Libertarian Party of Ohio v. Husted
| Decision Date | 14 July 2014 |
| Docket Number | Case No. 2:13–cv–953. |
| Citation | 33 F.Supp.3d 914 |
| Court | U.S. District Court — Southern District of Ohio |
| Parties | LIBERTARIAN PARTY OF OHIO, et al., Plaintiffs, v. Jon HUSTED, et al., Defendants. |
Mark R. Brown, Naila S. Awan, Mark George Kafantaris, Kafantaris Law Offices, Columbus, OH, Freda J. Levenson, ACLU of Ohio, James L. Hardiman, American Civil Liberties Union of Ohio Foundation, Cleveland, OH, for Plaintiffs.
Richard Nicholas Coglianese, Bridget C. Coontz, Halli Brownfield Watson, Kristopher J. Armstrong, Ohio Attorney General's Office, John Wolcott Zeiger, Daniel Perry Mead, Steven Walter Tigges, Stuart G. Parsell, Zeiger Tigges Little & Lindsmith LLP, Columbus, OH, for Defendants.
This ballot access case, brought by the Libertarian Party of Ohio and three individuals, has recently produced a flurry of discovery-related motions. The Court will not set forth the facts extensively (they appear in the Court of Appeals' decision of May 1, 2014, see Doc. 107) but will limit its recitation of the facts to those that relate to the precise issues presented by each motion being ruled upon. This Opinion and Order deals with Plaintiffs' motion to compel depositions (Doc. 116), the separate response filed by Secretary of State Jon Husted (Doc. 121) (which includes a motion to stay discovery and for a protective order), and Plaintiffs' reply to that response (Docs. 125). For the following reasons, the motion to compel will be granted.
As the Court of Appeals' recitation of the facts shows, the current issue before the Court relates to the invalidation of certain nomination petitions circulated on behalf of Charlie Earl, the Libertarian Party's gubernatorial hopeful, and two other Libertarian Party candidates. After local boards of election verified signatures on those petitions, intervenor Gregory Felsoci filed a protest. The protest was initially referred to Bradley Smith, a law professor who was designated as a hearing officer and who conducted a hearing on the issue of whether the protest had merit. Professor Smith issued a report on March 7, 2014, recommending that certain petitions and the signatures on them be invalidated because the “employed by” information required by Ohio Rev.Code § 3501.38(E)(1) had not been included on the petitions. Secretary Husted adopted that report, resulting in the disqualification of the Libertarian Party candidates for governor, lieutenant governor, and attorney general. Of those three candidates, only Charlie Earl is involved in this case. Plaintiffs' motion for preliminary injunctive relief has been denied by this Court and affirmed on appeal.
On June 13, 2014, Plaintiffs noticed the depositions of Hearing Officer Smith and of Jack Christopher, the latter of whom is described in the notice as the “Defendant–Secretary's authorized and acknowledged agent.” See Docs. 113 and 114. Almost immediately thereafter, Plaintiffs moved to compel the depositions. Although that is procedurally unusual, the parties agreed, during a telephone conference with the Court, that they had reached an impasse over whether the depositions would go forward as noticed, and agreed to have the issue resolved through briefing on the motion to compel. That briefing is now complete.
Professor Smith's role in the case is clear from the prior opinions, but Mr. Christopher's is not. In a letter dated June 12, 2014, which is attachment four to Doc. 116, he is described as Chief Legal Counsel to the Secretary of State. The Secretary's objection to his being deposed was based, in part, on his status as counsel for a party; however, Plaintiffs claimed to be unaware when they noticed his deposition that he was an attorney, and they proposed to depose him in his capacity as “an executive official with a central role in Mr. Earl's exclusion from the ballot.” Doc. 116, attachment 8. The Secretary's opposing memorandum does not provide any more facts about Mr. Christopher's status or role in the case other than characterizing him as the Secretary's “in-house attorney ....” Doc. 121, at 17.
