City of Cincinnati v. Cincinnati Dist. Council 51, Am. Federation of State, County and Municipal Emp., AFL-CIO

• Decision Date: 18 July 1973
• Docket Number: No. 72-697,AFL-CIO,72-697
• Citation: 35 Ohio St.2d 197,299 N.E.2d 686
• Parties: , 84 L.R.R.M. (BNA) 2241, 72 Lab.Cas. P 53,136, 64 O.O.2d 129 CITY OF CINCINNATI v. CINCINNATI DISTRICT COUNCIL 51, AMERICAN FEDERATION OF STATE, COUNTY and MUNICIPAL EMPLOYEES,et al., Appellants; Goldberg, Appellee.
• Court: Ohio Supreme Court

Page 197

35 Ohio St.2d 197

299 N.E.2d 686, 84 L.R.R.M. (BNA) 2241, 72 Lab.Cas. P 53,136,

64 O.O.2d 129

CITY OF CINCINNATI v. CINCINNATI DISTRICT COUNCIL 51, AMERICAN FEDERATION OF STATE, COUNTY and MUNICIPAL EMPLOYEES, AFL-CIO et al., Appellants; Goldberg, Appellee.

No. 72-697.

Supreme Court of Ohio.

July 18, 1973.

Syllabus by the Court

1. A trial court may permit a taxpayer and a citizen of a municipal corporation to intervene in a contempt action brought by the municipality against a union of city employees, where the court properly determines that such intervention is in the public interest or in furtherance of justice.

2. Notice which apprises the defendant of the nature of the charge against him so that he may prepare a defense is sufficient to comply with the requirements of R.C. 2705.03.

3. In a contempt proceeding, damages may properly be awarded to a municipal corporation as compensation for losses sustained as a result of the violation of an injunction against striking by a union of municipal employees.

4. Reduction in payroll expense of a municipal corporation, occasioned by a strike of municipal employees, may not be offset against damages sustained by the municipal corporation as the result of the strike.

Appellants, Cincinnati District Council 51, American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter Council 51), and the American Federation of State, County, and Municipal Employees, AFL-CIO (hereinafter the International), were found in contempt of the Hamilton County Common Pleas Court for violation of a permanent injunction against striking and/or picketing against the city of Cincinnati, issued by that court on January 6, 1970. The strike was found by the Common Pleas Court to have lasted from January 4, 1970, through February 9, 1970. On September 14, 1971, the Common Pleas Court entered judgment finding appellants in contempt of court and fining them $37,000, $1,000 for each day of the strike. After crediting against this fine $7,800 (forfeiture of a security bond), $2,400 (fines previously paid by individuals), and $1,000 (court costs), the balance of the fine was determined to be $25,800. Of this $25,800 balance $13,000 was awarded to the city of Cincinnati as damages, and the remainder was awarded to Hamilton County as a 'criminal penalty.'

Further facts as necessary to the decision of this case are discussed in the opinion.

The Court of Appeals affirmed the judgment of the trial court. The cause is before this court pursuant to the allowance of a motion to certify the record.

James C. Paradise, Cincinnati, for appellants.

Goldman, Cole & Putnick, Jerome Goldman and Mitchell B. Goldberg, Cincinnati, for appellee.

C. WILLIAM O'NEILL, Chief Justice.

This appeal raises serious and difficult questions regarding the powers of courts to punish for contempt of their orders.

It is noted at the outset that both a temporary restraining order issued on January 4, 1970, and the permanent injunction issued on January 6, 1970, enjoined Council 51 '* * * from carrying on a strike and/or picketing against the city of Cincinnati, Ohio.' It is not here contended that the injunction was unlawfully issued, and it is conceded that by striking Council 51 acted in contempt of the injunction. Appellants, however, assert ten propositions of law, in essence challenging the nature and extent of punishment of Council 51 and the International, and the intervention by the intervenor-defendant, appellee herein.

