Davis v. Crush

• Decision Date: 13 August 1986
• Docket Number: No. C-1-86-0660.,C-1-86-0660.
• Citation: 646 F. Supp. 1192
• Parties: Thomas L. DAVIS, et al., Plaintiffs, v. Honorable Thomas C. CRUSH, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

646 F. Supp. 1192

Thomas L. DAVIS, et al., Plaintiffs, v. Honorable Thomas C. CRUSH, et al., Defendants.

No. C-1-86-0660.

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

August 13, 1986.

James Condit, Cincinnati, Ohio, Stephen McMurtry, Covington, Ky., Charles Lester, Jr., Fort Thomas, Ky., for plaintiffs.

Edward Goldman, Robert Pitcairn, Jr., Roger Friedmann, James Helmer, Jr., Cincinnati, Ohio, for defendants.

FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW

CARL B. RUBIN, Chief Judge.

This matter is before the Court in connection with a preliminary injunction seeking to enjoin defendants from enforcing an order of the Common Pleas Court of Hamilton County, Ohio issued on June 20, 1986. Plaintiffs claim that such order violated their constitutional rights. This matter was briefed and then argued to the Court on Wednesday, August 6, 1986.

In accordance with Rule 52, Fed.R.Civ.P., the Court does submit its Findings of Fact, Opinion and Conclusions of Law.

I. FINDINGS OF FACT

1. In the case of Planned Parenthood Association of Cincinnati, Inc. v. Project Jericho, Case Number A-86-02417, (Hamilton Cty. Common Pleas 1986), Defendant Judge Thomas Crush, issued an injunction limiting the number of pickets at Defendant Planned Parenthood's Medical Clinic, 3332 Vine Street, Cincinnati, Ohio. Judge Crush permitted two stationary pickets and three additional pickets who were permitted to walk on the east side of Vine Street. He made no order in regard to conduct of other persons with the following exception: "There is no order at this time with respect to the west side of Vine Street except that in all cases there may be no loud talking, chanting or praying in a voice so loud that it does reach the interior of the clinic at 3332 Vine Street or the apartments at One Lewis Street." (See Preliminary Injunction, June 20, 1986, attached hereto as Exhibit A).

2. During the progress of the above identified litigation there have been two affidavits of bias and prejudice filed with the Ohio Supreme Court attempting to remove Defendant Crush from the proceedings. The initial effort was denied by Chief Justice Frank Celebrezze of the Ohio Supreme Court and the second was denied by Justice Locher of the Ohio Supreme Court to whom the second affidavit had been referred.

3. While not relevant to the issues before this Court it should be noted that the genesis of the litigation involves the establishment by Defendants Planned Parenthood Association of Cincinnati, Inc. of a clinic where abortions are performed and the opposition thereto by various persons and organizations. The Court takes judicial notice that acts of violence have occurred. There are confrontations with a potential for violence between groups and individuals involved.

II.

OPINION

There is a threshold questions that must always be addressed when a District Court is asked to intervene in any fashion in a state court proceeding. This issue has been the subject of at least five significant decisions by the Supreme Court of the United States. Beginning with Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court has repeatedly cautioned federal courts against interfering with the activities of state courts. The "Younger" doctrine, which originally addressed itself to criminal prosecutions, has been substantially expanded in the cases of Huffman v. Pursue, 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Juidice, Judges v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); and Ohio Civil Rights Commission v. Dayton Christian School, ___ U.S. ___, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986).

Two of these later decisions merit some consideration because they expand and explain the Younger doctrine. In Moore v. Sims, supra, the Supreme Court of the United States redefined exceptions to Younger abstention. The Court enumerated those exceptions as follows:

1. Bad faith;

2. A motivation of a desire to harass;

3. The existence of a challenged statute flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph; and

4. Extraordinary circumstances in which the necessary irreprable injury can be shown even the absence of the usual prerequisites of bad faith and harassment.

