Cummings v. Husted

• Decision Date: 08 June 2011
• Docket Number: 2:10–cv–983,2:10–cv–1148.,Case Nos. 2:10–cv–982
• Parties: Norman B. CUMMINGS, Plaintiff,v.Jon HUSTED, Ohio Secretary of State,1 et al., Defendants.Timothy Crawford, et al., Plaintiffs,v.Jon Husted, Ohio Secretary of State, et al., Defendants.LetOhioVote.org, et al., Plaintiffs,v.Jon Husted, Ohio Secretary of State, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

795 F.Supp.2d 677

Norman B. CUMMINGS, Plaintiff,

v.Jon HUSTED, Ohio Secretary of State,1 et al., Defendants.Timothy Crawford, et al., Plaintiffs,

v.Jon Husted, Ohio Secretary of State, et al., Defendants.LetOhioVote.org, et al., Plaintiffs,

v.Jon Husted, Ohio Secretary of State, et al., Defendants.

Case Nos. 2:10–cv–982

2:10–cv–983

2:10–cv–1148.

United States District Court, S.D. Ohio, Eastern Division.

June 8, 2011.

Brian J. Laliberte, David Freeman Axelrod, William M. Todd, Axelrod Laliberte LLC, Columbus, OH, for Plaintiffs.Erick D. Gale, Richard Nicholas Coglianese, Pearl Chin, Ohio Attorney General's Office Constitutional Offices, Columbus, OH, for Defendants.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

Plaintiffs initiated these three consolidated actions against Ohio's Secretary of State (“Secretary”) and the Ohio Elections Commission (“Elections Commission”) in response to the Secretary's actions relating to an investigation of the campaign finances of LetOhioVote.org, a ballot-issue committee, that was formed to get a referendum issue on the statewide ballot in an effort to repeal “video lottery terminal” provisions of Ohio law. Case No. 2:10–cv–982 involves Plaintiff Norman B. Cummings' claims against the Secretary and the executive director and members of the Elections Commission (collectively the “Elections Commission Defendants”). Case No. 2:10–cv–983 involves the claims of Plaintiffs Timothy Crawford and New Models against the Secretary and the Elections Commission. And Case No. 2:10–cv–1148 involves the claims of Plaintiffs LetOhioVote.org and its members (collectively the “LetOhioVote.org Plaintiffs”) against the Secretary and the Elections Commission Defendants.²

This matter is currently before the Court on the Secretary's Motions to Dissolve the State Court Injunction in Case Nos. 2:10–cv–982 (Doc. 9) and 2:10–cv–983 (Doc. 10), and the Secretary's Motion to Dismiss in case No. 2:10–cv–1148 (Doc. 22).³ For the reasons that follow, the Court DENIES the Secretary's Motions to Dissolve and GRANTS the Secretary's Motion to Dismiss.

I. Background

In July 2009, the Ohio General Assembly (the “General Assembly”) passed, and the Governor signed, Am. Sub. H.B. No. 1 (the 2010–2011 budget bill) (“H.B. 1”), which authorized “video lottery terminals” at Ohio horse racing tracks as a means to raise revenue. The ballot-issue committee LetOhioVote.org advocated for placing a referendum on the statewide ballot concerning the provisions of the budget bill relating to video lottery terminals. A preliminary issue arose as to whether the video lottery terminal provisions of H.B. 1 were subject to referendum under Ohio law. In State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 916 N.E.2d 462 (2009), the Ohio Supreme Court held that these provisions were subject to referendum. Id. at syllabus. Consequently, in December 2009, LetOhioVote.org filed a referendum petition with the Secretary, who notified LetOhioVote.org that its petition was deficient by approximately 27,000 signatures. After LetOhioVote.org supplemented the petition with over 175,000 additional signatures, the Secretary certified the video lottery terminal provisions of H.B. 1 to the November 2010 ballot for a referendum election. LetOhioVote.org, however, ultimately withdrew the issue from the ballot in June 2010, and therefore the Ohio electorate did not vote on the issue.

LetOhioVote.org's campaign activity required it to file a finance report pursuant to Ohio Revised Code § 3517.11. In January 2010, LetOhioVote.org filed its annual campaign-finance report for the 2009 calendar year with the Secretary. Pursuant to Ohio Revised Code § 3517.10, the report was required to detail, among other things, the contributions to LetOhioVote.org. To this end, LetOhioVote.org listed $1,551,000 in contributions received in 2009, and reported that all of these contributions were received from Plaintiff New Models.

