Kilroy v. Husted

Filing 93

ORDER granting 74 Defendant's Motion for Summary Judgment and denying as moot 19 Plaintiff's Motion for Preliminary Injunction. Signed by Judge Gregory L Frost on 4/16/12. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN P. KILROY,
Plaintiff,

Case No. 2:11-cv-145
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp

v.
JON HUSTED,
Defendant.
OPINION AND ORDER
Before this Court are Defendant Jon Husted’s Motion for Summary Judgment (ECF No.
74), Plaintiff John P. Kilroy’s Opposition to the Motion (ECF No. 83), and Husted’s Reply Brief
in Support of his Motion (ECF No. 90). Defendant Husted, the Ohio Secretary of State, moves
for summary judgment solely on the ground that the Eleventh Amendment to the United States
Constitution bars Plaintiff Kilroy’s lawsuit. For the reasons set forth below, the Defendant’s
Motion is GRANTED.
I. Background
Plaintiff Kilroy is an Ohio citizen who has been actively involved in political activity
over the last 15 years. He owns 20 shares of stock in Target Corporation, which is a provider of
Medicaid services in Ohio.
Over the last 10 years, Plaintiff has made more than 50 political campaign contributions
to candidates for local, state, and federal office. (Pltf. Opp. to Mtn. for Summ. J., Ex. 13.) As
pertinent to this case, Plaintiff has contributed to the campaigns of candidates for Lorain County
(Ohio) prosecuting attorney. (Kilroy Dep., ECF No. 83-1, at 100-102.) Plaintiff has also
attended numerous fundraising events for current Lorain County prosecuting attorney Dennis

Will. (Id. at 21.) Plaintiff wishes to continue attending such events and would like to contribute
to the campaigns of current and future candidates for county prosecutor offices. (Id. at 15.)
Plaintiff claims to have withdrawn from such participation due to Ohio Rev. Code § 3599.45.
That statute states:
(A) No candidate for the office of attorney general or county prosecutor or such a
candidate’s campaign committee shall knowingly accept any contribution from a
provider of services or goods under contract with the department of job and family
services pursuant to the medicaid program of Title XIX of the “Social Security Act,”
49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an
ownership interest in the provider.
...
(B) Whoever violates this section is guilty of a misdemeanor of the first degree.
As this Court previously found in this case, the phrase “any person having an ownership
interest in the provider” means any ownership interest, no matter how small. (Opinion and
Order, ECF No. 28, at 3-5.) Thus, even though Plaintiff’s ownership interest (20 shares of stock)
in Target Corporation is de minimis, the statute effectively prohibits a candidate for state
attorney general or county prosecutor from accepting any campaign contribution from Plaintiff.
Indeed, Plaintiff testified that he has had campaign contributions refused due to his stock
ownership, albeit de minimis, in Target Corporation. (Kilroy Dep., ECF No. 83-1, at 16.)
Plaintiff is concerned about the possibility of placing Mr. Will’s campaign in jeopardy by
the mere appearance of a violation of Ohio Rev. Code § 3599.45. (Id. at 17, 45-46, 76-77.)
Plaintiff therefore indicates that he will refrain from attending Mr. Will’s steak-fry fundraiser(s)
and will not contribute to Mr. Will’s campaign. (See id.)
Plaintiff filed the instant action under the Civil Rights Acts of 1871, 42 U.S.C. § 1983.
He alleges that Ohio Rev. Code § 3599.45 violates his rights under the First and Fourteenth
Amendments to the United States Constitution by chilling his political speech. (Compl., ECF
2

No. 1, at ¶¶ 34-41.) The lawsuit names Mr. Husted, in his official capacity as the Ohio Secretary
of State, as the sole Defendant. Under Ohio law, the Secretary of State is the state’s chief
election officer. Ohio Rev. Code § 3501.04. Ohio law also requires the Secretary of State to
investigate and refer for prosecution violations of criminal law relating to elections. Ohio Rev.
Code § 3501.05(N)(1). Plaintiff Kilroy therefore seeks a declaration that Ohio Rev. Code §
3599.45 is unconstitutional and an injunction barring Secretary Husted from enforcing the
statute. (Compl., ECF No. 1, at 12.)
Plaintiff Kilroy sought a preliminary injunction to prevent enforcement of Ohio Rev.
Code § 3599.45 pending the disposition of this action on the merits. (ECF No. 19.) This Court
stayed the disposition of Plaintiff’s motion for preliminary injunctive relief pending the decision
on the Defendant’s Motion for Summary Judgment now before the Court. (See ECF No. 87.)
II. Discussion
Summary judgment is proper where there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). All facts and
inferences must be construed in a light most favorable to the party opposing the motion.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S.
Ct. 1348 (1986).
As an initial matter, Plaintiff contends that this Court should deny Secretary Husted’s
Motion for Summary Judgment out of hand for the Secretary’s failure to comply with S.D. Ohio
Local Rules 5.4(b) and 7.2(e). (Pltf. Opp., ECF No. 83, at 2, 13, 34.) Local Rule 5.4(b) requires
a party to file deposition transcripts in this Court “if a party reasonably anticipates that they will
be needed as evidence relating to a forthcoming motion or other proceeding.” Consistent with
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this rule, Local Rule 7.2(e) provides that any evidence (including deposition transcripts) in
support of a motion that is not already of record “shall be attached to the memorandum [in
support of the motion] or included in an appendix thereto” or, in the case of deposition
transcripts, be “timely filed with the Clerk.” Though Secretary Husted cited to deposition
testimony of Plaintiff Kilroy and the Secretary’s campaign finance administrator, J. Curtis
Mayhew, in his Motion for Summary Judgment, he failed either to file those deposition
transcripts with the Court or attach the relevant deposition excerpts as exhibits to his Motion for
Summary Judgment.
The apparent violation of the local rules notwithstanding, this Court does not find it
necessary to reject Secretary Husted’s Motion for noncompliance with Local Rules 5.4(b) and
7.2(e). Plaintiff Kilroy filed the deposition transcripts of Kilroy and Mayhew in connection with
his opposition to summary judgment, thereby placing these evidentiary materials before the
Court. The Court sees little reason to deny the Secretary’s Motion for Summary Judgment based
simply on the technical noncompliance with the Court’s Local Rules when the evidence in
question has been filed in the record. If Plaintiff Kilroy had not filed the transcripts relied upon
by the Secretary, the Court may have viewed this situation differently. But in light of the record
now before it, the Court finds it appropriate to proceed to the merits of Secretary Husted’s
Motion.
A.

