Mayer v. Bristow

• Decision Date: 29 December 2000
• Docket Number: No. 99-2216, No. 00-56.
• Citation: Mayer v. Bristow, 91 Ohio St.3d 3, 740 N.E.2d 656 (Ohio 2000)
• Parties: MAYER, APPELLANT, v. BRISTOW, APPELLEE.
• Court: Ohio Supreme Court

91 Ohio St.3d 3

740 NE 2d 656

MAYER, APPELLANT, v. BRISTOW, APPELLEE.

Nos. 99--56.

Supreme Court of Ohio.

Submitted November 14, 2000.

Decided December 29, 2000.

Isaac, Brant, Ledman & Teetor, Mark Landes, Terri B. Gregori and Lance Chapin, for appellant.

Lonny Lee Bristow, pro se.

Betty D. Montgomery, Attorney General, Judith L. French and Elizabeth Luper Schuster, Assistant Attorneys General, for intervenor Attorney General Betty D. Montgomery. Burton H. Wolfe, urging affirmance for amicus curiae, Burton H. Wolfe.

Laurence A. Neuton, urging affirmance for amicus curiae, Laurence A. Neuton.

ALICE ROBIE RESNICK, J.

On June 1, 1998, plaintiff-appellant, James J. Mayer, Jr., Prosecuting Attorney of Richland County, Ohio, filed a complaint in the Crawford County Court of Common Pleas to have defendant-appellee, Lonny Lee Bristow, declared a "vexatious litigator" pursuant to R.C. 2323.52. In his answer, Bristow admitted to "all of the allegations contained in the complaint."

Bristow's admission to being a vexatious litigator was apparently made as part of a plea agreement in a criminal case, which is described in State v. Bristow (Mar. 26, 1999), Wyandot App. No. 3-98-24, unreported, 1999 WL 254098, as follows:

"On Monday, June 1, 1998, Bristow entered guilty pleas in Crawford County Case No. 98-CR-54 to three felonies: Aiding an Escape in violation of R.C. § 2921.35(A) and two counts of Harassment by Inmate in violation of R.C. § 2921.38(A). The Friday before Bristow pled guilty to the charges in Case No. 98-CR-54, a jury found Bristow guilty in a separate criminal case of committing fourteen counts of felony telephone harassment. (Crawford County Case No. 98-CR-53). Bristow's sentencing in the telephone harassment case was continued to Monday, June 1, 1998. During Bristow's sentencing in that case, his counsel interrupted the court and advised the trial judge that Bristow wanted to accept a previously negotiated plea bargain that he had earlier refused. That negotiated plea encompassed an agreed sentence in the telephone harassment case, Bristow's admission of guilt and an agreed sentence with respect to another case involving a probation violation and the charges at issue in this case. The agreement also called for Bristow's admission to being a vexatious litigator in response to a civil action filed by the State."

Accordingly, in its judgment entry dated June 1, 1998, the trial court determined Bristow to be a vexatious litigator as defined in R.C. 2323.52(A)(3), and ordered that Bristow be prohibited from doing all of the following without first obtaining leave of the court to proceed:

"(a) Instituting legal proceedings in the court of claims or in a court of common pleas, municipal court, or county court;

"(b) Continuing any legal proceedings that the defendant had instituted in the court of claims or in a court of common pleas, municipal court, or county court prior to the entry of this order; and

"(c) Making any application, other than an application for leave to proceed under Ohio Revised Code Section 2323.52(F), in any legal proceedings instituted by the defendant or another person in the court of claims or in a court of common pleas, municipal court, or county court."

On July 30, 1998, the trial court found that Bristow had violated the terms of the June 1, 1998 order and "still harbors future plans of blanketing certain individuals with lawsuits." Accordingly, the court ordered that Bristow "not have mail privileges at any state institution wherein he may be housed."

However, this order was subsequently modified in a judgment entry dated August 20, 1998, which reads, in its entirety:

"Based upon practical concerns raised by the State of Ohio, Department of Rehabilitation and Correction, the Judgment Entry of July 30, 1998 is hereby clarified as follows:

"It is hereby ORDERED, ADJUDGED and DECREED that the State of Ohio, Department of Rehabilitation and Correction may send out mail from Lonny Lee Bristow without opening it if:

"1. It is addressed to Judge Nelfred G. Kimerline, care of either the Crawford County or Richland County Court of Common Pleas. In this way, defendant Bristow is assured of mail privileges to file any legal papers in this action or in his criminal matters and is further assured mail privileges to file any legal paper to institute any non-frivolous action upon motion and order of this Court.

