Pestrak v. Ohio Elections Com'n, C-2-84-876.
| Decision Date | 07 October 1987 |
| Docket Number | No. C-2-84-876.,C-2-84-876. |
| Citation | 670 F. Supp. 1368 |
| Parties | Walter PESTRAK, Plaintiff, v. OHIO ELECTIONS COMMISSION, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
James Melle, Lucas, Prendergast, Albright, Gibson & Newman, Columbus, Ohio, for plaintiff.
David E. Northrop, John Williams, Office of Atty. Gen., Columbus, Ohio, for defendants.
This matter is before the Court on plaintiff's motion to reconsider part of this Court's January 23, 1985 decision wherein defendants who were sued in their official and individual capacities were granted qualified immunity with respect to claims against them in their individual capacities. Also before the Court is the plaintiff's summary judgment motion seeking declaratory judgment that Ohio Rev.Code § 3599.091 is unconstitutional on its face and as applied to him. The parties have agreed to submit these issues to the court for determination based upon the law, their briefs and the record.
Jurisdiction is alleged under 28 U.S.C. §§ 1331, 1343(a)(3), (4), 2201, and 2202; 42 U.S.C. §§ 1983, 1985, 1988 and the First and Fourteenth Amendments.
The lucid statement of facts contained in Judge Duncan's July 5, 1984 order is incorporated herein.
Plaintiff, Walter Pestrak, a resident of Trumbull County, Ohio, was a Democratic candidate for the office of Commissioner of the Board of County Commissioners of Trumbull County in the primary election held on May 8, 1984.
The Ohio Elections Commission is created by Ohio Rev.Code § 3517.14 and consists of five members, each of whom was sued in his or her individual and official capacity. Defendant commissioners are Harry Lehman, Mary Jane McFadden, Mary Jane McDonald, Lea Blackburn, and Ralph McNichols.
Plaintiff has also sued the members of the Trumbull County Board of Elections: Nettie B. Ashelman, Mary K. Shaker, Ted Johnson, and William J. Timmons. They are sued only in their official capacity.
Dennis Watkins, Trumbull County Prosecutor, was voluntarily dismissed as a defendant by the plaintiff, while defendants Anthony Latell and The Ohio Election Commission were dismissed from the suit in Judge Duncan's January 23, 1985 memorandum and order.
On April 4, 1984, plaintiff ran a political advertisement in a Trumbull County newspaper strongly suggesting that his opponent in the election, incumbent County Commissioner defendant, Anthony J. Latell, Jr., had illegally awarded a contract for the architectural work on the Trumbull County Juvenile Justice Center.
On April 13, 1984 Anthony Latell filed an affidavit with defendant Elections Commission charging plaintiff with a violation of Ohio Rev.Code § 3599.091(B)(10).
Defendant Latell claimed that he had not illegally awarded the contract in question and that plaintiff's advertisement constituted an intentional falsehood made during the course of an election in violation of § 3599.091(B)(10). Defendant Latell filed an affidavit to that effect with the Ohio elections commission.
Upon the filing of an affidavit by any person, the Ohio elections commission is required to conduct an investigation of the charges made in the affidavit. In this regard the commission may hold a hearing and make findings as to whether Ohio Rev. Code § 3599.091 has been violated. Section 3599.091 for the most part forbids false statements by candidates with respect to specific topics. However, Division (B)(10), which the plaintiff was found guilty of violating, applies to unenumerated topics. It provides:
If the commission finds a violation, it can levy a fine of up to one thousand dollars, issue a cease and desist order or transmit its findings to the county prosecutor for institution of criminal prosecution.
Pursuant to Ohio Rev.Code § 3599.091(C) and Ohio Admin.Code § 111:1-1-10, the Commissioners scheduled a hearing on May 1, 1984, to determine whether plaintiff Pestrak violated § 3599.091. That hearing was continued until May 7, 1984, the day before the election. A transcript of that lengthy hearing was stipulated to by the parties and was received into evidence at the hearing on plaintiff's motion for a preliminary injunction.
