Brinkman v. Budish

692 F. Supp.2d 855

Thomas E. BRINKMAN, Jr., et al., Plaintiffs, v. Armond D. BUDISH, Speaker of the Ohio House of Representatives and Chairman of the Joint Legislative Ethics Committee of the Ohio General Assembly, et al., Defendants.

Case No. 1:09-cv-326.

United States District Court, S.D. Ohio, Western Division.

February 17, 2010.

Christopher R. Finney, Joshua Braden Bolinger, Finney, Stagnaro, Saba & Patterson Co., L.P.A., Cincinnati, OH, Curt Carl Hartman, Amelia, OH, for Plaintiffs.

Kent M. Shimeall, Jeannine R. Lesperance, Ohio Attorney General's Office Constitutional Offices Section, Nick A. Soulas, Jr., Columbus, OH, Peter J. Stackpole, City of Cincinnati, David Todd Stevenson, Cincinnati, OH, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND ISSUANCE OF A PERMANENT INJUNCTION AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

SUSAN J. DLOTT, Chief Judge.

This matter is before the Court on Plaintiffs' Motion For Summary Judgment and the Issuance of a Permanent Injunction (doc. 29) and Defendants' Amended Motion for Summary Judgment (doc. 34). Plaintiffs in this case challenge the constitutionality of Ohio Revised Code ("O.R.C.") § 102.03(A)(4), a statute which prohibits former members of the General Assembly from representing another person or organization before the Ohio General Assembly for a period of one year subsequent to their departure from office. The Court previously issued an Order Granting Motion for Preliminary Injunction ("Injunction Order") temporarily enjoining enforcement of § 102.03(A)(4). For the reasons that follow, the Court GRANTS Plaintiffs' motion, DENIES Defendants' motion, and PERMANENTLY ENJOINS enforcement of § 102.03(A)(4).

I. BACKGROUND

A. Factual Background

Plaintiffs are Thomas E. Brinkman, Jr., the Coalition Opposed to Additional Spending and Taxes ("COAST"), and Mark W. Miller. COAST is an organization which advocates for the restraint of government taxing and spending in Ohio on the local, state, and national level. (Doc. 29-1 ¶¶ 2, 8-9.)¹ COAST conducts advocacy activities in numerous ways, including operating a blog, publishing an email newsletter, sending press releases, and direct lobbying. (Id. ¶ 3.) COAST has directly lobbied legislators through its leadership and by testimony before legislative bodies. (Id. ¶ 4.) Presently, COAST seeks to advocate on a number of budgetary issues before the Ohio General Assembly, including advocating against proposed operating subsidies for the Underground Railroad Freedom Center. (Id. at ¶ 5.)

Both Brinkman and Miller are members and supporters of COAST, and Miller serves as the treasurer of COAST. (Id. ¶¶ 8-10.) Brinkman served in the Ohio General Assembly from January 2001 until December 2008. (Doc. 31-2 ¶ 1.)² Brinkman has sought to represent COAST before the Ohio General Assembly an uncompensated basis.³ (Doc. 31-2 ¶¶ 2, 6.) However, O.R.C. § 102.03(A)(4), as written, prohibited Brinkman from representing COAST before the Ohio General Assembly or any of its committees from the date he left the General Assembly through January 1, 2010. (Id. ¶¶ 4, 5; Doc. 29-1 ¶ 10.)⁴

Defendants are the Joint Legislative Ethics Committee ("JLEC"), a twelve-member committee of the Ohio General Assembly with responsibility for governing former members of the General Assembly with respect to state ethics laws; Armond D. Budish, a member of the Ohio House of Representatives and a member and chairman of JLEC; eleven other members of JLEC;⁵ Tony W. Bledsoe, the executive director of JLEC; Joseph T. Deters, the Hamilton County Prosecuting Attorney; Ron O'Brien, the Franklin County Prosecuting Attorney; Richard C. Pfeiffer, Jr., the City Attorney for the City of Columbus; and John P. Curp, the City Solicitor for the City of Cincinnati. Defendants Deters, O'Brien, Pfeiffer, and Curp are sued in their official capacities only. (Doc. 4 ¶ 20.)

