Platt v. Bd. of Comm'rs on Grievances & Discipline of the Ohio Supreme Court

• Decision Date: 25 June 2018
• Docket Number: No. 17-3461,17-3461
• Citation: 894 F.3d 235
• Parties: Joseph J. PLATT; Platt for Judge Campaign Committee; Mark W. Miller, Plaintiffs-Appellants, v. BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF the OHIO SUPREME COURT, et al., Defendants, Maureen O’Connor; Richard A. Dove ; Scott J. Drexel, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

894 F.3d 235

Joseph J. PLATT; Platt for Judge Campaign Committee; Mark W. Miller, Plaintiffs-Appellants,

v. BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF the OHIO SUPREME COURT, et al., Defendants,Maureen O’Connor; Richard A. Dove ; Scott J. Drexel, Defendants-Appellees.

No. 17-3461

United States Court of Appeals, Sixth Circuit.

Argued: January 25, 2018

Decided and Filed: June 25, 2018

ARGUED: Christopher P. Finney, FINNEY LAW FIRM LLC, Cincinnati, Ohio, for Appellants. Drew H. Campbell, BRICKER & ECKLER LLP, Columbus, Ohio, for Appellees. ON BRIEF: Christopher P. Finney, FINNEY LAW FIRM LLC, Cincinnati, Ohio, for Appellants. Drew H. Campbell, Maria J. Armstrong, Gregory J. Krabacher, BRICKER & ECKLER LLP, Columbus, Ohio, for Appellees.

Before: ROGERS, McKEAGUE, and WHITE, Circuit Judges.

McKEAGUE, Circuit Judge.

Like many states, Ohio wants the voting public to determine who will serve as its judges. Yet Ohio, mindful of the potentially corrosive effects of uninhibited fundraising and partisanship, also wants to protect public trust in the judiciary’s independence. To serve these twin goals, the state fills judicial offices through elections, but imposes fundraising and advocacy limitations on anyone who seeks them. This case requires us to decide whether those limitations accommodate both priorities in a manner consistent with the Constitution.

The plaintiffs in this case say they do not. They object to six limitations, arguing that each variously violates the Constitution’s free speech, due process, and equal protection guarantees. In two separate summary judgment orders, the district court rejected the plaintiffs’ claims. Because Ohio’s rules strike the delicate balance between the Constitution’s commands and the state’s desire to protect judicial integrity, we AFFIRM .

I

In Ohio, judges of the supreme court, courts of appeals, courts of common pleas, and all courts of record (including municipal courts) are selected through judicial elections. The fundraising and political conduct of candidates for judicial office is governed by Canon 4 of the Ohio Code of Judicial Conduct.

Plaintiff Joseph Platt, an Ohio attorney, is such a candidate. Platt formed the Platt for Judge Campaign Committee in June of 2013, naming Mark Miller as its treasurer. The Committee and Miller join Platt as co-plaintiffs in this case (collectively, "Platt").¹ With the Committee formed, Platt became a "judicial candidate" within the meaning of the Ohio Code of Judicial Conduct and thus subject to its commands.

Platt believes that some of those commands violate his constitutional rights—to free speech, due process, and equal protection under the law. Specifically, Platt objects to six provisions in Canon 4 :

• Rule 4.1(A)(2), which prohibits a candidate from making speeches on behalf of a political party or another candidate for public office

• Rule 4.1(A)(3), which prohibits a candidate from publicly endorsing or opposing a candidate for another public office

• Rule 4.4(A), which, save for three exceptions, prohibits a judicial candidate from personally soliciting campaign contributions

• Rule 4.4(E), which creates a permissible window for soliciting and receiving campaign contributions, starting 120 days before the primary and ending 120 days after the general election

• Rule 4.4(F), which limits the solicitation and receipt of contributions for candidates defeated before the general election, until the earlier of 120 days after the primary election or until the candidate pays off her campaign-related debts

• Rule 4.4(G), which regulates the solicitation and receipt of contributions for candidates who die or withdraw from the election, until the earlier of 120 days after death or withdrawal or until the candidate pays off her campaign-related debts.