The Eleventh Amendment and Ex Parte Young

In this case, Secretary Husted moves for summary judgment based solely on Eleventh
Amendment immunity. The Eleventh Amendment to the United States Constitution provides
simply: “The Judicial Power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of another
4

State, or by Citizens or Subjects of any Foreign State.” Despite the text suggesting otherwise,
the Eleventh Amendment has long been construed to bar suits initiated against a state by one of
its own citizens. See Hans v. Louisiana, 134 U.S. 1, 13-15, 10 S. Ct. 504, 33 L. Ed. 842 (1890).
The Eleventh Amendment also prohibits suits against state officials where the state is, in fact, the
real party in interest, such as when a lawsuit prays for a remedy that would require a state officer
to pay funds directly from the state treasury to compensate for wrongful acts of the state. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02, 104 S. Ct. 900, 79 L. Ed. 2d
67 (1984).
The Eleventh Amendment immunity granted to the states is subject to the wellrecognized exception crafted in Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714
(1908). Under the Ex Parte Young doctrine, the federal courts have jurisdiction over suits
against state officers (in their official capacity) seeking prospective equitable relief to enjoin
ongoing violations of federal law. Id. at 156. It is under the Ex Parte Young doctrine that
Plaintiff Kilroy proceeds in this case, seeking equitable relief to declare Ohio Rev. Code §
3599.45 unconstitutional and to enjoin its enforcement by Secretary Husted in his capacity as
Ohio’s chief elections officer.
Secretary Husted argues that summary judgment on Eleventh Amendment grounds
remains appropriate despite Ex Parte Young. For the Ex Parte Young doctrine to apply, there are
two prerequisites that must be present: the defendant state official must (1) have “some
connection with the enforcement of the act” and (2) “threaten” or be “about to commence”
proceedings to enforce the act. Ex Parte Young, 209 U.S. at 155-56; see also Verizon Md., Inc.
v. Public Serv. Comm’n of Md., 535 U.S. 635, 645, 122 S. Ct. 1753, 152 L. Ed. 2d 871 (2002)
(reciting that Ex Parte Young applies when the complaint alleges an “ongoing violation of
5

federal” by state officers in their official capacities).1
B.

“Some Connection” with Enforcement of Ohio Rev. Code § 3599.45

As to the first element of Ex Parte Young’s applicability, Secretary Husted contends that
he is not a proper defendant. In making this argument, Husted points to the nature of Ohio Rev.
Code § 3599.45 as a criminal statute. As such, Secretary Husted argues that his office is not
charged with enforcement of the statute because “only prosecutors (or the attorney general in
some rare circumstances) may bring criminal prosecutions.” (Mot. Summ. J., ECF No. 74, at 6.)
Driving home the point that local prosecutors are at the forefront of enforcing the statute, Husted
cites the deposition of his office’s campaign finance administrator, J. Curtis Mayhew, who
testified the Secretary of State’s Office has “never taken a look” at bringing a criminal

