PRETERM-CLEVELAND, et al. v. DAVID YOST, ATTORNEY GENERAL OF OHIO, et al.
APPEAL NO. C-220504; TRIAL NO. A-2203203
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 16, 2022
2022-Ohio-4540
BERGERON, Presiding Judge; CROUSE and WINKLER, JJ., concur.
Civil Appeal From: Hamilton County Court of Common Pleas. Judgment Appealed From Is: Appeal Dismissed.
David Yost, Attorney General of Ohio, Benjamin M. Flowers, Solicitor General, Stephen P. Carney, Deputy Solicitor General, and Amanda L. Narog and Andrew D. McCartney, Assistant Attorneys General, for Defendants-Appellants.
BERGERON, Presiding Judge.
{¶1} In the wake of the United States Supreme Court‘s decision in Dobbs v. Jackson Women‘s Health Org., 142 S.Ct. 2228, 213 L.Ed.2d 545 (2022), much of the attention on the question of abortion has shifted to state courts and state constitutions. This case involves the fate of a state statute that largely bans abortion access in Ohio. The trial court entered a preliminary injunction that barred the state from enforcing the statute, designed to preserve the status quo until it could convene a trial on the merits. The state appealed this decision, but we find that it appealed prematurely. Our jurisdiction as an appellate court is limited both by our constitution and relevant state statutes. Consistent with the wealth of authority in Ohio concerning injunctions and appellate jurisdiction, we conclude that we lack jurisdiction over the state‘s appeal. We accordingly dismiss this appeal, but of course any aggrieved party can appeal after the trial court issues its final judgment in the case. Our answer on the merits of this dispute and the underlying constitutionality of the statute (even though many may wish that we decide the merits of this case now) must await another day.
I.
{¶2} Ohio‘s so-called “Heartbeat Act” (“S.B. 23“) generally proscribes abortions after a fetal heartbeat is detected.
{¶3} In September 2022, plaintiffs-appellees—several abortion clinics and a doctor—filed a complaint, seeking a preliminary (and, ultimately a permanent) injunction regarding the enforcement of S.B. 23, naming various state officials (collectively, “the state“) as defendants (now appellants). But this action does not exist in a vacuum; rather, it followed on the heels of two related proceedings.
{¶4} In July 2019, a federal district court preliminarily enjoined S.B. 23 before it went into effect, based on Roe v. Wade, 410 U.S. 113, 153-154, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 876, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Preterm-Cleveland v. Yost, 394 F.Supp.3d 796, 800-801 (S.D.Ohio 2019). On June 24, 2022, following the United States Supreme Court‘s decision in Dobbs, 142 S.Ct. 2228, 213 L.Ed.2d 545, however, the district court vacated that preliminary injunction and S.B. 23 went into effect. Preterm-Cleveland v. Yost, S.D.Ohio No. 1:19-cv-00360, 2022 U.S. Dist. LEXIS 112700 (June 24, 2022).
{¶5} Plaintiffs immediately petitioned the Supreme Court of Ohio for a writ of mandamus on June 29, 2022, see State ex rel. Preterm-Cleveland v. Yost, 167 Ohio St.3d 1468, 2022-Ohio-2558, 191 N.E.3d 443. The mandamus action sought a prohibition on the enforcement of S.B. 23 and a declaration that S.B. 23 was unconstitutional under the Ohio Constitution. Plaintiffs voluntarily dismissed the
{¶6} Subsequently, on September 2, 2022, plaintiffs filed their complaint in the Hamilton County Court of Common Pleas seeking declaratory relief and a permanent injunction enjoining the enforcement of S.B. 23. Plaintiffs also filed a motion for a temporary restraining order followed by a preliminary injunction. On September 14, the trial court entered a 14-day temporary restraining order, which it later extended to October 12. Following an evidentiary hearing on an expedited basis, the trial court issued a preliminary injunction enjoining the enforcement of S.B. 23 and prohibiting the state from later taking any enforcement action premised on a violation of S.B. 23 that occurred while the act was in effect.
{¶7} The trial court‘s order emphasized the provisional nature of the injunction, explaining, “The Court‘s findings at this stage are based on the limited record before the Court. This matter shall be set for a case management conference at which time the Court shall issue a scheduling order providing the parties with adequate time to conduct full discovery in preparation for trial.” The trial court also noted that the preliminary injunction hearing afforded only “limited expedited discovery in preparation for the hearing,” clarifying that the injunction at issue was granted in anticipation of more fulsome discovery preceding its ultimate determination of whether to grant a permanent injunction enjoining the enforcement of S.B. 23.
{¶8} Nevertheless, the state immediately appealed the order granting the preliminary injunction. Upon review of the state‘s appeal, this court sua sponte raised a question regarding appellate jurisdiction, and on October 28, this court ordered the
II.
{¶9} Appellate courts are courts of limited jurisdiction, and we must honor the jurisdictional constraints imposed by our constitution and state statutes. Pursuant to
{¶10} The question of whether an order constitutes a “final order” that we can review obligates us to consider the language of the governing statute as well as how Ohio courts have interpreted this language.
