Hicks v. Crowley

1

CHRISTOPHER HICKS, Plaintiff, v. KATHLEEN CROWLEY, et al., Defendants.

No. 2:22-cv-2204

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

January 20, 2023

Chelsey M. Vascura, Magistrate Judge

OPINION AND ORDER

SARAH D. MORRISON, UNITED STATES DISTRICT JUDGE

Christopher Hicks is a “government transparency advocate” who brought this suit after the Ohio Board of Tax Appeals (the “BTA”) refused to let him record certain public hearings and then banned him from hearings unless he was a party to a proceeding. Naming the BTA, its Executive Director, and its three Board members as defendants, Mr Hicks alleges that they violated his First Amendment rights of access and of expression (Claims 1, 3), denied him procedural due process under the Fourteenth Amendment (Claim 2), retaliated against him in violation of the First Amendment (Claim 4), and violated the Ohio Open Meetings Act (Claim 5). His federal claims are brought under 42 U.S.C § 1983.

The matter is before the Court on two motions. First, Mr. Hicks filed a Motion for Preliminary Injunction. (ECF No. 6.) The Defendants opposed (ECF No. 8), and Mr. Hicks replied (ECF No. 22). Defendants then filed a Motion to Dismiss the Complaint. (ECF No. 24.) Mr. Hicks opposed^[1] (ECF No. 28), and Defendants replied. (ECF No. 29). Both motions are ripe for decision.

The Court will address the Motion to Dismiss before turning to the Motion for Preliminary Injunction.

I. BACKGROUND

On a Motion to Dismiss, all factual allegations are taken as true. The following summary is drawn from the factual allegations in the Complaint.^[2]

BTA is Ohio's administrative tax court, resolving justiciable disputes between parties in appeals from decisions, orders, determinations, and actions of the tax commissioner, tax administrative agencies, county budget commissions, and county boards of revision. Ohio Rev. Code § 5703.02. It hears appeals from decisions of county boards of revision concerning the valuation of real property for tax purposes. Id. It is created by statute. Id. Kathleen Crowley is the Executive Director of the BTA, David Harberger is its Chair, Jasmine Clements is its Vice Chair, and Jeffrey Caswell is a board member. (Compl. ¶¶ 7-11.) Mr. Hicks has named these individuals as defendants in both their individual and official capacities. (Id.)

The BTA conducts two kinds of meetings: nonadjudicatory meetings (when the BTA conducts its business not involving tax disputes between parties) and adjudicatory hearings (administrative hearings at which the parties to a tax appeal may present new evidence regarding a specific tax dispute). See Ohio Admin. Code §§ 5717-1-16, 5717-1-22. Both types of meeting are open to the public, but the BTA has separate rules for each. Id.

Nonadjudicatory meetings are governed by § 5717-1-22 of the Ohio Administrative Code. These meetings are open to the public unless a subject to be discussed at the meeting is specifically excepted from public disclosure by law. Id. § 5717-1-22(A). The BTA must give notice of each of these meetings to the public and must maintain minutes of the meetings that notify the public what was discussed. Id. §§ 5717-1-22(A), (C), (E), (H). If someone wants to record nonadjudicatory meetings, the BTA rules provide:

Consent to film, photograph, or record meetings of the board shall be obtained from the chairperson of the board, or with written consent of two members of the board, prior to the start of the meeting. The board may terminate such consent upon its determination that such filming, photographing, or recording is distracting or otherwise disruptive to the meeting process.

Id. § 5717-1-22(I).

BTA adjudicatory hearings proceed in a “similar manner to a civil action, with witnesses to be sworn and subject to cross-examination.” Id. § 5717-1-16(G). If someone wants to record an adjudicatory hearing, the rules provide:

All hearings before the board shall be open to the public. Hearings may be recorded, and such recordings shall be made available for examination at the board's office.

Id. § 5717-1-16(H).

In 2021, Mr. Hicks went to several BTA adjudicatory hearings. The first was on October 20, and he was personally a party to the hearing on that day. (Compl. ¶ 22.) Mr. Hicks brought a camera, which he set up to the side of the room. (Id. ¶¶ 23, 24.) However, the presiding hearing officer asked Mr. Hicks to stop the recording, telling him that he needed to complete a media request to record the hearing. (Id. ¶ 24.) When Mr. Hicks asked the hearing officer for the legal authority that would allow her to stop him from recording the hearing, “she was unable to provide him with support for her decision” and did not provide him a form for a media request. (Id.) The October 20 hearing was then canceled and was not rescheduled. (Id. ¶ 25.)

