Briggs v. Ohio Elections Com'n
| Decision Date | 07 August 1995 |
| Docket Number | No. 94-3513,94-3513 |
| Parties | Lou J. BRIGGS; Citizens for Lou Briggs, Plaintiffs-Appellants, v. OHIO ELECTIONS COMMISSION; Judith D. Moss; Michael H. Igoe; George A. Leonard; Alphonse P. Cincione, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Donald J. McTigue (argued and briefed), McTigue & Brooks, Columbus, OH, for plaintiffs-appellants.
Andrew S. Bergman (argued and briefed), Office of the Atty. Gen., Andrew I. Sutter, Asst. Atty. Gen., Columbus, OH, for defendants-appellees.
Before: JONES, GUY, and BOGGS, Circuit Judges.
Lou Briggs, and her campaign committee, Citizens for Lou Briggs, appeal the district court's dismissal of her First and Fourteenth Amendment claims against the Ohio Elections Commission (Commission). We find that her case was improperly dismissed, and we reverse.
Lou Briggs ran unsuccessfully for the office of Ohio State Representative for the 28th District, in the November 3, 1992 general election. She paid for a billboard that stated:
Lou
Briggs
State Representative
Her opponent, Edward Thomas, filed a complaint with the Ohio Elections Commission, alleging that Briggs violated Ohio Rev.Code Sec. 3599.091(B)(1), which prohibits a candidate from using a title of an office not currently held by the candidate "in a manner that implies that the candidate does currently hold that office, or us[ing] the term 're-elect' when the candidate has never been elected...." 1
Before the Commission met on the matter, Briggs lost the election. The Commission sent Briggs a notice dated November 13, 1992, stating that a complaint had been filed against her, and setting the date for a preliminary review for December 14, 1992. Briggs responded with a motion to dismiss, or in the alternative to find no violation. Briggs requested the Commission find that she had not violated the statute, because although the billboard did not say "for State Representative," the sentence "strong new leadership" "clearly reflect[s] that Ms. Briggs is not the incumbent." Motion, J.A. at 22-23. Briggs also alleged that the statute violated the First Amendment.
The Commission found Briggs guilty of violating the statute at the preliminary review hearing, but also found good cause not to impose a fine or refer the matter for prosecution. However, the Commission's notice to Briggs also stated that
Briggs filed this suit against the Commission, arguing that the statute facially violated the First Amendment, and as applied to her also violated her First Amendment rights. She argued that the statute allows the Commission to find a violation based upon the "implication" of a statement rather than "a statement of fact," and failed to set forth sufficient standards for determining what statements are prohibited. She also argued that the Commission did not have before it clear and convincing evidence that she had violated the provision, because the billboard did not use the title "State Representative" "in a manner that implies that she does hold such office."
Briggs also argued that the enforcement of Sec. 3599.091(B)(1) violated her due process rights under the Fifth and Fourteenth Amendments because the statute does not provide for judicial review over the Commission's determination. She claimed that the Commission also violated her due process rights by not providing notice to her committee of the charges. Finally, she claimed that this statute violated several independent sections of the Ohio Constitution: Article I, Secs. 2, 11 and 16. 2 As remedies, she sought a declaration that the billboard did not use the title State Representative in a way that implied that she held the position, an injunction ordering the Commission to vacate its violation, fees, and costs.
Defendants moved for dismissal under Fed.R.Civ.P. 12(b)(6). The district court granted their motion with prejudice. It found that Briggs had not stated a claim that the regulation was unconstitutional either facially or as applied to Briggs. The district court relied on this court's opinion in Pestrak v. Ohio Elections Comm'n, 926 F.2d 573 (6th Cir.), cert. dismissed, 502 U.S. 1022, 112 S.Ct. 672, 116 L.Ed.2d 763 (1991). In that opinion, we reserved judgment on whether Sec. 3599.091(B)(1), the statute at issue here, was constitutional, though we noted that it might allow for the prosecution of a candidate based on the implication of his speech, when the speech was not "knowingly false" or made with "reckless disregard of the truth." Id. at 577 n. 2 (citing Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964)).
Nevertheless, the district court here upheld the constitutionality of Sec. 3599.091(B)(1) by finding a compelling state interest in "preserving the integrity of the election process." "It is natural for the electorate to be suspicious of any statement made by a candidate or that candidate's opponent, thus it is left to the Commission to play the neutral role of policing the information put forth by political candidates so that their campaign materials meet certain minimum standards." Opinion, J.A. at 37. The court determined that the statute was neither vague nor overbroad because a person of ordinary intelligence would understand what conduct was being regulated. Thus, the district court found that the statute was facially constitutional and constitutional as applied to Briggs.
The district court found that Briggs failed also to state a claim that the Commission's actions violated Briggs's due process rights, because the Commission was making a factual finding as part of its "truth-declaring" function, which was not legally binding. The district court interpreted Pestrak to hold that the Commission's "truth-declaring" activities (such as here, where the Commission stated that Briggs had violated the statute) and its recommendations for prosecution need not be reviewable by a court. Opinion, J.A. at 40 (citing Pestrak, 926 F.2d at 578-79). Likewise, "when agencies engage in a truth-declaring function they need not find a clear and convincing standard of evidence." Opinion, J.A. at 41 (citing Pestrak, 926 F.2d at 579).
The district court also dismissed Briggs's due process argument regarding her committee's lack of notice, since Briggs and her committee's treasurer both received actual notice. 3 The court also found that Ohio free-speech guarantees are not broader than those in the federal Constitution, and thus dismissed her state law claims on these grounds. Opinion, J.A. at 42, citing State ex rel. Rear Door Bookstore v. Tenth District Court of Appeals, 63 Ohio St.3d 354, 588 N.E.2d 116, 123-24 (1992).
We must first determine whether Briggs has presented the courts with a justiciable claim. "Article III of the Constitution limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies.' " Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982). Because the Commission declared Briggs in violation of Ohio law, without penalizing her for that violation, this case raises questions regarding Briggs's standing, and whether her claim is moot or sufficiently ripe for review.
We initially examine whether Briggs suffered a constitutionally cognizable injury so as to have standing to bring this claim. "[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Standing requires three elements: (1) "the plaintiff must have suffered an 'injury in fact'--an invasion of a legally-protected interest which is (a) concrete and particularized ... and (b) 'actual or imminent, not "conjectural" or "hypothetical" ' " (2) "there must be a causal connection between the injury and the conduct complained of," and (3) "it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.' " Id. at 560-61, 112 S.Ct. at 2136 (citations omitted). Our jurisdiction depends upon finding that Briggs "has suffered 'some threatened or actual injury resulting from the putatively illegal action....' " Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)(quoting Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973)).
Here, the Commission found that Briggs's billboard implied that she was already serving as a State Representative. It did not recommend prosecution, and it did not impose a fine. Briggs's violation will become "part of her record" with the Ohio Elections Commission, and the Commission "shall" consider her violation (presumably to her detriment) if another complaint is filed against her. Briggs informs us that she contemplates running for state office in the future.
In Pestrak, we indicated that the Commission's ability to recommend prosecution, and its "truth-declaring" functions, could not infringe upon a candidate's First Amendment free speech rights. "To the extent it does nothing more than recommend, then its actions, per se, have no official weight and cannot be the cause of a deprivation of constitutional rights." 926 F.2d at 578. We also stated that, when the Commission announces its finding that a campaign allegation is true or untrue, "the fact remains that the statements and findings of the Commission fall exactly within the tenet that 'the usual cure for false speech is more speech.' " Id. at 579.
When considering Briggs's standing to bring a First Amendment challenge, however, we note that Briggs...
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