1

In a Motion for Leave to file a surreply (which in many ways reads more like the
surreply itself rather than the motion for leave to file one), Plaintiff Kilroy raised the specter of
an Eleventh Amendment immunity waiver, arguing that “the Secretary failed to contest the . . .
critical fact” that the Secretary actively participated in this case and a similar one in the Northern
District of Ohio on the merits, thereby waiving Eleventh Amendment immunity. (ECF No. 91,
at 2.) See Ku v. Tennessee, 322 F.3d 431, 435 (6th Cir. 2003) (holding that the state waived
Eleventh Amendment immunity by its litigation conduct in engaging in discovery, seeking a
judgment on the merits, and not raising the Eleventh Amendment until after an adverse judgment
against it); Hunter v. Hamilton Cnty. Bd. of Elections, No. 1:10-cv-820, 2012 U.S. Dist. LEXIS
15745, at *11-*14 (S.D. Ohio Jan. 6, 2012) (finding waiver of Eleventh Amendment immunity
when the defendants had engaged in extensive litigation of the case for more than one year,
including taking an interlocutory appeal, before they ever raised the Eleventh Amendment issue)
(citing Ku). Plaintiff Kilroy went as far as to say that he raised the waiver issue “multiple times
in his opposition to the Secretary’s motion for summary judgment.” (ECF No. 91, at 1.) This
Court is puzzled as to how Kilroy can claim he raised the waiver issue in his opposition to the
motion for summary judgment. In point of fact, in his 36-page opposition brief, Kilroy did not
argue once that the Secretary of State waived the Eleventh Amendment defense. To the
contrary, Kilroy devoted his brief to arguing the inapplicabilty of the Eleventh Amendment
immunity on the merits. In short, this Court deems Kilroy to have waived the waiver argument.
In the same way that a movant’s argument raised for the first time in a reply brief in support of
summary judgment is waived, see e.g. Hunt v. Big Lots Stores, Inc., 244 F.R.D. 394, 397 (N.D.
Ohio 2007), a nonmovant’s argument is similarly waived by failing to raise it until a motion for
leave to file a surreply.
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prosecution for anyone’s violation of Ohio Rev. Code § 3599.45 and that it is “probably more of
an issue for a prosecutor to look into, rather than [for the] Secretary of State’s office.” (Mayhew
Dep., ECF No. 83-14, at 82.) Secretary Husted further argues that his office’s statutory role as
an investigator is not enough to create any threat of enforcement given the fact that the ultimate
prosecutorial decision rests with the local prosecutor in any case in which there is an alleged
violation of the statute. (ECF No. 74, at 7.)
In response, Plaintiff Kilroy argues that Secretary Husted’s interpretation of the “some
connection with enforcement” element of Ex Parte Young is overly narrow. (Pltf. Opp., ECF
No. 83, at 15.) All that Ex Parte Young requires is that the state officer have “some connection”
with the enforcement of the legislative act alleged to be unconstitutional. (Id. at 15-16.) See Ex
Parte Young at 157. And that standard is satisfied here, argues Kilroy, because the Ohio Revised
Code places affirmative duties upon the Ohio Secretary of State when it comes to the
enforcement of Ohio’s election laws. On this point, the Court finds that Plaintiff Kilroy has the
better of the argument.
Under Ohio law, the Ohio Secretary of State is the state’s chief elections officer. See
Ohio Rev. Code § 3501.04. As such, the Secretary has a variety of election-related duties
imposed by law. See State ex rel. Myles v. Brunner, 120 Ohio St. 3d 328, 2008-Ohio-5097, at ¶
11 (citing statutory provisions). Ohio statutory law also imposes upon the Secretary of State the
affirmative duty to “investigate the administration of election laws, frauds, and irregularities in
elections in any county, and report violations of election laws to the attorney general or
prosecuting attorney, or both, for prosecution.” Ohio Rev. Code § 3501.05(N)(1) (emphasis
added). In furtherance of such duties to administer Ohio’s election laws, the Secretary of State
enjoys the power to administer oaths, issue subpoenas, and compel the production of evidence.
7

Id., § 3501.05(DD). Thus, as set forth in Ohio statutory law, the Ohio Secretary of State plays a
role in the enforcement of all of the state’s election laws, including laws that carry criminal
penalties for their violation.
The Ohio Secretary of State’s connection with the enforcement of Ohio’s election laws is
enough to satisfy Ex Parte Young. Even if the Court accepts Secretary Husted’s argument that
the primary authority for enforcing Ohio Rev. Code § 3599.45 lies with individual prosecutors
throughout the state (insofar as they are the ones who make the ultimate decision on whether to
charge an offender), this enforcement hierarchy in Ohio is of no moment for purposes of
applying Ex Parte Young. The state officer’s connection does not have to be the primary
authority to enforce the challenged law. 281 Care Comm. v. Arneson, 638 F.3d 621, 633 (8th
Cir. 2011). It is sufficient if the state law grants the state officer some authority to act in
furtherance of the challenged law. Id. (noting the Minnesota Attorney General’s authority to
assist with prosecution, defend administrative decisions in civil court, and/or to file civil
complaints under the challenged law). The Ohio Revised Code contemplates that the Secretary
of State play a role in the enforcement of all election laws, including laws that (like Ohio Rev.
Code § 3599.45) carry criminal penalties. See Ohio Rev. Code § 3501.05(N)(1) (stating that the
Secretary of State “shall . . . report violations . . . for prosecution”).
Accordingly, the Court finds that the first requirement for Ex Parte Young’s applicability
is satisfied in this case: Secretary Husted is a state official that has “some connection” with the
statute alleged to be unconstitutional in this case.
C.

Enforcement of Ohio Rev. Code § 3599.45

Secretary Husted’s status as a state official with “some connection” to enforcement of
Ohio Rev. Code § 3599.45 does not necessarily strip him of Eleventh Amendment immunity in
8

this case. As noted above, the Ex Parte Young exception to Eleventh Amendment immunity
applies only to suits seeking prospective relief for an alleged “ongoing” violation of federal law.
See Verizon Md., 535 U.S. at 645; see also Dubuc v. Mich. Bd. of Law Examiners, 342 F.3d 610,
616 (6th Cir. 2003). As to this requirement, the Supreme Court has explained:
Young’s applicability has been tailored to conform as precisely as possible to those
specific situations in which it is “necessary to permit the federal courts to vindicate
federal rights and hold state officials responsible to ‘the supreme authority of the
United States.’” Pennhurst, supra, at 105 (quoting Young, supra, at 160).
Consequently, Young has been focused on cases in which a violation of federal law
by a state official is ongoing as opposed to cases in which federal law has been
violated at one time or over a period of time in the past, as well as on cases in which
the relief against the state official directly ends the violation of federal law as
opposed to cases in which that relief is intended indirectly to encourage compliance
with federal law through deterrence or directly to meet third-party interests such as
compensation. As we have noted: “Remedies designed to end a continuing violation
of federal law are necessary to vindicate the federal interest in assuring the
supremacy of that law. But compensatory or deterrence interests are insufficient to
overcome the dictates of the Eleventh Amendment.” Green v. Mansour, 474 U.S.
64, 68 (1985) (citation omitted).
Papasan v. Allain, 478 U.S. 265, 277-78, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986).
Thus, besides a complaint suing the correct state official having “some connection” with
enforcement of the challenged act, Ex Parte Young requires that the complaint be about the state
official’s action. Indeed, in Ex Parte Young itself, the Supreme Court found federal jurisdiction
lies to enjoin state officers who “are clothed with some duty in regard to the enforcement of the
laws of the State and who threaten and are about to commence proceedings, either of a civil or
criminal nature, to enforce” an unconstitutional act. Ex Parte Young, 209 U.S. at 155-56
(emphasis added). Seizing upon Ex Parte Young’s language about the parameters of the Young
exception to Eleventh Amendment immunity, the Sixth Circuit Court of Appeals has likewise
explained that “Young does not apply when a defendant state official has neither enforced nor
threatened to enforce the allegedly unconstitutional statute.” Children’s Healthcare is a Legal
9