There are a number of emails relating to Mr. Christopher attached to Plaintiffs' reply (Doc. 125). They are not authenticated but the Court will accept them for purposes of this motion, especially since they do not directly affect the Court's ruling. They show that Mr. Christopher signed his emails as “General Counsel, Secretary of State Jon Husted.” He sent a few emails relating to the procedures for hearing the protest and was copied on others sent by Brandi Laser Seskes, Election Counsel in the Secretary of State's office. He also wrote a responsive letter to a public records request made by Plaintiffs to the Secretary of State's office. That letter was sent on June 24, 2014, after the date of the deposition notice. There do not appear to be any other facts relating to his role in the protest procedure.
The Secretary opposes having either Professor Smith or Mr. Christopher deposed for reasons specific to each of the two proposed deponents. However, he also argues that neither should be deposed because, for several reasons, it is not appropriate to go forward now with either this discovery or any discovery. The Court will address these general arguments before turning to the issues specific to each of the two witnesses.
First, the Secretary presents a lengthy argument in support of his position that until the Court rules on the pending motion for leave to amend, discovery ought not to proceed. The Opinion and Order on the Felsoci deposition (Doc. 133) addresses this argument, and for those same reasons the Court rejects it here. The Court takes Plaintiffs at their word that the discovery they seek is related to the current complaint and not to claims which have not yet been asserted and may never become part of the case.
Second, the Secretary contends that even if these two witnesses might have something to say about Plaintiffs' as-applied challenge as pleaded in Count Seven of the second amended complaint, they should not have to say it until Plaintiffs produce other credible evidence to support what the Secretary characterizes as a “selective prosecution” claim. The opposing memorandum cites to a number of cases, primarily from the criminal law area, holding that before a party (usually a criminal defendant) is entitled to conduct discovery on a selective prosecution claim, it must make a threshold showing of the validity of that claim using evidence obtained other than through discovery. See, e.g., United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) ; United States v. American Elec. Power Service Corp., 258 F.Supp.2d 804 (S.D.Ohio 2003).
The primary defect in this argument is that Plaintiffs are not pursuing a defense in either a criminal or civil enforcement case (like American Electric Power, supra ) of selective prosecution. Rather, as they point out in their reply, this is an election law case where the Plaintiffs make an affirmative claim that a statute is unconstitutional as applied. The Secretary has not cited any cases holding that, in the context of such a challenge, the standards for discovery set forth in Rule 26 do not apply, and the Court is aware of no such authority. Consequently, it need not decide if, as Plaintiffs argue in the alternative, the evidence that this statute has never before been applied either to independent contractors generally, or to this particular independent contractor, is enough to satisfy whatever threshold showing must be made before discovery can take place. Since there are no reasons here to impose a blanket prohibition on, or a stay of, discovery, the Court now turns to the issues specific to each proposed witness.
Defendants argue that two privileges prohibit the deposition of Hearing Officer Smith: the deliberative process privilege and the judicial mental process privilege. For the following reasons, the Court concludes that neither of these privileges erects an absolute bar against taking this deposition.
The United States Supreme Court has recognized a deliberative process privilege covering “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8–9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ) (internal quotation marks omitted). Plaintiffs do not dispute the existence of this privilege, but argue that “the deliberative process privilege has no application when the process itself is questioned, and more importantly it has no application when the plaintiffs claim governmental misconduct.” Motion to Compel, Doc. 116, at 8. Accordingly, the Court turns to the question of whether the deliberative process privilege can be overcome here at least to the extent that a deposition can be convened.
Many courts have held that the deliberative process privilege is a qualified privilege. See, e.g., In re Sealed Case, 121 F.3d 729, 737 (D.C.Cir.1997) ; Marriott Int'l Resorts, L.P. v. United States, 437 F.3d 1302, 1307 (Fed.Cir.2006) ; F.T.C. v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir.1984) ; E.E.O.C. v. Burlington N., 615 F.Supp.2d 717, 720 (W.D.Tenn.2009), objections overruled sub nom. E.E.O.C. v. Burlington N. & Santa Fe Ry. Co., 621 F.Supp.2d 603 (W.D.Tenn.2009). There are several factors to consider in determining whether the deliberative process privilege should be overcome, including (1) the relevance of the evidence sought, (2) the availability of other evidence, (3) the role of the government in the litigation, and (4) the potential consequences of disclosure of the information. See, e.g....
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