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

Filing 87

ORDER granting 74 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 3/30/17. (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 Defendants Maureen O’Connor, Richard
Dove and Scott Drexel’s Motion for Summary Judgment. (Doc. 74). Plaintiffs have filed
a Response in Opposition (Doc. 76) and Defendants filed a Reply (Doc. 85).
I.

BACKGROUND
Plaintiffs challenge the constitutionality of 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 of Judicial Conduct 4.1(A)(2)–(3);
places restrictions on direct, personal monetary solicitation of campaign contributions by
judicial candidates, Ohio Code of Judicial Conduct 4.4(A); and limits the window within
which donations can be made to a judicial campaign, Ohio Code of Judicial Conduct
4.4(E)-(G). Plaintiffs claim these provisions violate the First and Fourteenth Amendment
rights of non-incumbent judicial candidates and their campaign committees. 1 Plaintiffs

1

This Court has already granted a partial summary judgment motion in favor of
Defendants and dismissed Plaintiffs’ vagueness challenge to Rules 4.1(A)(2) and (3). (Doc. 86).

are Joseph Platt, who wishes to run for judicial office, Platt for Judge Campaign
Committee, which is Platt’s judicial campaign committee, and Mark Miller, who is
treasurer for the Committee.
Counsel for Plaintiffs brought a similar challenge on behalf of incumbent judicial
candidates to two of the same provisions of the Ohio Code of Judicial Conduct. O'Toole
v. O'Connor, No. 2:15-CV-1446 (S.D. Ohio) (Graham, J.). Both sets of plaintiffs moved
for injunctive relief, which this Court denied in both instances. On appeal, the Sixth
Circuit affirmed the decisions in both cases. Platt v. Bd. of Comm'rs on Grievances &
Discipline of Ohio Supreme Court, 769 F.3d 447 (6th Cir. 2014); O'Toole v. O'Connor, 802
F.3d 783 (6th Cir. 2015).
II.

ANALYSIS
A. 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).
B. Standing
As part of the appeal in this case, the Sixth Circuit observed:
On August 8, 2014, we heard oral arguments. Until then, all involved
assumed that Platt fell within Ohio's Judicial Code because Rule 4.6(F)
2

defines “judicial candidate” as “a person who has . . . declared or filed as a
candidate for judicial office with the election authority,” and Platt had filed
his initial form. See Appellant Br. 4; Appellees' Br. 11–12. But during the
argument, Platt admitted that he failed to file the required petitions to
appear on the ballot in 2014. He also apparently missed the deadline to
declare his intent to run as a write-in candidate—his last chance for
eligibility in 2014—which expired seventy-two days before the general
election (August 25, 2014). See OHIO REV. CODE § 3513.041. So
despite Platt's still-existing Campaign Committee and his alleged desire to
run for judicial office in the future, Platt will not in fact be a candidate in the
2014 election.
Platt v. Bd. of Comm'rs on Grievances & Discipline of Ohio Supreme Court, 769 F.3d 447,
451 (6th Cir. 2014). There have been no changes in this status since 2014. To date,
Platt has not filed the petitions necessary to appear on a ballot, and missed the 2016
election cycle.

Platt’s Campaign Committee still exists, but it is not clear for what

purpose, since it reported no contributions or expenditures in 2015. (See Doc. 76-1).
“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases' and
‘Controversies,’” and “[t]he doctrine of standing gives meaning to these constitutional
limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial
process.’” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246
(2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992)). On appeal in this case, the Sixth Circuit provided the proper
framework to analyze the Article III standing requirement:
The standing requirement ensures that the plaintiff has a personalized
injury that the court can directly redress. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
And the ripeness requirement prevents courts from hearing premature or
abstract disagreements. See Abbott Laboratories v. Gardner, 387 U.S.
136, 148–49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Carey, 614 F.3d at
196–97. These doctrines “originate from the same Article III limitation” and
may be analyzed together as part of “standing.” E.g., Susan B. Anthony
List v. Driehaus, ––– U.S. ––––, 134 S.Ct. 2334, 2341 n. 5, 189 L.Ed.2d 246
(2014); Kiser v. Reitz, 765 F.3d 601, 606–07 (6th Cir. 2014).
3