Duty, Inc. v. Deters, 92 F.3d 1412, 1414, 1416 (6th Cir. 1996) (“Children’s Healthcare”); see
also id. at 1415 (emphasizing that Ex Parte Young abrogates immunity only “when a suit
challenges the constitutionality of a state official’s action”).
It is this aspect of the Ex Parte Young doctrine that provides the more difficult hurdle for
Plaintiff Kilroy to clear in order to sustain this lawsuit. In particular, Secretary Husted relies
heavily on Children’s Healthcare to support his contention that summary judgment is
appropriate here because there is no evidence to support the notion that anyone, much less his
office, is threatening or about to commence proceedings to enforce Ohio Rev. Code § 3599.45.
Secretary Husted argues, moreover, that Plaintiff Kilroy cannot establish any threat of
enforcement against Kilroy in any event because the statute in question provides for criminal
liability only against candidates for attorney general or county prosecutor. (Mot. Summ. J., ECF
No. 74, at 7.)
1.

The Sixth Circuit’s Decision in Children’s Healthcare

Secretary Husted relies on Children’s Healthcare as one of the primary (if not the
primary) pillars supporting summary judgment in his favor on Eleventh Amendment grounds. In
Children’s Healthcare, a children’s advocacy group and a father of two minor children sued,
among others, the Attorney General of Ohio, alleging that certain provisions of Ohio Rev. Code
§§ 2919.22(A) and 2151.03(B) were unconstitutional. Children’s Healthcare, 92 F.3d at 1413.
The challenged statutes established exemptions from the duty to provide adequate care for
children and from prosecution for failure to provide adequate care for persons who treat “by
spiritual means” children within their care. Id. The plaintiff father alleged that his ex-wife, a
Christian Scientist, did not allow their daughter to receive the medical treatment he believed
necessary for a congenital kidney disease. Id. The plaintiffs in Children’s Healthcare argued
10

that the statutory exemptions for treatment “by spiritual means” violated the Establishment
Clause of the First Amendment and denied equal protection of the laws and due process of law to
the class of children cared for by persons who fell within the statutory exemptions. Id. at 141314.
The Sixth Circuit held that the Ohio Attorney General was entitled to Eleventh
Amendment immunity from suit, notwithstanding the plaintiffs’ attempt to invoke the Ex Parte
Young doctrine. Observing that courts “have not read Young expansively,” the Sixth Circuit
noted that Young does not apply “when a defendant state official has neither enforced nor
threatened to enforce the allegedly unconstitutional state statute.” Id. at 1415 (collecting cases).
And because the Attorney General did not “enforce” the allegedly unconstitutional statutes
against the plaintiffs, the Sixth Circuit had no trouble finding the Ohio Attorney General immune
from suit in Children’s Healthcare: “What we have here is not action, but inaction, and Young
does not apply. The Attorney General did not threaten to commence and was not about to
commence proceedings against the plaintiffs, much less proceedings to enforce an allegedly
unconstitutional act.” Id. at 1416.
The Sixth Circuit also found two additional grounds for rejecting the plaintiffs’ lawsuit in
Children’s Healthcare. The Court observed that the case “also does not fall within the Young
exception, because the plaintiffs do not seek to enjoin the enforcement of an allegedly
unconstitutional statute.” Id. Notably, the plaintiffs wanted certain statutory defenses to
criminal liability not to be given effect. Thus, the Sixth Circuit characterized the plaintiffs’
lawsuit as turning Young “inside out” by asking the federal courts to “permit a broader
enforcement of certain statutes by striking down those provisions of the statutes which prevent
their enforcement with respect to persons against whom the plaintiffs believe enforcement is
11

proper.” Id. Finally, the Sixth Circuit found that the Ohio Attorney General had “no
connection” to the enforcement of the statutory exemptions challenged by the Children’s
Healthcare plaintiffs; Ohio law delegated that enforcement responsibility to the individual local
prosecutors. Id. 1416-17. The Sixth Circuit therefore found the case akin to a situation in which
plaintiffs sued an Attorney General who had never threatened to prosecute them and had no
authority to do so — a situation that does not allow the plaintiffs to evade Eleventh Amendment
immunity. Id. at 1417 (citing Sherman v. Community Consol. Sch. Dist. 21, 980 F.2d 437, 441
(7th Cir. 1992)).
2.

Enforcement by Secretary Husted?

