O'Toole et al v. O'Connor et al
Filing
41
OPINION AND ORDER granting 27 Motion for Judgment on the Pleadings, except as to Plaintiffs' claim regarding Rule 4.3(C). Signed by Judge James L. Graham on 8/18/2016. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Colleen M. O’Toole, et al.,
Case No. 2:15-cv-1446
Plaintiffs,
v.
Judge Graham
Maureen O’Connor, et al.,
Magistrate Judge Deavers
Defendants.
Opinion & Order
Defendants move for judgment on the pleadings. (Doc. 27). Defendants present a variety
of reasons why the Court should dismiss all of Plaintiffs’ claims with prejudice. The Court
agrees with Defendants on all but one of Plaintiffs’ claims.
I. Background
Plaintiffs challenge provisions of the Ohio Code of Judicial Conduct, specifically, provisions regulating judicial elections. Three plaintiffs bring claims. One: Colleen M. O’Toole, who
currently presides as a judge on Ohio’s Eleventh District Court of Appeals. O’Toole is a candidate for election to the Ohio Supreme Court. Two: Friends to Elect Colleen M. O’Toole (“the
Committee”), a campaign committee that registered with the Ohio Secretary of State to receive
contributions and make expenditures on behalf of O’Toole in her campaigns for judicial office.
Three: Gary Broska, a would-be contributor to O’Toole’s campaign fund.
Plaintiffs sue three defendants: (1) Maureen O’Connor, Chief Justice of the Ohio Supreme Court; (2) Scott J. Drexel, disciplinary counsel of the Ohio Supreme Court; and (3) Richard A. Dove, Secretary to the Board of Commissioners on Grievances and Discipline of the Ohio
Supreme Court. (Am. Compl. at ¶¶ 10–12). Plaintiffs allege Defendants adopted, promulgated,
and have enforced or threaten to enforce certain unconstitutional provisions of the Ohio Code of
Judicial Conduct. (Am. Compl. at ¶ 14).
1
“The Ohio Code of Judicial Conduct establishes standards for the ethical conduct of
judges and judicial candidates.” Ohio Code of Jud. Cond., Preamble [3] (2009, as amended August 11, 2015). 1 Its aspirational goals are “to provide guidance and assist judges in maintaining
the highest standards of judicial and personal conduct and to provide a basis for regulating their
conduct through disciplinary agencies.” Id. The Code consists of four canons, which are general
statements expounded upon in more detail by the individual rules. Canon Four, the canon that
contains the challenged rules, states “A judge or judicial candidate shall not engage in political
or campaign activity that is inconsistent with the independence, integrity, or impartiality of the
judiciary.” Id. at 74. 2
Plaintiffs challenge several rules in Canon 4: Rules 4.3(C), 4.3(D), 4.4(A), and 4.4(E).
Rules 4.3(C) and (D) regulate the use of the word “judge” and other official titles in campaign
communications. Rule 4.4(A) forbids judicial candidates from personally soliciting contributions. Rule 4.4(A) also allows judicial candidates to establish a campaign committee that may
solicit contributions but requires the candidate to ensure that the committee complies with all applicable law, including relevant parts of the Code itself. Rule 4.4(E) limits the Committee from
either soliciting or receiving contributions outside of a 16-month window leading up to and after
the general election.
The Court has already analyzed one of these rules. The Court analyzed Rule 4.4(E) when
it denied Plaintiffs’ motion for preliminary injunction, holding that Plaintiffs were unlikely to
succeed on the merits of their claim because Rule 4.4(E)’s temporal limit on solicitation satisfied
strict scrutiny and the temporal limit on receiving contributions satisfied intermediate scrutiny.
(Doc. 15, June 3, 2015). The Sixth Circuit affirmed that order in a published opinion under even
stricter reasoning, holding that the temporal limits on both the solicitation and receipt of contributions satisfied strict scrutiny. See O'Toole v. O'Connor, 802 F.3d 783, 789 (6th Cir. 2015). The
Sixth Circuit held that the government’s interest was compelling, as it had been since the time of
“the Magna Carta.” Id. The court also held that the limits were narrowly tailored to advance the
government’s interest.
1
The Court cites to the most recent version of the Code only for those sections not at issue in this case and not provided by the parties.
2
Terms defined in the Ohio Code of Judicial Conduct are italicized.
2
Now, Defendants move for judgment on the pleadings, citing what would be a purposeless discovery process and the Sixth Circuit’s order, arguing that the Court can dismiss Plaintiffs’
claims because the Court can decide the contested issues as a matter of law.
In a similar case, other plaintiffs challenge some of these same rules. See Platt v. Bd. of
Comm’rs on Grievances and Discipline of the Ohio Supreme Court, 1:13-cv-435 (S.D. Ohio)
(Barrett, J.). Plaintiffs in this case also want the Court to consider evidence from the Platt case,
specifically, answers to interrogatories. Defendants in this case want the Court to consider the
protective order issued by Judge Barrett in Platt—it supports their argument that the Court needs
no discovery to decide the case.
II. Standard of Review
“After the pleadings are closed--but early enough not to delay trial--a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c). Motions under Rule 12(c) are analyzed
under the same standard as a motion to dismiss authorized by Rule 12(b)(6): The Court construes
the complaint in the light most favorable to plaintiff, and the Court accepts as true all of the factual allegations contained in the complaint. See Sensations, Inc. v. City of Grand Rapids, 526
F.3d 291, 295–96 (6th Cir. 2008); U.S. ex rel. Sheldon v. Kettering Health Network, 816 F.3d
399, 409 (6th Cir. 2016). The Court need not accept as true any “legal conclusions or unwarranted factual inferences.” U.S. ex rel. Sheldon, 816 F.3d at 409 (quoting Debevec v. Gen. Elec. Co.,
121 F.3d 707, 1997 WL 461486, at *2 (6th Cir. 1997) (unpublished table decision)). “A motion
brought pursuant to Rule 12(c) is appropriately granted ‘when no material issue of fact exists and
the party making the motion is entitled to judgment as a matter of law.’” Tucker v. MiddleburgLegacy Place, 539 F.3d 545, 549 (6th Cir. 2008) (quoting JPMorgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 582 (6th Cir. 2007)). Defendants state without further argument that the
standard of review is the same as for a Rule 12(b)(6) motion.
Plaintiffs do not dispute this standard, but argue throughout their response that the Court
should not decide the case on only the pleadings. Plaintiffs argue that Defendants’ reliance on
self-serving ipse dixit (Latin for “he himself said it”), Black’s Law Dictionary 956 (10th ed.
2014), is misplaced and argue that granting Defendants’ motion would be “at best, premature
and, substantively, without merit.” (Pls.’ Resp. at 1, Doc. 32). It would be premature, they argue,
3
because “[w]hen the Government restricts speech, the Government bears the burden of proving
the constitutionality of its actions.” United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 816
(2000) (emphasis added); see also Lavin v. Husted, 689 F.3d 543, 547 (6th Cir. 2012) (“What
Buckley requires is a demonstration, not a recitation.”). Plaintiffs, zeroing in on the word
“prove,” argue that Defendants cannot possibly prevail on a 12(c) motion because they must, as a
matter of First Amendment law, prove or demonstrate that the rules are constitutional; they cannot simply rest on the pleadings.
Plaintiffs’ theory amounts to a categorical rule that courts could not consider Rule 12(c)
motions (or Rule 12(b)(6) motions) in First Amendment cases. Plaintiffs provide no authority
that would allow the Court to announce such a categorical rule. The authority Plaintiffs do provide are analyses on motions for summary judgment, see, e.g., Lavin, 689 F.3d at 546, so it is
unsurprising that those courts employ the language of “proof” and “demonstration” and reject
pleadings-style recitals, see id. at 547 (requiring proof of government’s interest); Pagan v.
Fruchey, 492 F.3d 766, 771 (6th Cir. 2007) (“[T]he government must come forward with some
quantum of evidence, beyond its own belief in the necessity for regulation, that the harms it
seeks to remedy are concrete and that its regulatory regime advances the stated goals.”). And
while Plaintiffs’ position finds support in a key Supreme Court decision, that support comes
from a dissenting opinion. See Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1678–79 (2015)
(Scalia, J., dissenting) (noting the Court’s failure to identify any evidence of narrow tailoring,
relying instead on its own intuition).
