Kilroy v. Husted
| Decision Date | 16 April 2012 |
| Docket Number | Case No. 2:11–cv–145. |
| Citation | 868 F.Supp.2d 652 |
| Parties | John P. KILROY, Plaintiff, v. Jon HUSTED, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION TEXT STARTS HERE
Subodh Chandra, Sandhya Gupta, The Chandra Law Firm, LLC, Donald P. Screen, Cleveland, OH, for Plaintiff.
Richard Nicholas Coglianese, Michael Joseph Schuler, Ohio Attorney General, Columbus, OH, for Defendant.
Before this Court are Defendant Jon Husted's Motion for Summary Judgment (ECF No. 74), Plaintiff John P. Kilroy's Opposition to the Motion (ECF No. 83), and Husted's Reply Brief in Support of his Motion (ECF No. 90). Defendant Husted, the Ohio Secretary of State, moves for summary judgment solely on the ground that the Eleventh Amendment to the United States Constitution bars Plaintiff Kilroy's lawsuit. For the reasons set forth below, the Defendant's Motion is GRANTED.
Plaintiff Kilroy is an Ohio citizen who has been actively involved in political activity over the last 15 years. He owns 20 shares of stock in Target Corporation, which is a provider of Medicaid services in Ohio.
Over the last 10 years, Plaintiff has made more than 50 political campaign contributions to candidates for local, state, and federal office. (Pltf. Opp. to Mtn. for Summ. J., Ex. 13.) As pertinent to this case, Plaintiff has contributed to the campaigns of candidates for Lorain County (Ohio) prosecuting attorney. (Kilroy Dep., ECF No. 83–1, at 100–102.) Plaintiff has also attended numerous fundraising events for current Lorain County prosecuting attorney Dennis Will. ( Id. at 21.) Plaintiff wishes to continue attending such events and would like to contribute to the campaigns of current and future candidates for county prosecutor offices. ( Id. at 15.) Plaintiff claims to have withdrawn from such participation due to Ohio Rev.Code § 3599.45. That statute states:
(A) No candidate for the office of attorney general or county prosecutor or such a candidate's campaign committee shall knowingly accept any contribution from a provider of services or goods under contract with the department of job and family services pursuant to the medicaid program of Title XIX of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider.
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(B) Whoever violates this section is guilty of a misdemeanor of the first degree.
As this Court previously found in this case, the phrase “any person having an ownership interest in the provider” means any ownership interest, no matter how small. (Opinion and Order, ECF No. 28, at 3–5.) Thus, even though Plaintiff's ownership interest (20 shares of stock) in Target Corporation is de minimis, the statute effectively prohibits a candidate for state attorney general or county prosecutor from accepting any campaign contribution from Plaintiff. Indeed, Plaintiff testified that he has had campaign contributions refused due to his stock ownership, albeit de minimis, in Target Corporation. (Kilroy Dep., ECF No. 83–1, at 16.)
Plaintiff is concerned about the possibility of placing Mr. Will's campaign in jeopardy by the mere appearance of a violation of Ohio Rev.Code § 3599.45. ( Id. at 17, 45–46, 76–77.) Plaintiff therefore indicates that he will refrain from attending Mr. Will's steak-fry fundraiser(s) and will not contribute to Mr. Will's campaign. ( See id.)
Plaintiff filed the instant action under the Civil Rights Acts of 1871, 42 U.S.C. § 1983. He alleges that Ohio Rev.Code § 3599.45 violates his rights under the First and Fourteenth Amendments to the United States Constitution by chilling his political speech. (Compl., ECF No. 1, at ¶¶ 34–41.) The lawsuit names Mr. Husted, in his official capacity as the Ohio Secretary of State, as the sole Defendant. Under Ohio law, the Secretary of State is the state's chief election officer. Ohio Rev.Code § 3501.04. Ohio law also requires the Secretary of State to investigate and refer for prosecution violations of criminal law relating to elections. Ohio Rev.Code § 3501.05(N)(1). Plaintiff Kilroy therefore seeks a declaration that Ohio Rev.Code § 3599.45 is unconstitutional and an injunction barring Secretary Husted from enforcing the statute. (Compl., ECF No. 1, at 12.)