(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
* * *
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
{¶11} The threshold question in determining whether an order constitutes a final appealable order under
{¶12} The provisional remedy must then satisfy both prongs of
{¶13} The first prong requires that the order effectively determines the action with respect to the provisional remedy and prevents a judgment in favor of the appealing party with respect to the provisional remedy for an order to be deemed final under
{¶14} Here, the trial court‘s decision is, as best we can tell, final with respect to issuing the preliminary injunction. By that, we mean that the trial court gave no indication that its decision was tentative or contingent in any manner. While a trial court generally retains the ability to revisit interlocutory rulings, under the Ohio Supreme Court‘s interpretation of
{¶15} To satisfy the second prong of
{¶16} Before we apply Ohio caselaw to the case at hand, we pause to address the federal authority featured by the state in its jurisdictional brief. The state seeks to convince us that it lacks a “meaningful or effective remedy” if it cannot appeal now by pointing to various federal cases. For example, the state refers to Thompson v. DeWine, 976 F.3d 610 (6th Cir.2020), and Abbott v. Perez, 138 S.Ct. 2305, 201 L.Ed.2d 714 (2018), to establish that every order enjoining a valid state law inflicts “serious[] and irreparabl[e] harm” on a state. See Thompson at 619. However, we find the state‘s references to federal authorities in the preliminary injunction context unpersuasive. Under federal law, orders granting a preliminary injunction are always appealable.
{¶17} Turning back to the Ohio standard, to understand how this “meaningful or effective remedy” requirement applies, we consider three different strands of Ohio caselaw: (1) cases holding that a preliminary injunction does not meet the standard of
{¶18} We begin with the first consideration—the fact that “Ohio courts generally hold that the second prong of
{¶19} The logic animating these decisions is that an appeal after issuance of the permanent injunction will provide the meaningful and effective remedy. See Fatica Renovations, LLC v. Bridge, 11th Dist. Geauga No. 2017-G-0106, 2017-Ohio-1419, ¶ 15 (“[G]enerally, if a permanent injunction is sought, this will allow for a remedy at the conclusion of the proceedings.“). And this case helps illustrate the point—the court issued its preliminary injunction on a limited record and on an expedited basis, and it was poised to shift gears swiftly to resolve the permanent injunction. Yes, some delay would occur between the preliminary and permanent injunction, but that delay must be measured against providing the appellate court a complete record on appeal and avoiding piecemeal appeals. Applying that logic, Ohio
{¶20} Here, although the trial court granted a preliminary injunction enjoining S.B. 23, plaintiffs ultimately seek relief in the form of a permanent injunction on the enforcement of S.B. 23 and a declaration that S.B. 23 is unconstitutional under the Ohio Constitution, bringing this case squarely within the scope of the rule delineated above. The arguments that plaintiffs marshalled in favor of the preliminary injunction—that they are being deprived of their fundamental rights under the Ohio Constitution, causing them to suffer constitutional, medical, emotional, and other harms—echo the arguments they frame in their complaint in support of an eventual permanent injunction. Because the provisional remedy is a preliminary injunction and plaintiffs ultimately seek a permanent injunction to enjoin the same act on the same reasoning, it supports the conclusion that the second prong of
{¶21} This point is bolstered when we turn next to the second strand of Ohio caselaw that guides our analysis: “[C]ourts have found that ‘a preliminary injunction which acts to maintain the status quo pending a ruling on the merits is not a final appealable order under
{¶22} Ohio courts generally do not permit immediate appellate review of preliminary injunctions that preserve the status quo because, if the status quo is being preserved, the aggrieved party will have an opportunity to obtain its “meaningful or effective remedy” if a permanent injunction is issued. In other words, if the status quo doesn‘t change—the party isn‘t truly harmed (at least in the manner contemplated by
{¶23} The last legally uncontested status in Ohio with regard to laws regulating abortions was, as the trial court aptly recognized in its order, “the status quo of legal and safe abortion access that has been in place in Ohio for nearly five decades.” Indeed, S.B. 23 has been challenged in various lawsuits even before its effective date. As the state points out, S.B. 23 was briefly in effect between the injunction issued by the federal court and the preliminary injunction issued by the trial court below. The fact that this interlude allowed S.B. 23 to be effective does not alter the status quo assessment because Ohio law confirms that the “status quo” is that which precedes the enforcement of a challenged law (particularly given the pendency of other litigation seeking similar relief before the federal court and the Ohio Supreme Court). See Taxiputinbay at ¶ 17; Quinlivan at ¶ 5; Hootman at ¶ 16. The trial court
