
the Planned Parenthood staffer's affidavit. Wolfangel's
understanding of Judge Crush's verbal requirements and
written order was that the Sheriff's sole responsibilities
thereunder were: 1) to serve the injunction; and 2) to arrest
violators of it, if any, upon whom the injunction had been
served. Wolfangel further understood Planned Parenthood's
responsibilities to be: 1) to determine and videotape any
violations; 2) to execute an appropriate affidavit charging an
individual with any violations(s) committed; and 3) to deliver
such affidavit to the Sheriff as the basis for the arrest of the
violator(s). Planned Parenthood's attorneys brought with
them for Wolfangel numerous photocopies of the injunction
to be used for service the next day, and a copy of the
preprinted form "Affidavit Charging Contempt" which they
intended to use, and did in fact use, on June 28, 1986. The
form affidavit appeared to Wolfangel to conform to what
Judge Crush required of such an affidavit.
At no time during this meeting was either observance
or violation of injunction violators’ civil rights discussed.
8
This was due to the fact that it was Wolfangel's sincere and
educated belief then, as it still is today, that the plan discussed
above for compliance with the order and enforcement of the
injunction was completely legal, in conformity with what
Judge Crush ordered, appropriate, and not in any way in
violation of anyone's, including petitioners', constitutional,
civil or otner legal rights. He can only assume, and he
therefore does assume, that this belief was shared by Planned
Parenthood's attorneys.
At no time did Wolfangel feel any legal, civil,
political, religious or other animosity toward those who were
protesting against abortion at the Margaret Sanger Center,
including any of the within petitioners. At no time did he
have any desire or intention whatsoever to infringe upon, limit
or otherwise violate any of their constitutional, civil or other
legal rights; to cause, facilitate, or ratify such violations by
others; or to participate with others in any way in such
violations. At no time did he feel that his conduct or that of
any of the other respondents infringed upon, limited or
otherwise violated any of the injunction violators’
constitutional, civil or other legal rights. Thus, at no time did
Wolfangel ever discuss, plan, conspire or otherwise
collaborate with anyone else regarding commission of such
violations.
Wolfangel's only desire at any time relevant to
petitioners’ within complaints was to fully, faithfully and
properly do his job for the Sheriff by fully, faithfully and
properly complying with the trial court's order to the Sheriff
for enforcement of the injunction.
On Saturday, June 28, 1986, respondent Sheriff
Stokes, Chief Deputy Sheriff Victor Carrelli, Wolfangel and
several other deputy sheriffs, including respondent Losito,
9
were on site at the vicinity of 3332 Vine Street as ordered by
Judge Crush. All Sheriff's personnel on site had been fully
trained as Ohio Peace Officers, and had been certified as such
by the Ohio Peace Officers' Training Council pursuant to
Ohio Revised Code ("RC") §109.77.
All Sheriff's deputies on site were instructed that
compliance with the order and enforcement of the injunction
would follow the procedure outlined hereinabove, and all
were ordered to follow that procedure. All deputies were
reminded of their duty to comply with the existing Sheriff's
Office policy that only the minimum amount of force
necessary was to be used in making an arrest (i.e., only such
force as was necessary and reasonable to effect the arrest, and
no more).
Thereafter, deputies were instructed first to serve
copies of the injunction on all who arrived on site, and
thereafter to arrest only those who had been served, and
against whom a Planned Parenthood staffer had executed an
"Affidavit Charging Contempt".
Well over 100 abortion protestors arrived at the
vicinity of 3332 Vine Street between the hours of 8:00 A.M.
and 10:00 A.M. Service upon all was attempted and,
Wolfangel believes, accomplished. The protestors were very
verbal and noisy, and the atmosphere they created was very
hostile, confrontational and tense. Based upon their behavior,
Wolfangel believed violence on their part was probable, as did
the other deputies on site. Planned Parenthood staffers
videotaped the protest activity.
Shortly after 10:00 A.M., several speeches were
delivered by certain of the protestors to the rest of the crowd
on the west side of Vine Street, across the street from the
10
Margaret Sanger Center. After these speeches, several people,
including the petitioners herein, crossed Vine street to spots
directly in front of the Sanger Center. During the next hour
or so, Planned Parenthood staffers continued to videotape the
protestors’ activity, and a Planned Parenthood staffer executed
affidavits charging certain individuals, including petitioners
herein, with contempt for violation of the injunction. These
affidavits were then delivered to Sheriff's personnel by
Planned Parenthood personnel, and all violators, including all
petitioners herein, were then arrested on the basis of the
Planned Parenthood staffer's sworn affidavits.
To the best of Wolfangel's knowledge at that time, all
who were arrested on June 28, 1986, had first been served
with a copy of the injunction and had their violation(s)
videotaped, and were thereafter arrested pursuant to an
" Affidavit Charging Contempt", which affidavit was executed
by a Planned Parenthood staffer. Indeed, the typed portion of
the affidavit was identical for all of the petitioners herein, and
clearly stated that the violator had first been served with a
copy of the injunction, and that he or she had thereafter
violated the injunction. Those arrested were thereafter
transported to the Hamilton County Justice Center or the
Hamilton County Youth Detention Center, and were held
therein until the conditions for their release, set by Judge
Crush, had been met.
The Sheriff’s Office had every desire, and made every
attempt, to faithfully and properly comply with Judge Crush’s
"Order To The Sheriff", and to enforce the injunction in a
legal and proper manner. To the best of Wolfangel’s
knowledge at that time, this was accomplished. However, it
later was determined that service of the injunction on
petitioners Tidwell, Miller, Taylor, Spry, C. Conklin,
D. Conklin and Engel was not videotaped, and thus could not
11
—
be verified at their contempt hearings, and that petitioners
Davis and Johnson were arrested pursuant to signed affidavits
which charged that they had committed a violation or
violations of the injunction, but which did not specify the
exact nature of the violation(s) they had committed.
as
Ultimately, Judge Crush dismissed the contempt
charges against all petitioners.
ARGUMENT
ISSUE #1. THIS COURT DOES NOT HAVE
JURISDICTION TO GRANT THE WITHIN PETITION
FOR A WRIT OF CERTIORARI.
Rule 10 of the Rules of the Supreme Court of the
United States provides, in relevant part, that "A petition for
a writ of certiorari will be granted only for compelling
reasons." Rule 10 goes on to enumerate the considerations
governing review on certiorari, the only ones relevant to this
proceeding being when:
(b) a state court of last resort has decided an important
federal question in a way that conflicts with a decision
of another state court of last resort or of a United
States Court of Appeals; [or]
(c) a state court or United States Court of Appeals has
decided an important question of federal law that has
not been, but should be, settled by this Court, or has
decided an important federal question in a way that
conflicts with relevant decisions of this Court.
