State ex rel. Gilligan v. Hoddinott

• Decision Date: 05 December 1973
• Docket Number: No. 73-681,73-681
• Citation: 36 Ohio St.2d 127,304 N.E.2d 382
• Parties: , 65 O.O.2d 310 The STATE, ex rel. GILLIGAN, Governor, et al., v. HODDINOTT, Judge.
• Court: Ohio Supreme Court

Page 127

36 Ohio St.2d 127

304 N.E.2d 382, 65 O.O.2d 310

The STATE, ex rel. GILLIGAN, Governor, et al., v. HODDINOTT, Judge.

No. 73-681.

Supreme Court of Ohio.

Dec. 5, 1973.

Syllabus by the Court

1. Prohibition is an extraordinary remedy, to be entertained with caution, and is to be exercised in the sound discretion of the court.

2. The writ of prohibition may issue where it is shown that the body exercising judicial power is exceeding its jurisdiction.

3.

The writ of prohibition will issue to prevent a court from interfering with the Governor in the exercise of his discretionary powers as chief executive, absent a clear showing of abuse of that discretion; that interference being such a usurpation of power that it exceeds the court's jurisdiction.

On August 3, 1973, Governor John J. Gilligan issued an executive order, directing that Burr Oak State Park lodge and cabin facilities be closed to the public. The Ohio Department of Natural Resources carried out the order, closing facilities operated by Ohio Inns, Inc.

In 1966, and again in 1970, the Ohio Department of Natural Resources entered into contracts with Ohio Inns for the operation and management of certain lodging and restaurant facilities in several state parks, including Burr Oak State Park in Morgan County and Salt Fork State Park in Guernsey County.

The Director of the Department of Natural Resources, in May 1973, threatened termination of the above-mentioned contracts for alleged deficiencies in performance by Ohio Inns.

In July 1973, Ohio Inns filed a declaratory judgment action against the Department of Natural Resources in the Court of Common Pleas of Guernsey County with respect to the alleged defaults, also seeking a temporary injunction restraining defendants from taking any action to terminate the contracts.

Following a hearing on the matter, Judge Merle Hoddinott (sitting by assignment in the Court of Common Pleas of Guernsey County), on July 23, 1973, issued a temporary restraining order and a preliminary injunction, providing that neither the Ohio Department of Natural Resources nor anyone acting in concert with them should interfere with Ohio Inns in the operation of the various park facilities.

During this time, a labor dispute had been in progress at Burr Oak between Ohio Inns and a labor union seeking to represent its employees at that facility. The dispute was marked by some degree of violence and unlawfulness, causing the Morgan County sheriff to request that Governor Gilligan close the park to avoid further danger to life and property. This recommendation was made in a letter from the sheriff, supported by a letter from Judge Forest MacDonald of the Court of Common Pleas of Morgan County, and by an inspection which representatives of the Department of Natural Resources carried out. Governor Gilligan then ordered the park closed.

Ohio Inns sent a telegram and a letter to the Governor, demanding that the Burr Oak facilities be reopened in compliance with the injunction. Ohio Inns then filed a complaint in the Court of Common Pleas of Guernsey County, alleging that certain state officials, including the Governor, were in contempt for allegedly violating the terms of the preliminary injunction issued by that court on July 23, 1973.

Judge Hoddinott set the matter of contempt for hearing on August 9, 1973. After a full hearing, Judge Hoddinott took the matter under advisement. On August 13, Judge Hoddinott informed counsel for the Governor that he had decided to find the Governor in civil contempt, but would hold a further hearing to work out the details of the order.

On the following day, this action in prohibition was filed in the Supreme Court, and the Chief Justice issued an alternative writ of prohibition directing Judge Hoddinott to refrain from conducting any further proceedings on the charge of contempt. The cause is now before the court to determine whether that writ should be made permanent.

William J. Brown, Atty. Gen., Dunbar, Kienzle & Murphey, David P. Hiller and David J. Young, Columbus, for relators.

James R. Scott, Prosecuting Atty., for respondent.

CELEBREZZE, Justice.

Mention of the writ of prohibition first appeared in the Ohio Constitution in 1912 and is found in Section 2, Article IV. Since it was not defined by the General Assembly, or in the Constitution, it has developed according to common-law principles.