To the contrary, courts may rule on the issues of the state’s interest and narrow tailoring
without the benefit of discovery. See, e.g., Sensations, Inc., 526 F.3d at 303 (affirming grant of
government’s Rule 12(c) motion on First Amendment issues). But is there a bright-line rule? At
least one court in the Sixth Circuit has held that constitutionality is a question of law, but “a jury
may make factual determinations as to compelling interests and narrow tailoring.” Thomas v.
Schroer, No. 2:13-CV-02987, 2016 WL 1261176, at *5 n.2 (W.D. Tenn. Mar. 30, 2016) (citing
Majeske v. City of Chicago, 218 F.3d 816 (7th Cir. 2000) (ruling on appeal from trial in which
jury made factual findings on question of compelling interest and question of narrow tailoring));
Henry v. City of Cincinnati, Ohio, No. C-1-03-509, 2005 WL 1198814, at *9 (S.D. Ohio Apr. 28,
2005) (“[W]ithout affording the parties an opportunity to present evidence, the Court cannot
4
properly determine” whether regulations are narrowly tailored); but see United States v. Friday,
525 F.3d 938, 949 (10th Cir. 2008) (“In First Amendment cases, application of the leastrestrictive-means (or ‘narrow tailoring’) test to a given set of facts is well understood to be a
question of law.”); United States v. Doe, 968 F.2d 86, 88 (D.C. Cir. 1992) (holding narrowly tailored question is “of course a question of law.”).
A state’s compelling interest or a regulation’s tailoring could be the subject of factual
discovery, but in the context presented here, the Court finds ample support in the law to decide
whether Ohio has a compelling interest and whether it has narrowly tailored the rules to forward
that interest. Since other courts have found an identical interest compelling and similar regulations have been held to be narrowly tailored, the Court does not need new facts, and the Court
can decide the issue of narrow tailoring as a matter of law. See Sensations, Inc., 526 F.3d at 299
(analyzing whether ordinance was narrowly tailored by comparing similar cases). While Plaintiffs lay the accusations of ipse dixit on thick, they point to few specific facts that would be the
subject of discovery. Some of what Plaintiffs suggest for inclusion in the evidentiary record
sounds more like the work of the Court answering questions of law. (See Pls.’ Resp. at 23 n. 10
(“[U]ntil an evidentiary record can be developed that specifically addresses how Rule 4.3(D) has
been construed, interpreted and applied, it would be premature to make a definitive determination thereon at the pleadings stage.”)). The rest of Plaintiffs’ suggested discovery is ambiguous
or unnecessary.
III. Discussion
Because “[s]peech is an essential mechanism of democracy . . . . The First Amendment
‘has its fullest and most urgent application to speech uttered during a campaign for political office.’” Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339 (2010) (internal quotation
mark and citation omitted) (quoting Eu v. S.F. Cnty. Democratic Central Comm., 489 U.S. 214,
223 (1989)). Therefore, “[l]aws that burden political speech are ‘subject to strict scrutiny.’” Id. at
340 (quoting Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 464 (2007)
(opinion of Roberts, C.J.)). But since “[j]udges are not politicians, even when they come to the
bench by way of the ballot. . . . A State may assure its people that judges will apply the law
without fear or favor—and without having personally asked anyone for money.” Williams-Yulee,
135 S. Ct. at 1662. The Court strictly scrutinizes the judicial-election rules here, but the govern5
ment’s compelling interest in the appearance and reality of a competent, fair, and unbiased judiciary allows the government wider latitude to regulate speech in judicial elections.
Strict scrutiny requires the Court to invalidate a rule if it is not narrowly tailored to promote a compelling government interest. The government’s interest is the same for all these rules,
and the government’s interest is compelling. “The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary
record. But no one denies that it is genuine and compelling.” Williams-Yulee, 135 S. Ct. at 1667.
Ohio’s interest is the same as Florida’s was in Williams-Yulee, and the Sixth Circuit found that
Ohio’s interest in “judicial impartiality, judicial independence [and] judicial integrity” was
“well-established, was previously recognized by this Circuit with respect to Rule 4.4(E), and was
recently reiterated by the Supreme Court.” O’Toole v. O’Connor, 802 F.3d at 789–90 (citing
Platt v. Bd. of Comm'rs on Grievances & Discipline of Ohio Supreme Court, 769 F.3d 447, 454
(6th Cir. 2014); Williams-Yulee, 135 S. Ct. at 1666). The Code of Judicial Conduct recites in
greater detail the government’s interest:
An independent, fair, and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity,
will interpret and apply the law that governs our society. Thus, the judiciary plays
a central role in preserving the principles of justice and the rule of law. Inherent in
all the rules contained in this code are the precepts that judges, individually and
collectively, must respect and honor the judicial office as a public trust and strive
to maintain and enhance confidence in the legal system.
Ohio Code of Jud. Cond., Preamble [1].
The Court holds that for all the rules Plaintiffs challenge, there exist compelling state interests. The only question, then, is whether those rules are narrowly tailored to achieve those interests.
A.
Rule 4.4(E) – Restriction on when a judicial campaign committee may commence soliciting or receiving campaign contributions
All three Plaintiffs challenge Rule 4.4(E). Rule 4.4(E) states, in relevant part:
The campaign committee of a judicial candidate may begin soliciting and receiving contributions no earlier than one hundred twenty days before the first Tuesday
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after the first Monday in May of the year in which the general election is held. If
the general election is held in 2012 or any fourth year thereafter, the campaign
committee of a judicial candidate may begin soliciting and receiving contributions no earlier than one hundred twenty days before the first Tuesday after the
first Monday in March of the year in which the general election is held.
Ohio Jud. Cond. Rule 4.4(E) (2009, as amended November 18, 2014).
There are two sets of issues to address under Plaintiffs’ challenges to Rule 4.4(E). First:
the Committee’s challenge, which this Court and the Sixth Circuit analyzed when ruling on
Plaintiffs’ motion for preliminary injunction. Second: a newly added Plaintiff, Gary Broska, alleges he wanted to contribute to O’Toole’s campaign, but Rule 4.4(E)’s fundraising limitation
prevented him. (Am. Compl. at ¶¶ 8, 49–54).
1. The Committee’s Claims
The Committee argues that Rule 4.4(E) violates the First and Fourteenth Amendments,
citing three reasons the Court should deny Defendants’ Motion: (1) regulation of the Committee
cannot be justified under an alter ego theory, (Pls.’ Resp. at 35), (2) deciding certain issues requires a factual record, so judgment on the pleadings is improper, (id. at 39), and (3) Rule 4.4(E)
has a disparate impact on fundamental rights and therefore the Rule violates the Equal Protection
Clause, (id. at 41). Defendants respond, arguing that the Sixth Circuit rejected these arguments.
The Sixth Circuit addressed the Committee’s First Amendment and Fourteenth Amendment
claims in detail, and for the same reasoning it expressed, these claims are dismissed.
a. First Amendment Claim
Analyzing the likelihood of success on First Amendment grounds, the Sixth Circuit held
that “Plaintiff fails to demonstrate a likelihood of success on the merits even when strict scrutiny
is applied to the regulation as a whole, encompassing both solicitation and receipt of campaign
contributions.” O'Toole v. O'Connor, 802 F.3d at 789. “In order to satisfy strict scrutiny, a regulation must be ‘narrowly tailored to serve a compelling interest.’” Id. (quoting Williams–Yulee,
135 S. Ct. at 1664).
Judicial election regulations must be narrowly tailored, not perfectly tailored. O’Toole,
802 F.3d at 790; Williams-Yulee, 135 S. Ct. at 1671. “The impossibility of perfect tailoring is
7
especially apparent when the State's compelling interest is as intangible as public confidence in
the integrity of the judiciary.” Williams-Yulee, 135 S. Ct. at 1671.
The Williams–Yulee Court found in that case that Florida's ban on all campaign
contribution solicitation by judges restricted only “a narrow slice of speech.” Id.
at 1670. The regulation at issue in this case restricts an even narrower slice of
speech, allowing a judicial campaign sixteen months in which to receive and solicit contributions. . . . Rule 4.4(E) is focused exclusively on the solicitation and
receipt of money—the activities most likely to harm public confidence in the judiciary. . . . during the period of time that most implicates the government's stated
interests, recognizing that contributions that are not proximate in time to an election can increase the appearance of impropriety and the risk of actual bias.
