589 N.E.2d 121 | Ohio Ct. App. | 1991
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *581 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *582 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *583 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.
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 *584 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 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;
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 Dayton Women's Health 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 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 *585 to challenge the class certification order by 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 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'sHealth Center v. Enix (1990),
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:
In addition to addressing the specific contempt charges in its judgment, the trial court renewed its restriction on residential picketing. The order prohibited "[p]icketing in any form including parking, parading or demonstrating which islimited to the homes of patients, employees, staff or volunteers of *586 the Dayton Women's Health Center of the physicians performing services at the Dayton Women's Health Center." (Emphasis added.) The trial court also rejected the defendants' claim that the vast majority of the contempt citations were frivolous.
The defendants were given approximately two hours to read the order and comply with its requirements. They refused to obey. As a result, the defendants were arrested and charged with criminal trespass. They were then taken to Kettering Municipal Court where they entered pleas of no contest and were convicted and sentenced accordingly.
Subsequent to the criminal trespass proceedings in Kettering, a hearing was held in Montgomery County Common Pleas Court on the contempt charges. Based upon the evidence presented, the trial court found that the defendants had violated its order by trespassing on the clinic's property. The court then imposed a $1,000 fine on each defendant, $500 of which was suspended "on the condition that each defendant comply henceforth" with the provisions of the permanent injunction. *587
As to the first argument, we held in our decision of December 5, 1988, that the failure of these defendants to raise the issue of certification within thirty days of the trial court's order waived their right to challenge the court's order of certification. That judgment has been affirmed on appeal and is now the "law of the case." Nolan v. Nolan (1984),
Appellants' second argument is without merit. The court acted on its inherent power to preserve the effect of its orders and to protect the rights determined therein from intentional interference by other persons. United States v. Hall (C.A.5, 1962),
Based upon the foregoing, the defendants' first through fourth, sixth and seventh, sixteenth through twenty-seventh, and twenty-eighth through thirty-third assignments of error are overruled.
Accordingly, the defendants' ninth and tenth and twelfth through fifteenth assignments of error are overruled.
Accordingly, defendants' eleventh assignment of error is overruled.
In our opinion dated December 5, 1988, we addressed the equal protection argument and held that the permanent injunction was not constitutionally infirm for the same reason presented here. Because the Ohio Supreme Court decided not to address this issue, our holding has become the "law of the case." Nolan v.Nolan, supra; Weaver v. Motorists Mut. Ins. Co., supra.
The defendants' fifth and eighth assignments of error are overruled.
Our review of the record indicates that although many of the contempt charges filed by DWHC were for less than "gross" violations of the injunction, the defendants have not shown that those charges were baseless. Based upon our review of the record, we cannot conclude that it was an abuse of discretion to impose sanctions on the defendants. If anything, it appears to us that the trial court has handled this case fairly and attentively in light of the sheer magnitude of documents and testimony that it has had to analyze and rule upon. Defendants have failed to portray error.
Based upon the foregoing, defendants' thirty-fourth through forty-seventh assignments of error are overruled.
With regard to the arguments concerning the validity of the injunction and DWHC's "unclean hands," we have already determined, in our analysis of assignments numbered nine through fifteen and thirty-four through forty-seven, that the provisions of the underlying order are not invalid and that DWHC has not violated "good faith." Accordingly, defendants' arguments on these points are without merit. *590
Likewise, defendants' argument regarding Silvey's notice of the court's order is meritless. In her brief in case No. 11637, Silvey notes that the parties stipulated before the trial court that she had received notice of the injunctive order.
Finally, with regard to the defendants' argument that Silvey did not violate the permanent injunction on April 25, 1989, our review of the record indicates that Silvey trespassed on property adjoining the health center. Clearly, this is a violation of the injunctive order, and it was not an abuse of discretion for the trial court to find Silvey in contempt for such activities.
The defendants' forty-eighth through fifty-third assignments of error are overruled.
Essentially, Silvey contends that because her actions amounted only to a technical infraction of the court's order, and because she did not actually intend to violate the order, it was error for the trial court to find her in contempt. We do not find these arguments persuasive.