In this case, the "state court of last resort" in Ohio,
i.e., the Ohio Supreme Court, did not accept jurisdiction of
12
petitioners’ appeal, and thus did not decide anything. Even if
this Court construes the term "court of last resort" to include
the Hamilton County Court of Appeals, First Appellate
District of Ohio, that court did not decide "an important
federal question in a way that conflicts with the decision of
another state court of last resort or of a United States Court of
Appeals". Accordingly, this Court would not have
jurisdiction over the within petition under consideration (b) of
Rule 10.
Furthermore, the highest Ohio state court that has
decided this case, i.e., the Hamilton County Court of
Appeals, First Appellate District of Ohio, has neither
"decided an important question of federal law that has not
been, but should be, settled by this Court", nor has it
"decided an important federal question in a way that conflicts
with relevant decisions of this Court". Thus, no jurisdiction
would lie under consideration (c) of Rule 10.”
Additionally, there are no compelling reasons to grant
the petition in this case. This case merely involves: 1) the
arrest of petitioners by respondents, pursuant to an express
court order to respondents, issued by a state court judge, to
enforce his injunction by arresting anyone who violated the
injunction after first having been served with a copy of it, and
2) the resulting grant of absolute quasi-judicial immunity to
the respondents for their compliance with the order. Judge
2 The First Appellate District of Ohio is comprised
solely of Hamilton County, Ohio. Thus, decisions of the
Hamilton County Court of Appeals, First Appellate District of
Ohio, are binding only in Hamilton County, Ohio. Ohio
Constitution, Article IV, §3; Linkensdorfer v. Wentzel, 4 ONP
94, 6 O.Dec. 6; Kings Powder Co. v. Thrasher, 20 ONP NS
401, 28 O.Dec. 356; 23 O.Jur.3d, Courts and Judges, §515.
13
Crush required that the arrests be based upon the sworn
affidavit of someone at the scene with personal knowledge of
the service of the injunction on the arrestee, and of the
arrestee's subsequent violation of it. The respondents’ arrest
conduct in response to Judge Crush's order was evaluated by
the lower courts and found to be in full compliance with the
order (see Appendix E to the petition, at page 13a of the
appendix, the trial court's decision on summary judgment:
"...First and foremost, each of the arrests in question were
carried out, by each of the arresting persons, according to the
orders of this Court; and, therefore, the arresting persons
benefit from the immunity of this Court...")
The trial court went on to correctly identify
petitioners’ real complaint in the action:
"...The real complaint, if any, that plaintiffs
have is that the perscns who signed the
affidavits, which proviced probable cause for
the arrests, signed them erroneously or falsely.
Whether this is true or not will never be
litigated since plaintiffs have settled with these
persons and dismissed them from these
actions. Plaintiffs, having voluntarily removed
from litigation the only persons who may have
wronged them, cannot now be permitted to
proceed against persons who acted under the
orders of the Court, in the manner established
by the Court, and upon probable cause..."
Id., at 13-14.
On appeal, the court of appeals reviewed and upheld
the trial court's factual findings regarding the respondents’
compliance with the trial court's order:
14
"In this case, the propriety of extending
immunity is enhanced by the fact that the order
at issue has been held to be valid. We also
note that appellants have not presented
sufficient evidence that the appellees acted
beyond the judge's order..."
(See Appendix D to the petition, at page 10a of the appendix,
the court of appeals decision.)
Rule 10 of this Court's rules concludes by stating that
"..A petition for a writ of certiorari is rarely granted when
the asserted error consists of erroneous factual findings or the
misapplication of a properly stated rule of law..." And, the
within petition, in effect, if not in so many words, asserts
both.
Accordingly, respondents respectfully submit that this
Court has no jurisdiction to grant the petition, and thus that
the petition must be denied.
ISSUE #2. COUNTY LAW ENFORCEMENT
OFFICERS WHO ENFORCE THE VALID ORDER OF
A STATE COURT JUDGE, AND ARE THEREAFTER
SUED IN THEIR OFFICIAL CAPACITIES PURSUANT
TO 42 U.S.C. §1983 FOR SO DOING, AND THE
COUNTY WHICH EMPLOYS THOSE OFFICERS, ARE
ENTITLED TO ABSOLUTE QUASI-JUDICIAL
IMMUNITY FROM SUIT.
On page 12 of their within petition, petitioners state
that counties and cities whose policy makers enforce valid
state court orders are not entitled to absolute quasi-judicial
immunity from suit pursuant to 42 U.S.C. §1983 for so
doing, but then immediately concede that "...[this Court] has
15
never addressed (as an actual holding of a case) the
availability of absolute quasi-judicial immunity to cities and
counties whose agents enforce a court order..."
Nevertheless, appellants rely heavily on the case of
Leath T t County N tics Intelli ;
Coordination Unit, 507 U.S. 163 (1993), as authority that
Hamilton County is not entitled to absolute quasi-judicial
immunity from suit herein. However, as scrutiny of the
Leatherman decision reveals, the case conclusively
determines only one thing: i.e., that a federal court may not
apply a "heightened pleading standard" - one more stringent
than the usual pleading requirements of Rule 8(a) of the
Federal Rules of Civil Procedure - in civil rights cases
alleging municipal liability under 42 U.S.C. § 1983. This is
the entire holding of the case. Leatherman, 507 U.S., at
164. Thus, Leatherman is completely inapposite to the
instant case.
As this Court noted in Leatherman, at 507 U.S., at
166, the respondents in that case claimed:
"...that municipalities’ freedom from
respondeat superior liability...necessarily
includes immunity from suit. In this sense,
respondents assert, municipalities are no
different from state of local officials sued in
their individual capacity..." (Emphasis
added.)
Simply put, the respondents have never taken either of these
positions in the instant case, and thus Leatherman is factually
inapposite to the instant case.
Furthermore, the instant case is not one in which the
16
respondents, in their official capacities, have attempted to
claim qualified immunity. They are well aware that county
officials, in their official capacities (and thus counties
themselves) are not entitled to the defense of qualified
immunity.’