O'Toole v. O'Connor, 802 F.3d at 790.
While the Sixth Circuit’s analysis was at the preliminary injunction stage, there is no
denying its force now. For these same reasons, the Court continues to hold that Rule 4.4(E) is
narrowly tailored to advance Ohio’s compelling interest. Plaintiffs fail to meaningfully distinguish Williams-Yulee.
Plaintiffs argue that “[r]egulation of the Committee cannot be justified under an alter ego
theory.” (Pls.’ Resp. at 35). Plaintiffs note the many situations where the Committee and the judicial candidate are treated (or referred to) in distinct ways rather than as alter egos of one another. Therefore, they argue, the same reasoning cannot support the regulation of both the Committee and the candidate because the two are distinct. Put another way, if the personal-solicitation
ban on the candidate is narrowly tailored to promote Ohio’s interest in the integrity of its judiciary, then the fundraising window limiting the Committee is at least less narrowly tailored.
While the fundraising window may be less narrowly tailored, it still passes muster. Plaintiffs provide no reason to depart from this Court’s or the Sixth Circuit’s reasoning:
While the concerns raised by a judicial campaign committee's solicitation may be
more attenuated than those raised by direct candidate solicitation, the close connection between judicial candidates and their campaign committees under Ohio
law implicates many of the same concerns regarding judicial integrity and propriety. Judicial campaign committees in Ohio derive their authority from the candidate and, in fact, may include the candidate herself. See Ohio Rev. Code §
3517.01(C)(1) (defining “campaign committee” as “a candidate or a combination
of two or more persons authorized by a candidate ... to receive contributions and
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make expenditures”); Ohio Jud. Cond. R. 4.4(A) (“A judicial candidate may establish a campaign committee to manage and conduct a campaign for the candidate....”). Moreover, in addition to the actual or apparent authority judicial candidates wield over their campaign committees, Ohio law requires that “[t]he name
of a campaign committee shall include at least the last name of the campaign
committee's candidate,” further aligning the committee with the candidate in the
eyes of the public. Ohio Rev. Code § 3517.10(D)(1); see also Platt, 769 F.3d at
454 (recognizing Ohio's compelling state interests in enforcing Rule 4.4(E) in
holding that an “as applied” challenge to the rule did not show a likelihood of
success).
O'Toole v. O'Connor, 802 F.3d at 789–90.
Plaintiffs are correct that the alter ego doctrine may not apply precisely, but similar principles do. The Supreme Court has recognized that “personal solicitation by judicial candidates
implicates a different problem than solicitation by campaign committees.” Williams-Yulee, 135
S. Ct. at 1669. This is because “[t]he identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest.” Id. at 1669. But the Court
sees no escaping the Sixth Circuit’s reasoning on this issue. While the personal-solicitation prohibition may advance Ohio’s interest in a narrowly tailored way, limiting the Committee’s fundraising efforts to a 16-month period does so too. See O’Toole v. O’Connor, 802 F.3d at 790.
b. Equal Protection Clause Claim
Defendants move to dismiss Plaintiffs’ equal-protection claims, again pointing to the
Sixth Circuit’s holding in O’Toole. Plaintiffs oppose Defendants’ motion on two grounds: (1) the
Court needs the benefit of an evidentiary record to decide the case, and (2) Rule 4.4(E) violates
the Equal Protection Clause because it has a disparate impact on fundamental rights in two ways:
first, the rule favors incumbents who retained funds from a previous election, and second, it favors political action committees because it does not regulate them in the same way it regulates
campaign committees. 3
Plaintiffs argue that the Court needs to decide the equal protection issues with the benefit
of an evidentiary record. Plaintiffs argue that the Court needs an evidentiary record to assess
3
Plaintiffs argue for a subtle distinction between the analysis under the First Amendment and the Fourteenth
Amendment but go on to argue that under either claim the Rule is subject to strict scrutiny. (Pls.’ Resp. at 42–43).
The Sixth Circuit already appeared to apply strict scrutiny to both claims. O’Toole v. O’Conner, 802 F.3d at 792.
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whether the contribution limits “(i) prevent candidates from amassing the resources necessary for
effective [campaign] advocacy; or (ii) magnify the advantages of incumbency to the point where
they put challengers to a significant disadvantage.” (Pls.’ Resp. at 39 (alteration in original)
(quoting Randall v. Sorrell, 548 U.S. 230, 248 (2006))). Defendants argue that these matters can
be determined as a matter of law, and that the Sixth Circuit has rejected this argument already.
Plaintiffs respond that Randall requires evidence to determine whether she was put at a “significant disadvantage,” specifically, evidence about the “extensive campaign activities/expenditure
[sic],” and “what is and is not necessary to run an effective statewide campaign in Ohio.” (Pls.’
Resp. at 39–40). Plaintiffs offer, as a harbinger of this evidence, two committee reports suggesting that any fundraising-window rule should be tied to another rule: incumbents’ campaigns
should not use surplus funds from a prior campaign. (Id. at 4–6 (citing Exs. A and B)). 4
But facts are not necessary and the Sixth Circuit closed this avenue for review when it
held that
the rule is not the cause of the disparity that concerns Plaintiff. Plaintiff’s candidate and her competitors are all sitting judges who have previously stood for election. 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 . . . .
O’Toole v. O’Conner, 802 F.3d at 791. And while Randall requires courts to exercise their own
“independent judicial judgment as a statute reaches those outer limits,” it recognized a general
deference to the legislature, only requiring courts to “review the record” when “there is strong
indication in a particular case . . . that such risks exist.” Randall, 548 U.S. at 249. Plaintiffs’ argument—that the rule violates their fundamental rights by favoring incumbents’ campaign committees—fails, not least because O’Toole is a sitting judge, and the suggestions in the committee
reports, which could qualify as the “danger signs” that Randall warns of, don’t have the same
force with an incumbent as they do with first-time candidates.
4
The Ohio Supreme Court commissioned a report to “conduct a top-to-bottom review of Ohio’s judicial election
system in Spring, 1994.” (Id. at 4). It selected a committee, chaired by Judge Richard B. McQuade, Jr., to perform
research and recommend policy changes if needed. The committee distilled its work into a report in 1995: the
McQuade Committee Report. The Ohio Supreme Court revisited similar topics again in 2007–08 with a Task Force
on the Code of Judicial Conduct. (Doc. 32-2).
10
Finally, Plaintiffs argue that Rule 4.4(E) violates the Equal Protection Clause because it
favors entities like political action committees that can take part in judicial campaigning but are
not subject to the same fundraising restrictions as a judicial candidate’s campaign committee. As
the Court previously held, “this argument simply returns the plaintiffs to the essence of their First
Amendment claim: that Rule 4.4(E) is not narrowly tailored to serve a compelling state interest,
that the rationale for imposing a time restraint on fundraising solicitations by judicial campaign
committees does not pass strict scrutiny review.” (Op. and Order at 11, Doc. 15). The Sixth Circuit agreed, noting the “unique nature of judicial elections and the importance of maintaining the
integrity and impartiality of the judiciary—interests that are different from those implicated by
political campaigns.” O’Toole v. O’Connor, 802 F.3d at 792. The Court cannot see how the
analysis for this claim differs in substance from the First Amendment claims. This claim likewise
fails.
2. Gary Broska’s Claims
While this Court has already analyzed many of Plaintiffs’ claims regarding Rule 4.4(E),
Gary Broska’s introduction into the lawsuit presents a new wrinkle: he claims that the rule’s restriction on the Committee’s receipt of contributions limits his rights to freedom of speech and
association. (Am. Compl. at ¶¶ 49–54). Specifically, he alleges he wanted to donate to O’Toole’s
campaign but the campaign advised him that the rules prevented it from accepting donations, so
he did not donate. (Am. Compl. at ¶¶ 50–53). Plaintiffs argue that this amounts to an “outright
prohibition by which he could not make any contribution whatsoever.” (Pls.’ Resp. at 31).