769 F.3d 447 at 451.
At the preliminary injunction stage, the Sixth Circuit determined that Plaintiffs’
claims met the ripeness requirement because, as a pre-enforcement review case under
the First Amendment, “courts do not closely scrutinize the plaintiff's complaint for
standing,” and Plaintiffs had alleged a sufficient injury in fact. Id. The Sixth Circuit
explained that Platt had expressed a desire to engage in political speech; he had a
credible fear that the Board may enforce the Code against him; and his Campaign
Committee remains in place, so that he could begin campaigning for another election.
Id. at 452. The Sixth Circuit also determined that Platt’s claims were not moot because
his claims were “capable of repetition, yet evading review.” Id. (citing Sosna v. Iowa, 419
U.S. 393, 399-400, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)). The Sixth Circuit explained
that Platt plans to run for judicial office again and his claims evade review because of the
short-term nature of each election. Id. at 453.
However, “’in response to a summary judgment motion,’” a plaintiff cannot rely on
‘mere allegations’ with respect to each standing element, ‘but must set forth by affidavit or
other evidence specific facts, which for purposes of the summary judgment motion will be
taken to be true.’” McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016), cert. denied,
No. 16-878, 2017 WL 120930 (Mar. 6, 2017) (quoting Lujan, 504 U.S. at 561). The
mootness inquiry must be made at every stage of the litigation. Coalition for Gov't
Procurement v. Fed. Prison Indus., 365 F.3d 435, 458 (6th Cir. 2004). A plaintiff invoking
jurisdiction must “show[ ] that he has standing for each type of relief sought.” McKay,
823 F.3d at 867 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct.
1142, 173 L.Ed.2d 1 (2009)).
4

“[A] case will not be considered moot if the challenged activity is capable of
repetition, yet evading review.” Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir.
2005). The exception applies where “(1) the challenged action is in its duration too short
to be fully litigated prior to cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action again.”
Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462, 127 S. Ct.
2652, 2662, 168 L. Ed. 2d 329 (2007) (citing Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct.
978, 140 L.Ed.2d 43 (1998)). The “‘capable of repetition, yet evading review’ doctrine, in
the context of election cases, is appropriate when there are ‘as applied’ challenges as
well as in the more typical case involving only facial attacks.” Id. at 463 (quoting Storer v.
Brown, 415 U.S. 724, 737, n. 8, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)).
As to the first prong, “[c]hallenges to election laws are one of the quintessential
categories of cases which usually fit this prong because litigation has only a few months
before the remedy sought is rendered impossible by the occurrence of the relevant
election.” Lawrence, 430 F.3d at 371 (citing Morse v. Republican Party of Va., 517 U.S.
186, 235, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996)). Therefore, Plaintiffs’ challenges
meet this prong.
The second prong requires a “‘reasonable expectation’” or a “‘demonstrated
probability’” that “the same controversy will recur involving the same complaining party.”
551 U.S. at 449 (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d
353 (1982)). The same controversy is sufficiently likely to recur when a party has a
reasonable expectation that it “will again be subjected to the alleged illegality,” or “will be
subject to the threat of prosecution” under the challenged law. Id. (citations omitted).

