Jolivette v. Husted

• Decision Date: 15 August 2012
• Docket Number: Case No. 2:12–cv–603.
• Citation: 886 F.Supp.2d 820
• Parties: Greg JOLIVETTE, Plaintiff, v. Jon HUSTED, Ohio Secretary of State, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

886 F.Supp.2d 820

Greg JOLIVETTE, Plaintiff,

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

Case No. 2:12–cv–603.

United States District Court,

S.D. Ohio,

Eastern Division.

Aug. 15, 2012.

John Corey Colombo, Donald Joseph McTigue, Mark Alan McGinnis, McTigue & McGinnis LLC, Columbus, OH, for Plaintiff.

Aaron D. Epstein, Michael Joseph Schuler, Ohio Attorney General, Columbus, OH, for Defendants.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

Plaintiff, Greg Jolivette, has filed a Motion for Preliminary Injunction against Jon Husted, in his official capacity as the Ohio Secretary of State, and Frank Cloud, Tom Ellis, Judith Shelton, and Bruce Carter, in their official capacity as members of the Butler County, Ohio, Board of Elections,¹ seeking an injunction prohibiting Defendants from denying Plaintiff's candidacy as an independent candidate for the Office of State Representative for Ohio's 51st House District at the November 6, 2012 general election (Doc. 3). Additionally, the individual defendant members of the Butler County Board of Elections moved to dismiss Plaintiff's complaint for failure to state a claim as to these individual Defendants, and for lack of subject matter jurisdiction (Doc. 13). These motions have been briefed, and the Court held a hearing on the motions. Therefore, this matter is ripe for disposition.² For the reasons that follow, the Court DENIES Plaintiff's Motion for Preliminary Injunction. The Court also DENIES the Motion to Dismiss for lack of subject matter jurisdiction filed by Defendants Frank Cloud, Tom Ellis, Judith Shelton, and Bruce Carter, and DENIES as moot these Defendants' Motion to Dismiss for failure to state a claim upon which relief can be granted.

I. Background

Plaintiff Greg Jolivette is a resident and qualified elector of Ohio's 51st House District, which is located within Butler County, Ohio. Defendant Jon Husted is the Secretary of State of Ohio and, as such, is Ohio's chief elections officer. Defendants Frank Cloud, Tom Ellis, Judith Shelton, and Bruce Carter are the members of the Butler County Board of Elections (the “Board of Elections”).

From approximately 1997 to 2010, Plaintiff served as a Republican State Legislator and then as a Republican Butler County Commissioner. Plaintiff was also elected to, and served on, the Butler County Republican Party's Central Committee from 2008 until he resigned from this position in mid-December 2011.

On December 7, 2011, Plaintiff filed four Declaration of Candidacy and Petition forms (“part-petitions”) as a Republican candidate for nomination for State Representative for Ohio's 51st House District. On his Declaration of Candidacy forms, Plaintiff declared that it was his “desire to be a candidate for nomination to the office of State Representative as a member of the Republican Party from the 51st District,” and that “if elected to this office or position, I will qualify therefor, and I will support and abide by the principles enunciated by the Republican Party.” Plaintiff signed three of the Declarations and dated these documents on October 12 and 13, and November 3, 2011. Plaintiff did not, however, sign the Declaration of the fourth form that was submitted. Plaintiff sought the endorsement of the Butler County Republican Party for the nomination at the endorsement meeting held early December 2011. Wes Retherford also sought the party's endorsement. According to Plaintiff, his opponent “had absolutely no qualifications” to serve. (Aug. 6, 2012, Tr., p. 12). Neither Plaintiff or his opponent received the endorsement because neither reached the required threshold number of votes. Plaintiff was upset when he did not receive the endorsement. Considering his opponent's lack of qualifications as compared to his own, Plaintiff could not believe that the party would “turn their back on me with regards to this comparison.” Id. Not getting the endorsement “rocked [Plaintiff's] world,” and he started to think that “the Party just doesn't want [him]”. Id.

On December 12 or 13, 2011, Plaintiff learned that there were some problems with his petitions, and he consulted an attorney regarding the matter. To qualify for the Republican primary ballot, Plaintiff needed 50 valid signatures on his Republican petitions. Plaintiff had submitted four part-petitions with a total of 72 signatures. The part-petition that Plaintiff failed to sign had 17 signatures, and the other three petitions that Plaintiff submitted had 6 signatures with questionable validity.