Courts typically construe rules like Rule 4.4(E), as applied to contributors, as limits on
associational freedoms because they do not “in any way infringe the contributor’s freedom to
discuss candidates and issues.” Randall, 548 U.S. at 247 (quoting Buckley v. Valeo, 424 U.S. 1,
21 (1976) (“A contribution serves as a general expression of support for the candidate and his
views, but does not communicate the underlying basis for the support.”)). Broska attempts to distinguish Buckley, arguing that case concerned a rule limiting how much a person could contribute, and this case concerns “a regulation that prohibits any campaign contribution whatsoever.”
(Pls.’ Resp. at 32). This is a false description of Rule 4.4(E). The rule limits when a person can
contribute, much like Buckley’s rule limited how much a person can contribute. Rule 4.4(E) is a
limit, not a ban; therefore, Buckley applies. See Gable v. Patton, 142 F.3d 940, 950–51 (6th Cir.
11
1998) (applying Buckley and holding that a 28-day window during which candidates could not
receive “external” contributions was constitutional). Applying Buckley, the Court checks to see if
the contribution limits are too tight. If so, the limits could exacerbate the very problem they seek
to solve:
[C]ontribution limits that are too low can also harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability. Were we to ignore that fact,
a statute that seeks to regulate campaign contributions could itself prove an obstacle to the very electoral fairness it seeks to promote.
Randall, 548 U.S. at 248–49. Broska aligns his concern with the Court’s in Randall. And the
concern is this:
[B]ecause in Buckley and Shrink, the Supreme Court broadly defined an individual's right of association to include the ancillary right of the candidate to ‘amas[s]
the resources necessary for effective advocacy.’. . . [T]he Supreme Court would
find an unconstitutional infringement of an individual's right of political association where ‘the contribution limit was so radical in effect as to render political
association ineffective, drive the sound of the candidate's voice below the level of
notice, and render contributions pointless.
Frank v. City of Akron, 290 F.3d 813, 818 (6th Cir. 2002) (citations omitted) (quoting Nixon v.
Shrink Mo. Gov't PAC, 528 U.S. 377, 396–97 (2000)). But Rule 4.4(E) is not a ban on Broska’s
contributions; it creates a window in which he may contribute. And since the rule survives strict
scrutiny as-applied to the Committee, it survives intermediate scrutiny as-applied to Broska.
Broska’s claims are therefore dismissed.
B. Rules 4.3(C) and (D)
O’Toole and the Committee challenge Rules 4.3(C) and (D) on First Amendment
grounds. The Court considers the two rules together because they are closely related and implicate the same abstention concern. The rules state:
During the course of any campaign for nomination or election to judicial
office, a judicial candidate, by means of campaign materials, including sample
ballots, advertisements on radio or television or in a newspaper or periodical,
electronic communications, a public speech, press release, or otherwise, shall not
knowingly or with reckless disregard do any of the following:
....
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(C) Use the title of a public office or position immediately preceding or
following the name of the judicial candidate 5, when the judicial candidate does
not hold that office or position;
(D) Use the term “judge” when the judicial candidate is not a judge unless
that term appears after or below the name of the judicial candidate and is accompanied by either or both of the following:
(1) The words “elect” or “vote,” in prominent lettering, before the
judicial candidate’s name;
(2) The word “for,” in prominent lettering, between the name of
the judicial candidate and the term “judge” . . . .
Ohio Jud. Cond. R. 4.3.
Defendants present three reasons why these claims should be dismissed: (1) the Court
should abstain from deciding the matter because there is a collateral state-court proceeding; (2)
Plaintiffs lack standing; and (3) the rules are constitutional.
1. Colorado River Abstention
Defendants argue that because a parallel case is proceeding in state court, abstention doctrine requires the Court to dismiss Plaintiffs’ claims about Rules 4.3(C) and (D). But the statecourt case appears closed, so the Court will not abstain.
Defendants ask the Court to apply the doctrine of Colorado River abstention, a catch-all
category resting on “considerations of ‘(w)ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’” Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (quoting Kerotest Mfg. Co. v. CO-Two Fire Equip. Co., 342 U.S. 180, 183 (1952)). Colorado River abstention may be appropriate when a parallel case is pending in state court. Id. at 817–18. But a parallel, state proceeding
may not exist where “little, if any, action has been taken” for multiple years. Crawley v. Hamilton Cty. Comm'rs, 744 F.2d 28, 31 (6th Cir. 1984) (more than three and a half years between last
substantial activity on state court docket).
5
Defined terms are italicized in the Ohio Code of Judicial Conduct, and “judicial candidate” is a defined term while
“judicial” is not. Where defined terms are not italicized, the Court presumes this to be no more than a minor typographical error and not in any way an intended departure from the normal usage of the term “judicial candidate.”
13
Here, in the relevant state-court proceeding, nothing has happened in over fourteen
months, and nothing substantive has happened in over two and half years. On February 6, 2015,
the docket reflects a “Mass Transfer of Judge Location.” (Defs.’ Ex. 1 at 1, Doc. 27-1). While it
seems the case must still be open if it can be transferred, the absence of a motion to transfer, the
absence of any further detail, and the language of the docket entry itself all indicate this was not
a case-specific transfer. This “mass transfer” tells the Court that the case still has a heartbeat in
some administrative system, but it has an otherwise weak pulse. In the most recent case-specific
activity, on February 3, 2014, the court applied a security deposit to the clerk’s and court reporter’s fees and refunded the balance. (Id.). The most recent substantive legal activity is buried
deeper still, when the Tenth District Court of Appeals dismissed an interlocutory appeal, an action docketed on December 23, 2013. (Id.). This activity (or lack thereof) indicates the case is not
active. Other indicia counsel against abstention: (1) the court’s docket status is “CLOSED,” (Id.),
and (2) a compliance officer and attorney with the Franklin County Court of Common Pleas
states that the case is closed and not presently an active case. (Pls.’ Ex. D, Doc. 32-4). 6
The principles of Colorado River abstention, like “(w)ise judicial administration, . . . conservation of judicial resources[,] and comprehensive disposition of litigation” do not weigh in
favor of abstention. Colorado River, 424 U.S. at 817. Here, the state-court docket and other evidence indicate that the state court proceeding is dormant, if not dead. If the Court abstained, it is
not clear that judicial resources would be conserved or that abstention would aid the comprehensive disposition of this litigation. Since “only the clearest of justifications will warrant dismissal”
under Colorado River abstention, and Defendants present the Court with murky waters at best,
the Court will not abstain. Id. at 819.
2. Standing
Defendants argue that O’Toole lacks standing to challenge Rule 4.3(D) because she fails
to satisfy the injury-in-fact requirement of Article III standing. O’Toole suffers no injury, they
argue, because the rule does not regulate O’Toole; it only applies to a judicial candidate who “is
6
The Court may consider evidence outside the pleadings—here, the compliance officer’s affidavit—to resolve the
factual dispute over whether the state-court case is still pending. See DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th
Cir. 2004) (attacking the factual basis for jurisdiction requires the trial court to “weigh the evidence”).
14
not a judge,” and O’Toole is a judge. Since, for purposes of Rule 4.3, the Committee is only regulated to the extent the rule applies to O’Toole, the two Plaintiffs’ standing rises or falls together.
Plaintiffs respond that Defendants’ argument is disingenuous, citing an instance where
Defendants’ construe Rule 4.3(D) to mean just the opposite: “If indeed the candidate is a sitting
judge and desires to use the term ‘judge,’ the Rule simply requires” compliance with Rule
4.3(D). (Defs.’ Mot. J. Pleadings at 23). Defendants do not respond to this argument or develop
the no-standing argument in their Reply brief.
Plaintiffs allege that “Rule 4.3(D) . . . applies not only to the campaigns of judicial candidates who are not presently sitting as a judge, but also to the political campaigns of sitting judges
seeking election to a court on which the judge does not currently serve.” (Am. Compl. at ¶ 148).
Plaintiffs, anticipating that the Court might read this allegation as a legal conclusion, preemptively counter that it “asserts a mixed question of law and fact, that in turn, is to be treated as a factual allegation and presumed to be true.” (Pls.’ Resp. at 24–25). Plaintiffs “allegation” is not just a
legal conclusion; it is a legal conclusion that appears to contradict the plain language of Rule
4.3(D), which only forbids a judicial candidate from “us[ing] the term ‘judge’ when the judicial
candidate is not a judge.” Ohio Jud. Cond. R. 4.3(D).