{¶24} As to the third thread of jurisprudence, courts have recognized that an immediate appeal might be warranted if “the proverbial bell cannot be unrung.” Muncie, 91 Ohio St.3d at 451, 746 N.E.2d 1092. But courts have emphasized the narrowness of this inquiry, lest an expansive view swallow the rule: “Ordinarily, an order issuing or denying a preliminary injunction is not a final appealable order.” Ankrom v. Hageman, 10th Dist. Franklin No. 06AP-735, 2007-Ohio-5092, ¶ 8, quoting LCP Holding Co. v. Taylor, 158 Ohio App.3d 546, 2004-Ohio-5324, 817 N.E.2d 439, ¶ 18 (11th Dist.). Cases considering this context have focused on situations that would irreparably change the party‘s position between provisional remedy and final judgment. Classic scenarios include divulgence of attorney-client privileged communications or disclosure of other confidential information, Cleveland Clinic Found. v. Levin, 120 Ohio St.3d 1210, 2008-Ohio-6197, 898 N.E.2d 589, ¶ 12-13, Cuervo v. Snell, 10th Dist. Franklin Nos. 99AP-1442, 99AP-1443 and 99AP-1458, 2000 Ohio App. LEXIS 4404, *6-7 (Sept. 26, 2000), and Premier Health Care Servs. v. Schneiderman, 2d Dist. Montgomery No. 18795, 2001 Ohio App. LEXIS 5170, *4-9 (Aug. 21, 2001), forced administration of psychotropic medication to an incompetent criminal defendant, Muncie at 452, and cases implicating the right against double jeopardy, State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 53-59. This vein of cases tends to generally involve information which, once disclosed,
{¶25} We cannot fit the state‘s claimed harm within these confines. The state delineates three purported forms of harm that it believes it will suffer in the absence of the right to an immediate appeal. First, the state contends that it and its citizens will suffer inherent harm every day that it is barred from giving effect to S.B. 23 (presumably because a state always suffers harm when its laws are enjoined). Second, the state submits that it is being irreparably harmed because the injunction allows the performance of an irreversible procedure—abortion—in circumstances not permitted by S.B. 23. And third, according to the state, because abortions are irreversible, every day the injunction remains in force irreparably undermines the state‘s efforts to protect its citizens. At bottom, however, the state focuses on harm to third-parties rather than on harm to itself, which colors its jurisdictional analysis. See Mentor Way Real Estate Partnership v. Hertanu, 8th Dist. Cuyahoga No. 103267, 2016-Ohio-4692, ¶ 11 (dismissing the appeal for want of a final appealable order upon concluding that harm to a third party would not deny appellant a meaningful and effective remedy).
{¶26} But, as the caselaw described above demonstrates, just because a party can fashion a claim of harm does not mean it will be deprived of a “meaningful or effective remedy” by waiting to “appeal following final judgment as to all proceedings.” See
{¶27} Confirming our determination, the state‘s defense of appellate jurisdiction is notably sparse on Ohio caselaw, and the cases it does cite are distinguishable from the controversy at hand.2 Two of the cases to which the state cites deal with concrete and imminent harms, such as the risk of trade secret misappropriation, Premier Health Care Servs., 2d Dist. Montgomery No. 18795, 2001 Ohio App. LEXIS 5170, at *4-9, or where certain funds would otherwise be distributed to other parties before the trial court could determine to whom they rightfully belonged, AIDS Taskforce of Greater Cleveland v. Ohio Dept. of Health, 2018-Ohio-2727, 116 N.E.3d 874, ¶ 17-18 (8th Dist.). The state did not refer to any cases that specifically support any of its three claims of harm in the absence of immediate appeal, and conspicuously absent are any cases where a third-party‘s rights are factored into the calculus. The state also relied on Puruczky v. Corsi, 2018-Ohio-1335, 110 N.E.3d 73, ¶ 15 (8th Dist.). But this case can be distinguished because it involves an infringement of a party‘s constitutional right to free speech, and preliminary injunctions restraining free speech fall under a separate category of order requiring immediate appellate review. Id., quoting Connor Group v. Raney, 2d Dist. Montgomery No. 26653, 2016-Ohio-2959, ¶ 1 (“[A] preliminary injunction that
constitutes a prior restraint on speech requires immediate appellate review.“). We therefore hold that the state has failed to establish that the “proverbial bell cannot be unrung,” see Muncie, 91 Ohio St.3d at 451, 746 N.E.2d 1092, or that an appeal on the final merits will not be sufficient.
{¶28} In the case at hand, the trial court issued a preliminary injunction to preserve the rights (of access to abortion care in Ohio) of the party in whose favor the preliminary injunction was granted until such time as the matter could finally be decided on the merits. At that time, if a permanent injunction is granted, the state will have a meaningful and effective remedy—the right to an appeal. The trial court issued a preliminary injunction designed to maintain the status quo, and the state fails to successfully demonstrate that it will be deprived of a meaningful or effective remedy if it cannot appeal now. Accordingly, we hold that the trial court‘s order granting plaintiffs’ motion for a preliminary injunction does not satisfy the requirements of a final appealable order under
* * *
{¶29} We appreciate that many citizens may be interested in the resolution of the merits of this appeal, but we cannot expand our jurisdiction simply because the case is a significant one. In light of the foregoing analysis, we must dismiss this appeal for lack of a final appealable order.
Appeal dismissed.
CROUSE and WINKLER, JJ., concur.
Please note: The court has recorded its entry on the date of the release of this opinion.