Magda v. Ohio Elections Comm'n

• Decision Date: 21 July 2016
• Docket Number: No. 14AP–929.,14AP–929.
• Citation: 58 N.E.3d 1188
• Parties: Kathy MAGDA et al., Plaintiffs–Appellants, v. OHIO ELECTIONS COMMISSION et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

58 N.E.3d 1188

Kathy MAGDA et al., Plaintiffs–Appellants,

v.OHIO ELECTIONS COMMISSION et al., Defendants–Appellees.

No. 14AP–929.

Court of Appeals of Ohio, Tenth District, Franklin County.

July 21, 2016.

The Law Firm of Curt C. Hartman, and Curt C. Hartman ; Finney Law Firm, LLC, and Christopher P. Finney (argued), Cincinnati, for appellants.

Michael DeWine, Attorney General, Tiffany Carwile (argued), and Sarah E. Pierce, for appellee Ohio Elections Commission.

BRUNNER, J.

{¶ 1} This decision is a review of an administrative appeal pursuant to R.C. 119 affirming the decision of the defendant-appellee, Ohio Elections Commission (“Commission”), and the trial court's granting of summary judgment in favor of the Commission on a contemporaneously filed declaratory judgment action, both brought by plaintiffs-appellants, Kathy Magda (“Magda”) and the Committee to Elect Kathy Magda (all collectively known as “appellants”). For the reasons that follow, we overrule appellants' third assignment of error and thereafter consider appellants' first and second assignments of error, sustaining them and remanding this matter for entry of judgment consistent with this decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} To support a bid for election to the office of Ashtabula County treasurer, appellants published a campaign flyer and newspaper advertisement with a graphic stating “Kathy Magda” and “Ashtabula County Treasurer” directly beneath it. L. George Distel, a former Ashtabula county commissioner and Ohio state representative, filed a complaint with the Commission, alleging that appellants had violated R.C. 3517.21(B)(1) by implying that Magda currently held the office of Ashtabula County treasurer. After a hearing, the Commission found a violation of the statute but no cause to refer the matter for prosecution. Appellants filed an administrative appeal to the Franklin County Court of Common Pleas pursuant to R.C. 119, and in the same action filed a complaint for declaratory judgment, and pursuant to 42 U.S.C.1983, claimed that the statute used to prosecute them, R.C. 3517.21(B)(1), is unconstitutional. Appellants sought a permanent injunction against the State of Ohio's enforcement of the statute.

{¶ 3} The trial court consolidated appellants' action with a separate administrative appeal filed by a candidate for state senate, Teresa Scarmack, and her campaign committee, of a similar Commission violation order. The trial court reversed the Commission's Scarmack decision, but it affirmed the Commission's Magda decision and denied on cross-motions for summary judgment appellants' claims for declaratory judgment relief that R.C. 3517.21(B) is an impermissible content-based restriction on free speech that does not withstand strict scrutiny, and entered judgment in favor of the Commission.

{¶ 4} The statute in question, applied and considered in both the administrative appeal and declaratory judgment, is R.C. 3517.21(B)(1), which provides:

(B) No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:

(1) Use the title of an office not currently held by a candidate in a manner that implies that the candidate does currently hold that office or use the term “re-elect” when the candidate has never been elected at a primary, general, or special election to the office for which he or she is a candidate.

{¶ 5} From the outset, appellants have maintained that any implication or suggestion in the campaign flyer and newspaper advertisement that Magda was the current Ashtabula County treasurer was inadvertent and unintentional, and there was no evidence of any design or purpose to mislead.

The trial court affirmed the Commission's finding of a violation of R.C. 3517.21(B)(1) on the authority of Ohio Democratic Party v. Ohio Elections Comm., 10th Dist. No. 07AP–876, 2008-Ohio-4256, 2008 WL 3878364 (“ODP ”), which concerned an advertisement containing photographs of candidates seeking office, with each candidate's name and the title of the office under each photograph. In ODP , we affirmed the Commission's violation order and held that the text and appearance of the advertisement “would communicate to a reasonable reader that the * * * candidates currently held the offices of which they were seeking.” Id. at ¶ 30. In fact, in that case, none of them currently held the office.