As noted in Section II A 6 of this opinion, the trial court found that Silvey deliberately left the area where picketing was permitted and trespassed upon an adjoining landowner's parking lot. Our review of the trial transcript indicates that the court's decision was supported by competent and credible evidence. Therefore, in light of the fact that Silvey's actions were violative of the permanent injunction, it was not error for the trial court to hold her in contempt and fine her accordingly.
Silvey's sole assignment of error is overruled.
It is fundamental that no person shall "be subject for the same offen[s]e to be twice put in jeopardy of life or limb."
In the case before us the defendants were charged and convicted in Kettering, Ohio, under its criminal trespass ordinance for activities carried out at DWHC on March 24, 1989. Subsequent to those proceedings, contempt charges alleging a violation of the trial court's permanent injunction based on and for the same acts were filed in the court of common pleas against those same persons.
After a hearing on the merits, the trial court found that the defendants had trespassed upon the health center's property and were in contempt of its injunctive order. The court fined each of the defendants $1,000, but suspended $500 of the fine on the condition that the defendants comply with the order in the future. The court characterized the remaining $500 fine as a civil penalty and dismissed defense counsel's argument that the court was actually imposing a successive criminal penalty upon the defendants in violation of their double jeopardy rights.
"Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both." Bloom v. Illinois (1968),
Whether a contempt is civil or criminal depends largely on the character of the sanction imposed. If it is for civil contempt the punishment is remedial and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. Gompers v.Bucks Stove Range Co. (1911),
"If the relief provided is a sentence of imprisonment, it is remedial if `the defendant stands committed unless and until he performs the affirmative act required by the court's order,' and is punitive if `the sentence is limited to imprisonment for a definite period.'
"* * *
"If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order."Hicks v. Feiock (1988),
The $500 fine imposed on these appellants constituted a punishment for past conduct and was imposed for the purpose of upholding the authority of the court. The fine was payable to the court. The appellants could not avoid paying the fine by performing an affirmative act. The sanction was, therefore, punitive. It could not be imposed for the same conduct which supported appellants' prior convictions for criminal trespass, for to do so placed appellants in jeopardy twice. Grady v.Corbin, supra.
We conclude that an essential element of the charge of contempt brought against appellants required proof of conduct which constituted the offense of criminal trespass for which they had previously been prosecuted and convicted. The portion of their punishment which constitutes a criminal penalty is, therefore, barred by double jeopardy. The portion of the fine in the amount of $500 ordered suspended was, in contrast, a civil penalty, not because it was suspended but because it was imposed to coerce certain behavior and can be avoided by appellants by compliance with the court's order. It was purely "remedial" and thus did not put appellants in jeopardy of criminal proceedings or criminal punishment twice.
Based on the foregoing, the appellant's first assignment of error is sustained. *593
We conclude that, in looking at the peculiar facts of this appeal, class certification is not at issue. The evidence indicates that after the defendants' arrival at the health center each was served with a copy of the court's order and was informed by the deputies that his or her actions were in violation of that order. Had it not been a violation of the Double Jeopardy Clause to do so, the trial court could have found each defendant in contempt of its order for his or her individual acts.
The defendants' second and third assignments of error are overruled.
There is ample evidence in the record to indicate that all of the defendants were served with the order and that the deputies made them aware of its provisions. The defendants' purported inability to understand the order is not persuasive.
Accordingly, the defendants' fourth assignment of error is overruled.
First of all, there is no evidence in the record supporting the defendants' contention that the trial court acted as both prosecutor and trier of fact. It was the county prosecutor's office, not the trial judge, that acted as advocate.
Second, the defendants have not shown why it was error for the trial court to refuse to recuse itself so that it could enforce its own order. Although there is evidence in the record to indicate that the trial judge reviewed tapes of the defendants' conduct and was involved in meetings with the prosecutors and deputies prior to trial, there is no showing that the trial judge was unable to maintain his objectivity when the contempt charges were brought before him on the merits. *594
Based upon the foregoing, the defendants' fifth assignment of error is overruled.
Judgment accordingly.
FAIN, P.J., WOLFF and GRADY, JJ., concur.