Plaintiff's request for postponement of the hearing until after the election, as well as plaintiff's request that this court enjoin the conduct of that hearing, were denied.
Following the hearing on May 7, 1984, no cease and desist order was issued. However, the election commission did conclude at that time that there was probable cause to believe that a violation of the law had occurred and the commission's findings were to be transmitted to the prosecutor for Trumbull County.
The results of the hearing before the elections commission were made known to the voters of Trumbull county before the election on May 8, 1984. Plaintiff Pestrak was not elected.
Plaintiff then filed a motion for a preliminary injunction which sought to enjoin the transmittal of the commission's findings to the county prosecutor. Judge Duncan denied that motion and the transmittal of those findings occurred on June 18, 1984. The Trumbull county prosecutor subsequently declined to proceed with prosecution.
The plaintiff was charged with violation of Ohio Rev.Code § 3599.091(B)(10). The hearings were conducted pursuant to § 3599.091(C) and (D). There have been numerous amendments to § 3599.091 since 1984 when the plaintiff was charged.1
In Section V of this memorandum, this Court has addressed the question of whether the current version of Ohio Rev.Code § 3599.091 is constitutional. For the purpose of the ensuing discussion, the significant changes in the statute's language and scope since May, 1984 are: the change in division (B) from "no person ... shall purposely do any of the following:" to the present wording of "no person ... shall knowingly and with intent to effect the outcome of such campaign do any of the following"; and the separation of division (C) into several divisions. The recent amendments to these divisions provide that if the commission finds that there has been a violation it must impose a fine or transmit a copy of its findings to the prosecutor. Additionally, a person adversely affected by the imposition of a fine may appeal to the court of common pleas pursuant to Ohio Rev.Code § 119.12.
In Judge Duncan's January 23, 1985 decision, he granted qualified immunity to defendants Lehman, McFadden, McDonald, Blackburn and McNichols who were sued in their individual capacities. As a result of that decision, they cannot be held liable for money damages. Kentucky, Bureau of State Police v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Plaintiff's motion to reconsider does not convince this court that that ruling was in error.
In 1984, when this case arose, the election commission members were acting pursuant to a statutory scheme enacted by the Ohio Legislature. Such statutory enactments are presumptively constitutional. Furthermore, in 1974, the Franklin County Court of Appeals had held that Ohio Rev. Code § 3599.091 was constitutional. DeWine v. Ohio Elections Commission, 61 Ohio App.2d 25, 399 N.E.2d 99 (1978). In Section V of this decision, the Court explains why it disagrees with the DeWine decision; nevertheless, for purposes of determining whether the defendants are entitled to qualified immunity under the objective Harlow standard, the Court determines that in 1984 a "reasonably competent public official" in like circumstances would not have reasonably known that Ohio Rev. Code § 3599.091 was unconstitutional in any respect. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
However, the named defendants and their successors in office in their official capacity are still subject to declaratory and injunctive orders of this Court with respect to the constitutionality of the statute at issue. Graham, supra.
The plaintiff's motion to reconsider the granting of qualified immunity is therefore DENIED.
Defendants assert in their memorandum contra plaintiff's motion for summary judgment that the plaintiff does not have standing to attack the constitutionality of the amended and current version of Ohio Rev.Code § 3599.091. (Page's 1986 Supp.). The Court disagrees.
Plaintiff has been subjected to the provisions of the statute that were in effect in 1984. His affidavit asserts that he intends to be a candidate for office in the future. The fact that specific sections of the present statute were not applied to the plaintiff does not invalidate his right to challenge the constitutionality of the provisions. Where a statute implicating First Amendment rights applies to a plaintiff's activities, the Supreme Court has held that it may be challenged on constitutional grounds despite the fact that the plaintiff has not yet been charged with violation of that statute. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); New York Civil Liberties Union, Inc. v. Acito, 459 F.Supp. 75 (S.D.N.Y.1978);
the transcendent value to a society of constitutionally protected expression is deemed to justify allowing `attacks on overly broad statutes with no requirement that...
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