Platt et al v. Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court et al

Filing 86

ORDER denying 52 Motion to take Judicial Notice; denying 50 Motion for Partial Summary Judgment; granting 56 Motion for Partial Summary Judgment. Signed by Judge Michael R. Barrett on 9/26/16. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Joseph J. Platt, et al.,

Case No. 1:13cv435

Plaintiffs,

Judge Michael R. Barrett

v.
Board of Commissioners
on Grievances and
Discipline of the Ohio
Supreme Court, et al.,
Defendants.
OPINION & ORDER
This matter is before the Court upon Plaintiffs’ Motion for Partial Summary
Judgment (Doc. 50) and Defendants’ Cross Motion for Partial Summary Judgment (Doc.
56). These motions have been fully briefed. (Docs. 55, 60, 62, 68). Also before the
Court is Plaintiffs’ Motion to Take Judicial Notice. (Doc. 52). Defendants have filed a
Response in Opposition (Doc. 57) and Plaintiffs have filed a Reply (Doc. 61).
I.

BACKGROUND
Plaintiffs challenge provisions of the Ohio Code of Judicial Conduct which prohibits

judicial candidates from making public political party speeches and endorsements of
another candidate, Ohio Code J. Cond. 4.1(A)(2)–(3); and places restrictions on direct,
personal monetary solicitation of campaign contributions by judicial candidates, Ohio
Code J. Cond. 4.4(A). Plaintiffs have brought several constitutional claims, but at issue
here is Plaintiffs’ claim that these provisions are unconstitutionally vague and violate the
First Amendment.

II.

ANALYSIS
A. Judicial Notice
Plaintiffs seek to have this Court take judicial notice of three internet publications

concerning endorsements made by sitting members of the Ohio Supreme Court which
were found to not be a violation of the Ohio Code of Judicial Conduct. Two of these
publications were gathered from newspaper websites.

The third publication is an

opinion piece from a website entitled ohiodailyblog.com.
Under Federal Rule of Evidence 201(b), a court “may judicially notice a fact that is
not subject to reasonable dispute because it: (1) is generally known within the trial court's
territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. “[A] court may take
judicial notice of at least some documents of public record.” Passa v. City of Columbus,
123 F. App'x 694, 697 (6th Cir. 2005). However, judicial notice is limited to the existence
of the documents, and a court is not to consider the statements contained in the
document for the truth of the matter asserted. In re Omnicare, Inc. Sec. Litig., 769 F.3d
455, 467 (6th Cir. 2014); see also Passa, 123 Fed.Appx. 694, 697 (“in general a court
may only take judicial notice of a public record whose existence or contents prove facts
whose accuracy cannot reasonably be questioned”).
Plaintiffs specifically ask this Court to consider the statements in the internet
publications concerning “the disposition of these grievances” to support their position that
“one must guess at the scope of what is permitted and prohibited under Rule 4.1(A)(3).”
(Doc. 52, PAGEID #1282). This Court cannot consider such statements under Rule
201(b). Therefore, Plaintiffs’ Motion to Take Judicial Notice is DENIED.

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B. Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper “if
the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” The moving party has the burden of showing
an absence of evidence to support the non-moving party’s case.
Catrett, 477 U.S. 317, 325 (1986).

Celotex Corp. v.

Once the moving party has met its burden of

production, the non-moving party cannot rest on his pleadings, but must present
significant probative evidence in support of his complaint to defeat the motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
These standards upon which the court evaluates motions for summary judgment do not
change simply because the parties present cross-motions. Taft Broad. Co. v. United
States, 929 F.2d 240, 248 (6th Cir. 1991).
The parties seek summary judgment on Plaintiffs’ claim that Rule 4.1(A)(2), Rule
4.1(A)(3) and Rule 4.4(A) of the Ohio Code of Judicial Conduct are unconstitutionally
vague. This Court has already determined that Rule 4.4(A) is not unconstitutionally
vague in a similar case brought by incumbent judicial candidates. In granting a motion
for judgment on the pleadings in favor of the defendants, this Court explained:
At issue here is the following portion of Rule 4.4(A): “A judicial candidate
shall not personally solicit campaign contributions, except as expressly
authorized in this division . . . .” Ohio Jud. Cond. R. 4.4(A). The
Committee and O’Toole argue that the rule is vague because they are
unsure if two situations violate the rule; thus the rule has caused them to
“‘steer far wider of the unlawful zone’ than if the boundaries of the forbidden
areas were clearly marked.” Baggett v. Bullitt, 377 U.S. 360, 372 (1964)
(internal citation omitted) (quoting Speiser v. Randall, 357 U.S. 513, 526
(1958)). Plaintiffs challenge fails for two reasons: (1) the plain language of
the rule puts Plaintiffs on notice of prohibited behavior; (2) the enforcement
process has procedures to protect against arbitrary enforcement.

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Colleen

M.

O’Toole,

et

al.

v.

Maureen

O’Connor,

et

al.,

Case

No.

2:15-cv-01446-JLG-EPD, Doc. 41, PAGEID # 1338 (hereinafter “Doc. 41”).
In reaching this conclusion, this Court rejected the plaintiffs’ argument that the
answers to the interrogatories submitted in the present case supported the plaintiffs’
claim that Rule 4.4(A) is vague. (Doc. 41, PAGEID #1337). This Court then turned to
its analysis of the language of the rules and two hypotheticals posed by the plaintiffs.
This Court explained: “A statute can be impermissibly vague for either of two
independent reasons. First, if it fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes
or even encourages arbitrary and discriminatory enforcement.”

