Court of Appeals of Ohio, First District, Hamilton
STATE OF OHIO EX REL. NEW PROSPECT BAPTIST CHURCH, Relator,
HON. ROBERT P. RUEHLMAN, JUDGE, COURT OF COMMON PLEAS, HAMILTON COUNTY, OHIO, Respondent.
Original Action in Mandamus and Prohibition
of the Court: Writ of Mandamus is Denied; Writ of Prohibition
is Granted in Part and Denied in Part
American Civil Liberties Union of Ohio Foundation, Joseph W.
Mead, Freda J. Levinson and David J. Carey, for Relator,
T. Deters, Hamilton County Prosecuting Attorney, Pamela J.
Sears and Cooper D. Bowen, Assistant Prosecuting Attorneys,
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.
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
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
Sheriffs 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 encampments. Violators of the injunction are
"subject to arrest" under the court's contempt
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.
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).
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
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).
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).
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. ...