Ohioans Against Corporate Bailouts, LLC v. Larose
| Decision Date | 23 October 2019 |
| Docket Number | Case No. 2:19-cv-4466 |
| Citation | 417 F.Supp.3d 962 |
| Parties | OHIOANS AGAINST CORPORATE BAILOUTS, LLC, aka Ohioans Against Corporate Bailouts, et al., Plaintiffs, v. Frank LAROSE, in his official capacity as Ohio Secretary of State, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Brian C. Shrive, Christopher P. Finney, Finney Law Firm, LLC, Curt Carl Hartman, Cincinnati, OH Patrick M. Quinn, Brunner Quinn, Columbus, OH, Joseph A. Vanderhulst, Pro Hac Vice, Langdon Law LLC, West Chester, OH, for Plaintiff.
John Doe #2, pro se.
Bridget C. Coontz, Ohio Attorney General's Office, Ann Yackshaw, Ohio Attorney Generals Office Constitutional Offices Section, Andrew Donald Matthew Miller, Columbus City Attorney's Office Civil Litigation Section, Lara N Baker-Morrish, Columbus City Prosecutor's Office, Columbus, OH, for Defendants.
This matter is before the Court for consideration of Plaintiffs' Motion for Preliminary Injunction (ECF No. 32), which alleges that Ohio Revised Code § 3519.01(B) contains restrictions that severely burden its First Amendment rights. The Court conducted an evidentiary hearing and oral argument on Plaintiffs' Motion for Preliminary Injunction, which is now ripe for review. For the reasons that follow, the Court DENIES Plaintiff's Motion for Preliminary Injunction and CERTIFIES questions to the Supreme Court of Ohio, as explained in this Opinion and Order.
Plaintiffs, Ohioans Against Corporate Bailouts ("OACB"), a political action committee, and four individuals, seek a preliminary injunction requiring the Ohio Secretary of State to extend the length of time during which the committee may collect a sufficient number of signatures to invoke the referendum provision of the Ohio Constitution, Article II, Section 1c -g. These sections of the Ohio Constitution provide a legal mechanism by which legislation enacted by the Ohio General Assembly can be subject to a statewide vote. According to the Ohio Constitution, if six percent of registered voters sign a referendum petition within ninety days after the passage of the legislation, the law may not go into effective unless at a future election a majority of electors vote in favor of the measure.
Few Ohioans are unaware of Amended Substitute House Bill 6, best described in neutral fashion as an enactment that makes major changes to the regulation of the electric power industry in Ohio. Immediately after enactment on July 23, 2019, opponents and supporters of the measure locked horns in what has become one of the most expensive and divisive campaigns in Ohio history. Plaintiffs claim, and have supported the allegations with sworn testimony, that circulators of the referendum petitions have been assaulted and harassed.1 Plaintiffs assert that the Ohio Secretary of State has enabled such conduct by enforcing a law that requires disclosure of names and addresses of all circulators, a position disclaimed by the Secretary and subject to a restraining order issued earlier in this case.
According to Plaintiffs, the ferocity of the opposition, coupled with a restriction on circulation of petitions during a so-called "blackout period," caused an unconstitutional restraint on speech by shortening the time to gather signatures. While the Ohio Constitution provides for 90 days to circulate referendum petitions, the Ohio legislature has enacted a requirement that, prior to circulation, referendum petitions must be presented to the Attorney General, who then determines whether a required summary is "fair and truthful." Ohio Revised Code § 3519.01(B)(2). In this case, the Attorney General rejected the first summary submitted by Plaintiffs. Rather than pursuing an authorized appeal to the Ohio Supreme Court, a second summary from Plaintiffs followed, which was approved by the Attorney General. Plaintiffs contend mat this process unconstitutionally deprived them of 38 of the 90 days provided for in Article II, Section 1c of the Ohio Constitution.
Yet, the jurisdiction of this Court is defined not by the scope of the issues raised in this highly public, bitter debate. In Article III of the United States Constitution, as constrained by the Eleventh Amendment, for purposes of this case, the Court has jurisdiction to decide cases and controversies arising only under federal law. As the parties agree, this Court does not have jurisdiction over any claim that the Secretary of State or the Ohio General Assembly has violated the referendum provisions of the Ohio Constitution.
