Ohio Elections Comm. v. Ohio Chamber of Commerce & Citizens for a Strong Ohio, 2004 Ohio 5253 (OH 9/30/2004)
| Decision Date | 30 September 2004 |
| Docket Number | Case No. 03AP-1137.,Case No. 03AP-1121. |
| Citation | 2004 Ohio 5253 |
| Parties | The Ohio Elections Commission, Plaintiff-Appellee, v. The Ohio Chamber of Commerce and Citizens for a Strong Ohio, Defendants-Appellants. Ohio Elections Commission, Plaintiff-Appellee, (Alliance for Democracy, Plaintiff-Appellant), v. Citizens for a Strong Ohio et al., Defendants-Appellees. |
| Court | Ohio Supreme Court |
APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 03MS-10-168, C.P.C. No. 03MS-10-168.
Jim Petro, Attorney General, and Sharon A. Jennings, for Ohio Elections Commission.
Clifford O. Arnebeck, Jr., Edward B. Foley, and David Goldberger, for Alliance for Democracy.
Squire, Sanders & Dempsey, LLP, and William M Todd, for Citizens for a Strong Ohio and the Ohio Chamber of Commerce.
{¶1} Citizens for a Strong Ohio ("CSO") and the Ohio Chamber of Commerce ("Chamber") appeal from the decision of the Franklin County Court of Common Pleas enforcing two subpoenas issued by the Ohio Elections Commission ("Commission") during proceedings before it.1 Alliance for Democracy ("Alliance") also appeals the trial court's decision denying its motion to intervene.2 For the following reasons, we affirm.
{¶2} The procedural history of this case is as follows. The case arose from a series of advertisements ("ads") run by the Chamber and CSO during the 2000 election of Supreme Court of Ohio justices. Relators filed three separate complaints with the Commission concerning four of these ads. The complaint at issue in this appeal alleges violations of sections 3517.105, 3517.20, 3517.21(B)(9) and (10), 3517.10(D)(1), and 3599.03(A) and (B) of the Revised Code.
{¶3} Based on this court's remand in Common Cause v. Ohio Elections Comm., 150 Ohio App.3d 31, 2002-Ohio-5965 ("Common Cause I"), regarding two of the originally filed complaints, including the complaint at issue, the Commission elected to proceed with further hearings on the complaints. One of the complaints involving corporate respondent U.S. Chamber of Commerce was submitted to the Commission based on stipulated facts.3
{¶4} The Commission also proceeded on the complaint at issue resulting in this subpoena enforcement action. The complaint alleged that CSO and the Chamber violated Ohio election law by airing an ad entitled "Is Justice For Sale?" Alliance, CSO, and the Chamber filed motions for partial summary judgment. The Commission granted Alliance's motion on the grounds the ads violated R.C. 3599.03. The Commission determined the U.S. Chamber violated R.C. 3599.03 by paying for the ads with general corporate funds. Specifically, the Commission found the ads expressly advocate for or against a candidate and were made for or in aid of or opposition to a candidate for election to public office as provided in R.C. 3599.03. The Commission concluded that "magic words" were not necessary to establish a violation, in accordance with this court's opinion in Common Cause I. The Commission denied CSO's and the Chamber's motion for partial summary judgment.
{¶5} Alliance has been engaged in discovery regarding the claims since the remand from this court in Common Cause I. The discovery propounded included a request for production of the list of names of contributors to CSO, the date of the contribution, and the amount of the contribution. CSO and the Chamber still refused to produce the list. Thereafter, the Commission issued two subpoenas, one to CSO and one to the Chamber. CSO and the Chamber failed to produce the list. The Commission filed an application to enforce the subpoenas in the trial court pursuant to R.C. 3517.153(B).4 The trial court ordered the list produced by November 17, 2003. If they failed to do so CSO and the Chamber would be subject to a fine of $25,000 per day. CSO and the Chamber subsequently filed this appeal. CSO and the Chamber ("appellants") assert the following assignments of error:
1. The Common Pleas Court erred in granting the [Commission's] application for enforcement of subpoenas duces tecum, because the Commission did not have the jurisdiction or legal authority to issue the subpoenas involved in this case.
