Libertarian Party of Ohio v. Husted

• Decision Date: 20 May 2016
• Docket Number: Case No. 2:13-cv-953
• Citation: 188 F.Supp.3d 665
• Parties: Libertarian Party of Ohio, et al., Plaintiffs, v. Jon A. Husted, Ohio Secretary of State, Defendant.
• Court: U.S. District Court — Southern District of Ohio

188 F.Supp.3d 665

Libertarian Party of Ohio, et al., Plaintiffs,

v.Jon A. Husted, Ohio Secretary of State, Defendant.

Case No. 2:13-cv-953

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

Filed May 20, 2016

Mark George Kafantaris, Kafantaris Law Offices, Mark R. Brown, Columbus, OH, for Plaintiffs.

Halli Brownfield Watson, Bridget C Coontz, Jordan S. Berman, Ohio Attorney General's Office, Richard Nicholas Coglianese, Employment Law Section, Columbus, OH, for Defendant.

OPINION AND ORDER

MICHAEL H. WATSON, JUDGE, UNITED STATES DISTRICT COURT

The Libertarian Party of Ohio ("LPO") and several of its members, leadership, and/or candidates ("Plaintiffs") move for summary judgment as to Count Seven of their third amended complaint, ECF No. 188. Mot., ECF No. 338. Ohio Secretary of State Jon A. Husted ("Secretary Husted") and Gregory A. Felsoci ("Felsoci") cross-move for summary judgment. ECF Nos. 344 & 345. The motions are ripe for review. Plaintiffs move to supplement the record. ECF No. 335. As that motion is unopposed,¹ the Court GRANTS Plaintiffs' motion to supplement the record. ECF No. 335. For the following reasons, the Court DENIES Plaintiffs' motion, ECF No. 338, and GRANTS Secretary Husted's and Felsoci's motions, ECF Nos. 344 and 345.

I. FACTS

In 2014, LPO's candidates attempted but failed to obtain ballot recognition. Subsequently, LPO amended its complaint in this case to include, inter alia , Count Seven, arguing that Secretary Husted and Felsoci violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution when Secretary Husted selectively enforced Ohio Revised Code § 3501.38(E)(1) —which requires petition circulators to disclose their employer, resulting in the LPO candidates' removal from the 2014 primary ballot. Since that date, the Court twice reviewed this claim and twice found it unlikely to succeed. See Oct. 17, 2014 Order, ECF No. 260 & Mar. 19, 2014 Order, ECF No. 80.

The parties have incorporated by reference their previous briefing as to Count Seven, see Ps' Mot. 1, ECF No. 338; Sec. Husted's Mot. 16, ECF No. 344, and further claim that they have uncovered new evidence in support of their position. Their evidence consists primarily of the depositions of Matt Borges ("Borges"), chair of the Ohio Republican Party ("ORP"), Terry Casey ("Casey"), a political strategist who orchestrated Felsoci's protest and is the current chairperson of the State of Ohio Personnel Board of Review, and Felsoci.² See ECF Nos. 335–2, 335–4, & 335-11. In addition, Plaintiffs submit evidence regarding the ORP's payment of $300,000 to Zeiger, Tigges, Little & Lindsmith, LLP, ("the Zeiger law firm") in late 2014, early 2015, for its work representing Felsoci at the protest hearing and for other work it completed in the litigation of the instant suit. See Borges Dep. PAGEID ## 8603-05, 8610-12, 8630, ECF No. 335-11; Ps' Ex. 3, PAGEID ## 8496-501, ECF No. 335-3 (Zeiger law firm invoices and checks cut by the ORP).

Plaintiffs also submit, as "new evidence" the following additional e-mails and text message communications:

Between February 14 and February 21, 2014, Casey: (1) e-mailed members of Governor John Kasich's reelection campaign and the then political director of the ORP, David Luketic ("Luketic"), concluding with: "Plus, what is next!!" Ps' Ex. 3 PAGEID # 8438, ECF No. 335-3; (2) e-mailed members of Governor Kasich's campaign and Luketic with information regarding an initial assessment of what a protest of Plaintiffs' part-petitions would entail, id. at 8439-40, 8442 (stating "[c]learly we need to keep digging and digging on Oscar [Hachett]" (one of Plaintiffs' petition circulators)); (3) responded to an e-mail from Governor Kasich's political director with the Governor's reelection campaign, Jeffery Polesovsky ("Polesovsky"), in which Polesovsky stated that "we can continue to work down the action item list" and indicated that he was forwarding "petition samples to our attorneys to help their research process," id. at 8441; (4) sent an e-mail to Polesovsky and Luketic seeking morning updates, id. at 8443; (5) received an e-mail from Luketic in which Luketic forwarded the result of a records request from Public Records/Corporations Counsel, Chris Shea of Secretary Husted's office, id. at 8444-45; (6) sent an e-mail to a leader of a "right for life" group and blind copied thirteen individuals, including members of Governor Kasich's gubernatorial office and his reelection campaign as well as Luketic with poling results about registered voters, id. at 8447-48 (commenting, "The Dems will be spinning big on the failure for this poll to account for the number of voters a Libertarian candidate will drain off."); (7) e-mailed Polesovsky and carbon copied Luketic stating, "Did push [TV Host Matt] Stainbrook earlier this morning for getting us a Libertarian potential client[,]" id. at 8449; (8) received e-mails from Luketic with an "Early Validity Report and "Lib. Petition Report" detailing the number of signatures collected by paid circulators, id. at 8450, 8460-70; (9) received an e-mail from Luketic with the subject line "Our Friends" of a forwarded email from an attorney in Summit County that contained criminal history reports of LPO petition circulators, id. at 8451; (10) received an e-mail from Luketic with Felsoci's voting history, id. at 8459; (11) received an e-mail from Polesovsky with contact information for Chris Klym, id. at 8471; Casey Dep. PAGEID # 8374, ECF No. 335-2 (stating that Chris Klym helped with the "logistics"); and (12) emailed his attorney Chris Kylm's e-mail address, Ps' Ex. 3 PAGEID # 8472, ECF No. 335-3.