Plaintiffs argue this construction violates the Equal Protection Clause because it regulates
judges and non-judges differently. When confronted with two possible readings of a statute, it is
never the Court’s preference to construe a law to violate the Constitution. See Clark v. Martinez,
543 U.S. 371, 380–81 (2005) (“[W]hen deciding which of two plausible statutory constructions
to adopt, a court must consider the necessary consequences of its choice. If one of them would
raise a multitude of constitutional problems, the other should prevail—whether or not those constitutional problems pertain to the particular litigant before the Court.”); Edward J. DeBartolo
Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an
otherwise acceptable construction of a statute would raise serious constitutional problems, the
Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”). Plaintiffs present the Court with two bad options. One: a constitutionally viable option that ignores the plain language of the Rule. Two: a plain language reading
of the rule that violates the Equal Protection Clause.
15
The Court opts for a third option: a constitutionally viable reading that comports with the
plain language of the rule. The rule regulates judges differently from non-judges, for it prohibits
candidates from “us[ing] the term ‘judge’ when the judicial candidate is not a judge” unless the
term is accompanied by language that clarifies that the candidate is seeking to become a judge.
Ohio Jud. Cond. R. 4.3(D). While the rule may regulate judges and non-judges differently, and it
may implicate strict scrutiny because it “infringes on a class of people’s fundamental rights,”
namely, non-judge judicial candidates’ freedom of speech, Scarbrough v. Morgan Cty. Bd. of
Educ., 470 F.3d 250, 260 (6th Cir. 2006), it likely does not fail strict scrutiny. The government’s
interest is established, and the rule applies quite narrowly. It applies to judicial candidates who
are not judges, in a special type of election, and only to those who knowingly or with reckless
disregard violate the rule. See Ohio Jud. Cond. R. 4.3. In short, the Court cannot ignore the plain
language of the rule, and it is unlikely that under this construction the rule violates the Constitution.
Plaintiffs lack standing to challenge Rule 4.3(D) based on the Court’s construction because O’Toole is a judge. The rule appears narrowly tailored to advance the government’s interest in having judicial candidates that are “scrupulously fair and accurate in all statements.” Ohio
Jud. Cond. R. 4.3, Comment [1]. Therefore, Rule 4.3(D) likely passes strict scrutiny, so the
Court’s construction does not implicate the constitutional problem Plaintiffs say it does. The
Court dismisses Plaintiffs’ claims regarding Rule 4.3(D) for lack of standing.
3. Rule 4.3(C) – Merits
“[A] judicial candidate . . . shall not knowingly or with reckless disregard do any
of the following:
....
(C) Use the title of a public office or position immediately preceding or following
the name of the judicial candidate, when the judicial candidate does not hold that
office or position;
....
[2]
A sitting judge, who is a judicial candidate for a judicial office other than
the court on which he or she currently serves, violates Rule 4.3(C) if he or she uses the title “judge” without identifying the court on which the judge currently
serves.
Ohio Jud. Cond. R. 4.3 & cmt. [2].
16
Having passed the initial questions of abstention and standing, the Court now analyzes
the merits of Plaintiffs’ claim regarding Rule 4.3(C). But to do so, the parties argue, the Court
must decide what type of speech is at issue: does the rule prohibit false speech, prohibit true but
misleading speech, or does it compel speech? Defendants argue that Rule 4.3(C) only prohibits
false speech. Plaintiffs contend it compels speech or prohibits true but misleading speech.
Plaintiffs argue the difference matters because the government may not regulate certain
types of speech in the political context: the government may not regulate true-but-misleading
speech at all in the political context, see Discovery Network, Inc. v. City of Cincinnati, 946 F.2d
464, 469 (6th Cir. 1991) (“[T]he prior regulation of speech considered potentially false or misleading would be impermissible if applied to political speech . . . .”) aff'd, 507 U.S. 410 (1993);
generally “[t]he government may not . . . compel the endorsement of ideas that it approves,”
Knox v. Serv. Emps. Int'l Union, Local 1000, 132 S. Ct. 2277, 2288 (2012); and only narrow
rules prohibiting false speech pass muster, see United States v. Alvarez, 132 S. Ct. 2537, 2546–
51 (2012). But all three types of speech are subject to similar forms of strict scrutiny because, all
are content-based restrictions on speech. See Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487
U.S. 781, 800 (1988) (applying strict scrutiny to compelled speech); Alvarez, 132 S. Ct. at 2548
(applying “exacting scrutiny” to false-speech regulation); In re Judicial Campaign Complaint
Against O'Toole, 141 Ohio St. 3d 355, 2014-Ohio-4046, 24 N.E.3d 1114, ¶ 20 (referring to regulations that prohibited both false speech as well as true-but-misleading speech as a content-based
regulations examined under strict scrutiny). Even though strict scrutiny may apply no matter
what type of speech this is, the type of speech matters for purposes of whether the rule is narrowly tailored.
Rule 4.3(C) prohibits false speech, true-but-misleading speech, and speech that is not
even misleading; it does not, however, compel speech.
The First Amendment protects “freedom of speech and the corollary right not to speak.”
Wilkins v. Daniels, 744 F.3d 409, 414 (6th Cir. 2014). Examples of unconstitutional compelled
speech include: “a state statute requiring schoolchildren to recite the Pledge of Allegiance and to
salute the American flag, as well as a state statute requiring residents to display the state’s motto
17
on their license plates.” Id. at 415 (citations omitted). In short, the government cannot “compel
the endorsement of ideas that it approves.” Knox, 132 S. Ct. at 2288.
Here, the compelled-speech doctrine does not apply. The Court will not shoehorn Plaintiffs’ claims into the compelled-speech doctrine even though Plaintiffs allege these rules require
them to state more than they would otherwise say. (Am. Compl at ¶ 128). Rule 4.3(C) does not
“prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith therein.” W. Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624, 642 (1943). The Rule does not compel a judicial candidate to speak, unless that judicial candidate is already speaking, and then, the rule only requires the candidate to
be comprehensive and not lie (or mislead) by omission.
Rule 4.3(C) prohibits false speech because Rule 4.3(C) prohibits a judicial candidate
from saying they are a judge when they are not. Transgressing this rule would be a “demonstrable falsehood[]” which is “not protected by the First Amendment in the same manner as truthful
statements.” Brown v. Hartlage, 456 U.S. 45, 60 (1982). But the Constitution “stands against the
idea that we need Oceania’s Ministry of Truth.” Alvarez, 132 S. Ct. at 2547 (citing G. Orwell,
Nineteen Eighty-Four (1949) (Centennial ed. 2003)). First Amendment jurisprudence admits that
“erroneous statement is inevitable in free debate,” Brown, 456 U.S. at 60 ((quoting New York
Times Co. v. Sullivan, 376 U.S. 254, 271 (1964)), and “[b]ecause First Amendment freedoms
need breathing space to survive, government may regulate in the area only with narrow specificity," Nat'l Ass'n for Advancement of Colored People v. Button, 371 U.S. 415, 433 (1963). This is
why broad bans on false or misleading political speech rarely survive strict scrutiny. See, e.g.,
Susan B. Anthony List v. Driehaus, 814 F.3d 466, 476 (6th Cir. 2016) (declaring as unconstitutional Ohio statutes criminalizing false statements by candidates during political campaigns);
Winter v. Wolnitzek, 56 F. Supp. 3d 884, 898–99 (E.D. Ky. 2014) (applying strict scrutiny to a
misleading-political-speech regulation to find a “strong likelihood” that rule was unconstitutional).
But false speech gets less First Amendment protection than true-but-misleading speech.
While regulations of both types of speech are subject to strict scrutiny, rules that prohibit true but
possibly misleading speech are less likely to be narrowly tailored to promote a state’s interest.