(Doc. 41, PAGEID

#1337) (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). This Court explained that
the two words at issue were “personally” and “solicit.”
“Personally” means, “so as to be personal: in a personal manner; often: as
oneself: on or for one's own part.” Webster's Third New International
Dictionary, Unabridged (2016). “Solicit” means, “to make petition to . . .
especially: to approach with a request or plea (as in selling or begging).”
Id. Especially in combination with the provision of a campaign committee
that may directly solicit contributions, this prohibition is not difficult to
understand: the judicial candidate cannot hold out her hand and ask people
for money—her committee can. See Williams-Yulee, 135 S. Ct. at 1667.
Ohio courts have interpreted Rule 4.4(A) consistently with this plain sense
meaning. See, e.g., Disciplinary Counsel v. O'Neill, 2004-Ohio-4704, 103
Ohio St. 3d 204, 815 N.E.2d 286, ¶ 42 (holding that judicial candidate’s
statement that two law firms “needed to step up to the plate and contribute
to her campaign” was personal solicitation).
(Doc. 41, PAGEID #1338).
With regard to the hypotheticals posed by the plaintiffs in the amended complaint,
this Court explained that a rule is not unconstitutionally vague because a plaintiff presents
a tough hypothetical. (Doc. 41, PAGEID #1338) (citing Grayned v. City of Rockford, 408

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U.S. 104, 112, n.15 (1972)). After analyzing the hypotheticals under the language of
Rule 4.4(A), this Court explained:
even if Plaintiffs could contrive some law-school-final-exam hypotheticals
that would make a first-year law student tremble in their boots, that might
not be enough to state a vagueness challenge. Here, the Court can
answer Plaintiffs’ hypotheticals, and since the law is not vague in the two
situations Plaintiffs plead, it is not void for vagueness.
(Doc. 41, PAGEID #1340).
After determining that the plain language of the rule put the plaintiffs on notice of
prohibited behavior, this Court then noted that Ohio has a fair enforcement process with
procedures to protect against arbitrary enforcement. (Doc. 41, PAGEID #1340). This
Court explained that Ohio has an administrative process in place to “flesh out details” of
the rules by way of advisory opinions. (Doc. 41, PAGEID #1340) (quoting Bauer v.
Shepard, 620 F.3d 704, 716 (7th Cir. 2010)).

Based on this analysis, this Court

dismissed the plaintiffs’ void-for-vagueness claim.
The Court sees no distinction between the claims brought by the incumbent
judicial candidates in Colleen M. O’Toole, et al. v. Maureen O’Connor, et al. and the claim
based on Rule 4.4(A) brought by the potential judicial candidate in this case. 1
Accordingly, Plaintiffs are not entitled to summary judgment on their challenge to the
personal-solicitation prohibition in Rule 4.4(A), and Defendants are entitled to judgment in
their favor.
This Court finds that the analysis applied to Rule 4.4(A) in Colleen M. O’Toole, et
al. v. Maureen O’Connor, et al. applies to Rules 4.1(A)(2) and (3) with the same result.

1

The Court notes that the plaintiffs in Colleen M. O’Toole, et al. v. Maureen O’Connor, et
al. filed a motion for reconsideration of this Court’s order granting the motion for judgment on the
pleadings. (Case No. 2:15-cv-01446-JLG-EPD, Doc. 43). However, the plaintiffs did not raise
an argument with regards to the dismissal of their void-for-vagueness claim.
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Like the language in Rule 4.4(A), the language in Rules 4.1(A)(2) and (3) is not difficult to
understand.

Rule 4.1(A)(2) prohibits a judge or judicial candidate from “mak[ing]

speeches on behalf of a political party or another candidate for public office.” Rule
4.1(A)(3) prohibits “[p]ublicly endors[ing] or oppos[ing] a candidate for another public
office.”

This Court concludes that this language “provide[s] a person of ordinary

intelligence fair notice of what is prohibited.” Holder v. Humanitarian Law Project, 561
U.S. 1, 20, 130 S. Ct. 2705, 2720, 177 L. Ed. 2d 355 (2010) (quoting United States v.
Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650)); see, e.g. Chambers v.
Stengel, 256 F.3d 397, 401 (6th Cir. 2001) (rejecting a void-for-vagueness claim based
on the term “solicit” because it is a common term, and individuals of common intelligence
do not have to guess at its meaning). In addition, the advisory opinions issued by the
Ohio Board of Commissioners on Grievances and Discipline provide guidance and
narrow the language found in the Ohio Code of Judicial Conduct. See, e.g., Harper v.
Office of Disciplinary Counsel, Supreme Court of Ohio, 113 F.3d 1234 (6th Cir. 1997) (per
curiam) (“Considering that Canons 2A and 7B(1)(a) had been narrowed by Ohio case law
and an interpretive opinion, [the plaintiff] had a reasonable opportunity to know that false
and misleading criticism was prohibited and to act accordingly.”). 2 Accordingly, Plaintiffs
are not entitled to summary judgment on their vagueness challenge to Rules 4.1(A)(2)
and (3), and Defendants are entitled to judgment in their favor.
III.

CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
2

The Board is now known as the Board of Professional Conduct, and has the authority to
“issue nonbinding advisory opinions in response to prospective or hypothetical questions directed
to the Board” regarding the application of the Code of Judicial Conduct. Gov.Bar R. V, Section 2
(available at http://www.supremecourt.ohio.gov/Boards/BOC/default.aspx).
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1. Plaintiffs’ Motion to Take Judicial Notice (Doc. 52) is DENIED;
2. Plaintiffs’ Motion for Partial Summary Judgment (Doc. 50) is DENIED; and
3. Defendants’ Cross Motion for Partial Summary Judgment (Doc. 56) is GRANTED.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett
United States District Judge

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