In particular, appellants assert:

(1) That they were denied due process of law by not being put on notice 'at any time prior to judgment' that they were being tried for multiple contempts;

(2) That the denial of a motion for specification of the charges is an abuse of discretion in light of the finding of multiple contempts;

(3) That a judgment finding appellants in contempt of the permanent injunction on January 4 and 5 is unsupportable on its face;

(4) That the judgment is without the requisite evidentiary support;

(5) That the court's authority to punish for indirect contempt is limited by R.C. 2705.05 and 2727.12, which sections do not authorize an award of damages;

(6) That since a jury trial may not be had in a contempt proceeding, the awarding of a damage judgment in such a proceeding deprives the appellants of the right to a jury trial in an action for damages in violation of Section 5 of Article I of the Ohio Constitution;

(7) That it is error to permit a person to intervene pursuant to R.C. 733.581 for the purpose of initiating new contempt proceedings where an injunction action instituted by a municipal corporation has been concluded by the entry of final judgment;

(8) That it is improper to assess a fine of $1,000 for each contempt, since R.C. 2705.05 provides for a maximum find of $500;

(9) That agreement by the city to waive its right to have acts in violation of the injunction adjudged to be in contempt constitutes a defense to a subsequent charge of contempt (10) That the proper measure of damages is the actual monetary loss sustained and that since the city reaped a monetary gain, the judgment awarding damages can not stand.

Propositions (1) and (2) relate to the question of whether appellants were adequately notified of the nature of the proceedings against them and will be treated together. Propositions (3) and (4) question the degree of evidence necessary to support the judgment below and will be treated together. Propositions (5), (6), (8) and (10), relating to the award of damages and the size of the fine, will also be treated together. The remaining propositions will be treated separately.

I.

Proposition of law (7).

R.C. 733.581 provides in pertinent part:

'In any civil action or proceeding involving the public interest the court shall grant the application of any person to intervene if the court believes that the public interest will be better protected or justice will be furthered.'

That statute has not been previously construed by this court. It is apparent, however, that the granting or withholding of permission to intervene is within the sound discretion of the trial court.

Unless the trial court is shown to have abused that discretion, this court will not disturb its decision.

The record indicates that the application to intervene was filed on February 6, 1970, subsequent to declarations by the officers of the city expessing an intention to dismiss the contempt proceedings arising from violations of the permanent injunction. The trial court conducted a hearing on the application to intervene, during which counsel for the city protested the intervention and expressed the city government's desire to terminate the proceedings. They argued, in essence, that it was the responsibility of the public officials to determine what course of action was in the best public interest, and that '* * * at best, Mr. Goldberg is here to question the handling of this case by a solicitor.'

That argument, which challenges the standing of a taxpayer to question discretionary decisions of government officials by intervention in litigation, is relied upon by appellants in this court. The appellee argued that the government's position failed to protect the interests of the people of Cincinnati. He contented that to permit the contempt of appellants to go unpunished would encourage disrespect for orders of the courts. Further, he contended that the city had suffered substantial damage as a result of the strike, which would not be recompensed should the contempt proceeding be dismissed.

The argument of counsel for the city clearly fails to meet the contentions raised broad discretion to decide matters of public that municipal officials are invested with broad discretion tod ecide matters of public interest, this discretion is not entirely unchecked. The General Assembly has seen fit to provide certain procedures through which taxpayers of a municipality may question the government's decisions in matters of public interest. One of these procedures is provided in R.C. 733.581, which permits taxpayers to present their views on public questions to the courts in actions in which the municipality is a party.

It is difficult to conjure matters of greater public interest than the preservation of city services or the maintenance of respect for the lawful orders of the courts. Where litigation touches both matters, it is not an abuse of discretion to permit intervention by a taxpayer.

II.

Propositions of law (1) and (2).

Appellants argue that they were denied due process of law in that they were not notified that the proceeding against them involved multiple contempts. In this connection, appellants further complain that '* * * the denial of a motion for specification of the charges is an abuse of discretion * * *.'

Proceedings in contempt are sui generis in the law. They bear some resemblance to suits in equity, to criminal proceedings and to ordinary civil actions; but they are none of these. Contempt proceedings are means through which the courts enforce their lawful orders. The power to punish for contempt is said to be inherent in the courts and to exist independently from express constitutional provision or legislative enactment. See State v. Local Union 5760 (1961), 172 Ohio St. 75, 173 N.E.2d 331. The nature of contempt proceedings can vary greatly. Some are summary; others involve notice and hearings. Generally, there is no jury trial; but where a long term of imprisonment is involved a jury trial may be a requisite.

What constitutes due process in a contempt proceeding depends to a large extent upon whether the contempt is direct or indirect, and whether it is civil or criminal. The distinction between these alternatives is far from clear. It is said that direct contempt takes place in the presence of the court, and indirect contempt is all other contempt. Yet, in Local Union 5760,supra, this court held that 'interference with a court...