      [Cite as State ex rel. New Prospect Baptist Church v. Ruehlman, 2019-Ohio-5263.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO EX REL. NEW                      :         CASE NO. C-180591
PROSPECT BAPTIST CHURCH,
                                               :
            Relator,                                         O P I N I O N.
                                               :
      vs.
                                               :
HON. ROBERT P. RUEHLMAN,
JUDGE, COURT OF COMMON                         :
PLEAS, HAMILTON COUNTY, OHIO,

            Respondent.                        :




Original Action in Mandamus and Prohibition

Judgment of the Court: Writ of Mandamus is Denied; Writ of Prohibition is Granted
                       in Part and Denied in Part

Date of Judgment Entry: December 20, 2019



American Civil Liberties Union of Ohio Foundation, Joseph W. Mead, Freda J.
Levinson and David J. Carey, for Relator,

Joseph T. Deters, Hamilton County Prosecuting Attorney, Pamela J. Sears and
Cooper D. Bowen, Assistant Prosecuting Attorneys, for Respondent.
                     OHIO FIRST DISTRICT COURT OF APPEALS



MOCK, Presiding Judge.

       {¶1}   This is an original action in which the relator, New Prospect Baptist

Church (“New Prospect”), a local religious organization, seeks writs of prohibition and

mandamus involving respondent, the Hon. Robert P. Ruehlman, a judge of the

Hamilton County Court of Common Pleas.

       {¶2}   New Prospect seeks to prevent respondent from enforcing an August 16,

2018 permanent injunction issued under Civ.R. 65, in a nuisance action brought

against the city of Cincinnati in the case numbered A-1804285 (“the underlying case”).

Based on affidavits from public health and police officials, respondent found that

illegal encampments by homeless persons on public rights-of-way on Third Street in

downtown Cincinnati were a nuisance and constituted “a hazard to the health and

safety of the general public, including those living in the illegal encampments.”

       {¶3}   Respondent further found that, in response to its earlier temporary

restraining orders, the homeless encampments were moving to other locations

within the Cincinnati city limits including a community park in the city’s Over-the-

Rhine neighborhood. Respondent identified these encampments as a mobile and

moving nuisance that also jeopardized public health and safety. Respondent then

decreed that based upon its “county wide jurisdiction over encampments on public

property and privately owned unlicensed parks, camps, [and] park-camps located

anywhere in Hamilton County, Ohio,” the Cincinnati police department and the

Hamilton County Sheriff’s Office were authorized to clear illegal encampments

“through any lawful means necessary, including arrest for obstructions of official

business in execution of this lawful order.”       City and county law-enforcement

personnel were authorized to seize tents, other shelters, and valuables found at the




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encampments. Violators of the injunction are “subject to arrest” under the court’s

contempt powers.

       {¶4}   New Prospect was never made a party to the underlying action but

fears being bound by its expansive injunctive relief without notice and an

opportunity to be heard. It is undisputed that the 100-year-old church observes a

religious and charitable mandate to serve those in need in Cincinnati. As part of that

mission New Prospect has offered its four-acre site in the Roselawn neighborhood of

Cincinnati as a refuge for people experiencing homelessness.

       {¶5}   After New Prospect filed this petition seeking writs of mandamus or

prohibition, respondent moved this court to dismiss the petition alleging that New

Prospect lacked standing to maintain this action. Following oral argument on the

motion, on January 24, 2019, we denied the motion and held that New Prospect has

standing to proceed because it has demonstrated “an injury in fact to a legally

protected interest.” See State ex rel. Matasy v. Morley, 25 Ohio St.3d 22, 23, 494

N.E.2d 1146 (1986).