Secretary Husted insists that there is no ongoing enforcement of Ohio Rev. Code §
3599.45 and therefore no basis upon which to apply the Ex Parte Young exception to Eleventh
Amendment immunity. In other words, Secretary Husted says this case is a case about inaction
rather than action and that the case should therefore meet the same Eleventh Amendment bar that
foreclosed the plaintiffs’ lawsuit in Children’s Healthcare.
Secretary Husted emphasizes that Plaintiff Kilroy can point to no evidence of
enforcement that would suggest there is an ongoing threat of violation of his constitutional
rights. Indeed, in his deposition, Kilroy could point to no instance of Ohio Rev. Code § 3599.45
being enforced against anyone. (Kilroy Dep., ECF No. 83-1, at 15, 22-23, 25, 90-91.) Specific
to the Secretary of State’s office, Kilroy was not aware of the Secretary filing a complaint
concerning a violation of Ohio Rev. Code § 3599.45. (Id. at 25.) Nor could Kilroy point to an
instance in which Secretary Husted or his predecessor had even threatened to bring a charge
against an individual or candidate for violating the statute. (Id. at 90-92.) And though Kilroy
alleged that the campaign of Lorain County Prosecutor Dennis Will turned down a campaign
12

contribution from him because of Kilroy’s ownership of stock in Target Corporation, Kilroy did
not know if Secretary Husted had informed the Will campaign that accepting Kilroy’s
contribution would violate Ohio Rev. Code § 3599.45. (Id. at 23-24.) Rather than having
knowledge of actual enforcement efforts by the Secretary of State’s office, Kilroy professed fear
that the Secretary of State might pursue candidates for violations in the future:
So, you know, my fear is that you don’t know what the secretary of state is going to
do in the future because I have personal experience with filing campaign finance
reports that you think were a dead issue and then two or three more years later they
come back and, you know, on a – nitpick on minor technical issues. So I don’t see
this as being any different.
(Id. at 25.)
Testimony from Mr. Mayhew, the Secretary of State’s campaign finance administrator,
indicated that the Secretary’s office had not done any investigative or enforcement action related
to Ohio Rev. Code § 3599.45. (Mayhew Dep., ECF No. 83-14, at 90.) Mayhew testified not
only that there was no ongoing enforcement efforts, but also that he could not recall (in his 19
years working for the Secretary of State’s office) any instance in which the office took any
investigative or enforcement action concerning Ohio Rev. Code § 3599.45. (Id. at 103.) Nor was
the Secretary of State’s office aware of any efforts undertaken by a county prosecutor to charge
anyone with a violation of Ohio Rev. Code § 3599.45. (Id. at 103-04.)
Even though the Court has found that Secretary Husted has “some connection with the
enforcement” of Ohio Rev. Code § 3599.45 for purposes of the Ex Parte Young exception to
Eleventh Amendment immunity, that fact “does not diminish the requirement that the official
threaten and be about to commence proceedings” to enforce the allegedly unconstitutional act.
Children’s Healthcare, 92 F.3d at 1416 (citing Ex Parte Young at 155-56). On the record before
this Court, there is simply no evidence to suggest that Secretary Husted is threatening
13

proceedings to enforce the Ohio Rev. Code § 3599.45, such that it can be said that Kilroy is
seeking to enjoin an ongoing violation of federal law by the Secretary. The fact that Secretary
Husted has some enforcement authority and could use the power of his office to investigate
violations of Ohio Rev. Code § 3599.45 and potentially refer the fruits of his investigations to
local prosecutors for criminal charges is insufficient to meet the standard required to invoke the
Ex Parte Young exception to Eleventh Amendment immunity. See Susan B. Anthony List v.
Driehaus, No. 1:10-cv-720, 2011 U.S. Dist. LEXIS 84000, at *29 (finding that Eleventh
Amendment barred suit against Secretary Husted when there was “absolutely no evidence that
Secretary Husted has in any way threatened to enforce any proceeding against Plaintiff” under
the statutes challenged there). On the record before this Court, Plaintiff Kilroy’s lawsuit appears
more like one intended to deter enforcement of a statute rather than one to enjoin an ongoing
enforcement. And suits brought against the State for such a deterrent purpose do not escape
Eleventh Amendment immunity. Papasan, 478 U.S. at 277-78.
For his part, Plaintiff Kilroy makes much of the fact that Mr. Mayhew (in Kilroy’s
words) “changed his testimony” regarding the Secretary of State’s policy of enforcing Ohio Rev.
Code § 3599.45. (Deft. Opp., ECF No. 83, at 10.) In a March 2011 deposition taken in
connection with Lavin v. Husted, 803 F. Supp. 2d 756 (N.D. Ohio 2011),2 Mr. Mayhew testified
that he had no reason to believe that the Secretary of State’s Office would not enforce the statute.
2

In Lavin, the plaintiffs were physicians and Medicare providers who, like Plaintiff
Kilroy here, sought a declaratory judgment that Ohio Rev. Code § 3599.45 violates the First and
Fourteenth Amendments to the United States Constitution. See Lavin, 803 F. Supp. 2d at 757.
The Lavin court granted summary judgment to Secretary Husted, finding no First Amendment
infirmity. See id. at 761-65. Mr. Mayhew’s deposition in the Lavin case was taken in March
2011 and again in this case in October 2011. The parties in this case stipulated that Mayhew’s
October 2011 deposition was a “continuation” of the March 2011 deposition. (Mayhew Dep.,
ECF No. 83-14, at 5-6.)
14