{¶ 6} In ODP , the Commission had dismissed the individual candidates named as respondents in the administrative complaint, and the violation applied only to the remaining respondent, the state party chairman. We resolved that the Commission had clear and convincing evidence that the chairman knowingly, and with intent to affect the outcome of a political campaign, had used in campaign material, titles of offices not currently held, in a manner that implied incumbency. Id. at ¶ 33. The chairman was expressly identified on the flyer as the sender, and nothing in the record suggested that he did not authorize and approve its distribution. There was no dispute that he knew that none of the candidates currently held the offices they were seeking. We further decided that, since R.C. 3517.21(B)(1) “does not apply to circumstances only involving negligence or even recklessness,” and a violation must be proved by clear and convincing evidence, the statute was not unconstitutionally overbroad. Id. at ¶ 20.

{¶ 7} In the matter under review, the trial court found that a reasonable reader would interpret the campaign flyer and advertisement to imply that Magda was the Ashtabula County treasurer, and the trial court considered this misstatement to have been a more apparent violation of R.C. 3517.21(B)(1) than the arguably misleading advertisement in ODP . The trial court also rejected appellants' challenge to the statute and declined to find the applied provisions of R.C. 3517.21(B)(1) to be an invalid restriction of speech under the First and Fourteenth Amendments to the United States Constitution¹ and Article I, Section 11 of the Ohio Constitution.² Since the time of oral argument on appeal to this Court, the United States Court of Appeals for the Sixth Circuit decided the matter of Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir.2016) (hereinafter “(2016) Susan B. Anthony List ”), holding that “Ohio's political false-statements laws are content-based restrictions targeting core political speech that are not narrowly tailored to serve the state's admittedly compelling interest in conducting fair elections.” In (2016) Susan B. Anthony List, the Sixth Circuit Court of Appeals ruled R.C. 3517.21(B)(9) and (10) unconstitutional concerning the voting records of candidates and false statements in campaigns generally.³ (2016) Susan B. Anthony List at 476. The Sixth Circuit agreed that the state's interest in election integrity is compelling, but it held that its “political false-statement laws” are not “narrowly tailored in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.” Id. at 474.

II. ASSIGNMENTS OF ERROR

{¶ 8} Appellants argue the following assignments of error:

[1.] The trial court erred in granting summary judgment in favor of the Appellees so as to find that the Appellees satisfied their evidentiary burden of actually satisfying the “well-nigh insurmountable obstacle” of strict scrutiny so as to establish that R.C. 3517.21(B)(1) satisfies the requirements of the First Amendment.

[2.] The trial court erred in denying summary judgment in favor of Appellants when the Appellees failed to meet their evidentiary burden of actually satisfying the “well-nigh insurmountable obstacle” of strict scrutiny so as to establish that R.C. 3517.21(B)(1) satisfies the requirements of the First Amendment.

[3.] The trial court erred in affirming the decision of the Ohio Elections Commission finding, by clear and convincing evidence, a violation of R.C. § 3517.21(B)(1).

III. STANDARD OF REVIEW

{¶ 9} As we stated in ODP :

Pursuant to R.C. 119.12, when a common pleas court reviews an order of an administrative agency, it must consider the entire record to determine whether the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110–111, 407 N.E.2d 1265 ; see, also, Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280, 131 N.E.2d 390. Generally, an appellate court determines whether the trial court abused its discretion in review of the agency order. Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260–261, 533 N.E.2d 264. However, on questions of law, the review of the court of appeals is plenary. Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 339, 587 N.E.2d 835, paragraph one of the syllabus.

In cases involving the First Amendment, as in the case at bar, “an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of United States, Inc. (1984), 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502, quoting New York Times Co. v. Sullivan (1964), 376 U.S. 254, 284–286, 84 S.Ct. 710, 11 L.Ed.2d 686 ; see, also, The Team Working for You v. Ohio Elections Comm. (2001), 142 Ohio App.3d 114, 119, 754 N.E.2d 273, citing Bose Corp.

(Emphasis added.) Id. at ¶ 9–10.

{¶ 10} Thus, we review the trial court's decision pursuant to R.C. 119 for...