Johnson v. Zurz

• Decision Date: 30 May 1984
• Docket Number: C 82-1805.,No. C 82-1534A,C 82-1534A
• Citation: 596 F. Supp. 39
• Parties: Kenneth JOHNSON, Plaintiff, v. The Honorable Richard ZURZ, Defendant. and Gregory MITCHELL, Plaintiff, v. The Honorable Richard V. ZURZ and Referee James Gill, Defendants.
• Court: U.S. District Court — Northern District of Ohio

596 F. Supp. 39

Kenneth JOHNSON, Plaintiff, v. The Honorable Richard ZURZ, Defendant. and Gregory MITCHELL, Plaintiff, v. The Honorable Richard V. ZURZ and Referee James Gill, Defendants.

Nos. C 82-1534A, C 82-1805.

United States District Court, N.D. Ohio, E.D.

May 30, 1984.

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COPYRIGHT MATERIAL OMITTED

Peter J. Krembs, Gruber, Moriarty, Fricke & Jaros, Cleveland, Ohio, for plaintiff Rocco Wine Distributors, Inc.

Michael C. Donovan, Janice Gui, Summit County Legal Aid Society, Akron, Ohio, for plaintiff Johnson.

Sanford J. Berger, Robert M. Fertel, Cleveland, Ohio, for plaintiff Mitchell.

Lynn C. Slaby, Summit County Pros. Atty., James L. Bickett, Chief Counsel, Civ. Div., Kevin R. Campbell, Asst. Pros. Atty., Akron, Ohio, for defendants Honorable Richard Zurz and Referee James Gill.

Louis A. Colombo, Marc. D. Flink, Baker & Hostetler, Cleveland, Ohio, for defendant Pleasant Valley Wine Company.

MEMORANDUM OPINION AND ORDER

LAMBROS, District Judge.

This is an action pursuant to 42 U.S.C. § 1983 for the deprivation of plaintiff's rights as provided under the fourteenth amendment to the United States Constitution. Plaintiff Johnson is an indigent individual who has failed to make child-support payments pursuant to a state court order and, as such, has been and is subject to contempt proceedings before the defendant Presiding Judge, Domestic Relations Division, Summit County Court of Common Pleas.

Presently before the Court is plaintiff's motion to certify a class action, and cross motions for summary judgment. The facts pertinent to this claim are undisputed. In September, 1979 Judge Zurz ordered Johnson to pay child support. In May, 1982 Judge Zurz, in response to a motion for a show cause order filed by an assistant prosecuting attorney of the Summit County Bureau of Support, ordered that Johnson appear on June 16, 1982 and show cause why he should not be held in contempt of court. The show cause motion also sought a sentence of ten days incarceration in the event Johnson was held in contempt.

On June 1, 1982 Johnson filed a motion for appointment of counsel and represented in a supporting memorandum and affidavit that he was, in fact, indigent. On June 2, Judge Zurz denied Johnson's motion stating that the Domestic Relations Court was without legal authority to appoint counsel.

Two days before the scheduled contempt hearing Johnson filed this class action for injunctive and declaratory relief on his behalf and on behalf of others similarly situated claiming that, as he faced possible incarceration and was indigent, Judge Zurz was required to appoint counsel on his behalf. Johnson sought, and was granted, a temporary restraining order. Later an entry by stipulation of the parties was made granting a preliminary injunction on the same terms and conditions as the temporary restraining order. On June 21, the June 16 contempt hearing was dismissed by Judge Zurz.

I.

It is first necessary to address the motion for class certification and the issues of standing and state action. The threshold question when considering whether an action should be certified as class action must necessarily be whether the plaintiff has standing to sue on his own behalf. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In order to meet the standing requirement a party must demonstrate the following:

"That he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood, 441 US 91, 99, 60 L Ed 2d 66, 99 S Ct 1601 (1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org. 426 US 26, 38, 41, 48 L Ed 2d 450, 96 S Ct 1917 1925 (1976).

Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (footnote omitted).