JLEC is responsible for enforcement of O.R.C. § 102.03(A)(4) and would be the body to receive or initiate complaints against Brinkman for violations of the statute. (Doc. 29-1 ¶ 33.) JLEC also is empowered to investigate complaints or charges for violations of the statute. (Id. ¶ 34.) If JLEC determines by a preponderance of the evidence that § 102.03(A)(4) has been violated, it must report the violation to the appropriate prosecuting authority. (Id. ¶ 35.)

B. Procedural Background

Plaintiffs filed their initial Verified Complaint and a Motion for Temporary Restraining Order and Preliminary Injunction on May 11, 2009. They filed an Amended Complaint on May 12, 2009.⁶ Defendants opposed the issuance of a temporary restraining order and preliminary injunction. On August 4, 2009, the Court issued the Injunction Order preliminarily enjoining the enforcement of O.R.C. § 102.03(A)(4). The parties thereafter engaged in discovery and filed the pending summary judgment motions. Plaintiffs now seek and Defendants oppose the issuance of a permanent injunction enjoining the enforcement of O.R.C. § 102.03(A)(4). Plaintiffs contend that the statute violates the First Amendment and the Equal Protection Clause both facially and as applied.

II. THE STATUTE

Ohio's revolving door statute provides in relevant part:

(4) For a period of one year after the conclusion of employment or service as a member or employee of the general assembly, no former member or employee of the general assembly shall represent, or act in a representative capacity for, any person on any matter before the general assembly, any committee of the general assembly, or the controlling board.... As used in division (A)(4) of this section "person" does not include any state agency or political subdivision of the state.

O.R.C. § 102.03(A)(4).

"Matter" is defined in the statute to mean "the proposal, consideration, or enactment of statutes, resolutions, or constitutional amendments." O.R.C. § 102.03(A)(5). To "represent" includes "any formal or informal appearance before, or any written or oral communication with, any public agency on behalf of any person." Id. Under the Ohio Revised Code generally, a "person" is defined as "an individual, corporation, business trust, estate, trust, partnership, and association," O.R.C. § 1.59(C), but the specific statute clarifies that "person" does not include "any state agency or political subdivision of the state" for purposes of O.R.C. § 102.03(A)(4). Violation of the statute is considered a misdemeanor offense of the first degree. See O.R.C. § 102.99(B).

JLEC has issued a memorandum interpreting O.R.C. § 102.03(A)(4) to apply to both compensated and uncompensated lobbying by former members of General Assembly on behalf of another person. (Doc. 29-1 ¶¶ 40-42.)

III. STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate if "there is no genuine issue as to any material fact" and "the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c)(2). On a motion for summary judgment, the movant has the burden of showing that no genuine issues of material fact are in dispute, and the evidence, together with all inferences that can permissibly be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The movant may support a motion for summary judgment with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In responding to a summary judgment motion, the nonmoving party may not rest upon the pleadings but must go beyond the pleadings and "present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party must "set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). The Court's task is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505. A genuine issue for trial exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505.

IV. ANALYSIS

A. First Amendment

The First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech, ... or the right of the people peaceably to assemble, and to petition the government for redress of grievances." U.S. Const. amend 1. "The Fourteenth Amendment extends these prohibitions against the States." Citizens for Tax Reform v. Deters, 518 F.3d 375, 379 (6th Cir.2008), cert. denied, Ohio v. Citizens for Tax Reform, ___ U.S. ___, 129 S.Ct. 596, 172 L.Ed.2d 455 (2008). "Implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Roberts v. U.S. Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Lobbying the government falls within the gambit of protected First Amendment activity. See F.T.C. v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 426, 110 S.Ct. 768, 107 L.Ed.2d 851 (1990) ("It is, of course, clear that the association's efforts ... to lobby District officials to enact favorable legislation ... were activities that were fully protected by the First Amendment."); Roberts, 468 U.S. at 627, 104 S.Ct. 3244 (characterizing lobbying as being "worthy of constitutional protection under the First Amendment"). However, that right is not unfettered and can be the subject of appropriate regulation. See, e.g., McIntyre...