Citizens in Charge, Inc. v. Husted

• Decision Date: 19 January 2016
• Docket Number: No. 15–3447.,15–3447.
• Parties: CITIZENS IN CHARGE, INC.; Ohioans for Workplace Freedom; Christopher Littleton; Cincinnati for Pension Reform, Plaintiffs–Appellees, v. Jon HUSTED, Ohio Secretary of State, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

810 F.3d 437

CITIZENS IN CHARGE, INC.; Ohioans for Workplace Freedom; Christopher Littleton; Cincinnati for Pension Reform, Plaintiffs–Appellees,

v.Jon HUSTED, Ohio Secretary of State, Defendant–Appellant.

No. 15–3447.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 10, 2015.

Decided and Filed: Jan. 19, 2016.

ARGUED:Ryan L. Richardson, Office of the Ohio Attorney General, Columbus, OH, for Appellant. Maurice A. Thompson, Columbus, OH, for Appellees. ON BRIEF:Ryan L. Richardson, Tiffany L. Carwile, Office of the Ohio Attorney General, Columbus, OH, for Appellant. Maurice A. Thompson, Columbus, OH, for Appellees.

Before: COLE, Chief Judge; SUTTON, Circuit Judge; BELL, District Judge.^*

OPINION

SUTTON, Circuit Judge.

Ohio, like many States, has an initiative process that permits individuals or groups to propose new legislation and constitutional amendments. See Ohio Const. art. II, §§ 1a, 1b. If an initiative proposal secures enough signatures, it earns a spot on the next ballot, where Ohio voters may accept or reject it. Id. The catch is that state law requires all signature gatherers to be Ohio residents. See Ohio Rev.Code § 3503.06(C)(1)(a). Plaintiffs challenged the residency requirement on First (and Fourteenth) Amendment grounds, claiming that our court's invalidation of a prior Ohio statute in this area required the invalidation of this one.See Nader v. Blackwell, 545 F.3d 459 (6th Cir.2008). The plaintiffs sought to enjoin enforcement of the new law and to make the Ohio Secretary of State personally liable for several thousand dollars for enforcing it. The district court declared the law unconstitutional, enjoined enforcement of it, and denied the Secretary's qualified-immunity defense. In this interlocutory appeal, the Secretary challenges the qualified-immunity ruling but not the injunction (or the ruling of invalidity that goes with it). Because the Ohio legislature made several changes to these signature-gathering requirements after Nader and because the Secretary had no clearly established duty to decline enforcement of this properly enacted and presumptively constitutional statute, we reverse.

I.

The Ohio General Assembly enacted this provision in 2013. It says: "Except for a nominating petition for presidential electors, no person shall be entitled to circulate any petition unless the person is a resident of this state and is at least eighteen years of age." Ohio Rev.Code § 3503.06(C)(1)(a). Shortly after the provision took effect, counsel for three non-profit organizations wrote to Secretary of State Jon Husted, asking whether he planned to "reject[ ] petitions where the circulator is domiciled in a state other than Ohio[.]" R. 1–3 at 6. "While a court may ultimately find this law unconstitutional," Secretary Husted responded, "that determination is a decision for the judicial branch, not the Secretary of State. As a result, this office and county boards of election will implement this law like any other until such time as the legislature acts to make a statutory change or a court directs otherwise." Id. at 8.

At that point, one of the non-profit groups hired a firm to help gather signatures for an initiative petition, paying a higher-than-usual fee to ensure that the firm hired in-state signature gatherers. Then all three non-profit organizations, along with one of their members, sued Secretary Husted in federal court. They sought a declaration that the petition-circulator residency requirement was unconstitutional, an injunction prohibiting its enforcement, and damages against Husted "as compensation for extra petition circulation charges." R. 1 at 15. The Attorney General intervened to defend the law's constitutionality on behalf of the State, and Husted argued that qualified immunity protected him from the plaintiffs' damages claim. The district court saw things differently. It granted the plaintiffs a permanent injunction and denied Husted's qualified-immunity motion. On appeal, Husted challenges the qualified-immunity ruling but not the injunction.

II.