On February 26, 2014, Luketic texted Casey asking, "Would it help our case if one of the circulators signed [sic] a Democrat petitions this year." Id. at 8473. That same day, Luketic emailed Casey an ORP member's phone number who was going to help "on some logistics." Id. at 8474; Casey Dep. PAGEID # 8377, ECF No. 335-2.

Between February 28 and March 1, 2014, Casey sent an e-mail to Jim Heath, host of the Ohio News Network, regarding the protest hearing. Ps' Ex. 3 PAGEID # 8475, ECF No. 335-3. Casey also exchanged e-mails with Daniel Mead of the Zeiger law firm and Polesovsky, whom Casey stated typically e-mailed him upon request "whatever he happened to have around," id. at 8476-78; Casey Dep. PAGEID # 8382, ECF No. 335-2.

On the day of the protest hearing, March 4, 2014, Casey sent several e-mails about the hearing and also addressed Borges' comments regarding ORP's involvement with the protest. Ps' Ex. 3 PAGEID ## 8479-86, ECF No. 335-3; see also Ps' Ex. 10 PAGEID # 8586, ECF No. 335-10. Casey e-mailed Chris Schrimpf ("Schrimpf"), the ORP communication director, about Borges' comments, to which Schrimpf responded: "The Dems are just pushing the misspeaking part. ORP has not had involvement in the complaint to this point. Let's talk more once the hearing is over." Ps' Ex. 10 PAGEID # 8584, ECF No. 335-10. Shortly after Borges apparently made a statement that insinuated that the ORP filed the protest, Borges then back-tracked and said that the ORP did not file the protest.

On March 7, 2014, Casey exchanged several e-mails about the results of the protest. See Ps' Ex. 3 PAGEID ## 8487-95, ECF No. 335-3. Between March 10, 2014 and May 6, 2014, Casey sent over twenty e-mails to a significant number of individuals, including Luketic, Polesovsky, Matthew Damschroder ("Damschroder"), currently, the Deputy Assistant Secretary of State and Director of Elections for Secretary Husted, and Borges, with updates regarding the litigation pending before this Court and related appeals. See, e.g. , Ps' Ex. 12, PAGEID # 8670, ECF No. 335-12 (blind copying over fifty people a news article from the Columbus Dispatch on May 1, 2014). On March 17, 2014, Borges sent an e-mail in response to Casey's "latest" regarding Plaintiffs' third amended complaint and Borges' potential testimony at the Court's hearing. Id. at 8640-41. In addition, on both March 16 and 19, 2014, Borges forwarded to Casey an e-mail from his attorney about the ongoing litigation. Id. at 8647 (this e-mail was also sent to members of Governor Kasich's campaign and Luketic), 8685.

Based on this new evidence, Plaintiffs claim Secretary Husted and Felsoci violated their First and Fourteenth Amendment rights. Plaintiffs, Secretary Husted, and Felsoci move for summary judgment on those claims.

II. STANDARD OF REVIEW

The standard governing summary judgment is set forth in Federal Rule of Civil Procedure 56(a), which provides: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court must grant summary judgment if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see also Van Gorder v. Grand Trunk Western R.R., Inc. , 509 F.3d 265 (6th Cir.2007).

When reviewing a summary judgment motion, the Court must draw all reasonable inferences in favor of the nonmoving party, who must set forth specific facts showing there is a genuine issue of material fact for trial, and the Court must refrain from making credibility determinations or weighing the evidence. Pittman v. Cuyahoga Cnty. Dept. of Children and Family Serv. , 640 F.3d 716, 723 (6th Cir.2011). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Barrett v. Whirlpool Corp. , 556 F.3d 502, 511 (6th Cir.2009).

Thus, the central issue is " ‘whether the...