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Court News Ohio
Court News Ohio

Supreme Court Dismisses Appeal from Expired Order in Police Officer Lawsuit

Image of an old building with the words 'City Hall'on it

Court ends appeal of case involving protest at Cincinnati City Council meeting.

Image of an old building with the words 'City Hall'on it

Court ends appeal of case involving protest at Cincinnati City Council meeting.

The Supreme Court of Ohio today dismissed an appeal in a case in which a Cincinnati police officer sought to block critics from identifying and commenting about him online.
In a unanimous decision, the Supreme Court ruled that a temporary restraining order (TRO) preventing Julie Niesen, Terhas White, and others from publishing the personal information of the officer expired in August 2020. Nearly a month after the order was issued, Niesen and White attempted to appeal it as an unconstitutional restriction on their free speech rights.

Writing for the Court, Justice R. Patrick DeWine stated that Niesen and White “advance a serious argument that a TRO that acts as a prior restraint on speech should be immediately appealable.” But before the Court rules on an issue, there must be an “actual controversy,” he noted. Since the TRO expired, the “issue must be left for another day,” Justice DeWine wrote.

The decision comes on the heels of a February 2022 Supreme Court decision, which found the officer – later identified as Ryan Olthaus -- could not conceal his identity as he sues protestors for defamation. In today’s opinion, the Court noted that that a decision on the TRO appeal would have little practical effect since the officer’s identity had already been made public.

Disputed Gesture at Protest Spurs Lawsuit
Olthaus was providing security and crowd control at a public forum at a Cincinnati City Council meeting in the summer of 2020. A large crowd of citizens attended the meeting, calling for the city to defund the police.

During the event, Olthaus made an “okay” hand gesture that some in the crowd interpreted as a symbol for white supremacy. Niesen and White were among those who quickly posted on social media that Olthaus was a white supremacist.

Olthaus filed a lawsuit in Hamilton County Common Pleas Court accusing Niesen, White, and others of defamation, false light invasion of privacy, and other claims. The officer sought to proceed with the case without revealing his name, asking instead to use the pseudonym “M.R.” As part of his lawsuit, he requested a TRO and a preliminary injunction to compel Niesen, White, and others to remove all social media postings referring to him as a white supremacist and to restrain them from publishing any personal information about him.

At a July 2020 hearing , the trial court ruled on the TRO request. It declined to order the social media posts removed, but ordered that Niesen, White, and another social media posters could not publicly disseminate Olthaus’ personal identifying information. The trial court set a hearing date 18 days after the TRO was issued to hear the request for a preliminary injunction. If granted, the preliminary injunction could further extend the prohibition on publishing Olthaus’ personal information.

At an August 2020 hearing, White requested additional time to move forward with the case, and the trial court set a Sept. 1 hearing date. After postponing the hearing, the trial court declared that the TRO would remain in effect until the new hearing.

After the trial court extended the TRO, Niesen and White appealed the TRO to the First District Court of Appeals. The First District ruled that a TRO is not a final appealable order. The First District dismissed the case, concluding that it did not have jurisdiction to consider the matter. Niesen and White appealed the First District’s decision to the Supreme Court, which agreed to hear the case.

Rules Governing Restraining Orders Analyzed
Niesen and White argued that any court order, including a TRO, which acts to restrain free speech should be immediately appealable. They maintained the First District had the right to hear their appeal. Justice DeWine explained that before the Supreme Court can consider the merits of their arguments, it must be sure there is an “actual controversy.” If there is no present controversy between the parties, the Court cannot review the case and must dismiss it as moot, the opinion stated.

The opinion cited Rule 65(A) of the Ohio Rules of Civil Procedure and explained that a TRO cannot exceed 14 days. Under certain circumstances, the rule allows the trial court to extend the TRO for a period of up to another 14 days. The rule also requires the trial court to state the reasons for extending the order.

The TRO was first issued on July 24, 2020. The trial court did not meet again until 18 days later, and then waited two days to officially extend the TRO until the Sept. 1 hearing, the opinion noted. By the time the trial court attempted to extend the TRO, it had already expired, the Court ruled. And even if the trial court was authorized to extend the TRO at its August hearing, the TRO would still have expired 14 days later on Aug. 27, the opinion noted. Because the TRO expired, there is no controversy to consider, the Court concluded.

No Exceptions Allowed the Matter to Be Heard
The opinion noted that there are exceptions that allow moot cases to be considered rather than dismissed. The Court noted the possible exception for matters “capable for repetition yet evading review.” For the exception to apply, the opinion stated the action being challenged must be too short in duration to be fully litigated before it expires, and there must be a reasonable expectation that the complainant will be subjected to the same action again.

The Court stated the first requirement applied to the TRO. Because TROs are so short in duration, it would be unlikely that the courts could fully decide whether a TRO can be appealed in a matter of weeks, the opinion noted.

However, the second requirement could not be met, the Court ruled. The opinion stated there is no reasonable expectation that the same actions between Olthaus and his critics would be repeated. The TRO could no longer be renewed, and the Court had already ruled that Olthaus cannot proceed anonymously in his case against Niesen, White, and the others.

“So there is no real possibility that this controversy will reoccur: any further efforts by Olthaus to prevent the defendants from identifying him would be futile,” the Court concluded.

The Court also ruled the First District’s decision that a TRO is not a final appealable order cannot be cited as precedent in any other case.

2020-1131. M.R. v. Niesen, Slip Opinion No. 2022-Ohio-1130.

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