Plaintiff Kilroy sought a preliminary injunction to prevent enforcement of Ohio Rev.Code § 3599.45 pending the disposition of this action on the merits. (ECF No. 19.) This Court stayed the disposition of Plaintiff's motion for preliminary injunctive relief pending the decision on the Defendant's Motion for Summary Judgment now before the Court. ( See ECF No. 87.)
Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All facts and inferences must be construed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
As an initial matter, Plaintiff contends that this Court should deny Secretary Husted's Motion for Summary Judgment out of hand for the Secretary's failure to comply with S.D. Ohio Local Rules 5.4(b) and 7.2(e). (Pltf. Opp., ECF No. 83, at 2, 13, 34.) Local Rule 5.4(b) requires a party to file deposition transcripts in this Court “if a party reasonably anticipates that they will be needed as evidence relating to a forthcoming motion or other proceeding.” Consistent with this rule, Local Rule 7.2(e) provides that any evidence (including deposition transcripts) in support of a motion that is not already of record “shall be attached to the memorandum [in support of the motion] or included in an appendix thereto” or, in the case of deposition transcripts, be “timely filed with the Clerk.” Though Secretary Husted cited to deposition testimony of Plaintiff Kilroy and the Secretary's campaign finance administrator, J. Curtis Mayhew, in his Motion for Summary Judgment, he failed either to file those deposition transcripts with the Court or attach the relevant deposition excerpts as exhibits to his Motion for Summary Judgment.
The apparent violation of the local rules notwithstanding, this Court does not find it necessary to reject Secretary Husted's Motion for noncompliance with Local Rules 5.4(b) and 7.2(e). Plaintiff Kilroy filed the deposition transcripts of Kilroy and Mayhew in connection with his opposition to summary judgment, thereby placing these evidentiary materials before the Court. The Court sees little reason to deny the Secretary's Motion for Summary Judgment based simply on the technical noncompliance with the Court's Local Rules when the evidence in question has been filed in the record. If Plaintiff Kilroy had not filed the transcripts relied upon by the Secretary, the Court may have viewed this situation differently. But in light of the record now before it, the Court finds it appropriate to proceed to the merits of Secretary Husted's Motion.
In this case, Secretary Husted moves for summary judgment based solely on Eleventh Amendment immunity. The Eleventh Amendment to the United States Constitution provides simply: “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Despite the text suggesting otherwise, the Eleventh Amendment has long been construed to bar suits initiated against a state by one of its own citizens. See Hans v. Louisiana, 134 U.S. 1, 13–15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The Eleventh Amendment also prohibits suits against state officials where the state is, in fact, the real party in interest, such as when a lawsuit prays for a remedy that would require a state officer to pay funds directly from the state treasury to compensate for wrongful acts of the state. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101–02, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
The Eleventh Amendment immunity granted to the states is subject to the well-recognized exception crafted in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Under the Ex Parte Young doctrine, the federal courts have jurisdiction over suits against state officers (in their official capacity) seeking prospective equitable relief to enjoin ongoing violations of federal law. Id. at 156, 28 S.Ct. 441. It is under the Ex Parte Young doctrine that Plaintiff Kilroy proceeds in this case, seeking equitable relief to declare Ohio Rev.Code § 3599.45 unconstitutional and to enjoin its enforcement by Secretary Husted in his capacity as Ohio's chief elections officer.
Secretary Husted argues that summary judgment on Eleventh Amendment grounds remains appropriate despite Ex Parte Young. For the Ex Parte Young doctrine to apply, there are two prerequisites that must be present: the defendant state official must (1) have “some connection with the enforcement of the act” and (2) “threaten” or be “about to commence” proceedings to enforce the act. Ex Parte Young, 209 U.S. at 155–56, 28 S.Ct. 441;see also Verizon Md., Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) ().1
As to the first element of Ex Parte Young 's applicability, Secretary Husted contends that he is not a proper defendant. In making this argument, Husted points to the nature of Ohio Rev.Code § 3599.45 as a criminal statute. As such, Secretary Husted argues that his office is not charged with enforcement of the statute be...
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Mitchell v. Comm'r of Soc. Sec.
... ... ECF Doc. 13 at 6-8. And by doing so, the Commissioner arguably waived any argument that the issue was waived. See Kilroy v ... Husted , 868 F. Supp. 2d 652, 657 n.1 (S.D. Ohio, Apr. 16, 2012) ("In the same way that a movant's argument raised for the first time in a reply ... ...