Platt v. Bd. of Comm'rs on Grievances & Discipline of Ohio Supreme Court

• Decision Date: 08 October 2014
• Docket Number: No. 14–3037.,14–3037.
• Citation: 769 F.3d 447
• Parties: Joseph J. PLATT; Platt For Judge Campaign Committee; Mark W. Miller, Plaintiffs–Appellants, v. BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF the OHIO SUPREME COURT, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

769 F.3d 447

Joseph J. PLATT; Platt For Judge Campaign Committee; Mark W. Miller, Plaintiffs–Appellants
v.
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF the OHIO SUPREME COURT, et al., Defendants–Appellees.

No. 14–3037.

United States Court of Appeals, Sixth Circuit.

Argued: Aug. 8, 2014.
Decided and Filed: Oct. 8, 2014.

769 F.3d 449

ARGUED:Curt C. Hartman, The Law Firm of Curt C. Hartman, Amelia, Ohio, for Appellants. Zachery P. Keller, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees. ON BRIEF:Curt C. Hartman, The Law Firm of Curt C. Hartman,

769 F.3d 450

Amelia, Ohio, Christopher P. Finney, Finney Law Firm LLC, Cincinnati, Ohio, for Appellants. Zachery P. Keller, Bridget E. Coontz, Darlene Fawkes Pettit, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees.

Before: GIBBONS and McKEAGUE, Circuit Judges; LAWSON, District Judge.^*

OPINION

McKEAGUE, Circuit Judge.

As a judicial candidate, Joseph Platt wants to openly endorse other candidates, personally and directly solicit campaign funds, and receive campaign contributions without time limitations. But he cannot do so because the Ohio Code of Judicial Conduct prohibits these activities. He sought to preliminarily enjoin enforcement of these parts of the Code under the First and Fourteenth Amendments, but the district court denied his request. At this early stage—reviewing the denial of a preliminary injunction on interlocutory appeal—we agree with the district court and thus affirm.

I.

A.

Because Ohioans elect their state-court judges, Ohio Const. art. IV, § 6, aspiring judges run for office. When campaigning, these candidates must follow the Ohio Code of Judicial Conduct. Ohio Code J. Cond. Application I(A). Promulgated by the Ohio Supreme Court, see Ohio Const. art. IV, § 5 (B), the Code places certain limits on a candidate's campaign-related speech to help maintain an “independent, fair, and impartial judiciary”—one free of “both impropriety and the appearance of impropriety.” Ohio Code J. Cond. Pmbl. ¶¶ 1–3. After our decision in Carey v. Wolnitzek, 614 F.3d 189 (6th Cir.2010), striking certain parts of the Kentucky Code of Judicial Conduct, Ohio narrowed its Code. As amended, all judicial candidates—incumbents and challengers—are subject to Canon 4 of the Code, which places restrictions on direct, personal monetary solicitation, Ohio Code J. Cond. 4.4(A); bans public political party speeches and endorsements of another candidate, id. at 4.1(A)(2)-(3); and restricts a candidate's campaign committee from receiving money earlier than 120–days before the primary, id. at 4.4(E)-(G).

The Supreme Court's Board of Commissioners on Grievances and Discipline, a defendant here, enforces the Code by disciplining its violators. The Board also enforces the Ohio Rules of Professional Conduct, which independently prohibit Ohio attorneys from violating the Code. See Ohio R. Prof. Conduct 8.2(b). A separate office—the Office of Disciplinary Counsel, also a defendant here—investigates and prosecutes suspected violators of the Code.

B.

Joseph Platt, an attorney who wishes to run for Ohio judicial office, formed his Campaign Committee by filing a Designation of Treasurer Form on June 20, 2013. As part of his campaign, Platt wanted to publicly endorse other candidates, directly solicit campaign funds in person, and receive campaign contributions without the Code's time limitations. But he could not, at least without facing penalties, because the rules of Canon 4 prohibited him from doing so. Platt sued to preliminarily enjoin

769 F.3d 451

enforcement of these rules as applied to non-sitting judicial candidates under the First and Fourteenth Amendments.

