Comm. to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot Bd.

218 F.Supp.3d 589

COMMITTEE TO IMPOSE TERM LIMITS ON THE OHIO SUPREME COURT AND TO PRECLUDE SPECIAL LEGAL STATUS FOR MEMBERS AND EMPLOYEES OF THE OHIO GENERAL ASSEMBLY, et al., Plaintiffs,

v.OHIO BALLOT BOARD, et al., Defendants.

Case No. 2:16–cv–1030

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

Signed November 3, 2016

Christopher P. Finney, Finney Law Firm, LLC, Curt Carl Hartman, Cincinnati, OH, for Plaintiffs.

Jordan S. Berman, Renata Y. Staff, Ohio Attorney General's Office, Columbus, OH, for Defendants.

OPINION & ORDER

JAMES L. GRAHAM, United States District Judge

Plaintiffs move for a temporary restraining order and preliminary injunction. (Doc. 2). Plaintiffs want to put a two-part constitutional amendment on the ballot by way of Ohio's initiative process. Ohio prohibits anyone from proposing to its voters a multi-part amendment or law. Ohio tasked the Ohio Ballot Board with enforcing this rule. Plaintiffs sued the Ohio Ballot Board and its members (and Ohio's Attorney General), alleging that Ohio's restriction is an unconstitutional restraint on free speech.

I) Background

There are four plaintiffs: (1) an unincorporated association called the "Committee to Impose Term Limits on the Ohio Supreme Court and to Preclude Special Legal Status for Members and Employees of the Ohio General Assembly" (the "Committee"), (2) Ronald Alban, (3) Tim Boggs, and (4) John Boyle, Jr. The three individuals are residents of Ohio and members of the Committee. Plaintiffs are currently engaged in an initiative petition where they seek to submit a proposed constitutional amendment to the people of the State of Ohio for a statewide vote. The proposed constitutional amendment seeks to add two new sections, to read as follows:

Article IV, Section 6. (D) No person shall be elected or appointed as a judge of the Supreme Court if said person, at the time of said election or appointment, has served nine or more consecutive years as a judge of the Supreme Court regardless of whether as chief justice, a justice, or a combination of the two.

Article II, Section 43. All laws that apply to the people of the State of Ohio and its political subdivisions shall apply equally to the members and employees of the General Assembly.

(Compl. at ¶ 61).

There are seven defendants: (1) the Ohio Ballot Board, a five-member board; (2) Jon Husted, the Ohio Secretary of State and a member of the Ohio Ballot Board; (3) William Coley, a member of the Ohio State Senate and a member of the Ohio Ballot Board; (4) Kathleen Clyde, a member of the Ohio House of Representatives and a member of the Ohio Ballot Board; (5) William Morgan, a member of the Ohio Ballot Board; (6) Michael Skindell, a member of the Ohio State Senate and a member of the Ohio Ballot Board; and (7) R. Michael DeWine, the Ohio Attorney General.

Plaintiffs allege that part of Ohio's process for filing a voter initiative on the ballot is unconstitutional. To understand Plaintiffs' argument requires an understanding of the voter initiative review process.

The Ohio Revised Code requires a voter initiative, whereby voters bypass the Ohio General Assembly to put a law or constitutional amendment on the ballot, to go through a certification process. The person who wants an initiative on the ballot must first file a preliminary petition with the Ohio Attorney General. Ohio Rev. Code § 3519.01(A). That petition must be signed by 1,000 qualified Ohio electors, include the full text of the proposed law or constitutional amendment, and include a summary of the proposed law or amendment. Id. Next, the Attorney General has 10 days to certify whether the summary of the proposed law or amendment is a fair and truthful statement. Id. If the Attorney General certifies the law, he must then send it to the Ohio Ballot Board. Id. Within 10 days after receiving the certified petition from the attorney general, the Ballot Board must determine whether the initiative petition "contains only one proposed law or constitutional amendment." Ohio Rev. Code § 3505.062(A). If the Ballot Board concludes that the petition contains only one proposed law or amendment, it must certify its approval to the Attorney General, who then must file a verified copy of the proposed law or amendment with the Secretary of State. Id. However, if the Ballot Board concludes that the petition contains more than one proposed law or amendment, the Board "shall divide the initiative petition into individual petitions containing only one proposed law or constitutional amendment so as to enable voters to vote on each proposal separately and certify its approval to the attorney general." Id. This is called the "separate-petitions" requirement.