Thus, the vast majority of the dicta from Leatherman
has absolutely no application to the instant case. In this dicta,
this Court merely noted that when it last revisited the question
of whether municipalities are entitled to some form of
"limited" immunity (i.e., in the case of Owens v. City of
Independence, 445 U.S. 622 (1980)), it did so solely in the
context of having to decide whether municipalities were
entitled to qualified immunity:
"...in Owens...we rejected a claim that
municipalities should be afforded qualified
immunity, much like that afforded individual
officers, based on the good faith of their
agents..." Leatherman, 507 U.S., at 166.
Since the instant case has never involved a claim of
qualified immunity for the appellees in their official
Capacities, or for Hamilton County itself, this dicta has no
relevance herein whatever.
Yet, in fairness, the dicta quoted by petitioners on
pages 13 and 14 of their petition, does go on to say:
"...These decisions (Owens, supra, Monroe
> The respondents did, of course, assert below
qualified immunity from suit in their individual, personal
Capacities, but not in their official capacities.
17
y. Pape, 365 U.S. 167, 81 S.Ct. 473, 5
L.Ed.2d 492 (1961), and Monell v. New York
City Dept. of Social Services, 436 U.S. 658,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)] make
it quite clear that...municipalities do not enjoy
immunity from suit - either absolute or
qualified -under § 1983..." In short, a
municipality can be sued under §1983, but it
cannot be held liable unless a municipal policy
or custom caused the constitutional injury..."
Id.
However, this dicta is neither controlling nor persuasive.
Monroe was a very early decision which had baldly held that
municipalities were, as the Supreme Court phrased it in
Leatherman (507 U.S. at 166), "wholly immune" from suit
under § 1983. In overruling Monroe by holding that
municipalities could be sued under § 1983, the Monel} Court
was not confronted, and thus did not deal, with the either the
concept or the issue of absolute quasi-judicial immunity. To
be more specific, neither Monroe, Monell nor Owens
involved the issue which is present in the instant case: i.e.,
whether a municipality is entitled to absolute quasi-judicial
immunity when its officers are sued in their official capacities
for doing nothing more than obeying the facially valid order
of a state court judge.* Thus, those three cases, and
.
An Ohio Common Pleas Court Judge is a state not a
county official for purposes of liability under 42 U.S.C. §1983.
Association for Children for Enforcement of Support, Inc. v.
Panioto, Case No. C-1-85-1219, United States District Court,
Southern District of Ohio, J. Spiegel, Dec. 18, 1986
(unreported; copy appended hereto as Appendix A); Bachelier,
et al. v. Hamilton County, et al,, Case No. 90-3725, United
States Court of Appeals for the Sixth Circuit, April 30, 1991, p.
18
Leatherman itself, are all clearly inapposite to the case at
bar.
Most importantly, "...[A] judge will not be deprived
of immunity because the action he took was in error, was
done maliciously, or was in excess of his authority...”,
Stump v. Sparkman (1978), 435 U.S. 349, 356-357. And,
"{Ijt is well settled that judicial immunity which has
historically protected judges acting in their official capacity ...
also attaches to public officials who perform quasi-judicial
duties." Johnson vy. Granholm, 662 F.2d 449 (6th Cir.
1981), cert. denied, 457 U.S. 1120 (1982). Furthermore, as
previously noted, the lower courts herein have specifically
found that respondents complied faithfully with the
enforcement procedure specifically set forth by Judge Crush
in open court, and in his "Order to the Sheriff".
Thus, even if this Court were to find Judge Crush's
order to be unconstitutional, the respondents would still be
entitled to and protected by absolute quasi-judicial immunity.
See Mireles v. Waco (1991), 502 U.S. 9 (absolute quasi-
judicial immunity granted to al] defendants despite the police
officer defendants faithfully obeying a state court judge's
explicit order to "forcibly and with excessive force seize and
bring [the attorney/plaintiff] into this courtroom"; emphasis
added). In Doe vy, McFaul, 599 F.Supp. 1421 (N_D. Ohio
1984), Doe, the United States District Court applied the
doctrine of quasi-judicial immunity to facts analogous to the
case at bar. There, plaintiffs filed an action under 42 U.S.C.
§1983 against Cuyahoga County (Ohio) and the Cuyahoga
County sheriff, alleging that defendants followed and enforced
an unconstitutional court order. Specifically, defendants in
6 (unreported; copy appended hereto as Appendix B, citing
Panioto).
19
Doe followed a court order requiring the incarceration of a
minor in a regular correctional facility designed for adults.
Although the court held that the judge had made a mistake and
the order was unconstitutional, it held that both the sheriff and
Cuyahoga county were immune pursuant to the doctrine of
absolute quasi-judicial immunity. Jg., 1430-32. As stated in
Doe, individual corrections officers, who implemented a
judge's illegal and unconstitutional but clearly "judicial"
order, shared in his absolute immunity from damages under
the doctrine of quasi-judicial immunity. 599 F.Supp at 1430.
Furthermore, if any errors were made with regard to
the affidavits themselves, or with regard to the people against
whom the affidavits were filed, such errors were clearly the
fault of the Planned Parenthood employee who was charged
with the responsibility of executing the affidavits (and whom
petitioners have released from this litigation), not the fault of
any respondent. And, it must be remembered that errors in
the enforcement of a court order do not negate the absolute
quasi-judicial immunity of the person directed to carry out
the order, which immunity, of course, derives from and is
equal to the immunity of the judge who issued the order.
Stump, Johnson, Mireles, and Doe, supra.
That the trial court had both subject matter and
personal jurisdiction below, and that both Judge Crush's
injunction and his "Order to the Sheriff" issued in that case
were legally valid, are matters no longer open to question.
See Planned Parenthood Assn. of Cincinnati, Inc. v.
Project Jericho (1990), 52 Ohio St.3d 56. Thus, Judge
Crush was and is entitled to absolute judicial immunity for his
issuance of both the injunction and the order. Stump v.
Sparkman, supra, 435 U.S. at 356-357; see also Kelly v.
Whiting (1985), 17 Ohio St.3d 91, U.S. cert. denied, 106
S.Ct.532.
20
That the order is facially valid is readily apparent, and
petitioners do not argue to the contrary. That the respondents
appeared on site on June 28, 1986 and thereafter, and
enforced the injunction on that date and thereafter, solely
because of and in obedience to that order, is beyond rational
argument.
Both federal and Ohio law are well-settled that all who
act pursuant to a facially valid court order share in the issuing
judge's absolute judicial immunity therefor. Accordingly,
under the facts of this case, respondents, including Hamilton
County itself, are entitled to absolute quasi-judicial immunity
herein from all of petitioners’ within claims, both federal and
state. Stump, Johnson, Mireles, Doe, and Kelly, supra.
