Pestrak v. Ohio Elections Com'n

Decision Date27 February 1991
Docket Number88-3132,Nos. 88-3131,s. 88-3131
Citation926 F.2d 573
PartiesWalter PESTRAK, Plaintiff-Appellee Cross-Appellant, v. OHIO ELECTIONS COMMISSION, et al., Defendants. Harry Lehman, Judith Moss, Dorothy Washington, Thomas Moody, Larry James, Defendants-Appellants Cross-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

James E. Melle (argued), Lucas, Prendergast, Albright, Gibson & Newman, Columbus, Ohio, for plaintiff-appellee cross-appellant.

John W. Zeiger, Jones, Day, Reavis & Pogue, Columbus, Andrew I. Sutter, Robert W. Hamilton, (argued), Asst. Atty. Gen., Office of Atty. Gen., Columbus, Ohio, for defendants-appellants cross-appellees.

Daniel T. Kobil, Capital University Law School, Elinor R. Alger, American Civ. Liberties Union of Ohio, Columbus, Ohio, for amicus curiae American Civ. Liberties Union of Ohio Foundation, Inc.

Before BOGGS, Circuit Judge, ENGEL, Senior Circuit Judge, * and BALLANTINE, District Judge. **

BOGGS, Circuit Judge.

Walter Pestrak brought this suit to complain about the actions of the Ohio Elections Commission in several aspects of its function as the "policer of clean elections" under authority granted to it by the Ohio legislature. The Commission assessed the truthfulness of statements made by Pestrak as a candidate, damaged his campaign both by investigating certain statements made by Pestrak and by finding probable cause to believe he violated Ohio law by making false statements, and ultimately recommended criminal prosecution, although no prosecution was brought.

The court below found all parts of the statute authorizing the Commission to undertake the above actions to be unconstitutional on their face, and also found unconstitutional the Commission's power to levy fines and issue cease and desist orders. It denied damages against any of the defendants personally on grounds of qualified immunity. We affirm the decision of the district court with regard to qualified immunity, and with regard to the unconstitutionality of the Commission's power to levy fines or issue cease and desist orders. We reverse the decision of the district court in all other respects and uphold the power of the Commission to initiate investigations, to refer matters for prosecution, and to state its opinion on the truth or falsity of matters within its purview.


The facts of this case are set forth in greater detail in the district court's opinion, Pestrak v. Ohio Elections Commission, 670 F.Supp. 1368 (S.D.Ohio 1987). Only the essential highlights will be set forth here. Walter Pestrak, a candidate for the office of Trumbull County, Ohio, Commissioner in the Democratic primary of May 1984, placed newspaper ads suggesting his opponent, the incumbent Commissioner, had committed illegal acts. The opponent filed a complaint with the Ohio Elections Commission, charging Pestrak with intentionally disseminating a falsehood concerning a candidate for election, in violation of Ohio Rev.Code Sec. 3599.091(B)(10).

Section 3599.091(B)(10) states that no person, during the conduct of a political campaign, using campaign material, shall "[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement, either knowing the same is false or with reckless disregard of whether it was false or not, concerning a candidate that is designed to promote the election, nomination, or defeat of the candidate." Section 3599.091(B)(1)-(B)(9) prohibits various specific types of statements, mostly false ones, made during campaigns. The various prohibitions of Sec. 3599.091(B) are enforced by Subsections (C), (D), and (E). Subsection (C) authorizes the Commission to investigate charges made under the law, hold hearings, and make findings as to whether the statute has been violated. If it finds that the statute has been violated, the Commission can either impose a fine of less than $1,000, Subsection (D)(1)(A), transmit a copy of its findings to the appropriate county prosecutor, Subsection (D)(1)(B), or, if certain conditions are met, issue a cease and desist order against the speaker, Subsection (E). A violation of this statute is a misdemeanor of the first degree. 1

The Commission scheduled a hearing the day before the election, found probable cause to believe that Pestrak violated the statute, and ordered that its findings be turned over to the county prosecutor. No other action was taken against Pestrak, but he did lose the election.

Pestrak sued for declaratory and monetary relief under 42 U.S.C. Sec. 1983 against the Ohio Elections Commission and its members. After various preliminary motions were decided, Pestrak's suit continued for injunctive relief and a declaration of the unconstitutionality of various parts of the statute, and for damages against the individual commissioners.

