Libertarian Paryt of Ohio, et al v. Jon Husted

Filing

Per Curiam OPINION filed : We VACATE the judgment of the district court and REMAND with instructions to dismiss the underlying litigation; decision not for publication pursuant to local rule 206. Alan E. Norris, David W. McKeague, and Raymond M. Kethledge, Circuit Judges.

Case: 11-4066

Document: 006111419413

Filed: 08/31/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0967n.06
No. 11-4066
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LIBERTARIAN PARTY OF OHIO;
KNEDLER; MICHAEL JOHNSTON,

KEVIN

Plaintiffs-Appellees,
v.
JON HUSTED, In his Official Capacity as Secretary
of State,
Defendant,
OHIO GENERAL ASSEMBLY,
Intervenor-Appellant.

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FILED
Aug 31, 2012
LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
OPINION

BEFORE: NORRIS, McKeague, and KETHLEDGE, Circuit Judges.
PER CURIAM. The Ohio General Assembly (“the OGA”), as a proposed-intervenor,
appeals the district court’s grant of the Libertarian Party of Ohio’s (“the LPO”) motion for a
preliminary injunction. Generally, the court’s order enjoined Ohio Secretary of State Jon Husted,
the named defendant and not a party to this appeal, from enforcing House Bill 194 (“H.B. 194”), a
recently enacted ballot access provision. Ohio H.B. 194, 129th G.A. (2011) (repealed 2012).
Because the issues raised in this appeal and the underlying case have become moot, we VACATE

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Case: 11-4066

Document: 006111419413

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No. 11-4066

the judgment of the district court and REMAND with instructions to dismiss the underlying
litigation.

I.
On August 9, 2011, the LPO filed an amended complaint in district court against Ohio
Secretary of State Jon Husted, claiming that H.B. 194 unconstitutionally interfered with its right to
field and run candidates for state office in the 2011 general election and the 2012 primary and
general elections. This law, which was scheduled to go into effect on September 30, 2011, generally
amended Ohio Rev. Code §§ 3501.01 and 3517.01 to require most minor parties to qualify for ballot
access each year by collecting and submitting a number of signatures equal to 1% of the total votes
cast in the last gubernatorial or presidential election at least 90 days prior to the May primary
election. The LPO sought both a declaration that these requirements violated its First Amendment
rights and an injunction staying their enforcement and placing the LPO on the 2011 and 2012 ballots.
Before this law could go into effect, the LPO filed a motion seeking a preliminary injunction,
again seeking to enjoin enforcement of the law and to guarantee its access to the 2011 and 2012
ballots. The district court granted this motion on September 7, 2011. This appeal followed on
October 7, 2011. The record indicates that the LPO subsequently appeared on the November 2011
ballot.
Meanwhile, opponents of H.B. 194 were circulating petitions calling for a referendum vote
on the law at the 2012 general election. On December 9, 2011, Secretary Husted certified that these
petitioners had filed the necessary signatures and that H.B. 194, already subject to the court-ordered
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Case: 11-4066

Document: 006111419413

Filed: 08/31/2012

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injunction, was suspended by operation of Ohio law, pending voter approval at the November
election. Ohio Const. art. II, § 1c; State ex rel. Ohio Gen. Assembly v. Brunner, 873 N.E.2d 1232,
1234 (Ohio 2007) (“[I]f a referendum petition is filed, the law becomes effective when a majority
of electors approve it[.]”). The OGA, rather than waiting for the referendum, repealed H.B. 194 on
May 15, 2012. 2012 Ohio Laws File 105 (Sub. S.B. 295). The repeal went into effect on August
15, 2012. Id.
II.
Mootness is a threshold question which we must independently resolve before assuming
jurisdiction. North Carolina v. Rice, 404 U.S. 244, 245–46(1971). “The jurisdiction of federal
courts extends only to actual, ongoing cases or controversies. A case may become moot if, as a
result of events that occur during pendency of the litigation, the issues presented are no longer ‘live’
or parties lack a legally cognizable interest in the outcome.” Ohio Citizen Action v. City of
Englewood, 671 F.3d 564, 581 (6th Cir. 2012) (quotation marks and citations omitted). Absent
special circumstances not present in this case, the legislative repeal of a statute renders a case
challenging that statute moot. Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 644 (6th
Cir.1997). When a civil case becomes moot pending appellate adjudication, the well-established
Munsingwear doctrine directs us to vacate the judgment below and remand with a direction to
dismiss. Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997) (citing United States v.
Munsingwear, 340 U.S. 36, 39 (1950)).
Here, the LPO’s entire claim for relief was premised on blocking enforcement of H.B. 194.
After the suspension of H.B. 194’s implementation by the pending referendum and the bill’s later
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repeal, there was nothing left for the LPO to challenge. At this point, neither this Court nor the
district court was in a position to grant the LPO the specific relief it sought. As the LPO’s target,
H.B. 194, was no more, there was nothing to enjoin or declare unconstitutional.
III.
For the foregoing reasons, we VACATE the judgment of the district court and REMAND
with instructions to dismiss the underlying litigation. We express no opinion regarding any
entitlement the LPO may have to attorney’s fees under 42 U.S.C. § 1988(b). That case-specific
inquiry is best left in the first instance to the district court. McQueary v. Conway, 614 F.3d 591, 601
(6th Cir. 2010).

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