       {¶6}   A writ of prohibition directs a lower court to refrain from exercising

authority over a matter beyond its jurisdiction. A writ of prohibition is the proper

vehicle to prevent enforcement of an order against an entity that “was not served

with a summons, did not appear, and was not a party.” State ex rel. Doe v. Capper,

132 Ohio St.3d 365, 2012-Ohio-2686, 972 N.E.2d 553, ¶ 15. To be entitled to a writ

of prohibition, New Prospect must establish that respondent Ruehlman has or is

about to exercise judicial or quasi-judicial power, that the exercise of that power is

unauthorized by law, and that it lacks an adequate remedy in the ordinary course of

law. See id. at ¶ 10; see also State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104,

106, 637 N.E.2d 319 (1994).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}    A petition seeking prohibition is a civil action. See Civ.R. 1(A) and

1(C). Thus it may be resolved on summary judgment. See State ex rel. Scripps

Media v. Hunter, 1st Dist. Hamilton No. C-130241, 2013-Ohio-5895, ¶ 31. Summary

judgment is appropriate if (1) no genuine issue of material fact exists for trial, (2) the

moving party is entitled to judgment as a matter of law, and (3) reasonable minds

can come to but one conclusion and that conclusion is adverse to the nonmoving

party, who is entitled to have the evidence construed most strongly in his or her

favor. See Civ.R. 56; see also Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).

       {¶8}    Here, respondent has moved for summary judgment claiming that no

triable issues of fact remain and that he is entitled to judgment as a matter of law.

New Prospect argues that “on the undisputed and admitted facts” it is entitled to the

issuance of the writs. Since both parties maintain that no genuine issues of material

fact remain in dispute, this court is free to render a decision as a matter of law. See

Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emp., AFL–CIO, 93

Ohio App.3d 162, 164, 638 N.E.2d 94 (1st Dist.1994).

       {¶9}    It is clear that respondent has exercised judicial power in the

underlying action by issuing temporary restraining orders and a permanent

injunction under Civ.R. 65. New Prospect was not an original party to the underlying

action. It did not become one by substitution or by intervention under Civ.R. 24. It

thus lacks an adequate remedy at law against respondent’s exercise of judicial

authority by means of a direct appeal. Thus the sole issue remaining for resolution is

whether respondent’s exercise of judicial power was unauthorized by law.

       {¶10} In response to respondent’s motion for summary judgment, New

Prospect first argues that respondent lacked jurisdiction to enter orders under Civ.R.



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                        OHIO FIRST DISTRICT COURT OF APPEALS



65 in the underlying action, which it characterizes as a “non-adversarial lawsuit.”

Relying in large part on Cincinnati Mayor John Cranley’s April 5, 2019 affidavit, New

Prospect claims that there were no adverse interests between the parties to the

underlying action. It maintains that Mayor Cranley had invited the Hamilton County

Prosecuting Attorney to file a lawsuit that culminated in the permanent injunction.1

        {¶11} In the affidavit, the mayor acknowledges that in early August 2018, he

issued a statement to area media in which he declared that illegal encampments in

public rights-of-way “present[ed] a clear and present health and safety hazard to

homeless individuals and the general public.” In addition to the city’s efforts to

remedy matters, Cranley indicated that he had “asked for and ha[d] obtained the

assistance of Hamilton County Prosecutor Joe Deters. Prosecutor Deters will be

filing actions in state court and we will file motions in federal court.” We note that

this affidavit is not contained in the agreed statement of facts prepared by the parties

to this original action pursuant to 1st Dist. Loc.R. 33.2.

        {¶12} Nonetheless, New Prospect argues that the resulting lawsuit was one

between two friendly parties who sought precisely the same outcome and remedy: to

avoid matters of city policy and legislation by forbidding homeless persons from

seeking shelter in tents anywhere within the city or county borders.

        {¶13} “The Ohio Supreme Court has interpreted ‘justiciable matter’ to mean

the existence of an actual controversy, a genuine dispute between adverse parties.”




1 We note that in May 2019, in a federal lawsuit brought by a Cincinnati homeless person
challenging the constitutionality of the city’s homeless-encampment policy, the United States
District Court for the Southern District of Ohio permitted the plaintiff to add a claim of sham legal
process against Cranley, in his official capacity as the mayor of Cincinnati. See Phillips v. City of
Cincinnati, S.D.Ohio No. 1:18-cv-00541, 2019 WL 5577958 (May 29, 2019). The court also
dismissed claims against the Cincinnati City Solicitor, and the various Hamilton County
defendants, including Prosecuting Attorney Joseph T. Deters.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



Waldman v. Pitcher, 2016-Ohio-5909, 70 N.E.3d 1025, ¶ 21 (1st Dist.), citing State

ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas, 74 Ohio St.3d

536, 542, 660 N.E.2d 458 (1996). The dispute must be “more than a disagreement;

the parties must have adverse legal interests.” Kincaid v. Erie Ins. Co., 128 Ohio

St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 10.