On October 8, 1987, the district court granted Pestrak's motion for summary judgment. The court held that Sec. 3599.091(C), (D), and (E) are unconstitutional because they permit an administrative adjudication that can constitute a prior restraint on constitutionally protected speech, and because they permit liability to be assessed upon evidence that is less than clear and convincing. The court also dismissed the commissioners in their individual capacities. Pestrak, 670 F.Supp. at 1378. The appellants then filed a Motion to Alter or Amend Judgment. This motion was denied in part and granted in part, the trial judge agreeing to modify his ruling as to make clear that Sec. 3599.091(A), prohibiting placing spies in opponents' campaigns and bribing opponents' campaign workers, was still valid. Pestrak v. Ohio Elections Commission, 677 F.Supp. 534 (S.D.Ohio 1988). This appeal followed.


As a preliminary matter, the defendants challenge Pestrak's standing to attack portions of the statute that were not applied to him, either because the Commission failed to make the necessary decision (the cease and desist provisions) or because the statute authorizing them was not in existence at the time of the application to Pestrak (the fine provisions). They also argue that the particular election that was the genesis of this controversy is now over. Because the changes in the statute may easily be comprehended and address the arguments already made, and because this controversy certainly remains a live one (Pestrak has filed a motion to expedite the decision and has stated that he wishes to continue running for office or speaking concerning future campaign issues), we hold that Pestrak has standing to bring all of the challenges involved in this suit.

Our court has laid out its approach to standing questions in Planned Parenthood v. City of Cincinnati, 822 F.2d 1390, 1394 (6th Cir.1987). Two matters are required for standing. First, there must be an actual case or controversy, which can be shown by proving an "injury in fact" that can be redressed by a favorable decision. Second, as a prudential matter, the plaintiff must be a proper proponent, and the action a proper vehicle, to vindicate the rights asserted.

The injury alleged can be either a past or future injury, as the litigant need not actually undergo prosecution, especially in the first amendment area. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Babbitt v. United Farm Workers National Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 2311, 60 L.Ed.2d 895 (1979). Pestrak easily meets this requirement for standing. He was charged and investigated by the Commission, and the Commission recommended his prosecution. While it is true that the fine and the cease and desist provisions were not applied to him, he has furnished an affidavit, not contradicted in any way, that he desires to continue his political activities and that he may make other assertions that could make him the subject of action by the Commission. Thus, this controversy remains continuing and live. In Steffel, a general disagreement with the Vietnam War was found to be a continuing live controversy even though the United States had withdrawn its combat forces. This is much closer to our situation, where Pestrak avers a continuing desire to affect and participate in politics in Trumbull County, than is the leading case of Golden v. Zwickler, 394 U.S. 103, 109, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969). There, a controversy concerning a handbill attacking a particular Congressman was held not to be continuing and live after the Congressman had retired.

The second requirement is that generally a plaintiff must be asserting his own rights and interests and not solely those of third parties. Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984). Based on his affidavit, Pestrak meets this requirement. In addition, in cases involving the first amendment "the Court has enunciated other concerns that justify a lessening of prudential limitations on standing ... when there is a danger of chilling free speech...." Id. at 956, 104 S.Ct. at 2846. We hold that Pestrak does satisfy what the Supreme Court characterized as the "crucial issues" of the requirement of injury in fact and of satisfactorily framing the issues in the case. Id. at 958, 104 S.Ct. at 2847. Therefore, we hold that Pestrak has standing to bring this action.


Pestrak and amicus A.C.L.U. argue broadly that the entire statute is unconstitutional on its face, regardless of how it is enforced, because its basic purpose is to distinguish among types of political speech based on their content. This contention is untenable. Most of the parts of the statute specifically affect only the knowing making of false statements. Ohio Rev.Code Sec. 3599.091(B)(2)-(B)(7), (B)(9). Subsection (B)(10), under which Pestrak was charged, punishes making a false statement either knowingly, or with reckless disregard as to its falsity. These portions of the statute clearly come within the Supreme Court holdings in Garrison v. Louisiana, 379 U.S. 64,...

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