Following the October 20 hearing, Mr. Hicks sent a public records request to Defendant Crowley seeking, among other things, any form used to request media access to BTA hearings and copies of any policies that would govern the positioning of cameras in BTA hearing rooms. (Id. ¶ 26.) Ms. Crowley responded that the BTA did not have any documents that were responsive to the request regarding the positioning of cameras and that Mr. Hicks's request for media forms was not sufficiently particularized to enable a response. (Id.) She later amended her response to indicate that the BTA did not have any records that were responsive to Mr. Hicks's request for media access forms. (Id.)

On December 2, 2021, Mr. Hicks returned to the BTA to observe adjudicatory hearings. (Id. ¶ 27.) He had told Ms. Crowley that he intended to attend and record the December 2 hearings. (Id.) Before driving to Columbus that day, Mr. Hicks checked the BTA's online docket; the docket did not indicate that the hearings would not be in person and there was no information on how to call-in or access the hearings telephonically. (Id.) When he arrived at the BTA office building, Mr. Hicks was detained in the lobby by a BTA employee who had been informed to stop him and to contact security. (Id. ¶ 28.) Mr. Hicks was then escorted by two Ohio State Highway Patrol Troopers to the BTA offices, where he was informed that the hearings that day were not in person, but by telephone. (Id.) When he asked how he (or any citizen) would have known the hearings were telephonic and how to access the telephonic hearing, Ms. Crowley told him that he would have had to call the BTA. (Id. ¶ 29.) Mr. Hicks was then provided the call-in information for the hearings that day. (Id. ¶ 30.) Because the first hearing had already started, Mr. Hicks tried to use the BTA waiting area to call-in, but he was told he had to leave and was threatened with arrest if he did not. (Id. ¶¶ 30, 31.) By the time Mr. Hicks left the building and got to his car to call-in to the first hearing, it was over. (Id. ¶ 32.)

After confirming that the December 6 adjudicatory hearings were in-person, Mr. Hicks tried again to attend the proceedings. (Id. ¶ 33.) He also drafted and submitted requests to record the December 6 hearings using a form that he created, which requests he emailed to Ms. Crowley directly. (Id. ¶ 34.) The BTA emailed a response to his requests the morning of December 6, shortly before the first hearing was to start, stating that a decision would be made on his requests at each hearing. (Id. ¶ 35.) Mr. Hicks did not see that email before going to the BTA. (Id.)

When he arrived at the BTA on December 6, Mr. Hicks was “monitored by Ohio State Highway Patrol Troopers.” (Id. ¶ 36.) Nevertheless, he quietly entered a hearing room and walked towards the seating area for observers. (Id. ¶ 37.) The presiding hearing officer then stopped the hearing and questioned Mr. Hicks, telling him that his request to record the hearing was denied. (Id.) In response, Mr. Hicks asked for the basis of the denial of his request. (Id.) Mr. Hicks was then “rushed by a uniformed officer” and escorted out of the hearing. (Id. ¶ 38.)

Once outside of the hearing room, Mr. Hicks questioned the basis for his treatment. (Id.) The uniformed officer directed Mr. Hicks to a sign in the lobby and to the BTA's website, but neither the sign nor the website explained why Mr. Hicks could not record the hearing. (Id.) Mr. Hicks was again threatened with arrest, and he was unable to observe all of the BTA hearings he desired to see that day. (Id. ¶¶ 38-39.)

Shortly after he was removed on December 6, the BTA permanently banned Mr. Hicks from attending any adjudicatory hearings other than those to which he is a party (“the December 9 Ban”). (Id. ¶ 40; Ex. 3 to Compl., ECF No. 5-3, PageID 59.) The stated reason for the December 9 Ban is that Mr. Hicks disrupted hearings on December 2 and December 6 causing the hearings not to go forward. (Id. ¶ 42; Ex. 3 to Compl.) Mr. Hicks disputes both that he disrupted the hearings and that he caused them not to go forward. (Id.) The BTA subsequently banned Mr. Hick's wife from attending BTA meetings and hearings other than those to which she is a party. (Id. ¶ 43.) That ban alleges that Mrs. Hicks surreptitiously recorded small claims hearings at the BTA in violation of the rules. (Id.) Both bans are indefinite- neither provide an expiration date or a procedure by which Mr. or Mrs. Hicks can appeal or seek review of the bases or terms of the bans. (Id. ¶ 44.) Mr. Hicks sought reconsideration of the December 9 Ban at a BTA nonadjudicatory meeting, but no one responded to him. (Id.)

After the issuance of the December 9 Ban, Defendant Crowley denied a public record request from Mr. Hicks asking for communications between her and board members relating to the December 9 Ban; the request was denied as too vague. (Id. ¶ 45.) Mr. Hicks then filed a...