(Mayhew Dep., ECF No. 83-18, at 7-8.) In what Kilroy calls “a testimonial Salchow in the
midst of litigation” (ECF No. 83, at 12), Mayhew testified seven months later during the
continuation of his deposition that he would not recommend that Secretary Husted enforce the
statute due to Mayhew’s “discomfort” with the statute’s breadth and the uncertainty over how his
office would go about enforcing it. (Mayhew Dep., ECF No. 83-14, at 94-100.) Even with that
so-called “changed testimony,” however, Mayhew acknowledged the potential risk of future
enforcement at the local prosecutor level, by Secretary Husted’s office, or by a future Ohio
Secretary of State. (Id. at 46, 108.)
Though Kilroy places great emphasis on the equivocal nature of Mayhew’s testimony
regarding the potential enforcement of Ohio Rev. Code § 3599.45 by the Secretary of State’s
office, such equivocation is insignificant in this Court’s Eleventh Amendment analysis. To fall
under the Ex Parte Young exception, the plaintiff must be seeking prospective relief for a state
official’s ongoing violation of federal law — that is, the state official must “threaten and be
about to commence proceedings” to enforce the allegedly infirm law. Children’s Healthcare, 92
F.3d at 1416. Even assuming that Kilroy could establish the unconstitutionality of Ohio Rev.
Code § 3599.45, the evidence on the record before the Court does not show that Secretary
Husted is engaging in any such imminent commencement of proceedings that could properly be
characterized as an ongoing violation of federal law that is addressable under Ex Parte Young.
The Court therefore finds merit in Secretary Husted’s Eleventh Amendment argument.
3.

Cases Distinguishing Children’s Healthcare Are Not Persuasive.

The Court is mindful of the fact that cases from other jurisdictions have distinguished or
explained the meaning behind the Sixth Circuit’s requirement that the state official “threaten and

15

be about to commence proceedings” in order for the Ex Parte Young doctrine to apply.
Children’s Healthcare at 1416. In rejecting arguments by state officers that a genuine or present
threat of enforcement is required to invoke the Ex Parte Young exception to Eleventh
Amendment immunity, courts have explained that the threat of future enforcement is relevant
“only to the extent it shows that the plaintiff is suing the correct state official and is seeking
prospective relief for future harms.” Deida v. City of Milwaukee, 192 F. Supp. 2d 899, 915 (E.D.
Wisc. 2002); accord National Audubon Soc’y v. Davis, 307 F.3d 835, 846-47 (9th Cir. 2002)
(declining to “read additional ‘ripeness’ or ‘imminence’ requirements into the Ex Parte Young
exception”); Summit Medical Assocs. v. Pryor, 180 F.3d 1326, 1340 n.11 (11th Cir.1999)
(distinguishing Children’s Healthcare on same basis and finding it inapplicable to action against
state attorney general seeking to declare criminal statute unconstitutional). Thus, according to
these courts, the “threaten and be about to commence proceedings” inquiry comes into play only
when determining whether the correct state official is being sued for prospective relief. Indeed,
the Ninth Circuit described Children’s Healthcare as being “concerned with the question of
‘who’ rather than ‘when.’” National Audubon Soc’y, 307 F.3d at 846; see also Deida at 915 (“If
state law clearly empowers the named defendant to enforce the statute and the plaintiff seeks
only prospective relief, then whether the defendant has actually threatened the plaintiff with
enforcement is irrelevant.”).
While the view of these courts makes some sense, this Court declines to circumscribe the
Children’s Healthcare explication of the Ex Parte Young exception in such a way. As noted
previously, the Sixth Circuit found Eleventh Amendment immunity applicable in Children’s
Healthcare for three distinct reasons: the Court found (1) the Ohio Attorney General “did not
threaten to commence and was not about to commence proceedings against the plaintiffs,”
16

Children’s Healthcare at 1416, (2) the case did not fall within the Ex Parte Young exception
anyway because the plaintiffs were not seeking to “enjoin the enforcement of an allegedly
unconstitutional statute,” id., and (3) Ohio law did not delegate enforcement of the allegedly
unconstitutional statutes to the Ohio Attorney General, id. at 1416-17. That the Court found
reasons (1) and (3) to be separate and distinct grounds for rejecting the plaintiffs’ lawsuit
militates against interpreting the “threaten and be about to commence proceedings” requirement
stated in Children’s Healthcare in the manner that the Deida, National Audubon Soc’y, and
Summit Medical courts have.
If the “threaten and be about to commence proceedings” requirement described in
Children’s Healthcare were merely part and parcel of the analysis of whether the proper state
official was being sued for prospective relief, then there would have been no need for the Sixth
Circuit to note the Attorney General’s lack of true enforcement authority as a separate reason for
its decision. But rather than use the presence or absence of imminent enforcement by the
Attorney General as an indicator that the Attorney General lacked “some connection with the
enforcement of the act,” the Sixth Circuit treated the circumstance that the Attorney General “did
not threaten to commence and was not about to commence proceedings” as a separate inquiry
unto itself. See Children’s Healthcare at 1416-17.
This Court is, of course, bound to follow Sixth Circuit precedent. And in this case, the
Court finds that Plaintiff Kilroy’s lawsuit cannot escape the Eleventh Amendment net, as cast by
Children’s Healthcare. The Sixth Circuit’s analysis of the Ex Parte Young exception to
Eleventh Amendment immunity in Children’s Healthcare appears to be good law in this Circuit
and the parties have pointed to no Sixth Circuit or Supreme Court case that overrules or
discredits it. Indeed, less than one year ago, another judge of this Court applied Children’s
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Healthcare to bar on Eleventh Amendment grounds a suit against Secretary Husted when there
was no evidence that the Secretary had threatened to enforce any of the election statutes that the
plaintiffs challenged as unconstitutional. See Susan B. Anthony List, supra, 2011 U.S. Dist.
LEXIS 84000, at *29 (Black, J.). This Court concludes that Secretary Husted is likewise
immune from Plaintiff Kilroy’s lawsuit under the Eleventh Amendment.
D.

Impact of Zielasko v. Ohio and First Amendment Interests upon Eleventh
Amendment Immunity.