"{T]he Sixth Circuit has repeatedly extended the absolute
immunity accorded to ) Judges to other individuals involved in
the judicial process." Doe,_at 1431. See also Wholesale
ee oo alge 22 Ohio St.2d 181;
te: ahog2 an Services, 747
F. jem 381 (N.D. Ohio 1989): and Pugh v. Parrish of St,
Tammany, 875 F.2d 436 (Sth Cir. 1989) (absolute
prosecutorial immunity granted to a Louisiana parish, which
is the equivalent of an Ohio county).
Respondents submit that virtually all of the legal and
public policy reasons enumerated in the various authorities
cited hereinabove, for according absolute quasi-judicial
immunity to those who comply with court orders, fully
support the lower courts’ grant of absolute quasi-judicial
immunity from suit to respondents herein, including to
respondent Hamilton County, Ohio. Furthermore, and
perhaps even more importantly, the instant case presents
another compelling reason why the grant of absolute quasi-
judicial immunity to respondent Hamilton County must be left
undisturbed: to the degree that petitioners were aggrieved by
21
their arrests, they were aggrieved solely by the injunction and
order issued by Judge Crush, a state official for § 1983
purposes and nothing else. Thus, it simply would be neither
fair nor just to penalize the citizens of one Ohio county (i.e.,
Hamilton County) for actions taken in accordance with a court
order issued by a state, not a county, judge.°
Petitioners do not even pretend that the dicta they cite
in support of their position is binding, and this Court and all
parties know that it is not binding. Respondents submit that
this dicta is both inapposite and unpersuasive, as well.
Accordingly, the lower courts’ decisions herein need not be
and must not be disturbed.
Based upon all of the foregoing, it is readily appar» ®t
that the respondents were acting solely pursuant to and in
conformity with a valid order of a state court judge when they
arrested petitioners, and thus that all respondents, in all
* In addition to their absolute quasi-judicial immunity
from suit, respondents wish to reiterate and to stress that, since
they acted as officers of the state and not of Hamilton County
when complying with the state court judge’s order to the Sheriff,
they cannot be sued in their official capacities pursuant to §1983,
since the state is not a "person" who can be sued under §1983 -
see footnote 1 hereinabove; and that there was no actionable
county policy or custom that was the "moving force" behind
petitioners’ claimed constitutional violations (see Monell v. New
York City Dept. of Social Services, 436 U.S. 658, 694 (1978);
and Bachelier, supra, at 6: "...{H]ere it is clear that Judge
Crush’s injunction, not any policy of appellees, was the moving
force behind the alleged violation of appellants’ constitutional
rights..."). These are perhaps respondents’ strongest two
arguments, but, unfortunately, they were not addressed by any of
the lower courts.
22
Capacities sued, Hamilton County included, are entitled to
absolute quasi-judicial immunity from suit, on all claims
brought by petitioners.
ISSUE #3. COUNTY LAW ENFORCEMENT
OFFICERS WHO EXECUTE THE VALID ORDER OF
A STATE COURT JUDGE, AND ARE THEREAFTER
SUED IN THEIR INDIVIDUAL CAPACITIES
PURSUANT TO 42 U.S.C. §1983 FOR SO DOING, ARE
ENTITLED TO ABSOLUTE QUASI-JUDICIAL
IMMUNITY FROM SUIT.
Petitioners’ second question presented (i.e., "Are law
enforcement officials entitled to absolute quasi-judicial
immunity from claims brought under 42 U.S.C. §1983 when
their manner of enforcing a court order violated the order
itself and resulted in constitutional violations?") is a red
herring, because, as previously noted herein, both lower
courts specifically found from the facts in the record before
them that respondents did not violate Judge Crush’s "Order to
the Sheriff".
The order itself reads, in relevant part:
The Sheriff of Hamilton County is hereby
ordered to be present at the vicinity cf 3332
Vine Street on Saturday, June 28, 1986,
between the hours of 8:00 A.M. and 1:00
P.M. and during those hours to enforce the
injunction filed herein on June 20, 1986. Said
enforcement shall be by service of the order
and arrest of violators, if any, upon whom the
order has at any time been served.
As noted in the record before the lower courts, when
23
Judge Crush issued his order, he stated on the record, in open
Court, inter alia,
I do request orally that no arrests be made
unless the service has been photographed, the
violation has been photographed and an
affidavit signed on the spot by someone who
knows the facts. (Emphasis added.)
As the record below also reflects, on the date of the
incident in question, respondents attempted to serve, and
believed (and still believe) they had served, all persons in the
area, including all petitioners, with a copy of the injunction
prior to any arrests for violations of the injunction. Planned
Parenthood representatives videotaped the entire protest scene
continuously, and the only people arrested for contempt by
respondents were those against whom an "Affidavit Charging
Contempt” had been signed by a Planned Parenthood Staffer.
Furthermore, each "Affidavit Charging Contempt" was
captioned "State of Ohio, Plaintiff vs.
Defendant", stated that it was related to the underlying
Common Pleas Court Case and gave that case number, and
contained at least the following language:
Before me, a Notary Public, personally came
Robert Hatfield [an employee of Planned
Parenthood] who, being duly sworn, according
to law, states that on or about June 28, 1986,
at Cincinnati, Ohio, [name of appellant] did
violate the order of this Court filed and
docketed June 20, 1986, and served upon said
Defendant before the violation of the order.
Thus, it is clear that the Judge Crush's order was faithfully
followed and obeyed by respondents to the best of their
24
knowledge and ability.
Contempt is sui generis, and is neither strictly criminal
nor civil. There is in Ohio no set arrest procedure for
contempt of court which either Judge Crush's order, or
respondents' execution of the order, violated. The facts that
service of the injunction on certain of the petitioners was
apparently not videotaped and thus could not be verified later
on at trial, or that certain of the contempt affidavits were
later, after the heat of the moment, found to be incorrect or
incomplete, and thus that petitioners were acquitted of
‘. contempt or had their contempt charges dismissed, do nothing
to invalidate either the Judge Crush's ordered arrest procedure
or respondents’ faithful compliance with it. As this Court has
noted in the past, even in a criminal case (which the instant
case is not), "... The Constitution does not guarantee that only
the guilty will be arrested. If it did, § 1983 would provide a
cause of action for every defendant acquitted - indeed, for
every suspect released..." Baker vy. McCollan, 443 U.S.
