In re 2016 Primary Election Hamilton Cnty. Bd. of Elections

• Decision Date: 06 September 2016
• Docket Number: 16-3350,16-3352,16-3357
• Citation: 836 F.3d 584
• Parties: In re: 2016 Primary Election Hamilton County Board of Elections (16-3350); Ohio Secretary Of State (16-3352); Butler County Board of Elections (16-3357), Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

836 F.3d 584

In re: 2016 Primary Election

Hamilton County Board of Elections (16-3350); Ohio Secretary Of State (16-3352); Butler County Board of Elections (16-3357), Appellants.

16-3350

16-3352

16-3357

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 6, 2016

COUNSEL, ON BRIEF: Roger S. Gates, Butler County Prosecutor's Office, Hamilton, Ohio, David T. Stevenson, Cooper D. Bowen, Hamilton County Board of Elections, Eric E. Murphy, Stephen P. Carney, Peter T. Reed, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. Rachel S. Bloomekatz, Gupta Wessler PLLC, Columbus, Ohio, for Amica Curiae.

Before: COLE, Chief Judge, and SILER and SUTTON, Circuit Judges.

OPINION

SUTTON

, Circuit Judge.

A revealing difficulty with this matter is what to name it. At the district court, the caption read “IN RE: 2016 Primary Election.” That's all the court could say because the matter arose out of an anonymous phone call to the district court clerk's office. The caller complained about an accident in the Cincinnati area that might make it difficult for voters to reach the polls before they closed at 7:30 p.m. on March 15, 2016, the date of Ohio's primary election. The clerk's office relayed the phone call to one of the judges of the district court, apparently no longer in the courthouse, who orally directed the clerk to enter the following order to keep polling locations in four counties open for an extra hour:

This matter is before the court upon an oral complaint requesting that the polling locations within the counties of Butler, Clermont, Hamilton and Warren be extended for one hour due to Interstate I-275 being closed for hours due to a fatal accident. The request is hereby GRANTED and the Secretary of State is hereby ordered to keep the polling locations within the counties of Butler, Clermont, Hamilton and Warren open until 8:30 p.m.

R.1 at 1.

No complaint preceded the district court's order on the docket. No complaint materialized after. Lacking a plaintiff, the caption read: “IN RE: 2016 Primary Election.” Id. There was no plaintiff to name in the caption because no one identified himself or herself during the phone call to the clerk's office—or after. There was no defendant to name because there was no complaint, though the Secretary of State presumably felt like a defendant once he received the order.

Concerned that the district court never had jurisdiction over this anonymous complaint and eager not to be subject to similar last-minute election orders of this sort again, the Ohio Secretary of State timely appealed the order. The boards of elections of two of the counties covered by the district court's order, Hamilton County and Butler County, filed appeals as well. Those captions, too, use “In re” nomenclature because no plaintiff yet exists to name as the appellee.

We appointed Rachel Bloomekatz to defend the order as an amica curiae and to brief our authority to review it. She has admirably handled that task. Court-appointed counsel together with the lawyers for the State have filled in some of the details of what happened based on newspaper accounts that neither side disputes.

Around 4:30 p.m. on March 15, a car plunged off the Combs–Hehl Bridge into the Ohio River. See, e.g. , Kate Murphy & Mallorie Sullivan, Officials ID man recovered from car that fell into Ohio River , Cincinnati Enquirer (Mar. 27, 2016, 8:49 PM), http://cin.ci/1MvOR5j. The Combs–Hehl Bridge is mostly on the Kentucky side of the Kentucky–Ohio border, but many commuters use its eastbound lanes to return to Ohio in the evening. See Am. Br. 6–7. “The eastbound lanes of the bridge were closed for almost six hours, which caused a major traffic backup on I-275 toward Ohio.” Car falls off Cincinnati bridge and into Ohio River , NBC26 (Mar. 16, 2016, 4:58 AM), http://bit.ly/29xLDwU.

According to newspaper reports, the district court judge was attending a “law school dinner in downtown Cincinnati” when she received a phone call from the clerk's office around 7:00 p.m. Dan Horn, Judge: Stranded drivers ‘wanted to vote’, Cincinnati Enquirer (Mar. 16, 2016, 5:19 PM), http://cin.ci/29K9YlO. The judge later told the Cincinnati Enquirer that the clerk's office told her that unidentified “stranded motorists who couldn't get to the polls to vote” were “ask[ing] if there was anything the court could do to help.” Id. She agreed to help.