In Juidice, supra the Court dealt with Younger as it applied to a matter similar to the one at issue. The Court pointed out:

Federal court interference with the state's contempt process is `an offense to the state's interest ... likely to be every bit as great as it would be were this a criminal proceeding. Juidice, supra 430 U.S. at 336, 97 S.Ct. at 1217 (Citing Huffman, supra, 420 U.S. 592 at 604, 95 S.Ct. 1200 at 1208, 43 L.Ed.2d 482).

In the most recent analysis of Younger, Ohio Civil Rights Commission v. Dayton Christian School, supra, the Court pointed out that interference by a federal court in the issuance of an injunction should not be done "except where necessary to prevent great and immediate irreprable injury". This the Court went on to say was "based on concerns for comity and federalism. Such concerns are equally applicable to other types of state proceedings ... judicial in nature in which important state interests are vindicated so long as in the course of those proceedings the federal plaintiff will have a full and fair opportunity to litigate his constitutional claims."

The rationale behind these decisions is quite simple. The federal and the state courts do exist side by side and each should refrain from interfering with the other. The assertion that federal courts in some fashion are or should be in a superior position is not only erroneous, but a grave threat in concept alone to the independence and vitality of state court systems.

The District Courts are not the only forum for vindication of constitutional rights. The viability of that constitution does not depend upon proximity to Federal Courts. It is equally effective at Court and Main Streets, Cincinnati, as it is at Fifth and Main Streets, Cincinnati. No plaintiff can argue with any persuasion that his constitutional rights will be ignored in the state courts of Ohio.

Simply stated, Younger is controlling here unless any of the exceptions outlined in Moore apply. Neither by brief nor by argument has plaintiff's counsel met this issue¹. Why should this court interfere with a decision that is designed to give plaintiffs and all other persons an opportunity peacefully to express their opinion and peacefully to picket while at the same time preventing that expression or picketing from becoming intimidating or harassing? What possible constitutional violation has occurred? The Supreme Court of the United States has dealt with the conflicting problems of First Amendment rights and obligations. In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) the Court made the following observations:

Our cases make equally clear, however, that reasonable `time, place and manner' regulations may be necessary to further significant governmental interests and are permitted. Grayned, supra at 15, 92 S.Ct. at 2303.

Expressive activity may be prohibited if it ... involves ... invasion of the rights of others. (Emphasis added)

Grayned, supra at 118, 92 S.Ct. at 2304 Citing Tinker v. DesMoines School District, 393 U.S. at 503, 513, 89 S.Ct. at 733, 740, 21 L.Ed.2d 731 (1969).

With solid decisional underpining for Judge Crush's order, this Court must find an exception before it may act. In viewing the order and the context in which it was issued, this Court finds no such exception. The United States District Court must, therefore, abstain.

The foregoing analysis, however, does not end the inquiry. The complaint in this matter lists the first defendant as follows: "Honorable Thomas C. Crush, Judge, Court of Common Pleas, Hamilton County Court-house, 1000 Main Street, Cincinnati, Ohio 45202 ..." On page 13 of the complaint appears the following under the prayer for relief: "For judgment against the defendants, jointly and severally, in the amount of $150,000 as compensatory damages for constitutional and common law violations, $300,000 as punitive damages, interest, costs and attorney fees under 42 U.S.C. § 1988 ..."

This language implicates another well-settled doctrine. In 1967 the Supreme Court of the United States had occasion to review the liability and immunity of judges. In the seminal case of Pierson v. Ray, 386 U.S. 547, 553, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967) that Court stated as follows: "Few doctrines were more solidly established at common law than the immunity of Judges from liability for damages for acts committed within their judicial jurisdiction as this court recognized when it adopted the doctrine in Bradley v. Fisher, 80 U.S. (13 Wall) 335, 20 L.Ed. 646 (1872) ... It is a Judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that may arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision making, but to intimidation." Pierson v. Ray, supra at 554, 92 S.Ct. at 1217. (emphasis added)

This Court notes in passing that the Supreme Court of the United States specifically held in Pierson that this principle was not abolished by 42 U.S.C. § 1983.

To assert as plaintiffs do that Judge Crush was not acting in a "judicial" capacity would, if accepted, completely eviscerate Pierson v. Ray and permit instead a "form of words" to render it a nullity. All a disgruntled litigant would need do is assert that the actions of the...