5

The Court has serious doubts as to whether there is a demonstrated probability
that Platt will run for election. The only evidence of a potential campaign is an inactive
campaign committee. This case is missing the circumstances present in other cases
which lend credibility to the expectation that the same controversy involving the same
party will recur. Platt did not seek another preliminary injunction for the 2016 election,
nor did he make any public statements expressing an intent to run for election. See, e.g.,
Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. at 449 (finding a
“demonstrated probability” that the controversy was capable of repetition in the next
election cycle because the plaintiff had filed a similar legal challenge to the same
campaign finance regulations in the previous election cycle); Davis v. Fed. Election
Comm'n, 554 U.S. 724, 736, 128 S. Ct. 2759, 2770, 171 L. Ed. 2d 737 (2008) (concluding
that the plaintiff's challenge to campaign finance regulations was not moot because the
plaintiff had publicly announced his intent to run again for Congress in the next election)).
To be clear, Platt has not run for election and the provisions of the Ohio Code of Judicial
Conduct have never been enforced against him, or anyone else for that matter. (See
Doc. 85, PAGEID #2152). However, the Court must consider the “somewhat relaxed”
repetition standard employed in election cases. Lawrence, 430 F.3d at 372. The Court
must also consider that the concern in “capable of repetition, yet evading review” cases is
“whether the controversy was capable of repetition and not . . . whether the claimant had
demonstrated that a reoccurrence of the dispute was more probable than not.” Honig v.
Doe, 484 U.S. 305, 318 n.6, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (emphasis in original).
Therefore, this Court is constrained to find that Plaintiffs’ challenge is not moot.
Similarly, as the Sixth Circuit explained on appeal in this matter, “in a

6

pre-enforcement review case under the First Amendment (like this one), courts do not
closely scrutinize the plaintiff's complaint for standing when the plaintiff ‘claims an interest
in engaging in protected speech that implicates, if not violates, each [provision of the law
at issue].’” 769 F.3d at 451 (quoting Carey v. Wolnitzek, 614 F.3d 189, 196 (6th Cir.
2010)). In the pre-enforcement context, “a plaintiff satisfies the injury-in-fact requirement
where he alleges ‘an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and there exists a credible threat of
prosecution thereunder.’” Susan B. Anthony List, 134 S. Ct. at 2342 (quoting Babbitt v.
Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)).
The Sixth Circuit has found a credible threat of prosecution where “plaintiffs allege
a subjective chill and point to some combination of the following factors: (1) a history of
past enforcement against the plaintiffs or others; (2) enforcement warning letters sent to
the plaintiffs regarding their specific conduct; and/or (3) an attribute of the challenged
statute that makes enforcement easier or more likely, such as a provision allowing any
member of the public to initiate an enforcement action.”
(citations omitted).

McKay, 823 F.3d at 869

Plaintiffs have not presented any evidence on this point at the

summary judgment stage. What remains is the Sixth Circuit’s finding in this case that
based on the following considerations, Platt has standing:
First, as in Susan B. Anthony List, any person—not just a prosecutor or
state agency—may initiate enforcement of the Code. See Filing a
Grievance, The Supreme Court of Ohio & The Ohio Judicial System,
http://www.supremecourt.ohio.gov/DisciplinarySys/odc/complaint.asp (last
visited Oct. 7, 2014). This feature of the Code “bolster[s]” the credibility of
enforcement. Susan B. Anthony List, 134 S.Ct. at 2345. And second,
when directly asked at oral argument, the State refused to disavow the
enforcement of the Code as applied to Platt, further adding credibility to
Platt's alleged fear. See id.; see also Appellees' Br. 11–12.

