Bevan & Assocs., LP v. Yost

Decision Date08 July 2019
Docket NumberNo. 18-3262,18-3262
Citation929 F.3d 366
Parties BEVAN & ASSOCIATES, LP A, INC.; Thomas W. Bevan; Patrick M. Walsh, Plaintiffs-Appellants, v. Dave YOST, in his official capacity as Attorney General of the State of Ohio; Thomas H. Bainbridge ; Jodie M. Taylor; Karen L. Gillmor; Stephanie McCloud, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Ralph E. Breitfeller, KEGLER, BROWN, HILL + RITTER, Columbus, Ohio, for Appellants. Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Ralph E. Breitfeller, Jason H. Beehler, Saša Trivunic, KEGLER, BROWN, HILL + RITTER, Columbus, Ohio, for Appellants. Michael J. Hendershot, Stephen P. Carney, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

Before: SILER, COOK, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

Appellants, the Ohio law firm of Bevan & Associates, LPA, and its partners (collectively, "Bevan"), bring a First Amendment challenge to the provision in Ohio Revised Code § 4123.88(A) that states, in pertinent part, that "[n]o person shall directly or indirectly solicit authority" (1) to "represent the claimant or employer in respect of" a worker’s compensation "claim or appeal," or (2) "to take charge of" any such claim or appeal. Under the plain meaning of this statutory language that we predict would be applied by the Ohio Supreme Court, the State has prohibited all solicitation, whether oral or written, by any person to represent a party with respect to an Ohio workers’ compensation claim or appeal. Such a prophylactic ban violates the First Amendment under Shapero v. Kentucky Bar Ass’n , 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988) and other relevant authority.

The solicitation ban is not saved by the argument advanced by the Appellee state officials that the constitutionally questionable language is part of a larger statutory scheme that, according to Appellees, Bevan violated by obtaining claimant information from the Ohio Bureau of Workers’ Compensation in an allegedly unlawful manner. The district court agreed with Appellees and upheld the solicitation ban. However, whether Bevan is in violation of other provisions of the statute governing disclosure of claimant information, that issue is not relevant to whether the solicitation ban itself is constitutional. The words in the solicitation ban make no distinction as to how the person doing the soliciting learned of the claimant’s information: by its plain terms, the statute bans all solicitation regardless of where or how the claimant’s information was obtained. As written, this prohibition is repugnant to the free speech clause of the First Amendment.

We therefore REVERSE the district court’s grant of summary judgment in favor of Appellees and remand with instructions to grant summary judgment in favor of Bevan.

I. BACKGROUND

According to Appellees, Ohio has adopted a "non-tort," non-adversarial approach to workers’ compensation insurance. Under that system, injuries sustained in the workplace are removed from the ambit of traditional tort litigation, and injured workers are compensated instead by a state insurance system. This approach involves a trade-off "whereby employees relinquish their common law remedy and accept lower benefit levels coupled with the greater assurance of recovery and employers give up their common law defenses and are protected from unlimited liability." Arrington v. DaimlerChrysler Corp. , 109 Ohio St.3d 539, 849 N.E.2d 1004, 1009 (2006) (quoting Blankenship v. Cincinnati Milacron Chem., Inc. , 69 Ohio St.2d 608, 433 N.E.2d 572, 577 (1982) ). This workers’ compensation method requires that Ohio maintain information about injured claimants. The State has enacted Ohio Revised Code § 4123.88 to address how claimant information is to be handled and protected by the Ohio Bureau of Workers’ Compensation ("Bureau"). This statute also contains the solicitation ban at issue in this case.