2. The Common Pleas Court erred in determining without an evidentiary hearing, that the information requested in the subpoenas was relevant to any of the issues pending before the Commission.
3. The Common Pleas Court erred in determining the subpoenas were not burdensome or oppressive, because compliance requires the violation of third party rights guaranteed under the First Amendment to the U.S. Constitution.
4. The Common Pleas Court erred in not placing the burden on the Commission to demonstrate that compliance with the subpoenas was appropriate because the Common Pleas Court failed to apply the correct standard of review.
5. The Common Pleas Court erred in ordering excessive and disproportionate fines as an alternative to noncompliance in violation of the Eighth Amendment to the U.S. Constitution.
{¶6} Alliance brings the following sole assignment of error:
The trial court erred in denying the motion of a party to the underlying litigation to intervene in a Revised Code §2705.03 subpoena enforcement proceeding on the ground that this was a summary statutory proceeding, because there is no basis upon which Civ.R. 24 is by its nature "clearly inapplicable" to such a proceeding, as is required for the Civ.R. 1(C)(7) exception to apply.
{¶7} The current allegations deal with various requirements of political action committees ("PAC") with the exception of R.C. 3517.21(B)(9) and (10). A PAC is defined as a "combination of two or more persons, the primary or incidental purpose of which is to support or oppose any candidate, political party, or issue, or to influence the result of any election * * *." R.C. 3517.01(B)(8). If CSO constitutes a PAC, it is required to disclose the names of contributors. The issue whether CSO constitutes a PAC is currently before the Commission.
{¶8} In their first assignment of error, appellants maintain the Commission does not have the authority or jurisdiction to issue the subpoenas that are the subject of this appeal. Appellants argue the Commission is not permitted to enforce Ohio's election laws against them because they engaged in constitutionally protected issue advocacy. Appellants contend that their particular form of speech and association is protected by the First Amendment because they never expressly advocated the election or defeat of a candidate. Therefore, any enforcement violates the standards set forth in Buckley v. Valeo (1976), 424 U.S. 1, 96 S.Ct. 612. This assignment of error is without merit.
{¶9} Initially, the Commission has the authority under Ohio law to investigate complaints filed with it. R.C. 3517.153(A) provides that upon the filing of a complaint with the Commission that sets forth a violation of sections 3517.08 to 3517.13, 3517.17, 3517.18, 3517.20, 3517.22, 3599.03, or 3599.031 of the Revised Code, "the commission shall proceed in accordance with sections 3517.154 to 3517.157 of the Revised Code." (Emphasis added.) Further, R.C. 3517.21(C) provides "[b]efore a prosecution may commence under this section, a complaint shall be filed with the Ohio elections commission under section 3517.153 of the Revised Code." In this case, Alliance alleges violations of several of these statutes.5 Therefore, the Commission must initially proceed with the complaints.
{¶10} "Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution." Buckley, supra, at 14. The First Amendment affords the broadest protection to this type of political expression to assure unfettered dialogue of ideas to bring about political and social changes desired by the people. Id. A major purpose of the First Amendment is to protect the free discussion of government, including discussion of candidates for office. Id. It protects political association as well as political expression. Id. "Privacy is particularly important where the group's cause is unpopular; once the participants lose their anonymity, intimidation and suppression may follow." Internatl. Action Ctr. v. United States (D.D.C.2002), 207 F.R.D. 1, 3 ().
{¶11} Notwithstanding important First Amendment concerns, this court previously determined the Commission has jurisdiction to investigate and adjudicate complaints containing allegations of fraudulent and false statements in campaign activities. Common Cause I, supra. In that appeal, this court discussed whether the complaints should have been dismissed based on the Commission's interpretation of Buckley at that time. We held that Buckley did not extend First Amendment protection to speech that is either known to be false or that is disseminated with reckless disregard of whether it is false. Common Cause I, supra, at ¶23, citing Chamber of Commerce of the United States of Am. v. Ohio Elections Comm. (S.D.Ohio 2001), 135 F.Supp.2d 857, 869 .
{¶12} The opinion states:
[T]he commission may constitutionally determine that statements known to be false or which were made with reckless disregard as to their falsity violate Ohio law and are not protected by the First Amendment. * * * [r]egardless of whether the speech contains the so-called 'magic words' expressing...
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