7

769 F.3d at 452. Because these two considerations remain in place today, the Court
must find that Plaintiffs have standing to bring their claims. 2
C. First Amendment
This Court does not need to look far for guidance on the applicable analysis.
In denying Plaintiffs’ request for injunctive relief, this Court applied the strict
scrutiny analysis set forth and applied to similar provisions in Carey v. Wolnitzek, 614
F.3d 189 (6th Cir. 2010) (reviewing facial challenge to three clauses in the Kentucky
Supreme Court’s Code of Judicial Conduct). On appeal of this case, the Sixth Circuit
summarily explained:
Independently applying the First and Fourteenth Amendments, we are not
persuaded that the district court erred in its success-on-the-merits
determination. Ohio has compelling state interests, Carey, 614 F.3d at
194, 201; it narrowed its Code to comport with Carey; and the majority of
federal courts have held the same or similar provisions constitutional. E.g.,
Ohio Council 8 Am. Fed'n of State, Cnty., & Mun. Employees, AFL–CIO v.
Brunner, 912 F.Supp.2d 556, 569 (S.D.Ohio 2012); compare, e.g., Wersal
v. Sexton, 674 F.3d 1010, 1024 (8th Cir. 2012) (en banc) (upholding
Minnesota's similar restrictions), and Siefert v. Alexander, 608 F.3d 974,
990 (7th Cir. 2010) (same for Wisconsin's Code), with Weaver v. Bonner,
309 F.3d 1312, 1320 (11th Cir. 2002) (holding unconstitutional a similar
provision in the Georgia Code).
769 F.3d at 454-55.

However, the Sixth Circuit explained: “Our opinion does not

guarantee the State a win on the merits.” Id. at 455. The Sixth Circuit recognized that:
The ultimate issue—whether Ohio's narrower Code provisions satisfy the
First Amendment principles discussed in Carey—remains an open
question, one in which the Supreme Court may soon provide guidance.
See Florida Bar v. Williams–Yulee, 138 So.3d 379 (Fla. 2014), cert.
granted, ––– U.S. ––––, 135 S.Ct. 44, 189 L.Ed.2d 896, 2014 WL 2763710
(Oct. 2, 2014).
2

Any person may still file a grievance. See http://www.supremecourt.ohio.
gov/DisciplinarySys/odc/complaint.asp (last visited Mar. 29, 2017). While Platt has not
presented any evidence that the State would enforce the Code as applied to him, the State’s
response at oral argument remains. The Court assumes this statement would be admissible as
an admission by a party-opponent under Federal Rule of Evidence 801(d)(2).
8

Id.
However, when the companion case to this case, O'Toole v. O'Connor, reached
the Sixth Circuit on appeal, the Supreme Court had issued its decision in Florida Bar v.
Williams–Yulee. Following the Supreme Court’s direction, the Sixth Circuit applied strict
scrutiny in its analysis of Rule 4.4(E). 802 F.3d at 789 (citing Williams–Yulee v. Fla. Bar,
135 S.Ct. 1656, 1664, 191 L.Ed.2d 570 (2015)). The Sixth Circuit then upheld this
Court’s finding in O’Toole that the plaintiff failed to demonstrate a likelihood of success on
the merits of her claims based on Rule 4.4(E). Id. at 783.
Plaintiffs attempt to distinguish this case from O’Toole by arguing that O’Toole is
factually distinguishable because the claims were brought by a sitting judge as opposed
to Platt, who is a non-incumbent judicial candidate. This Court has already concluded
that for purposes of determining the constitutionality of these provisions of the Ohio Code
of Judicial Conduct, there is no reason to distinguish between the claims brought by the
incumbent judicial candidates in O’Toole and the claims brought by the potential judicial
candidate in this case. (See Doc. 86, PAGEID #2188).
Plaintiffs also insist that their claim is an “as-applied” challenge, whereas O’Toole
involved a facial challenge that Rule 4.4(E) was unconstitutionally overbroad. However,
Plaintiffs saying their challenge is an “as-applied” challenge here or in the Complaint does
not make it so.
Generally, “a finding that a law is facially constitutional under the First Amendment
. . . does not foreclose subsequent as-applied challenges.” J.L. Spoons, Inc. v. Ohio
Dep't of Pub. Safety, 509 F. App'x 464, 471 (6th Cir. 2012). Plaintiffs repeatedly state

