Dayton Christian Schools v. Ohio Civil Rights Com'n, C-3-80-410.

• Decision Date: 30 July 1984
• Docket Number: No. C-3-80-410.,C-3-80-410.
• Citation: 604 F. Supp. 101
• Parties: DAYTON CHRISTIAN SCHOOLS, et al., Plaintiffs, v. OHIO CIVIL RIGHTS COMMISSION, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

604 F. Supp. 101

DAYTON CHRISTIAN SCHOOLS, et al., Plaintiffs, v. OHIO CIVIL RIGHTS COMMISSION, et al., Defendants.

No. C-3-80-410.

United States District Court, S.D. Ohio, W.D.

July 30, 1984.

Bruce Pence, Daniel N. Kosanovich, Dayton, Ohio, William B. Ball, Harrisburg, Pa., for plaintiffs.

Helen Ninos, Asst. Atty. Gen., Columbus, Ohio, for defendants.

DECISION AND ENTRY SUSTAINING PLAINTIFFS' MOTION FOR AN INJUNCTION PENDING APPEAL; ORDER ENJOINING DEFENDANTS, PENDING APPEAL, FROM INVESTIGATING AND CONDUCTING A HEARING ON CHARGES OF SEX DISCRIMINATION AND RETALIATORY EMPLOYMENT PRACTICES MADE AGAINST DAYTON CHRISTIAN SCHOOLS BY ONE OF ITS FORMER TEACHERS; BOND SET

RICE, District Judge.

This cause is before the Court on Plaintiffs' Motion for an injunction pending appeal (doc. # 30), together with the parties' various memoranda in support of and contrary to such a request for injunction (doc. ## 31, 35, 37 and 38). Plaintiffs have supported their Motion by reference to Rule 62(c), Fed.R.Civ.P.

Rule 62(c) provides:

Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. If the judgment appealed from is rendered by a district court of three judges specially constituted pursuant to a statute of the United States, no such order shall be made except (1) by such court sitting in open court or (2) by the assent of all the judges of such court evidenced by their signatures to the order.

In deciding whether to grant the requested injunction herein, the Court must consider four factors:

(1) whether it is likely that the Plaintiffs will prevail on appeal;

(2) whether Plaintiff will suffer irreparable harm unless the injunction is granted;

(3) whether other parties or interested persons will suffer substantial harm if the injunction is granted; and

(4) whether the public interest will be harmed or served by granting the injunction.

See e.g., Washington Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977); Long v. Robinson, 432 F.2d 977 (4th Cir.1970); Belcher v. Birmingham Trust National Bank, 395 F.2d 685 (5th Cir.1968); N.L.R.B. v. General Motors Corp., 510 F.Supp. 341 (S.D.Ohio 1980); 11 Wright and Miller, Federal Practice and Procedure, § 2904 at p. 316; 7 Moore's Federal Practice, ¶ 62.05.

In the present case, as with most cases in which an injunction pending appeal is sought, the first factor is, conceptually, the most difficult to apply. Logic dictates that a court will seldom deny an injunction, then turn around and grant one pending appeal, finding, in part, that the party seeking injunctive relief is likely to prevail on appeal, i.e. that it is likely that the court erred in denying injunctive relief. Herein, the Court remains convinced that its Decision of January 6, 1984, overruling Plaintiff's request for a permanent injunction, (doc. # 25) was correct. 578 F.Supp. 1004.

However, it is not necessary for the Plaintiffs to demonstrate that it is more probable than not that they will succeed on appeal before the Court can grant an injunction pending appeal. Washington Metropolitan Area Transit Commission, supra. In that case, the Court explained the relationship between the first and the other three factors:

Instead, we hold that under Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921 (1958) a court, when confronted with a case in which the other three factors strongly favor interim relief may exercise its discretion to grant a stay if the movant has made a substantial case on the merits. The court is not required to find that ultimate success by the movant is a mathematical probability, and indeed, as in this case, may grant a stay even though its own approach may be contrary to movant's view of the merits. The necessary "level" or "degree" of possibility of success will vary according to the court's assessment of the other factors.

* * * * * *

We believe that this approach is entirely consistent with the purpose of granting interim injunctive relief, whether by preliminary injunction or by stay pending appeal. Generally, such relief is preventative, or protective; it seeks to maintain the status quo pending a final determination of the merits of the suit. An order maintaining the status quo is appropriate when a serious legal question is presented, when little if any harm will befall other interested persons or the public and when denial of the order would inflict irreparable injury on the movant. There is substantial equity, and need for judicial protection, whether or not movant has shown a mathematical probability of success.

559 F.2d at 843-44.¹

With this understanding of Rule 62(c), the Court turns to the question of whether an injunction pending appeal would be proper herein. As stated above, the Court is satisfied that it reached the correct decision in this case. Nonetheless, this case raises serious legal questions. Anytime a court must engage in the delicate balancing required by First Amendment jurisprudence, the case raises serious legal issues. Additionally, the Court notes that the Sixth Circuit has not ruled on the precise questions presented by this case. Accordingly, if Plaintiffs have made a strong showing on the other three factors, the Court may properly grant the requested injunction.

If this Court does not grant an injunction pending appeal, the Plaintiffs will suffer irreparable harm. The focus of the Plaintiffs' claim in this case was that even investigatory proceedings by the Ohio Civil Rights Commission ("OCRC") would violate their First Amendment Rights. In the absence of the requested injunctive relief, the challenged investigations will proceed and appellate review of this Court's decision will have all the practical consequences of "locking the barn after the horse has been stolen." However, beyond the loss of potential benefits from pursuing appellate rights, Plaintiffs face the prospect of a much severe form of irreparable harm. In the event that this Court incorrectly denied Plaintiffs permanent injunction in this case, they will irretrievably lose their First Amendment rights. In Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (plurality opinion), the Court noted:

The loss of First Amendment freedoms for even minimal periods of time unquestionably constitutes irreparable injury.²

If the proceedings before the OCRC go forward, Plaintiffs face the permanent loss of First...