In the case of In re Rice (1894), 155 U.S. 396, 15 S.Ct. 149, 39 L.Ed. 198, the Supreme Court of the United States set out the requirements for granting the writ:

'Where it appears that the court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset and has no other remedy is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record * * * the granting * * * of the writ is discretionary.'

In State ex rel. Nolan v. Clendening (1915), 93 Ohio St. 264, 112 N.E. 1029, the court made clear that the writ of prohibition applies to the exercise of judicial or quasi-judicial power, where the exercise of the power was unauthorized by law, and where the exercise of such power would cause injury for which no other adequate remedy exists. These Clendening requirements still retain substantial vitality in Ohio. See, generally, 63 American Jurisprudence 2d 225, Prohibition; 44 Ohio Jurisprudence 2d 169, Prohibition.

It is clear that a judge who decides to issue an order finding a person in contempt is exercising judicial power. The first requirement in Clendening, supra, is met in this cause since Judge Hoddinott informed counsel for Governor Gilligan that he had decided to find the Governor in civil contempt.

It is equally clear that a Court of Common Pleas is a court of general jurisdiction, having the power to enforce its lawful orders by way of proceedings in contempt. Respondent argues, therefore, that since he clearly had the power to issue a preliminary injunction, and to enforce that injunction, he had jurisdiction over the cause before him; that, therefore, prohibition will not lie. Respondent cites State, ex rel. Rhodes, v. Solether (1955), 162 Ohio St. 559, 124 N.E.2d 411; State, ex rel. Mansfield Telephone Co., v. Mayer (1966), 5 Ohio St.2d 222, 215 N.E.2d 375; State, ex rel. Toledo Shore Line Rd. Co., v. Court of Common Pleas (1967), 11 Ohio St.2d 193, ¹ 228 N.E.2d 313.

This court has no quarrel with the principles adopted in the above cases. However, the question which must be determined is whether the Court of Common Pleas, through its preliminary injunction, had the authority and the jurisdiction to interfere with the Governor in the performance of executive acts which were dependent upon his judgment or discretion.

In State, ex rel. Armstrong, v. Davey (1935), 130 Ohio St. 160, 163, 198 N.E. 180, 181, wherein the Governor had discretion in setting the date for a special election, the court stated:

'* * * No executive act dependent upon the judgment or discretion of the Governor is subject to judicial control, and mandamus will not lie unless there has been a clear abuse of discretion.

"Before the judiciary will interfere in such a case, it must clearly appear that such officer has so far departed from the line of his duty under the law that it can be said he has in fact so far abused such discretion that he has neglected or refused to exercise any discretion.' 38 Corpus Juris, 660, Section 199.'

The Governor had before him evidence which reasonably established that an inflammatory situation existed which could lead to injury to persons and property in the area of Burr Oak State Park. The Governor has the duty to protect the citizens of the state and state property from harm. He took discretionary executive action to close Burr Oak State Park because he had determined that the situation warranted such action. In the circumstances before us we do not find a clear abuse of discretion. Therefore, the Court of Common Pleas exceeded its jurisdiction when the decision was made to hold the Governor in contenpt.

This holding should not be read as an affirmation of extraordinary powers in the Governor. Rather, our decision involves a comparison of competing interests. The Governor's exercise of discretion was aimed at protecting state citizens and state property from harm. That interest far outweighs the interest which Ohio Inns has in protecting its contract rights.

Respondent also argues that, even though the other requirements for granting prohibition may be met, appellate review of a finding of contempt would be an adequate remedy in the ordinary course of the law. However, in State, ex rel. Tempero, v. Colopy (1962), 173 Ohio St. 122, 180 N.E.2d 273, this court upheld the issuance of a writ of prohibition by the Court of Appeals, even though an adequate remedy was available:

'This court in the exercise of its discretion will usually refuse to allow a writ of prohibition or of mandamus where the relator has an adequate remedy in the ordinary course of the law. However, it has the power to, and may in the exercise of its discretion, issue such a writ in such an instance.'

There are times when the exercise of sound discretion in the performance of executive acts represents the...