Defendant contends that plaintiff lacks standing to sue for a number of reasons, each of which this Court finds to be unconvincing. Defendant claims that no actual injury has taken place and therefore the requirement of standing has not been satisfied. It is clear, however, that the existence of a threat of injury on account of illegal conduct is sufficient to satisfy the injury portion of the standing requirement. Here, plaintiff has been and continues to be threatened with the deprivation of his liberty. The mere fact that Judge Zurz, shortly after this Court issued a restraining order, dismissed sua sponte the contempt hearing against Johnson is insufficient to overcome the remaining threat of incarceration. That dismissal was without prejudice and it is clear that Johnson may be cited with contempt at any time. Further, halting the challenged conduct would not, in any event, deprive this Court of reviewing that conduct where as here, plaintiff has standing.

It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power. In this case the city's repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court's judgment were vacated.

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982) (footnotes omitted). Likewise, there is nothing to preclude the defendant from continuing his conduct upon the removal of the preliminary injunction.

Defendant also argues that plaintiff is not subject to any real or immediate possibility of injury. While contempt proceedings traditionally lie within the discretion of the judge, Section 2705.05 of the Ohio Revised Code specifically provides that in contempt proceedings such as those in question a guilty individual is subject to punishment which includes imprisonment for up to ten days. Ohio Rev.Code Ann. § 2705.05. Further, the motion to show cause which led to the contempt proceedings specifically sought such a penalty. It is evident that Johnson and those who are similarly situated are under the scope of threatened and possible injury.

The Court concludes that plaintiff has the necessary standing to sue on his own behalf. Additionally, in order to invoke the jurisdiction of the federal court pursuant to the sixth and fourteenth amendments and 42 U.S.C. § 1983, the action complained of must be state action and not that of private persons. Turner v. Impala Motors, 503 F.2d 607 (6th Cir. 1974). The State of Ohio has prescribed potential penalties for contempt proceedings by statute, including incarceration. More significantly, however, the action complained of is not the civil contempt action, which is initiated by private persons, but the failure of a state judge, acting by and through his state authority, to fail to advise indigents of their right to appointed counsel and appoint such counsel when those indigents are threatened with possible incarceration pursuant to statute. Thus it is clear that the action in question herein is state action.

It has been stipulated by the parties that plaintiff's asserted class satisfies the requirements of Rule 23(a) of the Rules of Civil Procedure pertaining to class actions. The Court concurs in that statement and as the requirements of Rule 23(b)(2) are also satisfied, plaintiff's motion to certify a class is hereby granted and this action shall proceed as a certified class action, said class of plaintiffs to consist of all indigent defendants who are unable to afford private counsel and who now, or will in the future, face potential incarceration as a result of being summoned before the Domestic Relations Division of the Summit County Court of Common Pleas to show why they should not be held in contempt of court for failure to pay court ordered child-support.

II.

Defendant raises the doctrines of abstention, under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and its progeny, and judicial immunity in support of his motion. The abstention doctrine as articulated in Younger is based on the proposition that in the absence of extraordinary circumstances principles of federalism, comity and equity require that federal courts abstain from unduly interfering with state criminal court proceedings. This principle has been extended and applied to certain civil actions. See Judice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). The purpose of the Younger abstention doctrine is to prevent undue interference in legitimate state functions by the federal court. A basic premise of the application of this doctrine, however, is that the plaintiff has recourse to the state appellate process to raise his federal claim. Younger, supra 401 U.S. at 41, 45, 91 S.Ct. at 749, 751. In Parker v. Turner, 626 F.2d 1 (6th Cir.1980), the United States Court of Appeals for the Sixth Circuit, considering alleged due process violations by state court judges similar to the claim made in this case, held that the federal court should abstain as the state courts were available to address the unconstitutional conduct in question. The Court specifically noted, however:

Should the Tennessee appellate courts be unable or unwilling to correct continuing unconstitutional conduct by the Juvenile Court judges, plaintiffs would then be in a position of showing "exceptional circumstances" which would warrant federal injunctive relief.

Id. at 10 (...