9

that Rule 4.4(E) is unconstitutional “as applied to Joseph Platt.” 3 However, “[t]he label is
not what matters.” John Doe No. 1 v. Reed, 561 U.S. 186, 194, 130 S. Ct. 2811, 2817,
177 L. Ed. 2d 493 (2010). “The important point is that plaintiffs' claim and the relief that
would follow . . . reach beyond the particular circumstances of these plaintiffs.” Id.
Plaintiff state that their claims are based on the application of Rule 4.4(E) to Platt “as well
as to other judicial candidates.” (Doc. 1, ¶ 42, PAGEID #17). Plaintiffs seek declaratory
and injunctive relief on behalf of “Plaintiffs, as well as judicial candidates in the State of
Ohio who are not presently sitting as members of the judiciary in the State of Ohio or the
campaign committees of such judicial candidates and their supporters.” (Doc. 1, ¶¶
96-97, PAGEID #27-28). Therefore, Plaintiffs’ claim is “facial” in that it is not limited to
Plaintiffs’ particular case, but instead challenges application of the law more broadly to all
non-incumbent judicial candidates. Accord John Doe No. 1, 561 U.S. at 194. As such,
this case is not distinguishable from O’Toole.
The Court concludes that it is unnecessary to re-visit the decisions of law made by
this Court and affirmed by the Sixth Circuit. In analyzing the likelihood of success prong
and denying Plaintiffs’ Motion for Preliminary Injunction, this Court did not make any
factual findings.

Instead, this Court made purely legal rulings which are just as

3

For example, in the Complaint, Plaintiffs allege:

The fundraising limitation periods of Rules 4.4(E), 4.4(F) and 4.4(G) of the Ohio
Code of Judicial Conduct, as applied to Joseph Platt (as well as to other judicial
candidates who are not presently sitting as members of the judiciary in the State of
Ohio), violate the First and Fourteenth Amendments to the United States
Constitution, including the right to free expression, the right of association, the right
to due process of law, and the right to equal protection of the law to the extent such
Rules are or may be applied to judicial candidates in the State of Ohio who are not
presently sitting as a member of the judiciary in the State of Ohio or the campaign
committees of such judicial candidates.
(Doc. 1, ¶ 42, PAGEID #17).
10

applicable to this case now as they were when they were issued. These legal rulings
were reviewed de novo by the Sixth Circuit. 769 F.3d at 454 (“We ‘review the District
Court's legal rulings de novo’ (including its First Amendment conclusion), ‘and its ultimate
conclusion [as to whether to grant the preliminary injunction] for abuse of discretion.’”).
Any open legal questions were closed by the Supreme Court’s decision in Williams–
Yulee v. Fla. Bar, and applied to Rule 4.4(E) by the Sixth Circuit in O’Toole. Therefore,
based on the analysis by the Sixth Circuit in this case and in O’Toole, the Court concludes
that Plaintiffs have not shown that these provisions of the Ohio Judicial Code are
unconstitutional. Therefore, Defendants are entitled to summary judgment on Plaintiffs’
First Amendment claim.
D. Equal Protection
In O’Toole, the Sixth Circuit rejected both versions of Plaintiffs’ Equal Protection
claims. The court first explained: “Because the complained-of differential effect arises
not from any lack of equality in the rule itself, but rather from how different candidates
have acquired, used, and husbanded their resources in previous campaigns, we agree
with the district court that Plaintiff failed to demonstrate a likelihood of success as to its
first Equal Protection argument.” 802 F.3d at 791 (footnote omitted). The court then
explained that based on the Supreme Court’s distinction between judicial and political
campaigns, there was no infringement of fundamental rights. 802 F3d at 791. The
same analysis is applicable here, with the same result. Accordingly, Defendants are
entitled to summary judgment on Plaintiffs’ Fourteenth Amendment Equal Protection
claim.
III.

CONCLUSION

11

Based on the foregoing, it is hereby ORDERED that:
1. Defendants Maureen O’Connor, Richard Dove and Scott Drexel’s Motion for
Summary Judgment (Doc. 74) is GRANTED;
2. This matter is CLOSED and TERMINATED from the docket of this Court.
IT IS SO ORDERED.
s/Michael R. Barrett
Michael R. Barrett
United States District Judge

12