       {¶14} Here the agreed facts reveal that absent the consent of the city council,

the mayor has no direct authority over how the city manager and the city solicitor

carry out their public health and safety functions. There was disagreement between

city officials and the county prosecutor as to the continued presence of the

encampments and whether they presented hazards to the health and safety of the

public and the homeless persons.       The gravamen of the underlying action was

whether the original encampments on Third Street and other areas of the city

constituted a nuisance and whether the city nonetheless had allowed these

encampments to continue in operation on public property. On the basis of the

agreed facts, we hold that the parties to the underlying action had adverse legal

interests sufficient to confer jurisdiction on the respondent to resolve a justiciable

matter. That the parties often made joint recommendations of various motions to

the court is only one factor in our analysis. See Spercel v. Sterling Industries, Inc.,

31 Ohio St.2d 36, 38, 285 N.E.2d 324 (1972) (noting that the law favors the

resolution of controversies and uncertainties through compromise and settlement).

And in an action seeking resolution of issues affecting public health and safety timely

resolution of the matters is an important factor.

       {¶15} Respondent’s motion for summary judgment next argues that he is

entitled to judgment as a matter of law on New Prospect’s claim that the permanent

injunction was overly broad because it improperly bound nonparties throughout



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                     OHIO FIRST DISTRICT COURT OF APPEALS



Hamilton County. Respondent’s permanent injunction instructed law-enforcement

authorities in the city and in Hamilton County to prohibit any unlicensed

encampment on public or private property anywhere in Hamilton County.               The

injunction applies not only to the single, named party-defendant, the city of

Cincinnati, but also to any nonparty attempting to provide an unlicensed location for

homeless individuals to camp, including private entities like New Prospect.

       {¶16} An injunction is binding upon the parties to the action and those “in

active concert or participation with [parties] who receive actual notice” of the

injunction.    Civ.R. 65(D); see Planned Parenthood Assoc. of Cincinnati, Inc. v.

Project Jericho, 52 Ohio St.3d 56, 61, 556 N.E.2d 157 (1990). Nonparties may be

bound to prevent a defendant from “nullify[ing] a decree by carrying out prohibited

acts through aiders and abettors, although they were not parties to the original

proceeding.” Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14, 65 S.Ct. 478, 89 L.Ed. 661

(1945). But on the stipulated facts available here, there is no evidence that New

Prospect, a nonparty, was acting in concert with the city, or was aiding or abetting

the city’s actions. The injunctive relief is directed at the named defendant in the

underlying action, a political subdivision and law-enforcement agencies in the city

and the county.     There is no evidence here connecting those entities with New

Prospect, a nonparty, sufficient to enjoin it from future activity in furtherance of its

religious and charitable mission. Thus, on the evidence adduced here, respondent

was not authorized by law to enjoin New Prospect.

       {¶17} The geographical scope of the permanent injunction is also

problematic.     Respondent relied upon considerable evidence adduced in the

underlying action that the nuisance conditions created by encampments in

Cincinnati constituted a mobile nuisance. After the underlying action was filed, the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



original Third Street camps moved from areas proscribed by respondent’s temporary

restraining orders to other locations within the city. As the mobile nature of the

camps became apparent, respondent expanded the area covered by the original

restraining orders to include larger portions of the city.

       {¶18} Ohio nuisance statutes expressly contemplate enjoining behavior

constituting a mobile nuisance. R.C. 3767.05(D) permits a court to perpetually

enjoin “the defendant and any other persons from further maintaining a nuisance at

the place” or places that are the subject of the complaint. It also permits perpetually

enjoining “the defendant from maintaining the nuisance elsewhere.”                 R.C.

3767.05(D); see State ex rel. Miller v. Anthony, 72 Ohio St.3d 132, 138, 647 N.E.2d

1368 (1995).     But the express language of the statute limits mobile-nuisance

restrictions to defendants alone. Thus the city, a named defendant, arguably could

not escape the impact of the permanent injunction within its own borders. We note

that in the underlying action, the city did not raise the affirmative defense that under

R.C. Chapter 2744 it was immune from a nuisance action.