On January 6, 2014, the district court denied Platt's request. It first held that Platt failed to show a strong likelihood of success on the merits of his First Amendment claims. It then held that Platt's requested injunction—which would apply only to non -sitting judicial candidates—would cause substantial harm to sitting judicial candidates because they would still be subject to the Code's restrictions. The district court therefore concluded that the balance of equities did not tip in Platt's favor and that the injunction was not in the public interest. Balancing the proper factors, the district court denied the preliminary injunction. Platt then appealed.

II.

On August 8, 2014, we heard oral arguments. Until then, all involved assumed that Platt fell within Ohio's Judicial Code because Rule 4.6(F) defines “judicial candidate” as “a person who has ... declared or filed as a candidate for judicial office with the election authority,” and Platt had filed his initial form. See Appellant Br. 4; Appellees' Br. 11–12. But during the argument, Platt admitted that he failed to file the required petitions to appear on the ballot in 2014. He also apparently missed the deadline to declare his intent to run as a write-in candidate—his last chance for eligibility in 2014—which expired seventy-two days before the general election (August 25, 2014).See OHIO REV. CODE § 3513.041. So despite Platt's still-existing Campaign Committee and his alleged desire to run for judicial office in the future, Platt will not in fact be a candidate in the 2014 election. Given this fact, we must first determine whether we have Article III jurisdiction to hear Platt's claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101–03, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

A.

The standing requirement ensures that the plaintiff has a personalized injury that the court can directly redress. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). And the ripeness requirement prevents courts from hearing premature or abstract disagreements. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148–49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ; Carey, 614 F.3d at 196–97. These doctrines “originate from the same Article III limitation” and may be analyzed together as part of “standing.” E.g., Susan B. Anthony List v. Driehaus, ––– U.S. ––––, 134 S.Ct. 2334, 2341 n. 5, 189 L.Ed.2d 246 (2014) ; Kiser v. Reitz, 765 F.3d 601, 606–07 (6th Cir.2014).

To have standing, the plaintiff must have suffered “injury in fact”-a “concrete and particularized” or “actual or imminent” injury. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. But in a pre-enforcement review case under the First Amendment (like this one), courts do not closely scrutinize the plaintiff's complaint for standing when the plaintiff “claims an interest in engaging in protected speech that implicates, if not violates, each [provision of the law at issue].” Carey, 614 F.3d at 196 ; see also Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). A plaintiff meets the injury-in-fact requirement—and the case is ripe—when the threat of enforcement of that law is “sufficiently imminent.” Susan B. Anthony List, 134 S.Ct. at 2342. This occurs when (1) the plaintiff alleges “an intention to engage in a course of conduct” implicating the Constitution and (2) the threat of enforcement of the challenged law against the plaintiff is “credible.” Babbitt v. United

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Farm Workers Nat. Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979).

Platt has alleged a sufficient injury in fact. First, from the formation of his Campaign Committee onward, Platt has desired to engage in political speech (certainly implicating the First Amendment) that violates the Code. Id.; see also Kiser, 765 F.3d at 607–09. And second, Platt's fear that the Board may enforce the Code against him is credible. His Campaign Committee remains in place, and he could begin campaigning for another election today-which the State recognized at oral argument. And when campaigning, he wishes to publicly endorse candidates, personally and directly solicit campaign funds, and begin receiving campaign contributions earlier than 120–days before the primary—all of which the Code restricts. These parts of the Code “at least chill, and in some instances prohibit, [Platt's desired] forms of communication.” Carey, 614 F.3d at 196. Platt thus must “censor [ ] himself” to avoid violating the Code, which amounts to a “credible fear of enforcement.” See id. (holding that an analogous challenge to the Kentucky Code of Judicial Conduct was justiciable under Article III); see also Kiser, 765 F.3d at 608–10.

Two more considerations support our conclusion that Platt has standing. First, as in Susan B. Anthony List, any person—not just a prosecutor or state agency—may initiate enforcement of the Code. See Filing a Grievance, The Supreme Court of Ohio & The Ohio Judicial System, http://www.supremecourt.ohio. gov/DisciplinarySys/odc/complaint.asp (last visited Oct. 7, 2014). This feature of the Code “bolster[s]” the credibility of enforcement. Susan B. Anthony List, 134 S.Ct. at 2345. And second, when directly asked at oral argument, the State refused to disavow the enforcement of the Code as applied to...