18
See In re O’Toole, 141 Ohio St. 3d at 361, ¶ 21. The Ohio Supreme Court reached this conclusion about a former rule of judicial conduct prohibiting true-but-misleading speech because it did
not advance the government’s compelling interest in “a competent and impartial judiciary” in the
same way that prohibiting false statements advanced that same interest. Id. at ¶ 43. The rule was
not narrowly tailored because it did “not leave room for innocent misstatements or for honest,
truthful statements made in good faith but that could deceive some listeners.” Id. at ¶ 42. For
“[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by
the processes of education, the remedy to be applied is more speech, not enforced silence.” Whitney v. California, 274 U.S. 357, 377 (1927) (opinion of Brandeis, J., concurring).
Here, Plaintiffs provide examples of campaign language they would use if not prohibited
from doing so by the rules. (Am. Compl. at ¶¶ 127). Defendants do not dispute that all the following examples are prohibited by Rule 4.3(C). Defendants argue that all of Plaintiffs’ examples
are false statements thus proving that the Rule regulates false speech. Defendants are correct
about some of Plaintiffs’ examples:
Judge Colleen O’Toole
Ohio Supreme Court
O’Toole
Justice
Ohio Supreme Court
O’Toole
Ohio Supreme Court
Justice
Justice
O’Toole
Ohio Supreme Court
(Am. Compl. at ¶ 127).These four examples are false speech prohibited by Rule 4.3(C). They all
convey the message that O’Toole is an incumbent on the Ohio Supreme Court. To the extent that
Rule 4.3(C) prohibits false speech, the rule is narrowly tailored to promote Ohio’s interest in the
appearance and reality of an impartial and fair judiciary. These are not merely “erroneous statement[s] . . . inevitable in free debate”; these are intentional falsehoods prohibited in a special
type of election. Brown, 456 U.S. at 60–61 (quoting New York Times Co., 376 U.S. at 271–72).
19
But other versions are not clearly false, and perhaps not even misleading, but they are
prohibited by Rule 4.3(C):
Judge O’Toole
to the Ohio Supreme Court
Elect Judge O’Toole
to the Ohio Supreme Court
Judge O’Toole
for the Ohio Supreme Court
(Am. Compl. at ¶ 127).
Why are these statements even prohibited? Rule 4.3(C) only says that candidates may not
“[u]se the title of a public office or position immediately preceding or following the name of the
judicial candidate, when the judicial candidate does not hold that office or position.” Ohio Jud.
Cond. R. 4.3(C). O’Toole is a judge, so calling herself “Judge O’Toole” seems innocent and accurate. But the rule has a wrinkle. Comment two states: “A sitting judge, who is a judicial candidate for a judicial office other than the court on which he or she currently serves, violates Rule
4.3(C) if he or she uses the title ‘judge’ without identifying the court on which the judge currently serves.” Ohio Jud. Cond. R. 4.3(C), cmt. [2]. Comment two interprets Rule 4.3(C) to require
the addition of “Eleventh District Court of Appeals” to “Judge O’Toole.” But what force should
the Comments have?
The Ohio Supreme Court has held that the “official comments are not binding or enforceable. Rather, they are intended to ‘provide guidance regarding the purpose, meaning, and proper
application of the rules.’” In re Disqualification of Serrott, 134 Ohio St. 3d 1245, 2012-Ohio6340, 984 N.E.2d 14, ¶ 14 (quoting Ohio Code of Jud. Cond., Scope at ¶ 3). Furthermore, “the
comments cannot prevail over the rule itself.” Id. (citing In re Disqualification of Celebrezze,
127 Ohio St. 3d 1217, 2009-Ohio-7207, 937 N.E.2d 1009, ¶ 12). Even so, the comments do
serve an important function:
[3] The Comments that accompany the rules serve two functions. First, they provide guidance regarding the purpose, meaning, and proper application of the rules.
They contain explanatory material and, in some instances, provide examples of
permitted or prohibited conduct. Comments neither add to nor subtract from the
20
binding obligations set forth in the rules. Therefore, when a comment contains the
term “must,” it does not mean that the comment itself is binding or enforceable; it
signifies that the rule in question, properly understood, is obligatory as to the conduct at issue.
Ohio Code of Jud. Cond., Scope [3].
While comment 2 does not use the term “must,” it requires certain conduct by expressly
delineating conduct that violates Rule 4.3(C). To this extent, the comment, therefore, “signifies
that the rule in question, properly understood, is obligatory as to the conduct at issue.” Id. Therefore, the Court understands Rule 4.3(C) to forbid a judicial candidate from calling themselves a
“judge” unless (1) the candidate gives the full, official title of the office, or (2) the candidate is
an incumbent on the Court to which they seek election.
Defendants argue that “the text of Rule 4.3(C) comports with the Constitution—even if
the comment does not.” (Defs.’ Mot. at 31). But, the comments provide examples of prohibited
conduct, and those examples are to be understood not as additional rules or conflicting interpretations, but how the rule itself is to be properly understood. The comment and rule are not in conflict; properly understood, Rule 4.3(C) prohibits this speech by a judicial candidate: “Elect Judge
O’Toole to the Ohio Supreme Court,” which is neither false nor clearly misleading.
But Defendants read these differently, as two truths that, in context, amount to a lie.
O’Toole is a judge; O’Toole seeks election to the Ohio Supreme Court; the lie: O’Toole is a sitting judge on the Ohio Supreme Court. Plaintiffs do offer three examples, (see Am. Compl. at ¶
127), that could describe an incumbent seeking reelection to the Ohio Supreme Court, except to
insiders who know that in Ohio, jurists on the state’s highest court are called “Justices,” not
judges. Ohio voters could be misled to believe that O’Toole was a sitting jurist on the court to
which she seeks election, especially if it was to a lower court where the elected jurists are called
“Judges.” Read this way, the rule appears to prohibit true-but-misleading speech. Defendants
take this a step further, arguing that this is outright false speech. The Court disagrees.
Could a voter assume that Judge O’Toole was a Supreme Court Justice? Yes. Defendants
argue that “Judge O’Toole to the Ohio Supreme Court,” is a perfect example of false speech; the
Court disagrees. Defendants argue that using “Judge” as a noun will lead readers to “inevitably
assume that the word ‘Judge’ is the title of the current office holder who is seeking election—as
21
Judge on the Ohio Supreme Court.” (Defs.’ Mot. at 28). But the example above does not inexorably lead to that conclusion. Rule 4.3(C), properly understood, forbids speech that is not false
and not even obviously misleading, and prohibiting this type of speech does not advance the
government’s interest in a fair and impartial judiciary. Rule 4.3(C) thus restricts more speech
than is necessary to achieve the government’s aims.
Rule 4.3(C) as interpreted by Comment two fails strict scrutiny because it suppresses true
speech, and the government’s interest in maintaining high ethical standards for its judges is not
advanced by suppressing true speech in election campaigning. Therefore, Defendants’ motion for
judgment on the pleadings is denied as to Plaintiffs’ claim regarding Rule 4.3(C). The Court declines to enter judgment for O’Toole sua sponte, however, and invites a motion from Plaintiffs.
C. Rule 4.4(A) – Personal Solicitation
O’Toole and the Committee challenge Rule 4.4(A). (Am. Compl. at ¶¶ 180–81). The
Rule states:
A judicial candidate shall not personally solicit campaign contributions, except as
expressly authorized in this division, and shall not personally receive campaign
contributions. . . . A judicial candidate may solicit campaign contributions in the
following manner:
(1) A judicial candidate may make a general request for campaign contributions
when speaking to an audience of twenty or more individuals;
(2) A judicial candidate may sign letters soliciting campaign contributions if the
letters are for distribution by the judicial candidate’s campaign committee and
the letters direct contributions to be sent to the campaign committee and not to
the judicial candidate;
(3) A judicial candidate may make a general request for campaign contributions
via an electronic communication that is in text format if contributions are directed to be sent to the campaign committee and not to the judicial candidate.
Ohio Jud. Cond. R. 4.4(A).
Plaintiffs allege that Rule 4.4(A) violates both the Committee’s and O’Toole’s rights to
freedom of speech, freedom of association, due process, and equal protection. But the claim
hinges on O’Toole’s rights because the rule prevents her from “personally soliciting.” Addition-
22
ally, Plaintiffs allege that the Rule violates the constitutional rights of “potential contributors,”
(Id. at ¶ 181), but no potential contributor is a party to this lawsuit besides Gary Broska, who did
not need to be solicited, but at the time of the complaint “desire[d] to make a contribution.” (Am.