137, 145 (1979). See also Graham vy. O'Connor, 490 U.S.
386, 396 (1989) ("...The Fourth Amendment is not violated
by an arrest based on probable cause, even though the wrong
person is arrested, Hill v. California, 401 U-S.
797...(1971)...).
As noted previously herein, respondents derive their
absolute quasi-judicial immunity from Judge Crush who
ordered them to enforce his injunction. Thus respondents,
like Judge Crush, do not lose their absolute quasi-judicial
immunity simply because there may have been minor
unintentional and unknown deviations from the strict letter of
the order. Stump, Johnson, Mireles, and Doe, supra.
Surely, if absolute quasi-judicial immunity was accorded to
the police officer defendants in Mireles, supra, it must also
be accorded to the respondents under the circumstances of this
25
case.
CONCLUSION
Based upon all of the foregoing, respondents pray that
petitioners within petition for a writ of certiorari be denied, in
its entirety, at petitioners’ cost and expense.
Respectfully submitted,
JOSEPH T. DETERS
PROSECUTING ATTORNEY
HAMILTON COUNTY, OHIO
/s/
Philip L. Zorn, Jr.,
Assistant Prosecuting Attorney
Hamilton County, Ohio
(COUNSEL OF RECORD)
230 E. Ninth Street, Suite 7000
Cincinnati, OH 45202-2151
(513) 946-3059
FAX (513) 946-3018
Counsel for Respondents
Hamilton County, Ohio;
Board of County Commissioners of
Hamilton County, Ohio;
Lincoln Stokes; Simon L. Leis, Jr.;
Daniel Wolfangei; and Daniel Losito
26
APPENDIX A
UNITED STATES DISTRICT COURT SOUTHERN
DISTRICT OF OHIO WESTERN DIVISION
No. C-1-85-1219
FILED
December 18, 1986
ASSOCIATION FOR CHILDREN FOR ENFORCEMENT
OF SUPPORT, INC., et al.,
Plaintiffs,
¥.
RONALD PANIOTO, et al.,
Defendants.
ORDER
This matter came on for consideration of the motion to
dismiss of defendant Hamilton County, Ohio (Doc. 38) and
plaintiffs' memorandum in opposition (Doc. 41) to which
defendant has replied (Doc. 42); defendant Ronald Panioto's
motion for summary judgment (Doc. 32) and plaintiffs’
memorandum in opposition (Doc. 34), to which defendant has
replied (Doc. 35); and plaintiffs' motion for partial summary
judgment (Doc. 43), to which defendant has responded (Doc.
47) and plaintiff has replied (Doc. 49).
Al
Association for Children, et al. v. Panioto, et al.
C-1-85-1219
Since we previously set forth the facts giving rise to
this litigation in our order denying injunctive relief (Doc. 27),
we will outline the facts very briefly.
Plaintiffs’ complaint was filed on August 20, 1985,
instituting this action pursuant to 42 U.S.C. §1983,
challenging defendants’ policy of excluding members of the
general public from proceedings of the Domestic Relations
Division of the Hamilton County Court of Common Pleas,
and plaintiffs requested this Court to render injunctive relief
requiring defendants to open the proceedings to the public,
declaratory relief, damages, costs, and attorney fees. By
amendment on May 14, 1986 (Doc. 86), plaintiffs request a
substantial amount of damages against defendant Hamilton
County.
Defendant Panioto, in his capacity as Senior judge of
the Domestic Relations Division of the Hamilton County
Court of Common Pleas, moves for summary judgment in his
favor on the basis that this case no longer presents a case or
controversy and this action is now moot. At the time this
Court ruled on plaintiffs’ initial motion for injunctive relief,
there was pending in the Hamilton County Municipal Court,
a criminal action based on criminal trespass and disorderly
conduct charges brought against Geraldine A. Jensen, one of
the plaintiffs herein, who was arrested on June 27, 1985 when
she attempted to attend and monitor child support
proceedings.
On September 3, 1985, a hearing was held before the
Honorable Deidra L. Hair, Judge of the Hamilton County
Municipal Court, in the case of State of Ohio v. Geraldine A.
A2
Association for Children, et al. v. Panioto, et al.
C-1-85-1219
Jenson. On September 5, 1985, Judge Hair issued an opinion,
finding that the blanket exclusion of observers, as a matter of
policy, in the absence of some articulated overriding
consideration, violates the public’s First and Fourteenth
Amendment rights.
A motion for leave to appeal the decision of the
Hamilton County Municipal Court was filed by the State of
Ohio shortly thereafter. After careful consideration, we
declined to order injunctive relief on the basis of the strong
policy of comity between state and federal judicial systems
which mandates a "proper respect for state functions."
Younger v. Harris, 401 U.S. 37, 44 {1971). Since the time we
entered our order, the Court of Appeals declined to review
Judge Hair's decision. (Dec. 32, Ex. A, certified copy of
entry overruling motion for leave in State of Ohio v.
Geraldine A. Jensen, No. C-850634 ( 1 st App. D. Ham. Cty.
Oct. 21, 1985)).
Defendant Panioto states, by affidavit, that the
Domestic Relations Division of the Hamilton County Court of
Common Pleas has, from the date of this Court's decision on
September 27, 1985, permitted the public to attend child
support enforcement proceedings held before the Referees.
(Doc. 33, Affidavit of Ronald Panioto).' Therefore,
defendant contends that this action is now moot. Plaintiffs
respond that the mere voluntary cessation of illegal conduct
by a defendant does not deprive a court of jurisdiction in the
' The affidavit of Judge Panioto is attached as "Appendix
A3
Association for Children, et al. v. Panioto, et al.
C-1-85-1219
action and that this action is not moot because of the
possibility of recurrence. Defendant Panioto finally claims
that notwithstanding how the mootness issue is resolved, he
was clothed with absolute judicial immunity.
In considering a motion for summary judgment, the
narrow question we must decide is whether there is "no
genuine issue as to any material fact and [whether] the moving
party is entitled to judgment as a matter of law." Rule 56(c),
Fed. R. Civ. P. The Court cannot try issues of fact on a Rule
56 motion, but is empowered to determine only whether there
are issues to be tried. Jn re Atlas Concrete Pipe, Inc., 668
F.2d 905, 908 (6th Cir. 1982). The moving party "has the
burden of showing conclusively that there exists no genuine
issue as to a material fact and the evidence together with all
inferences to be drawn therefrom must be read in the light
most favorable to the party opposing the motion." Smith v.