Wanting to engage in the sort of political advocacy and fundraising prohibited by these rules, Platt filed suit in June of 2013 in the Southern District of Ohio. Platt named as defendants the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court,² which enforces the Code of Judicial Conduct, the Ohio Supreme Court, which promulgates the Code, and the individual members of both entities (collectively, the "Board").³

Platt’s complaint included three counts. Count I challenged Rules 4.4(E), (F), and (G) (the "Fundraising Rules"). The Committee claimed those rules violated its right to receive contributions and disseminate information on Platt’s behalf. Treasurer Miller claims they violate his right to "receive information and ideas from judicial candidates." And Platt personally alleges that the rules infringe on his rights to free speech, association, due process, and equal protection. Count II targeted Rule 4.4(A)’s personal-solicitation provision (the "Solicitation Rule"), under the same basic theories as Count I, but without Platt’s personal equal protection challenge. Count III included only claims by Platt personally. He alleged that Rules 4.1(A)(2) and 4.1(A)(3) (the "Endorsement Rules") violate his rights to free speech, association, due process, and equal protection.

The district court rejected all of Platt’s claims, and he now appeals. He challenges four decisions by the district court: a protective order denying discovery, a refusal to take judicial notice, and two summary judgment orders. First, in September 2015, the court granted the Board’s motion for a protective order, concluding that fact discovery was not necessary to evaluate whether Ohio had a compelling interest in maintaining its judiciary’s integrity. Then, roughly one year later, the court granted the Board’s cross-motion for summary judgment, concluding that the Endorsement Rules and the Solicitation Rule are not unconstitutionally vague. In the same order, the court also declined to take judicial notice of three news reports that Platt maintains would have aided his vagueness claim. And finally, in March 2017, the court granted the Board’s motion for partial summary judgment, concluding that the Endorsement, Solicitation, and Fundraising Rules do not violate the First or Fourteenth Amendments.

II

We note at the outset that mootness concerns occupied this court at the preliminary injunction stage, Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme Court , 769 F.3d 447, 451-53 (6th Cir. 2014), and the district court at summary judgment. While mootness remains a thorny question—Platt did not run in either the 2014 or 2016 elections, and shows no intent to run in 2018—Platt’s claims are saved from mootness under the "capable of repetition, yet evading review" exception. Sosna v. Iowa , 419 U.S. 393, 399-400, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). This circuit, and others, have been especially hesitant to find pre-enforcement election law challenges mooted by the passage of an election. So long as a candidate "retains the right to run for judicial office again," as Platt does here, they are ordinarily "sav[ed] ... from mootness." Carey v. Wolnitzek , 614 F.3d 189, 197 (6th Cir. 2010) ; accord Wolfson v. Brammer , 616 F.3d 1045, 1055 (9th Cir. 2010) (holding claims not moot when candidate says he intends to run in some "future" election). The Board, for its part, does not even bother to argue that Platt’s claims have been mooted. It seems instead that more than four years of litigation have left both sides eager to resolve this case. Confident that it still presents a live controversy, so are we.

A. Protective Order

The district court granted the Board’s motion for a protective order denying Platt’s discovery requests. Platt sought to compel fact discovery probing, among other things, the state’s claim that it has a compelling interest in regulating judicial integrity through the challenged Code provisions and whether the provisions are under-inclusive or over-inclusive. The Board moved for a protective order against Platt’s discovery request, based on the Supreme Court’s decision in Williams-Yulee v. Florida Bar , ––– U.S. ––––, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015), which held in part that fact discovery was not necessary to substantiate a state’s interest in regulating judicial integrity.

A district court may grant a protective order under Fed. R. Civ. P. 26(c) to prevent "annoyance, embarrassment, oppression, or undue burden or expense." While the district court did not specifically refer to any of those reasons here, it ultimately concluded that Platt’s discovery was simply "unnecessary" since the court could evaluate the merits of Platt’s claims "without regard for evidentiary support." We review the district court’s decision for abuse of discretion. Samad v. Jenkins , 845 F.2d 660, 663 (6th Cir. 1988) (citing Davis v. Marathon Oil Co. , 528 F.2d 395 (6th Cir. 1975) ). An abuse of discretion occurred only if we are "left with a definite and firm conviction that [the district court] committed a clear error of judgment." In re Scrap Metal Antitrust Litig. , 527 F.3d 517, 528 (6th Cir. 2008) (alteration in original) (quoting Conwood Co., L.P. v. U.S. Tobacco Co. , 290 F.3d 768, 781 (6th Cir. 2002) ).

The district court committed no clear error of judgment in granting the Board’s protective order. It determined that fact discovery was unnecessary because such discovery would not aid the court in determining whether Ohio had a compelling interest in maintaining judicial integrity. That reasoning came straight from the Supreme Court’s decision in Williams-Yulee : "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." 135 S.Ct. at 1667 (emphasis added). If Williams-Yulee concluded that a documentary record is unnecessary to substantiate a state’s interest in maintaining judicial integrity, the district court correctly concluded that a record need not be created to undermine that interest.

The district court also relied on Williams-Yulee...