Ohio Revised Code § 4123.88 contains five subsections or "divisions," (A)(E). Portions of division (A) trace back to an Ohio law enacted in 1931, which included a solicitation ban as to workers’ compensation claims, providing for fine and imprisonment of "whoever shall directly or indirectly solicit authority from a claimant or employer to take charge of any claim pending before the industrial commission," 114 Ohio Laws 789, 791 (1931). As a result of amendments in 1953 and 2006, division (A) now reads as follows (with the solicitation ban denoted with emphasis below):

(A) No person shall orally or in writing, directly or indirectly, or through any agent or other person fraudulently hold the person’s self out or represent the person’s self or any of the person’s partners or associates as authorized by a claimant or employer to take charge of, or represent the claimant or employer in respect of, any claim or matter in connection therewith before the bureau of workers’ compensation or the industrial commission or its district or staff hearing officers. No person shall directly or indirectly solicit authority, or pay or give anything of value to another person to solicit authority, or accept or receive pay or anything of value from another person for soliciting authority, from a claimant or employer to take charge of, or represent the claimant or employer in respect of, any claim or appeal which is or may be filed with the bureau or commission. No person shall, without prior authority from the bureau, a member of the commission, the claimant, or the employer, examine or directly or indirectly cause or employ another person to examine any claim file or any other file pertaining thereto. No person shall forge an authorization for the purpose of examining or cause another person to examine any such file. No district or staff hearing officer or other employee of the bureau or commission, notwithstanding the provisions of section 4123.27 of the Revised Code, shall divulge any information in respect of any claim or appeal which is or may be filed with a district or staff hearing officer, the bureau, or commission to any person other than members of the commission or to the superior of the employee except upon authorization of the administrator of workers’ compensation or a member of the commission or upon authorization of the claimant or employer.

Ohio Rev. Code § 4123.88(A) (emphasis added).

The 2006 amendment made no change from the 1953 version in the text that now appears in division (A) other than to add gender-neutral language. The 2006 amendment did, however, make substantial revisions to Ohio Revised Code § 4123.88 as a whole by adding divisions (B)(E), which did not appear in the prior version of the statute. This additional text reads as follows:

(B) The records described or referred to in division (A) of this section are not public records as defined in division (A)(1) of section 149.43 of the Revised Code. Any information directly or indirectly identifying the address or telephone number of a claimant, regardless of whether the claimant’s claim is active or closed, is not a public record. No person shall solicit or obtain any such information from any such employee without first having obtained an authorization therefor as provided in this section.
(C) Except as otherwise specified in division (D) of this section, information kept by the commission or the bureau pursuant to this section is for the exclusive use and information of the commission and the bureau in the discharge of their official duties, and shall not be open to the public nor be used in any court in any action or proceeding pending therein, unless the commission or the bureau is a party to the action or proceeding. The information, however, may be tabulated and published by the commission or the bureau in statistical form for the use and information of other state agencies and the public.
(D)(1) Upon receiving a written request made and signed by an individual whose primary occupation is as a journalist, the commission or the bureau shall disclose to the individual the address or addresses and telephone number or numbers of claimants, regardless of whether their claims are active or closed, and the dependents of those claimants.
(2) An individual described in division (D)(1) of this section is permitted to request the information described in that division for multiple workers or dependents in one written request.
(3) An individual described in division (D)(1) of this section shall include all of the following in the written request:
(a) The individual’s name, title, and signature;
(b) The name and title of the individual’s employer;
(c) A statement that the disclosure of the information sought is in the public interest.
(4) Neither the commission nor the bureau may inquire as to the specific public interest served by the disclosure of information requested by an individual under division (D) of this section.
(E) As used in this section, "journalist" has the same meaning as in division (B)(9) of section 149.43 of the Revised Code.

Id. § 4123.88(B)(E).

Also, before 2006, although claimant information received some limited protection from disclosure by § 4123.88, it was still subject to Ohio public records laws. As a result, claimant information could be obtained by the public through the submission of an appropriate public records request. As part of the 2006 legislation, the Ohio General Assembly amended § 4123.88 to, among other things, exclude the contact information of workers’ compensation claimants from being discoverable through public records requests. However, the legislature created an exception, in divisions (D) and (E) as quoted above, that allowed journalists to make records requests for claimant information—including claimants’ names and addresses. Although the law in its current form requires a journalist making such a request to give a statement that she or he seeks the information in the public...

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