Here, Plaintiffs filed the required materials with the Attorney General on October 26, 2016. Between the Attorney General's ten days and the Ballot Board's ten days, a decision on whether to divide the petition into separate petitions will occur no later than Tuesday, November 17, 2016,¹ but it may happen before then.

Plaintiffs request that an injunction be issued before November 17, 2016. Plaintiffs ask the Court to enjoin the voter initiative review process at three different stages. Plaintiffs ask the Court to enjoin (1) the Attorney General from tendering the initiative petition to the Ballot Board, (2) the Ballot Board from subjecting the initiative petition to any review or assessment, and (3) the Ballot Board from deciding to divide or dividing the constitutional amendment proposed by Plaintiffs' initiative petition.

Plaintiffs also request that the Court waive the security requirement should the Court issue a preliminary injunction. See Fed. R. Civ. P. 65(c) (requiring movant to give "security in an amount that the Court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.")

II) Procedural issues

Plaintiffs filed for both a TRO and a preliminary injunction. Defendants oppose that motion, but style their opposition as "[t]o plaintiffs' request for a temporary restraining order." (Defs.' Resp., Doc. 9 at PAGEID 615). Defendants conclude, asking the Court "to deny Plaintiffs' request for a temporary restraining order." (Id. at 20). But if there is notice to the other side, the same standard governs the analysis of TROs and preliminary injunctions. See Ohio Republican Party v. Brunner , 543 F.3d 357, 361 (6th Cir. 2008) ; Midwest Retailer Associated, Ltd. v. City of Toledo , 563 F.Supp.2d 796, 802 (N.D. Ohio 2008). And there has been notice: Defendants attended the preliminary conference held on October 28, 2016 and they have briefed the relevant legal issues.

The Court typically would conduct a hearing on a request for a preliminary injunction, but when "no material facts [are] in dispute .... the district court [is not] required to conduct an evidentiary hearing prior to ruling on Plaintiff's motion for preliminary injunction." Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp. , 511 F.3d 535, 553 (6th Cir. 2007).

[W]here facts are bitterly contested and credibility determinations must be made to decide whether injunctive relief should issue, an evidentiary hearing must be held. [However,] where material facts are not in dispute, or where facts in dispute are not material to the preliminary injunction sought, district courts generally need not hold an evidentiary hearing.

Id. (alterations in original) (quoting McDonald's Corp. v. Robertson , 147 F.3d 1301, 1312–13 (11th Cir. 1998) ).

A hearing may be required if a defendant denies the allegations in the plaintiff's complaint. Id. (citing Carpenters' Dist. Council, Detroit, Wayne & Oakland Ctys. & Vicinity, of United Bhd. of Carpenters & Joiners of Am., AFL–CIO v. Cicci , 261 F.2d 5, 8 (6th Cir. 1958) ) ("[I]f the allegations of a complaint are denied by a defendant, he is entitled to a hearing, which includes the right to offer evidence in support of his factual claims.").

Here, no material facts are in dispute; the Court need not make any credibility determinations. Neither Plaintiffs nor Defendants request a hearing. Therefore, the Court will decide the motion for TRO and preliminary injunction on the briefs.

III) Discussion

When considering a motion for preliminary injunction, a district court must balance four factors:

(1) whether the movant has a strong likelihood of success on the merits;

(2) whether the movant would suffer irreparable injury without the injunction;

(3) whether issuance of the injunction would cause substantial harm to others; and

(4) whether the public interest would be served by the issuance of the injunction.

Certified Restoration , 511 F.3d at 542.

A) Plaintiffs have not established a likelihood of success on the merits

The complaint asserts that Ohio's separate-petitions requirement violates the First Amendment to the United States Constitution. Plaintiffs argue that they are likely to succeed on the merits of their free-speech claim because the government regulation at issue regulates core political speech and is a content-based restriction on speech. Content-based restrictions on speech are "presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests."

Reed v. Town of Gilbert , ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015). Specifically, Plaintiffs claim "the action of the Ohio Ballot Board in subjecting the text of the proposed constitutional amendment to governmental review, assessment, and approval constitutes a content-based regulation of core political speech that does not satisfy the requirements of strict scrutiny." (Pls.' Mot., Doc. 2 at PAGEID 44–45).

Defendants argue that (1) issue preclusion bars Plaintiffs from re-litigating this issue; (2) Plaintiffs' claim fails to state any First Amendment violation; and (3) the challenged rules are constitutional under the "more flexible standard" that applies to content-neutral rules. There exists...