For the reasons that follow, this Court denies Plaintiffs' motion for a preliminary injunction. The alleged unconstitutional diminution of the time to circulate petitions does not state a colorable claim under the federal constitution. The 90-day window to circulate petitions is only prescribed in the Ohio, not federal, Constitution. As the Secretary of State notes, no Ohio court has directly addressed whether the ninety-day period is guaranteed or whether the statutorily required review by the Attorney General before circulation may begin violates the Ohio Constitution. The Secretary contends, and the Court agrees, that "unsettled issues of Ohio law permeate Plaintiffs' claims." (ECF No. 32 at 18.) Insofar as this Court lacks subject matter jurisdiction to determine such state law issues, the Court certifies a series of state law questions to the Ohio Supreme Court, as suggested by the Secretary of State.
Under the Ohio Constitution, "[t]he legislative power of the state shall be vested in a general assembly consisting of a senate and house of representatives but the people reserve to themselves the power ... to adopt or reject [laws and amendments to the constitution] at the polls on a referendum vote." Art. II, sect. 1. "The referendum ... is a means for direct political participation, allowing the people the final decision, amounting to a veto power, over enactments of representative bodies." Eastlake v. Forest City Ents., Inc. , 426 U.S. 668, 673, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976). "The practice is designed to ‘give citizens a voice on questions of public policy.’ " Id. (quoting James v. Valtierra , 402 U.S. 137, 141, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971) ). "This reserved power of referendum applies to every law passed in this state and provides an important check on actions taken by the government." State ex rel. Ohio Gen. Assembly v. Brunner , 115 Ohio St. 3d 103, 104–05, 873 N.E.2d 1232 (Ohio 2007). For that reason, "[l]aws generally do not take effect until 90 days have passed from the date they are filed by the governor with the secretary of state, to allow for a possible referendum." Id. (citing Ohio Const., Art. II, Sect. 1 (c)). "If no referendum petition is filed in this 90-day period, the law become effective immediately; if a referendum petition is filed, the law becomes effective when a majority of electors approve it or it is determined that the referendum petition lacks a sufficient number of valid signatures." Brunner , 115 Ohio St. 3d at 105, 873 N.E.2d 1232 (citation omitted). "Thus, the 90-day period is a critical time to initiate the process of giving citizens their voice on a question of public policy." Id.
Because it functions as a veto, the referendum process may begin only after the Governor files a law in the office of the Secretary of State. Then, petitioners must first designate a committee of three to five individuals to represent them in all matters relating to the referendum petition. Ohio Rev. Code § 3519.02. Next, petitioners may file an initial written petition ("Initial Petition") with the Ohio Attorney General and Secretary of State. To be valid, an Initial Petition must contain at least 1,000 proper signatures and the full text and a summary of the law or section of the law to be referred. See Ohio Rev. Code § 3519.01(B)(1). Within one business day of filing the Initial Petition with the Secretary of State, petitioners must also file the same full text and summary of the law with the Ohio Attorney General. See id.
Within ten business days of receiving the Initial Petition, the Secretary of State must verify the number of valid signatures and compare the full text of the law or section of the law on file. If the text is correct and a requisite number of signatures are deemed valid, the Secretary of State must certify the Initial Petition. Within that same allotted period, the Attorney General must determine whether the petitioners' summary is a "fair and truthful statement" of the referred law. Once an Initial Petition is certified by both the Attorney General and Secretary of State ("Approved Petition"), petitioners can then begin the next step—gathering signatures. But if any portion of the Initial Petition is rejected, petitioners must restart the Initial Petition process.2
Before circulating may begin, any person compensating or receiving compensation for supervising, managing, or otherwise organizing any effort to obtain signatures must file a specific form ("Form 15") with the office of the Secretary of State. The Form 15 requires those individuals to provide their name, home address, email address, and phone number.
Under Ohio law, a referendum petition that is circulated must contain the summary language approved by the Attorney General, as well as the Secretary of State's certification. Ohio Rev. Code § 3519.05. The Ohio Constitution provides that the total number of signatures on the petition must equal at least six percent of the total vote cast for the office of governor at the last gubernatorial election. The Constitution also provides that these signatures must have been obtained from at least 44 of the 88 counties in Ohio, and, from each of these 44 counties, there must be signatures equal to at least 3 percent of the total vote cast for governor in that county at the last election.
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