Hudson, 600 F.2d 60, 63 (6th Cir.) (emphasis original), cert.
denied, 444 U.S. 986 (1979). And, "while the movant's
papers are to be closely scrutinized, those of the opponent are
to be viewed indulgently." Jd. at 63. "[T]he District Court [is]
obligated to consider not only the materials specifically
offered in support of the motion, but also all ‘pleadings,
depositions, answers to interrogatories, and admissions’
properly on file and thus properly before [the] court." /d.,
quoting Rule 56(c), Fed. R. Civ. P. Summary judgment
"must be used only with extreme caution for it operates to
deny a litigant his day in court." Jd.
After carefully reviewing the papers filed in this case
and considering the oral arguments presented by counsel on
October 3, 1986, we conclude that this action is moot with
A4
Association for Children, et al. v. Panioto, et al.
C-1-85-1219
respect to preliminary and injunctive relief based upon judge
Panioto's statement to the effect that he will abide by Judge
Hair's decision and that he has been doing so since September
27, 1985. The defendant recognizes, and we agree, that the
mere voluntary discontinuance of certain conduct may be
insufficient to render a case moot. However, in order to
satisfy a case or controversy requirement which is a
prerequisite to this Court's exercise of jurisdiction, plaintiffs
must show that there is a real or immediate threat that the
conduct sought to be enjoined is likely to occur again. City of
Los Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, the court
observed "... that past exposure to illegal conduct does not in
itself show a present case or controversy regarding injunctive
relief ... if unaccompanied by any continuing, present adverse
effects. Id. at 102.
The question we are most concerned with at present is
whether recurrence is probable, as the court stated in United
States of America v. The Cleveland Trust Co., 392 F. Spp..
699 (N.D. Ohio 1974):
(f, in addition to the conduct's
discontinuance, there are strong circumstances
clearly rendering recurrence entirely
improbable, ... a conclusion of mootness is
warranted. (citations omitted).
Id. at 707.
It is undisputed that the prior policy of excluding the
public from proceedings of the Domestic Relations Division
of the Hamilton County Court of Common Pleas was
AS
Association for Children, et al. v. Panioto, et al.
C-1-85-1219
discontinued on September 27, 1985 and to date has not been
reimplemented. Moreover, defendant has assured this Court
that he would continue to abide by the decision of Judge Hair.
Therefore, we conclude that a recurrence of the alleged
wrongful conduct is entirely improbable and this action is now
moot.’
In addition to the injunctive relief addressed above,
plaintiffs have asserted a claim for relief in the form of
compensatory and general damages against defendant
Hamilton County. In paragraph 27 of the amended complaint,
plaintiffs allege:
The policy of Defendant Panioto barring
members of the general public from
proceedings before referees of the Domestic
? We note that plaintiffs' amended complaint (Doc. 39)
seeks only injunctive relief against defendant Panioto and our
decision on the mootness issue renders it unnecessary to address the
issue of judicial immunity raised by defendant Panioto. Judges
presiding over courts of general and limited jurisdictions are
absolutely immune from suits for damages, provided the judges did
not engage in non-judicial conduct or act in the clear absence of all
jurisdiction. King v. Love, 766 F.2d 962, 96566 (6th Cir. 1985);
see also, Sevier v. Turner, 742 F.2d 262,271 (6th Cir. 1984). The
Supreme Court has defined a non-judicial act as an action not
ordinarily performed by a judicial officer or an act not performed
by the judge in his official capacity. Stump v. Sparkman, 435 U.S.
349, 362 (1978). Because of our decision on the mootness issue, we
need not address the issue of whether excluding members of the
public from the proceedings involved herein can be categorized as
judicial conduct.
A6
Association for Children, et al. v. Panioto, et al.
C-1-85-1219
Relations Division of the Hamilton County
Court of Common Pleas is the official act,
policy, custom, and practice of Defendant
Hamilton County.
In Monnell v. Department of Social Services, 436 U.S.
658 (1978), the Supreme Court held that a local government
can be liable in a §1983 action when its official policy or
governmental custom is responsible for a deprivation of
constitutional rights. Therefore, the local government must be
a "moving force" behind the deprivation. "Proof of a single
incident of unconstitutional activity is not sufficient to impose
liability under Monnell, unless proof of the incident includes
proof that it was caused by an existing, unconstitutional [local
government] policy, which policy can be attributed to a [local
government] policy maker." City of Oklahoma v. T. uttle, 471
U.S.__ (1985).
Under the Eleventh Amendment, U.S.C.A. Const.
Amend. 11, a state or its agencies cannot be sued in federal
court without its consent. Alabama v. Pugh, 438 U.S. 781
(1978). The defendant Hamilton County argues that this
action should be dismissed against it because it cannot be held
liable for the acts of a senior Domestic Relations Judge since
the judge is a state official rather than a county official. We
agree with the parties that the pivotal issue in regard to
Hamilton County is whether the Domestic Relations Division
of the Hamilton County Court of Common Pleas is an agency
of the state or county.
Defendant Hamilton County directs our attention to
Article ITV of the Ohio Constitution in support of its
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Association for Children, et al. v. Panioto, et al.
C-1-85-1219
contention that the Court of Common Pleas is a state court.
Article TV § 1 of the Ohio Constitution states:
The judicial power of the state is vested in a
supreme court, courts of appeals, courts of
common pleas and divisions thereof, and such
other courts inferior to the supreme courts as
may from time to time be established by law.
Article IV, §4(A) of the Ohio Constitution provides
that "there shall be a court of common pleas and such
divisions thereof . . . serving each county of the states" and
in the interests of justice "two or more counties may be
combined into districts having one or more judges resident in
the district and serving the common pleas courts of all
counties in the district... . .". Any judge of the court of
common pleas or its divisions may temporarily hold court in
any county. Moreover, the Ohio Supreme Court has general
superintendence over all courts in the state and the Chief
justice may assign judges of the court of common pleas and its
divisions to sit or hold court in any other court of common
pleas. See Article TV §§5. 6. Ohio Constitution: Ohio Rev.
Code §§2503.04 and 141.07.
The gist of defendants’ argument is that Judge Panioto
cannot be a policy maker for Hamilton County as, pursuant to
the Ohio Constitution, he is a member of the state judiciary.
Defendants argue that this case is analogous to the Ninth
Circuit case of O'Conner v. State of Nevada, 686 F.2d 749
(9th Cir. 1982), cert. denied, 459 U.S. 1071 (1982) wherein
the Appellate Court reviewed the case of O’Conner v. State of
Nevada, 507 F. Spp.. 546 (D. Nev. 1981). The court
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Association for Children, et al. v. Panioto, et al.