On December 14, 2011, the Board of Elections met to certify candidacies, including the candidacy of Plaintiff. Whether Plaintiff met the signature requirement was at issue at the meeting. Plaintiff and his attorney addressed the Board members to advocate his position that there was substantial compliance with the signature requirements and therefore his candidacy should be certified. Plaintiff brought affidavits of two persons whose signatures were in question, in an attempt to seek validation and to meet the signature threshold of 50. Plaintiff also offered to bring the individuals before the Board of Elections to testify. Counsel for the Board of Elections advised it that the law did not favor Plaintiff's position. The Board of Elections decided to provide Plaintiff additional time to present additional evidence or arguments in support of his candidacy, or to otherwise consider his candidacy. At that time, Plaintiff still intended to run as a Republican, but was contemplating his option to run as an independent.

The day after the December 14, 2011, Board of Elections meeting, Plaintiff met with Defendant Husted, whom Plaintiff had served with in the legislature, to discuss his candidacy and the problems with his petitions. Plaintiff initiated the meeting with Defendant Husted to get his view on the contested signatures, within the context of Plaintiff's contemplation regarding whether to continue to seek his candidacy as a Republican or to possibly run as an independent. That is, Plaintiff was “looking at what [his] options could quite possibly be.” (Aug. 6, 2012, Tr., p. 15). Plaintiff did not indicate to Defendant Husted his escalating dissatisfaction with the Republican Party. Defendant Husted indicated that he viewed Plaintiff's failure to sign the one petition as a fatal flaw, but was not decisive on whether two of the challenged six signatures could somehow be validated by affidavit or otherwise. At a minimum, whether Plaintiff's candidacy as a Republican was going to be approved by the Board of Elections remained uncertain after Plaintiff met with Defendant Husted. However, Plaintiff believed that he was permitted under Ohio law to withdraw his candidacy as a Republican, and subsequently run as an independent, as long as the Board of Elections had not taken action on his candidacy as a Republican.

On December 19, 2011, Plaintiff withdrew his partisan candidacy prior to the Butler County Board of Elections taking any formal action to certify his petition. Also on December 19, 2011, Plaintiff resigned as a member of the Butler County Republican Party Central Committee. When Plaintiff withdrew his candidacy as a Republican, he was “not entirely” sure that he was going to run as an independent candidate, even though he knew he “was finished with the Republican Party at that point.” (Aug. 6, 2012, Tr., p. 17). Plaintiff did not consider running as a Democrat because he “wasn't anywhere near their philosophy of government.” Id.

Plaintiff asserts that he left the Republican Party because his relationship with the party had deteriorated over the course of time. Plaintiff cites several circumstances that contributed to his discontentment with the Republican Party. First, at a Republican party endorsement meeting in 2004 or 2005, someone presented a police report that was based on a completely baseless allegation that Plaintiff stole a purse, in an apparent attempt to hinder Plaintiff's effort to get the party's endorsement for county commissioner. Plaintiff was upset that the party allowed such a baseless report to be distributed at the meeting. Second, Plaintiff did not receive the party endorsement when he ran for County Commissioner in 2010, even though he was an incumbent. According to Plaintiff, he was defeated in the 2010 Republican primary for County Commissioner because he did not receive the party endorsement. At that time, Plaintiff viewed his “partnership” with the Republican Party as “getting to be very shaky.” (Aug. 6, 2012, Tr., p. 11). Third, in early December 2011, Plaintiff sought, but did not receive, the Republican Party's endorsement for candidacy for state representative. Finally, Plaintiff was generally upset with both the Republican and Democratic parties in view of the amount of money spent on a high profile collective bargaining issue that was on the November 2011 general election ballot in Ohio. According to Plaintiff, the matter should have been resolved “with some good compromise and good legislative leadership on both sides.” Id. at 18.

On February 22, 2012, Plaintiff prepared a Nominating Petition and Statement of Candidacy to run as an independent candidate for election to the office of State Representative for Ohio's 51st House District. On March 5, 2012, Plaintiff filed with the Butler County Board of Elections a Nominating Petition and Statement of Candidacy, seeking to be an independent candidate for election to the office of State Representative for Ohio's 51st House District. Plaintiff views himself as “the best candidate for being a State Representative [for the 51st District], regardless of any political ties.” (Aug. 6, 2012, Tr., p. 18). Plaintiff did not vote in the March 6, 2012 primary election of any political party. According to Plaintiff, he has not “done anything to jeopardize or compromise [his] position as an Independent.” (Aug. 6, 2012, Tr., p. 19). Plaintiff has testified that, when he filed to run as...