Compl. at ¶ 49). In any event, Plaintiffs do not allege that the rule violates any specific provision
of the Constitution as-applied to Broska.
The parties agree that strict scrutiny applies to O’Toole’s claim.
The Supreme Court applied strict scrutiny to the personal-solicitation prohibition in Williams-Yulee, holding that Florida’s version was narrowly tailored to further its compelling interest. Williams-Yulee at 1668. Ohio’s personal-solicitation ban has a few exceptions. If Florida’s
solicitation ban was narrowly tailored to meet an almost identical interest, Ohio’s solicitation ban
is even more narrowly tailored. O’Toole v. O’Connor, 802 F.3d at 790 (fundraising window “restricts an even narrower slice of speech” than the regulation in Williams-Yulee).
In an attempt to escape Williams-Yulee, Plaintiffs argue that several other states allow judicial candidates to personally solicit campaign contributions without “any diminution in the
confidence in the judiciary.” (Pls.’ Resp. at 18). Plaintiffs argue that certain factual issues, namely the effect that allowing personal solicitation has had in certain states, require discovery. But
the choices of other states have little to no bearing on whether Ohio’s choice is constitutional.
“These considered judgments deserve our respect, especially because they reflect sensitive
choices by States in an area central to their own governance—how to select those who ‘sit as
their judges.’” Williams-Yulee, 135 S. Ct. at 1671 (quoting Gregory v. Ashcroft, 501 U.S. 452,
460 (1991)). Alabama’s choice does not require Ohio to follow suit.
The rule is narrowly tailored. Defendants argue, without contest from Plaintiffs, that the
Rule is not underinclusive, a sentiment with which the Court agrees. But is the rule unconstitutionally vague?
Plaintiffs want the chance to develop facts, and in lieu of that, they want the Court to
consider the facts from a similar case. First, Plaintiffs demand they be allowed to develop a full
evidentiary record before the Court decides this issue. Second, Plaintiffs urge the Court to consider interrogatory responses in a separate, but similar, case involving a different plaintiff and in
23
front of a different judge. The interrogatories in that case posed four hypotheticals, asking
whether each situation violated Rule 4.4(A). (Discovery Responses in Platt, 1:13-cv-435, Doc.
32-3). Plaintiffs argue that the Platt defendants’ answers acknowledge that Rule 4.4(A) is vague.
The Platt defendants’ actual answers belie Plaintiffs’ argument. Defendants objected to
each of the at-issue interrogatories as asking for a conclusion of law and speculation and further
referred the plaintiffs to Rule 4.4(A) and related Advisory Opinions. (Doc. 32-3 at PageID 907–
08). The closest thing to “acknowledging” that the Rule is vague is the canned response that “a
violation of the Ohio Code of Judicial Conduct would be evaluated on a case-by-case basis.”
(Id.). The Platt interrogatory responses do not show that Rule 4.4(A) is vague.
The Court also has (1) the rules, and (2) two pleaded hypotheticals that Plaintiffs argue
show the rule to be unconstitutionally vague because they present situations of questionable legality.
“A law that does not reach constitutionally protected conduct and therefore satisfies the
overbreadth test may nevertheless be challenged on its face as unduly vague, in violation of due
process.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982).
“[A] more stringent vagueness test should apply” to laws that interfere with the right to freedom
of speech. Id. at 499. “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.” Hill v. Colorado, 530 U.S. 703, 732 (2000); see also Grayned v. City of
Rockford, 408 U.S. 104, 108–09 (1972). But the Constitution tolerates some degree of vagueness, Vill. of Hoffman Estates, 455 U.S. at 498, for “[c]ondemned to the use of words, we can
never expect mathematical certainty from our language,” Grayned, 408 U.S. at 110. How much
vagueness the Constitution permits depends on whether the law threatens to inhibit the exercise
of constitutionally protected rights, whether the law bears civil rather than criminal penalties,
whether the rule is written with a scienter requirement; put broadly, “on the nature of the enactment.” Vill. of Hoffman Estates, 455 U.S. at 498–99; see Hill, 530 U.S. at 732.
How stringent a test should the Court apply to the rule for vagueness? The rule restrains
First Amendment freedoms, so “a more stringent vagueness test should apply.” Vill. of Hoffman
24
Estates, 455 U.S. at 499. But the nature of this regulation loosens the test a bit because (1) the
rule bears civil rather than criminal penalties, and (2) the rule includes an implicit scienter requirement. See id. at 498–99.
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.
The two words at issue are “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). But what about Plaintiffs’ two hypotheticals?
To start, a rule is not unconstitutionally vague because a plaintiff presents a tough hypothetical. See Grayned, 408 U.S. at 112 n.15 (“It will always be true that the fertile legal ‘imagination can conjure up hypothetical cases in which the meaning of (disputed) terms will be in nice
question.’” (quoting Am. Commc’ns Assn. v. Douds, 339 U.S. 382, 412 (1950))). “Close cases
can be imagined under virtually any statute.” United States v. Williams, 553 U.S. 285, 306
25
(2008). The Court could uphold the rule even under pressure from Plaintiffs’ hypotheticals, but
the Court sees answers to both.
First, Plaintiffs wonder about bundlers:
The personal solicitation prohibition of Rule 4.4(A) of the Ohio Code of Judicial
Conduct does not prohibit a judicial candidate from personally soliciting an individual to serve as a “bundler” of campaign contributions, i.e., to be a person who
solicits and/or gathers contributions from many different individuals or entities
with the goal or purpose of raising or gathering at least a certain targeted level of
accumulated contributions, and then presents the accumulated contributions (or
“bundle”) to a campaign committee in one lump sum.
(Am. Compl. at ¶ 175).
Rule 4.4(A) prohibits this conduct. A bundler aggregates many smaller contributions. The
bundler then gives those smaller contributions in a “bundled” contribution. In Plaintiffs’ hypothetical, the bundler acts at the personal request of the judicial candidate. Soliciting a bundler is
to solicit a large contribution made up of many smaller ones. The judicial candidate is not personally soliciting each contribution, but they are personally soliciting a larger contribution from
the bundler. Furthermore, the rule describes three discrete situations in which a candidate may
personally solicit, and soliciting a bundler is not mentioned. Because the Court believes Rule
4.4(A) prohibits a judicial candidate from soliciting a contribution from a bundler, Rule 4.4(A) is
not unconstitutionally vague as to Plaintiffs’ first hypothetical.
Second, Plaintiffs wonder about counter-solicitation: “[T]he personal solicitation prohibition of Rule 4.4(A) of the Ohio Code of Judicial Conduct does not prohibit a judicial candidate
from personally soliciting potential contributions not to contribute to the opponent of the judicial
candidate or any other judicial candidate.” (Am. Compl. at ¶ 176). It is unclear what “potential
contributions not to contribute” means; Plaintiffs appear to argue that the rule may prohibit judicial candidates from asking people to not give money to their opponent. Rule 4.4(A) does not
prohibit this conduct.
Rule 4.4(A) states that “[a] judicial candidate shall not personally solicit campaign contributions.” Id. It does not prohibit a candidate from saying, “Please don’t give any money to my
opponent.” Plaintiffs think the definition of contribution should include a promise to not give
26
money to the other side (a “contribution not to contribute”?). But “contributions” is a term of art
in the Code; it “has the same meaning as in R.C. [Ohio Revised Code] 3517.01.” Ohio Jud.
Cond. R. 4.6(B). Ohio’s definition of “contribution” includes many things you might expect: “a
loan, gift, deposit, forgiveness of indebtedness, donation, advance, payment, or transfer of funds
or anything of value.” See Ohio Rev. Code 3517.01(C)(5). It does not include a promise not to
contribute. See id. The plain language of the rule shows the rule is not unconstitutionally vague,
partially because the Code defines many of its key terms, which limits the possibility of arbitrary
enforcement.
The second reason Plaintiffs’ vagueness challenge fails is Ohio has a fair enforcement
process. Since Plaintiffs’ vagueness challenge has its roots in the Due Process Clause, it makes
sense to permit Ohio (and candidates for judicial election in Ohio) to use the administrative system already in place to “flesh out details” of the rules by way of advisory opinion. Bauer v.