Plaintiff Kilroy argues that Secretary Husted’s reliance on Children’s Healthcare is
misplaced and that the controlling precedent here is Zielasko v. Ohio, 873 F.2d 957 (6th Cir.
1989). (Pltf. Opp., ECF No. 83, at 21-25.) Plaintiff Kilroy argues further that Ohio Rev. Code §
3599.45’s “threat of criminal penalty” infringing First Amendment rights suffices for a “credible
threat of enforcement” for purposes of abrogating Eleventh Amendment immunity under Ex
Parte Young. (Id. at 25-32.)
1.

Zielasko v. Ohio Does Not Govern This Case.

In Zielasko, an incumbent state-court judge (Zielasko) and a voter (Bowman) who
supported his reelection sued the Ohio Secretary of State (among others) for declaratory and
injunctive relief to enjoin enforcement of Ohio’s constitutional prohibition on any person being
elected for judge if he or she would be 70 years of age when he or she would assume the office.
Zielasko at 958. In order to run for office, Zielasko would have had to file a “declaration of
candidacy” form under Ohio law stating that he was a “qualified candidate” for the office he was
seeking. Id. at 959. Signing the form, however, would have subjected Zielasko to criminal
penalty for election falsification because his age prohibited him from assuming the office for
which he sought election. Id. The Sixth Circuit rejected the State of Ohio’s argument that there
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was no “actual case or controversy” because Zielasko had not actually circulated a nominating
petition for his candidacy. Id. at 958-59. Because Zielasko would have filed a declaration of
candidacy but for the fear of criminal penalty for election falsification, the Court found the
requisite injury for purposes of establishing a justiciable controversy within the meaning of
Article III of the United States Constitution. Id. at 959. The Court further held that Bowman
had a justiciable claim “predicated upon” Zielasko’s because Bowman was “precluded from
advancing Zielasko’s candidacy.” Id.
In addition to finding a justiciable controversy, the Zielasko court also addressed the
argument that the Eleventh Amendment barred the lawsuit. The entirety of the Court’s Eleventh
Amendment analysis was as follows:
The district court also found that Ohio was not entitled to dismissal based on
eleventh amendment immunity. The court noted that the eleventh amendment does
not necessarily bar suits brought in federal court seeking prospective injunctive
relief. Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). Because
Zielasko and Bowman seek to enjoin the future enforcement of a state constitutional
provision they wished declared unconstitutional, the eleventh amendment does not
apply.
Id.3 Notwithstanding the absence of a detailed Eleventh Amendment analysis, Plaintiff Kilroy
urges the Court to find that Zielasko is the controlling precedent because it is “similar in all
relevant aspects” to his case. (Pltf. Opp., ECF No. 83, at 23.)
3

Rather conspicuously, the Court’s analysis appears erroneous on its face, for it seems to
hold that the State of Ohio was not entitled to Eleventh Amendment immunity. It is elementary,
however, that the Ex Parte Young exception to Eleventh Amendment immunity applies only to
state officials sued in their official capacity; the doctrine “has no application in suits against the
States and their agencies, which are barred regardless of the relief sought.” Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct. 684, 121 L. Ed.
2d 605 (1993) (citing Cory v. White, 457 U.S. 85, 90-91, 102 S. Ct. 2325, 72 L. Ed. 2d 694
(1982)). This Court therefore views this passage of Zielasko as simply a case of inartful drafting,
with the Court of Appeals likely intending to speak to Ex Parte Young’s applicability to the case
against the Secretary of State in his official capacity.
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The Court views Zielasko as a thin reed upon which to rest a conclusion that Plaintiff
Kilroy should be allowed to proceed under the Ex Parte Young doctrine. Though Zielasko itself
offers little in terms of its own Eleventh Amendment analysis, the Sixth Circuit in Children’s
Healthcare explained what it meant in Zielasko — and why the case was distinguishable there.
The Sixth Circuit noted that the Zielasko case was allowed to sidestep Eleventh Amendment
immunity because of the judge’s “‘real and immediate (not merely conjectural or hypothetical)
harm of criminal penalty’” associated with the declaration of candidacy he would be required to
file under the threat of criminal penalty for election falsification. Children’s Healthcare, 92 F.3d
at 1416 n.10 (quoting Zielasko at 959). Because the Court could not find anything “analogous
about the plaintiffs” in Children’s Healthcare, it could not find that there existed any threat of
proceedings to enforce an allegedly unconstitutional act. Id. at 1416 and n.10.
The Sixth Circuit’s explanation of Zielasko cuts against, not in favor of, Plaintiff Kilroy’s
ability to invoke Ex Parte Young. The distinguishing factor for jurisdiction existing in Zielasko
was the “real and immediate threat” of criminal penalty. The record before the Court does not
show any such “real and immediate threat” here. In the final analysis, there was little question of
ongoing enforcement of the Ohio constitutional provision challenged in Zielasko. The same
cannot be said for Ohio Rev. Code § 3599.45 here.
Moreover, this Court finds it significant that the “real and immediate threat” of criminal
penalty was present in Zielasko because the judge himself (Zielasko) was a plaintiff. In this
case, while Plaintiff Kilroy alleges himself stifled by Ohio Rev. Code § 3599.45’s prohibition on
a prosecutor or attorney general candidate receiving campaign contributions from him, it is not
Plaintiff Kilroy who would be subject to prosecution if the statute were enforced. By its terms,
the statute provides for misdemeanor criminal liability only for the candidate (or the candidate’s
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campaign committee). See Ohio Rev. Code § 3599.45(A). Thus, even if there were some real
threat of enforcement present, Plaintiff Kilroy would not be the person threatened by it.
On this point, Plaintiff Kilroy is quick to observe that the Sixth Circuit decision in
Zielasko did not differentiate between the claim of the judge and that of the voter. (Pltf. Opp.,
ECF No. 83, at 23.) Indeed, Zielasko did not find the voter’s (Bowman’s) suit to be barred by
the Eleventh Amendment and allowed her claims to proceed to the merits along with Judge
Zielasko’s. Zielasko, 873 F.2d at 959. Plaintiff Kilroy therefore argues that the fact that the
criminal penalty in Ohio Rev. Code § 3599.45 may not apply to him does not pose an Eleventh
Amendment bar.
While Plaintiff Kilroy may be right about the voter’s claims surviving Eleventh
Amendment immunity in Zielasko, the Court does not find that Zielasko necessarily stands for
the proposition that Kilroy can proceed here. Zielasko does not speak directly to the basis for
allowing Bowman to proceed with her claims. But the Court finds it significant that the judge
was a party plaintiff in that case and established (at least to the satisfaction of the Sixth Circuit) a
“real and immediate” threat of criminal prosecution against him if he proceeded with his
declaration of candidacy. Zielasko, 873 F.2d at 959. As the Sixth Circuit noted in its opinion,
Bowman’s case was “predicated upon this controversy” (i.e., the threat of prosecution faced by
the judge). Id. Given that the Court found Bowman’s claims were “predicated upon” those of an
actual plaintiff who faced the threat of prosecution, the Court may have found the Ex Parte
Young exception applicable to the action as a whole. This Court therefore cannot say that
Zielasko is firm precedent for the proposition that a person not subject to criminal penalty under
a challenged statute can proceed under Ex Parte Young.
2.