C-1-85-1219
concluded that the defendants Supreme Court and Third
Judicial District Court of Nevada, were state agencies and
therefore were immune from suit in a civil rights action in
federal court because of the Eleventh Amendment. U.S.C.A.
Const. Amend 11. See, O'Conner, 686 F.2d at 750.
Similar to the Ohio Constitution, the Nevada
Constitution provides that judicial power of the state is vested
in a court system comprised of a Supreme Court, District
Court, and justices of the Peace. The state is divided into
several districts with each district consisting of one county,
except for one district which is comprised of two counties.
Like Common Pleas judges in Ohio, District Judges in
Nevada are elected by the qualified electors of their respective
districts and the Chief justice of the state Supreme Court has
judicial assignment powers. See Article 6 §§ I, 5, and 19,
Nevada Constitution.
The common denominator between the Ohio and
Nevada constitutions most apparent to this Court is that in
both states supervisory and assignment powers over Common
Pleas and District Courts are vested in the higher courts of the
state and, although defined for convenience by county
boundaries, a district may be comprised of more than one
county.
In response, plaintiffs argue that the recent decision of
Pembauer v. City of Cincinnati, 746 F.2d 337, 341 (6th Cir.
1984), ruling precluding county liability reversed, 54
U.S.L.W. 4289 {U.S. 1986} should govern the outcome of
this case. Plaintiffs also cite Crane v. Texas, 759 F.2d 412
(Sth Cir. 1985) as persuasive authority. Although we are
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Association for Children, et al. v. Panioto, et al.
C-1-85-1219
particularly persuaded by the manner in which the Ohio
Constitution establishes the state court system, we have
considered the following factors espoused in Pembauer and
Crane for determining whether a person is a county official or
state official for purposes of § 1983 liability:
1. Whether the official is elected by the residents
of the county;
= Whether the official is the "chief officer" of
the county in a given area;
3. Whether the official submits budget requests to
the county legislative body, which in turn
furnishes his office, books, furniture and other
materials;
4. Whether the official's salary and all training
expenses are paid out of the general fund; and
5. Whether the official can be regarded as the
ultimate repository of county authority.
Although none of these factors is itself determinative,
they are important in our consideration. Pembauer, 746 F.2d
at 341. While a Common Pleas Court judge is elected by the
residents of the county, we find that defendant Panioto does
not meet the remaining four criteria for determining that he is
a county official.
We conclude that defendant Panioto, as Common
Pleas Judge of the Domestic Relations Division, is not a
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C-1-85-1219
"chief officer" of Hamilton County. Unlike the county
prosecutor or sheriff in Pembauer, a domestic relations judge
reports to the Superior Court in Ohio? Although a domestic
relations judge in Ohio is ultimately responsible to the
electorate, we question what the County Commissions of
Hamilton County could do if they were vehemently opposed
to the judge's policies. Furthermore, pursuant to the Ohio
Constitution, a Judge of the Court of Common Pleas, of
which the domestic relations division is a part, has statewide
jurisdiction, may hold court in any county, is supervised by
the Ohio Supreme Court, and is compensated, at least in part,
from the state treasury. Ohio Rev. Code §141.04. Therefore,
we find that defendant Panioto is not a county official for
purposes of the Eleventh Amendment and Hamilton County's
motion to dismiss should be granted.
Accordingly, the motion of defendant Hamilton
County, Ohio (Doc. 38) and defendant Ronald Panioto's
motion for summary judgment (Doc. 32) are hereby granted
and this action is dismissed.
SO ORDERED.
> Plaintiffs also cite Crane v. Texas, 759 F.2d 412 (5th
Cir. 1985) and Familias Unidas v. Briscoe, 619 F.2d 391 (Sth Cir.
1980) in support of their position. However, these judges were the
executive officers of the administrative council for the Texas
counties. Unlike a domestic relations Judge in Ohio, a county judge
in Texas presides over the County Commissions Court which is the
chief administrative body in the county. See, Crane, 759 F.2d at
420,429.
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Association for Children, et al. v. Panioto, et al.
C-1-85-1219
/s/
S. Arthur Spiegel
United States District Judge
Al2
APPENDIX B
No. 90-3725
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
April 30, 1991
LEONARD GREEN, CLERK
VIRGINIA BACHELIER, et al.,
Plaintiffs-Appellants,
V.
HAMILTON COUNTY, OHIO, et al.,
Defendants-Appellees.
| On Appeal from the United States District Court
| for the Southern District of Ohio,
Western Division
BEFORE: KENNEDY AND RYAN, Circuit Judges,
and FEIKENS, Senior District Judge.’
' The Honorable John Feikens, Senior United States
District Judge for the Eastern District of Michigan, sitting by
designation.
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Bachelier, et al. v. Hamilton County, et al.
90-3725
FEIKENS. Appellants brought suit in the United States
District Court for the Southern District of Ohio, alleging
claims under 42 U.S.C. §1983 against the City of Cincinnati,
Hamilton County, and certain County officers, in their official
capacities, for their role in enforcing an injunction issued by
Hamilton County Court of Common Pleas Judge Thomas
Crush. The district court dismissed appellants’ claims. For
the reasons set forth below, we AFFIRM the holding of the
district court.
I. Background
Appellants are twenty-eight, persons who attempted
to picket and protest at the Margaret Sanger Center ("Center")
located at 3332 Vine Street in Cincinnati, Ohio. The Center
is an abortion clinic operated by Planned Parenthood
Association of Cincinnati ("Planned Parenthood").
On March 26, 1986, as a result of picketing at the
Center, Planned Parenthood filed a lawsuit in the Hamilton
County Court of Common Pleas, seeking a temporary
restraining order, preliminary injunction and permanent
injunction against certain individuals and organizations. See
Planned Parenthood v. Project Jericho, etal., No. A&8602417
(1986). Planned Parenthood's complaint alleged that certain
persons and organizations disrupted the operation of the
Center, harassed and intimidated staff and patients, blocked
access to the building and created traffic problems.