She directed a clerk's office employee to call the Secretary of State's Office to let them know that the court would enter an order extending the polling hours from 7:30 to 8:30 p.m. To ensure consistency across the State, Ohio requires all polls not located on an island to close their lines at 7:30 p.m. on election day. See Ohio Rev. Code § 3501.32(A)

. The phone call from the clerk's office went to the cell phone of Assistant Secretary of State Matthew Damschroder, who oversees elections on behalf of the Secretary of State. He missed the call, which came in at 7:28 p.m. The clerk's office employee left him a voicemail, which he noticed right away. Yet by the time Damschroder had finished listening to the 43-second voicemail, the Ohio polls had closed—a minute or so earlier. During the next hour, state and local election officials, reluctant to defy the order of a federal judge, scrambled to comply with the oral order and the subsequent written order by trying to reopen the pertinent polling locations. They managed to comply in part: “[S]ome polls were open and others were not.” Appellants' Br. 18.

The district court eventually docketed the matter on March 30, 2016. The Ohio Secretary of State and intervenors Hamilton County Board of Elections and Butler County Board of Elections (all told, the State) timely appealed.

The appeal presents (at least) two jurisdictional questions: Did the district court have jurisdiction to issue its order at the outset given the anonymous nature of the phone call and the absence of a named plaintiff or a John Doe plaintiff? And is there still jurisdiction over the order given that the election has come and gone and the dispute may be moot?

We have authority over both jurisdictional issues. As to the first question, we always have “jurisdiction on appeal ... for the purpose of correcting the error of the lower court in entertaining the suit” in the first place—in this instance due to the potential absence of a claimant with standing. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)

(quotation omitted). As to the second question, we have jurisdiction to decide whether a dispute has become moot or whether it is capable of repetition yet evading review. See

Murphy v. Hunt , 455 U.S. 478, 483–34, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982).

Federal law does not provide any order of battle in this setting. It simply “does not dictate a sequencing of jurisdictional issues.” Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)

. All that matters is that courts must decide jurisdictional issues before merits issues. Deciding one jurisdictional issue before another “makes no assumption of law-declaring power.” Ruhrgas , 526 U.S. at 584, 119 S.Ct. 1563 (quotation omitted). That gives us discretion to address jurisdictional issues “in any sequence we wish,” Warshak v. United States , 532 F.3d 521, 525 (6th Cir. 2008) (en banc), including by resolving the “eas[y]” rather than the more “difficult” jurisdictional issue. Ruhrgas , 526 U.S. at 586, 119 S.Ct. 1563 ; see

Arizonans for Official English v. Arizona , 520 U.S. 43, 66–67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (same).

The standing issue in our estimation is the easier of the two issues to resolve. “Federal courts,” it bears repeating, “are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)

. Before they may act, they must ensure their power to act.

One elemental precondition for acting is a “case[ ]” or “controvers [y],” U.S. Const. art. III, § 2. And one elemental precondition for meeting the case-or-controversy requirement is a claimant with standing. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)

. There is no plaintiff with standing if there is no plaintiff. Until someone comes forward as a plaintiff by name or as a John Doe plaintiff (with an adequate description of his circumstances to ensure he has a concrete interest in a live dispute), there is no plaintiff with standing. See Preiser v. Newkirk , 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975)

. To permit plaintiff-less complaints is to permit the federal courts to issue advisory opinions and non-advisory orders in all manner of circumstances prompted by all manner of anonymous phone callers. A system that permits relief to be granted in connection with a plaintiff-less complaint is as close as we will ever come to permitting “ghosts that slay.” Felix Frankfurter, A Note on Advisory Opinions , 37 Harv. L. Rev. 1002, 1008 (1924).

Nor is it enough just to have an identified individual claimant. A complaint must link the claimant to the entities or individuals being asked to do something. In this instance, that meant the district court at a minimum needed four plaintiffs, one registered to vote in each of the four covered counties but who had not yet voted. Otherwise, there was no concrete and redressable injury, no case or controversy, and no authority to order the relevant election board to do anything. See Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130

.

Plaintiff-less complaints are no less problematic when the court denies relief on the merits. How will the court inform an anonymous plaintiff of the order? How will the caller know whether or when to appeal? One question leads to another. And the answers to all of them counsel in favor of standing by the Article III requirements that establish when federal courts have power to act and when they don't.

The...