First Amendment Chill and the Eleventh Amendment
21

Plaintiff Kilroy also argues that the prospect of his First Amendment free-speech rights
being chilled by Ohio Rev. Code § 3599.45 should counsel against applying Eleventh
Amendment immunity as a bar to his constitutional challenge. Noting that standing
requirements are “relaxed” in First Amendment cases, Plaintiff contends that “the requirement to
establish a threat of enforcement is no stricter in the Eleventh Amendment context.” (Pltf. Opp.,
ECF No. 83, at 25.) In other words, Plaintiff asks this Court to decide that a pre-enforcement
challenge to a statute that allegedly infringes upon First Amendment rights should not be barred
by the Eleventh Amendment because of the chilling effect the statute has upon expressive
activity. (Id. at 26-27.)
While this Court acknowledges the importance of the First Amendment considerations
that Plaintiff Kilroy posits, the Court cannot say that such considerations undercut the
applicability of Eleventh Amendment immunity here. Though Plaintiff cites federal court
decisions that stand for the proposition that the same rules that govern standing and justiciability
should apply in the Eleventh Amendment context,4 the Court finds those cases inconsistent with
the Sixth Circuit’s application of Ex Parte Young. The Sixth Circuit adheres to the notion that
the Ex Parte Young exception to Eleventh Amendment immunity includes the “requirement that
the official threaten and be about to commence proceedings.” Children’s Healthcare, 92 F.3d at
1416. Unless and until the Sixth Circuit (or the Supreme Court) imposes a First Amendment rule
that relaxes the Ex Parte Young requirements, this Court will not do so.
Nor is the Court persuaded that allowing Secretary Husted to enjoy Eleventh Amendment

4

See Deida, supra, 192 F. Supp. 2d at 915-16; ACLU v. Johnson, 4 F. Supp. 2d 1024,
1027-29 (D.N.M. 1998), aff’d, 194 F.3d 1149 (10th Cir. 1999); Artichoke Joe’s v. Norton, 216 F.
Supp. 2d 1084, 1110 (E.D. Cal. 2002).
22

immunity in this case would “leave Mr. Kilroy without a remedy.” (Pltf. Opp., ECF No. 83, at
33.) Kilroy argues that he would be “deprived of any relief for violations of his First
Amendment rights” if this suit is barred by the Eleventh Amendment because “were he to wait
for criminal proceedings to commence,” Younger abstention would then bar his suit. See
Younger v. Harris, 401 U.S. 37, 53-54, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) (precluding a
federal court from granting injunctive relief from an allegedly unconstitutional state statute that
is the subject of ongoing state criminal proceedings to enforce it). Despite Kilroy’s protestations
to the contrary, the Court views this scenario as an abstract, if not unfounded, fear. Were
criminal proceedings to commence, they would not be against Plaintiff: As noted previously, the
statute criminalizes only the candidate’s (or the campaign committee’s) receipt of contributions
from a Medicaid provider or someone with an ownership interest in a Medicaid provider. See
Ohio Rev. Code § 3599.45(A).
If and when the statute is ever enforced against a candidate for attorney general or county
prosecutor, Plaintiff Kilroy might find himself in better position to challenge the statute as an
ongoing infringement of his First Amendment rights. After all, in that hypothetical scenario,
Plaintiff Kilroy could theoretically allege something that the Court does not find on the record
before it here — ongoing enforcement. While the Court will not endorse Plaintiff Kilroy’s
ability to maintain that hypothetical future challenge against all jurisdictional barriers, it would
seem unlikely that Younger would be one of those barriers.
III. Conclusion
For the foregoing reasons, the Court concludes that Secretary Husted is entitled to
Eleventh Amendment immunity in this case. The Defendant’s Motion for Summary Judgment

23

(ECF No. 74) is therefore GRANTED and final judgment shall be entered in favor of the
Defendant. Plaintiff Kilroy’s Motion for Preliminary Injunction (ECF No. 19) is DENIED AS
MOOT.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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