The qualified-immunity standard is a familiar one. The doctrine "shield[s]" public officials from money-damages liability if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The standard balances competing considerations: At one end, damages actions may be "the only realistic avenue for vindication of constitutional guarantees"; at the other end, damages actions "frequently run against the innocent as well as the guilty-at a cost not only to the defendant officials, but to society as a whole." Id. at 814, 102 S.Ct. 2727. Public officials thus are eligible for qualified immunity if (1) they did not violate any constitutional guarantees or (2) the guarantee, even if violated, was not "clearly established" at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Both inquiries are "objective," as they turn on what the law is today and whether it was clearly established at the time of the challenged action. Harlow, 457 U.S. at 818–19, 102 S.Ct. 2727.

A.

Constitutional violation? At this stage in the case, neither the Attorney General nor the Secretary claims that the residency requirement satisfies the First Amendment. They instead maintain that the Secretary never enforced the statute in a way that caused the plaintiffs any damages. In response to an inquiry from the plaintiffs, Secretary Husted said that he would enforce the statute until directed by a court to do otherwise. Because the plaintiffs thereafter obtained an injunction against enforcement of the statute, it is difficult to understand how they can blame the Secretary for any costs incurred by hiring in-state signature gatherers. If anything, Husted's letter told the plaintiffs how to avoid incurring the costs of compliance with the statute: file a lawsuit to enjoin its enforcement. That would have worked just fine, as later events confirmed. In response to the lawsuit, the district court declared the statute invalid, the court enjoined enforcement of the statute, and the Secretary opted not to appeal that part of the court's decision.

The plaintiffs nonetheless chose to incur costs based on hiring resident petition circulators before filing the lawsuit. They of course are free to presume the constitutionality of a statute (many people do) and incur costs based on that assumption. What is not clear is whether that means the Secretary of State caused them to suffer damages by violating their constitutional rights in this setting. Be that as it may, we need not resolve the case on this ground—a ground that was not fully engaged by the parties below and thus not addressed by the district court. Any such rights, as it turns out, were not clearly established at the time Secretary Husted wrote his letter to the plaintiffs.

B.

Clearly established right? At the time Husted acted, no court had declared this residency requirement unconstitutional and he acted reasonably in saying he would enforce it. When public officials implement validly enacted state laws that no court has invalidated, their conduct typically satisfies the core inquiry—the "objective reasonableness of an official's conduct"—that the immunity doctrine was designed to test. Harlow, 457 U.S. at 818, 102 S.Ct. 2727. State legislators swear to uphold the state and federal constitutions, see U.S. Const. art. VI, cl. 3 ; Ohio Const. art. XV, § 7, and a presumption of constitutionality accompanies their enactments, see Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) —a presumption on which executive officials generally may depend in enforcing the legislature's handiwork. State law encourages such reliance, with the Ohio Supreme Court noting with a touch of overstatement (more on that later) that "[t]he secretary of state is not vested with any jurisdiction to determine judicial questions dealing with the constitutionality of any law." Maloney v. Rhodes, 45 Ohio St.2d 319, 345 N.E.2d 407, 410 (1976) (quotation omitted). Because Secretary Husted acted in the face of legislative action (a duly enacted, presumptively constitutional law) and judicial inaction (the absence of an on-point decision making the law unconstitutional), he did not violate clearly established law or otherwise act unreasonably.

Caselaw validates this conclusion. The Supreme Court tells us that public officials should generally receive qualified immunity when enforcing properly enacted laws. See Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). In DeFillippo, the Court addressed what came to be known as the Fourth Amendment's good-faith exception, which requires the same "objective reasonableness" showing that the qualified-immunity inquiry demands. See Groh v. Ramirez, 540 U.S. 551, 565 n. 8, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) ; United States v. Leon, 468 U.S. 897, 911–12, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Court noted that "[t]he enactment of a law forecloses speculation by enforcement officers concerning its constitutionality—with the possible exception of a law so grossly and fragrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." DeFillippo, 443 U.S. at 38, 99 S.Ct. 2627. The Court was more explicit in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). "A policeman's lot is not so unhappy," it reasoned, "that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." Id. at 555, 87 S.Ct. 1213.

The Court's deeds have matched its words. So far as the parties' research has revealed and so far as our own research has uncovered, the Supreme Court has never denied qualified immunity to a public official who enforced a properly...