Shepard, 620 F.3d 704, 716 (7th Cir. 2010). Admittedly, the rule could be arbitrarily enforced.
But to do so, many decisionmakers would have to do so independently and in different stages of
review. Because this rule does not authorize or encourage arbitrary or discriminatory enforcement, it is not unconstitutionally vague.
To conclude, 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. The Court dismisses
Plaintiffs’ claims regarding the personal-solicitation prohibition.
D. Rule 4.4(A) – Candidate Personally Responsible for Committee’s Conduct
O’Toole and the Committee bring facial and as-applied challenges to the personalresponsibility provision of Rule 4.4(A). The rule states:
A judicial candidate may establish a campaign committee to manage and conduct
a campaign for the candidate, subject to the provisions of this Code. The judicial
candidate is responsible for ensuring that his or her campaign committee complies with applicable provisions of this Code and other applicable law.
Ohio Jud. Cond. R. 4.4(A).
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Plaintiffs claim it is unconstitutional to impose liability on a judicial candidate for her
campaign committee’s speech. But judicial campaign committees do not germinate at random,
nor is the candidate permitted to establish the committee and take her hands off the wheel. The
rules create an environment where there are no rogue committees. The judicial campaign committee is designed to promote both distance and responsibility between it and the judicial candidate: distance in the “ask” for money and the candidate; responsibility so that the committee is
not a vehicle to insulate the candidate from her committee’s wrongdoing.
Defendants make three arguments in support of their motion: (1) if the other rules are valid, so is this one; (2) Plaintiffs do not have standing because the rules do not chill speech; and (3)
since the rule only regulates expressive conduct and not speech, the constitutional analysis is
even more favorable to Defendants. Plaintiffs respond that the Committee has tempered its
speech because it does not want to have its chosen candidate face disciplinary action. But does
the Committee have standing? This matters because the Court finds that the rule as it applies to
O’Toole does not even regulate speech, so the only way Plaintiffs get the benefit of strict scrutiny analysis is if the Committee has standing for its chilled-speech claim.
1. The Committee’s Standing
Defendants argue that the Committee lacks the requisite injury-in-fact to show it has
standing to sue because the rule regulates the candidate and not the Committee. Plaintiffs argue
that the rule chills the Committee’s speech by holding its candidate responsible for its speech.
The Committee is wrong because the provision does not chill any speech not already chilled by
other rules.
“To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a
‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’” Susan B. Anthony List
v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992)). It is difficult to prove an injury-in-fact when the government has yet to enforce
an allegedly First-Amendment-limiting law. But “a plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct arguably affected with a
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constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.’” Id. at 2342 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)).
Here, the Committee wants to engage in speech prohibited by the rules; specifically, the
Committee wants to take acts prohibited by Rule 4.4(E). (Am. Compl. at ¶¶ 189–91). And that is
why it has standing to challenge that rule. The Committee alleges it would violate that rule if not
for the personal-responsibility provision that would put its candidate on the hook for its violations. (Am. Compl. at ¶ 191). But that does not give the Committee standing to challenge the
personal-responsibility provision. The unique relationship between the Committee and the judicial candidate provides the reason why.
The Committee is established at the option of the judicial candidate. Ohio Jud. Cond. R.
4.4(A). Properly understood, the personal-responsibility provision is the reason O’Toole has
standing to challenge the substantive regulations governing her campaign committee (e.g. the
fundraising window), and the reason that the substantive regulations directed at the campaign
committee have any teeth at all. The enforcement process for illegal campaign conduct contemplates violations by a judicial candidate, not a judicial candidate’s campaign committee. See
Ohio Supreme Court Rules for the Government of the Judiciary, Rule II, § 5 (2015). The Committee has standing to challenge the other substantive rules it claims it would violate. However, it
suffers no additional injury if O’Toole is made responsible for ensuring its compliance with
those rules. But, Plaintiffs argue, rules that do not facially regulate speech may still restrict
speech; Plaintiffs are right. See McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (recognizing
that a regulation can implicate the First Amendment even if it “says nothing about speech on its
face”). But here, the rule does not restrict any more of the Committee’s speech than was already
restricted by the other rules. Therefore, the Committee lacks standing to challenge the personalresponsibility provision.
2. Merits
O’Toole does have standing; that much is unchallenged. But O’Toole only alleges that
the personal-responsibility provision is invalid because it “imposes vicarious liability upon such
judicial candidate for the speech of third parties.” (Am. Compl. at ¶ 188). This, operating by itself is not even a restriction on O’Toole’s free speech.
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Plaintiffs offer little argument on what test should be applied to this provision as it regulates O’Toole. Defendants argue that the personal-responsibility provision regulates symbolic or
expressive conduct, a category of activity the First Amendment protects, albeit with less muscle
than regular speech. (Defs.’ Mot. at 51). But the First Amendment protects speech, and only protects conduct when that conduct communicates an idea much like the spoken or written word.
See Spence v. State of Wash., 418 U.S. 405, 410–11 (1974). Expressive conduct includes displaying the American flag altered to include a peace symbol, id. at 406, nude dancing, Barnes v. Glen
Theatre, Inc., 501 U.S. 560, 565–66 (1991), and marching while displaying a swastika. Nat'l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 43–44 (1977). The personal-responsibility
provision, as it regulates O’Toole, regulates only “non-expressive conduct, not speech, and as a
result lie[s] beyond the protection of the First Amendment.” BellSouth Telecommunications, Inc.
v. Farris, 542 F.3d 499, 510 (6th Cir. 2008) (finding statute that prohibited telecommunications
providers from collecting a tax directly from the purchaser to not implicate First Amendment).
And because Plaintiffs only baldly state legal conclusions about the personal-responsibility provision violating their rights to the due process of law, to association, and to equal protection, the
Court need not and does not accept them as true. What analysis should the Court apply?
The personal-responsibility provision cannot be properly understood without its context.
Rule 4.4(A) bans personal solicitation, allows candidates to create a committee to solicit and receive contributions, and then regulates that committee, ultimately permitting some speech that
would otherwise have been prohibited by the broad (and constitutional) personal-solicitation ban.
See id.; Ohio Jud. Cond. Rule 4.4, cmt. [2] (“A judicial candidate may establish a judicial campaign committee to solicit and accept campaign contributions, manage the expenditure of campaign funds, and generally conduct the campaign. In so doing, the campaign committee shall follow the provisions of the rule regarding the solicitation and receipt of contributions. A campaign
committee shall follow all time guidelines controlling when judicial fundraising shall begin and
end in reference to a particular judicial election.”). Rule 4.4(A)’s personal-solicitation prohibition is constitutional; the Court now assesses the balance of the rule. To the extent that the balance of Rule 4.4(A) regulates speech at all, it permits more speech, not less. It is therefore outside of the protections of the First Amendment.
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Because this rule “neither implicates a fundamental right nor creates a suspect classification, rational basis review applies.” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 693 (6th Cir.
2014). “Under rational basis review, a law is upheld so long as it is rationally related to a legitimate government purpose.” Id. at 694. The Code creates a regime where there are no rogue
committees, and that system is rationally related to the purpose of an independent, fair, and impartial judiciary with candidates who can still raise money for their campaign. Plaintiffs have
failed to state a claim about the personal-responsibility provision.
E. Other challenges
Defendants move to dismiss Plaintiffs’ remaining freedom-of-association and Fourteenth
Amendment claims. (See Defs.’ Mot. at 52–54). Plaintiffs argue that Defendants unfairly focus
on a few conclusory allegations while ignoring the extensively pleaded factual predicates for
those statements. And to the extent Plaintiffs pleaded any factual predicates, the Court has already addressed those substantive claims. To the extent Plaintiffs baldly assert any other Fourteenth Amendment or freedom-of-association claims, those claims are not adequately pleaded.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting that bare legal conclusions are inadequate to survive a motion to dismiss).
IV. Conclusion
The Court GRANTS Defendants’ motion for judgment on the pleadings, (Doc. 27), except as to Plaintiffs’ claim regarding Rule 4.3(C).
IT IS SO ORDERED.
s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: August 18, 2016
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