       {¶19} But the permanent injunction extended the geographic scope of the

injunctive remedy to include the entirety of Hamilton County, including areas

outside the city limits.      Again, Hamilton County was not a defendant in the

underlying action. There is no connection in the agreed evidence between the named

defendant, the city, and the relief ordered enjoining encampments on public or

private property in those portions of Hamilton County outside the city limits.

Respondent’s extension of its injunctive relief to areas outside the city limits was

thus not authorized by law.

       {¶20} Finally, respondent challenges New Prospect’s contention that

respondent exceeded his authority under R.C. Chapter 3767 by imposing additional



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                     OHIO FIRST DISTRICT COURT OF APPEALS



burdens, not required by statute, upon New Prospect, a private entity that intends to

host an encampment. The injunction requires city and county law-enforcement

officials to remove any existing or future unlicensed encampment located on private

property in the city or the county that lacks “running water or toilet facilities and

other requirements” described in Ohio Adm.Code 3701-25-01 et seq.

       {¶21} But under R.C. 3729.05(A)(3), a camp operator like New Prospect who

“neither intends to receive nor receives anything of value” from the camp is exempt

from a host of administrative regulations including those governing fresh water and

sewage disposal. The only requirement for such a camp is that “[i]f any health

hazard exists,” then it shall be corrected in a manner consistent with uniform rules

promulgated by the state director of health under R.C. 3729.02. Id. Since it is

undisputed that New Prospect does not intend to receive anything of value from the

campers in carrying out its mission to provide care for them, respondent was not

authorized by law to impose the additional requirements identified in the permanent

injunction.

       {¶22} We note that New Prospect claims that it has adequate facilities on its

four-acre site to ensure the health of homeless campers. If New Prospect were

unable to comply with the appropriate requirements, nothing in this opinion should

be construed to prevent a separate nuisance action from being brought in which New

Prospect would have the opportunity to appear and to contest the allegations.

       {¶23} Finally, the respondent is entitled to summary judgment on New

Prospect’s petition for a writ of mandamus. Mandamus compels the performance of

a present existing duty as to which there is a present default. See State ex rel. Home

Care Pharmacy, Inc. v. Creasy, 67 Ohio St.2d 342, 343-344, 423 N.E.2d 482 (1981).

Mandamus will not issue to require a judicial officer to prospectively observe the law,



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                     OHIO FIRST DISTRICT COURT OF APPEALS



or to remedy the anticipated nonperformance of that duty. See id. at 343; see also

State ex rel. Evans v. Tieman, 157 Ohio St.3d 99, 2019-Ohio-2411, 131 N.E.3d 930.

As the requested writ of mandamus seeks to control Judge Ruehlman’s prospective

rulings in this matter, the writ will not issue. See State ex rel. Scripps Media v.

Hunter, 1st Dist. Hamilton No. C-130241, 2013-Ohio-5895, ¶ 71.

       {¶24} In conclusion, we hold that New Prospect has established that

respondent has or is about to exercise judicial power, and that it lacks an adequate

remedy to the exercise of that power in the ordinary course of law. We further hold

that respondent’s exercise of that power in its August 16, 2018 permanent injunction

is unauthorized by law to the extent that respondent seeks to enjoin actions by

private nonparties, not found to be aiding or abetting a named defendant, within the

city limits of Cincinnati, and by any entity outside the city limits of Cincinnati.

Respondent’s orders imposing additional health and safety conditions on entities like

New Prospect are similarly unauthorized by law. We therefore grant the requested

writ of prohibition in part and deny it in part. Respondent was authorized by law to

impose its ordered injunctive relief against mobile nuisance encampments on public

property within the city limits of Cincinnati.

       {¶25} Because a writ of mandamus will not issue to require respondent to

prospectively observe the law, we deny New Prospect’s petition for a writ of

mandamus.

                                                              Judgment accordingly.


MYERS, J., concurs.
HENDON, J., concurs in judgment only.

SYLVIA SIEVE HENDON, retired, from the First Appellate District, sitting by
assignment.




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                    OHIO FIRST DISTRICT COURT OF APPEALS


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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