The Secretary's staff examined LetOhioVote.org's 2009 report and identified possible irregularities and noncompliance with Ohio campaign-finance law. Seeking to further investigate the matter, the Secretary's office issued subpoenas to Plaintiff Norman Cummings,⁴ Plaintiff Timothy Crawford, ⁵ the custodians of records of Plaintiff New Models and LetOhioVote.org, and other persons associated with LetOhioVote.org. The subpoenas issued to Cummings, Crawford, and the custodian of records of New Models were sent to addresses in the Commonwealth of Virginia. Cummings and Crawford reside in Virginia, and the registered agent of New Models is located in Virginia. The remainder of the subpoenas that were issued as part of the investigation of LetOhioVote.org were issued to persons in Ohio. The subpoenas were issued under the purported authority of Ohio Revised Code § 3501.05(N) and (CC), required these persons to appear and testify as witnesses at depositions scheduled for March 5, 2010, and to produce certain documents relating to LetOhioVote.org and New Models. The subpoenas also threatened criminal sanctions under Ohio Revised Code § 3599.37 for the failure to appear, testify, and produce the requested documents. The day after Secretary Brunner issued the subpoenas, she issued a press release titled “Secretary Brunner Opens Campaign–Finance Investigation Regarding LetOhioVote.org.” The press release reflected the Secretary's opinion that LetOhioVote.org had violated Ohio campaign-finance law by concealing the true sources of its funding.

On March 1, 2010, Plaintiffs filed original actions for writs of prohibition in the Ohio Supreme Court, to prevent the Secretary from enforcing the subpoenas. On May 3, 2010, the Ohio Supreme Court denied the requested writs of prohibition. State ex rel. LetOhioVote.org v. Brunner, 125 Ohio St.3d 420, 928 N.E.2d 1066 (2010). For the Plaintiffs to have been entitled to the requested writ, they were required to establish that by issuing the subpoenas, (1) the Secretary was exercising judicial or quasi-judicial power, (2) the exercise of that power was unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. Id. at 1069. The Ohio Supreme Court determined that the Secretary did not exercise judicial or quasi-judicial authority in issuing the subpoenas, and therefore Plaintiffs were not entitled to the requested extraordinary relief in prohibition. Id. at 1071. Because Plaintiffs did not meet the first requirement for the issuance of a writ of prohibition, the Court expressly declined to address other issues presented in the case, including whether the Secretary lacked authority to issue the subpoenas. Id. at 1071–72. The Court noted in its conclusion, however, that its decision “does not leave [the] relators without an adequate remedy, for a challenge may be made to the propriety of the subpoenas in a common pleas court action for a prohibitory injunction.” Id. at 1071.

Following the May 3, 2010 decision of the Ohio Supreme Court, the Secretary issued a new round of subpoenas to Plaintiffs, which were substantively the same as the previous subpoenas, and which required them to appear in Ohio in June 2010. In response, LetOhioVote.org, and members of the committee, filed a lawsuit in the Hamilton County Ohio Court of Common Pleas seeking declaratory and injunctive relief to effectively quash the subpoenas. The Secretary agreed not to enforce the subpoenas until the trial court filed a decision on the merits. Plaintiffs Cummings, New Models, and Crawford moved to intervene in the action, which the court denied on September 22, 2010. On the same day, the court also denied the declaratory and injunctive relief requested by LetOhioVote.org and its members. The Hamilton County Court of Common Pleas determined that the Secretary has the authority to investigate election law irregularities, including failures to comply with campaign finance disclosure law, and he has the power to issue subpoenas in furtherance of his investigations. (Doc. 2–11). LetOhioVote.org and its members appealed the decision of the Common Pleas Court to the Ohio First District Court of Appeals; the appeal is currently pending.

On September 24, 2010, the Secretary issued a third round of subpoenas to Plaintiffs Cummings, Crawford, and the custodian of records for New Models, which required these Plaintiffs to appear to testify as a witness on October 6, 2010, at the Secretary's office, and required Plaintiffs to produce documents related to Plaintiff New Models' relationship and contributions to LetOhioVote.org, including documents revealing the identity of contributors to New Models. Like the other subpoenas, the third round of subpoenas cite Ohio Revised Code § 3501.05(N) and (CC) as authority for the issuance of the subpoenas, and threaten criminal sanctions under Ohio Revised Code § 3599.37 for the failure to appear, testify, and produce the requested documents. The Secretary included a copy of Part C and D of Rule 45 of the Ohio Rules of Civil Procedure with the subpoenas.

On October 1, 2010, Plaintiffs Crawford, New Models, and Cummings commenced actions in the Court of Common Pleas, Franklin County, Ohio, seeking declaratory and injunctive relief enjoining the Secretary from attempting to enforce the third set of subpoenas and thereby compelling these Plaintiffs' attendance in Ohio on October 6, 2010. The Common Pleas Court denied these Plaintiffs' request for a temporary restraining order on October 5, 2010. On the same day, these Plaintiffs appealed the trial court's decision to the Ohio Tenth District Court of Appeals. Pursuant to Ohio Appellate Rule 7(A), the appellants moved for injunctions pending appeal. On October 6, 2010, the Tenth District Court of Appeals issued a journal entry granting the appellants' motions for injunctions pending appeal. The appellate court's journal entry simply provides as follows: “Appellants' October...