The case was assigned to Hamilton County Common
Pleas Judge Thomas Crush ("Judge Crush"). On April 4,
1986, Judge Crush issued a preliminary injunction against
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90-3725
certain named defendants, prohibiting them from shouting or
chanting so loud as to be heard inside the Center, and from
blocking the sidewalk. On April 3, 1986 Planned Parenthood
filed an amended complaint seeking class certification and an
injunction against a defendant class of protestors. On June
20, 1986, Judge Crush entered an order ("Crush injunction")
which conditionally certified a defendant class comprised of:
Persons picketing between the south curb of Louis
Avenue and the north curb of Shields Avenue and on
both sides of Vine Street from Louis Avenue to
Shields Avenue who have been personally served
with this order as well as their officers, agents,
servants, employees, attorneys, and those persons in
active concert and participation with them who
received personal service of the order.
The order further defined "persons picketing" as:
Persons present in the area referred to in this order
who are carrying protest or 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.
The Crush injunction prohibited screaming, chanting,
speaking or singing in a manner intended to reach, or which
had the effect of reaching patients inside the Center:
screaming at patients entering or leaving the Center; blocking
the driveway, entrances or exits from the Center or the public
walkway in front of it; and mass picketing. The injunction
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Bachelier, et al. v. Hamilton County, et al.
90-3725
also limited the number of picketers on certain streets
bordering the Center.
After Judge Crush issued the injunction, various
defendants were charged with contempt and, after a hearing,
found guilty. Of those found guilty, eighteen appealed to the
Court of Appeals for Hamilton County.
The court of appeals affirmed the findings of
contempt, but reversed the certification of a defendant class.
Seventeen defendants appealed their contempt convictions to
the Ohio Supreme Court, and Planned Parenthood cross-
appealed on the reversal of class certification.
The Ohio Supreme Court upheld the contempt
citations, holding that the Crush injunction was a reasonable
time, place and manner restriction on appellants’ first
amendment rights. However, it reversed the court of appeals
on the class certification issue, finding that the defendant class
was properly certified by Judge Crush. See Planned
Parenthood Assn. of Cincinnati, Inc, v. Project Jericho, 52
Ohio St. 3d 56, 556 N.E.2d 157 (1990).
Thereafter, appellants* filed suit in United States
District Court against the City of Cincinnati, Hamilton
County, and various County officers,’ for their role in
2 Of the twenty eight appellants, six were parties to the
Planned Parenthood lawsuit.
> None of the appellees were parties to the Planned
Parenthood lawsuit.
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Bachelier, et al. v. Hamilton County, et al.
90-3725
enforcing the Crush injunction. Counts I through III of
appellants’ complaint alleged that their rights under the first,
fifth, and fourteenth amendments of the United States
Constitution were violated by defendants’ attempts to enforce
the Crush injunction. Count IV alleged that the defendants
conspired to enforce the Crush injunction in a discriminatory
manner in violation of plaintiffs' right to equal protection
under the fourteenth amendment. All of appellants' claims
were predicated on 42 U.S.C. S 1983.
The district court dismissed counts I through III of
appellants’ complaint, finding that the Ohio Supreme Court
decision in Planned Parenthood precludes appellants from
attacking the constitutionality of the Crush injunction.
Alternatively, the district court held that appellants could not
State a claim under § 1983 against appellees because the
alleged violation of appellants' constitutional rights was due
to the facially valid Crush injunction, not to any policy
adopted by the City and County. The court dismissed count
IV of the complaint because it found no factual basis for
appellants' claim of discriminatory enforcement.
Il. Analysis
The first question we must address is whether the
district court properly held that appellants are precluded from
challenging the validity of the Crush injunction because of the
Ohio Supreme Court's decision in Planned Parenthood.
Although only six of the appellants were parties to the
Planned Parenthood lawsuit, all of the appellants were
members of the defendant class to which the Crush injunction
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Bachelier, et al. v. Hamilton County, et al.
90-3725
applied. Therefore, appellants are bound by the Ohio Supreme
Court's decision upholding the validity of that injunction.‘
Judicial review of final determinations in state Judicial
proceedings can be obtained only in the United States
Supreme Court. See, ¢.g. In Re Sun valley Foods Co., 801
F.2d 186, 189 (6th Cir. 1986). A United States district court
“has no authority to review final Judgments of a state court in
Judicial proceedings” Ig. (quoting District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 482 (1983)). This is
true even though the state court Judgment may have been
erroneous. [g. The district court, therefore, properly
refused to review the correctness of the Planned Parenthood
decision.
Additionally, appellants cannot prevail under 42
U.S.C. S 1983 because they cannot show that an official
policy of defendants was the moving force behind their alleged
constitutional violation. As the United States Supreme Court
held in Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct.
3099, 87 L.Ed.2d 114 (1985):
[T]o establish personal liability in a § 1983 action, it
is enough to show that the official, acting under color
of state law, caused the deprivation of a federal right
* The Ohio Supreme Court reviewed the breadth of the
injunction and found it to be binding upon parties and non-parties
acting in concert or participation with a party who had actual notice
of the injunction. Presumably these appellants had actual notice of
the injunction since they now claim that enforcement of the
injunction deprived them of their constitutional rights.
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Bachelier, et al. v. Hamilton County, et al.
90-3725
.. More is required in an official-capacity action,
however, for a governmental entity itself is liable
under § 1983 only when the entity itself is a “moving
force’ behind the deprivation, Polk County v.
Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70
L.Ed.2d 509 (1981) (quoting Morell. supra, 436
U.S., at 694...); thus, in an official-capacity suit the
entity's "policy or custom" must have played a part in
the violation of federal law (citations omitted).
Here, it is clear that Judge Crush's injunction, not any
policy of appellees, was the moving force behind the alleged
violation of appellants’ constitutional rights. Appellees’
decision to enforce a facially valid injunction does not subject
them to Section 1983 liability. See Richardson v. City of
South Euclid, No. 89-3056 (6th Cir. June 11, 1990). Nor can
the order of Judge Crush be imputed to Hamilton County as
a policy since Judge Crush is a state, not county, official. See
Paniato, No. C-1-85-1219 (S.D. Ohio Dec. 18, 1986).
Appellants also appeal the dismissal of their
discriminatory enforcement claim. They argue that the Crush
injunction was discriminatorily enforced because Planned
Parenthood personnel were allowed to walk freely through
restricted picket zones wearing the designation ‘clinic escort'
while protestors were barred from those areas.
The district court properly rejected this argument.
Wearing a badge with the inscribed words “clinic escort” does
not constitute picketing within the meaning of the Crush
injunction. Accordingly, appellants cannot claim that the
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90-3725
Crush injunction was discriminatorily enforced.
The holding of the district court therefore is
AFFIRMED.
IT IS SO ORDERED.
A20
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