"2. It is addressed to any attorney-at-law not listed below as a person requesting to not receive mail from Bristow. In this way, Bristow is assured mail privileges to access legal counsel or advice should he so choose. "It is further ORDERED that the State of Ohio, Department of Rehabilitation and Correction will not send out mail from Lonny Lee Bristow that is addressed to any person Bristow has harassed in the past and who does not want to receive mail from Bristow. Counsel for plaintiff herein shall provide the Department of Rehabilitation and Correction a list of such persons for purposes of implementation of this portion of this Order.

"It is further ORDERED that the State of Ohio will examine all other outgoing mail suspected to be from Lonny Lee Bristow to any other addressee not listed above, to determine whether the outgoing mail includes materials in violation of this Court's order. If these mailings contain pleadings or other materials believed to be in violation of this Court's Order, they shall be sent to this Court. This measure is necessary in light of Bristow's threats and promises to file vexatious pleadings by himself and through others.

"It is further ORDERED that any mail from Lonny Lee Bristow that is addressed to any court other than to Judge Nelfred G. Kimerline, as stated above, shall be forward[ed] to this Court for a determination as to its disposition.

"Every time a court of law takes a step to curb Bristow's proven abuse of the judicial system, he finds another way to access another court for the only purpose of satisfying his vindictiveness through the filing of frivolous lawsuits. Innocent people in Richland County, including law enforcement officials, judges, the Sheriff, their families and even their children are the perpetual victims of Bristow's meritless lawsuits and his vulgar, menacing, threatening letters and phone calls. Although several courts in Ohio now refuse his pauper pleadings and he has been declared a vexatious litigator in Ohio, Bristow has pledged to, and is now filing his frivolous actions across the United States and in foreign countries.

"Based upon the foregoing, the Court hereby finds a substantial governmental interest in curbing Bristow's costly abuses of the judiciary and others and has issued this Order and the Order of July 30, 1998 to facilitate protection of that interest.

"The court finds that these Orders are limited to accomplish this governmental interest and are unrelated to the suppression of free expression.

"IT IS SO ORDERED."

On September 21, 1998, Bristow filed a motion for leave to proceed on a civil complaint to be filed in the Richland County Court of Common Pleas against various employees of the Richland County Sheriffs Department for allegedly violating and conspiring to violate his constitutional rights, and against another individual for alleged defamation. In a judgment entry dated December 16, 1998, the trial court denied Bristow's motion for leave to file this proposed complaint. On appeal, Bristow challenged the constitutionality of the trial court's August 20, 1998 judgment entry. Bristow argued that while R.C. 2323.52 "ensures one a right of access to the courts by asking a certain court permission to proceed in another court * * * [t]he order now being appealed goes way over the scope of said authority." Specifically, Bristow argued that the trial court's authority under R.C. 2323.52 is limited to monitoring his lawsuits brought in Ohio courts, and that the court's restrictions on his mail are in contravention of Ohio Adm.Code 5120-9-18.

The court of appeals recognized that Bristow's arguments were directed at the procedure established in the trial court's August 20, 1998 order, rather than at the statute itself. Nevertheless, the majority of the court of appeals found that the trial court's order was essentially an implementation of the procedure contemplated under R.C. 2323.52 in the context of incarceration and proceeded "to analyze R.C. 2323.52 itself under Article I, Section 16 of the Ohio Constitution."

The majority ultimately held that "the procedure established by R.C. 2323.52, the vexatious litigator statute, fails to provide a reasonable and meaningful substitute for direct access to Ohio's trial courts. We therefore determine that the statute is unconstitutional in its entirety as violative of Ohio Const., Art. I Sec. 16." In so doing, the court of appeals found that a conflict exists between its decision and those of the First District Court of Appeals in Deters v. Briggs (Dec. 31, 1998), Hamilton App. No. C-971033, unreported, 1998 WL 906405, and the Tenth District Court of Appeals in Cent. Ohio Transit Auth. v. Timson (1998), 132 Ohio App.3d 41, 724 N.E.2d 458, and certified the issue to this court pursuant to Section 3(B)(4), Article IV of the Ohio Constitution.

Judge Hadley, dissenting, found that the issue of the statute's constitutionality had not been properly raised, that in any event the statute is constitutional, and that the trial court's August 20, 1998 order "is overbroad because it prohibits a vexatious litigator from instituting a legal proceeding or action in a court other tha[n] those enumerated in the statute."

The cause is now before this court pursuant to Section 3(B)(4), Article IV of the Ohio Constitution (case No. 99-2216), and the allowance of a discretionary appeal (case No. 00-56).

We are asked to determine whether, and to what extent, R.C. 2323.52 is unconstitutional. We are also asked to make a similar determination with regard...