Schmitt v. Ohio Sec'y of State Jon Husted

• Court: U.S. District Court — Southern District of Ohio
• Writing for the Court: EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE
• Citation: Schmitt v. Ohio Sec'y of State Jon Husted, 341 F.Supp.3d 784 (S.D. Ohio 2018)
• Decision Date: 19 September 2018
• Docket Number: Case No. 2:18-cv-966
• Parties: William SCHMITT, Jr., et al., Plaintiffs, v. Ohio Secretary of State Jon HUSTED, et al., Defendants.

341 F.Supp.3d 784

William SCHMITT, Jr., et al., Plaintiffs,

v.Ohio Secretary of State Jon HUSTED, et al., Defendants.

Case No. 2:18-cv-966

United States District Court, S.D. Ohio, Eastern Division.

Signed September 19, 2018

Mark George Kafantaris, Kafantaris Law Offices, Mark R. Brown, Columbus, OH, for Plaintiffs.

Sarah Elaine Pierce, Renata Y. Staff, Ohio Attorney General's Office Constitutional Offices Section, Columbus, OH, Christopher J. Meduri, Portage County Prosecutor's Office, Ravenna, OH, for Defendants.

OPINION & ORDER

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

This matter is presently before the Court for consideration of Plaintiff's Application for a Temporary Restraining Order. (ECF No. 3.) For the reasons set forth herein, the motion is GRANTED.

I.

A. Undisputed Relevant Facts

The following facts are set forth for the limited purpose of addressing the immediate motion before the Court. Any findings of fact and conclusions of law made by a district court in addressing a request for injunctive relief, particularly in consideration of a temporary restraining order, are not binding at a trial on the merits. University of Texas v. Camenisch , 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981).

Plaintiffs William Schmitt and Chad Thompson drafted and circulated two ballot initiatives in two Ohio villages, Garretsville and Windham. (ECF No. 3.) Both initiatives proposed ordinances with identical language that essentially decriminalized marijuana possession. The initiative reduced criminal fines to $0, removed any consequences related to licenses, and reduced court costs to $0. (Id. ) After acquiring the necessary signatures, Schmitt and Thompson submitted the proposed ordinances to the Portage County Board of Elections, one of the defendants in this case.

The Portage County Board of Elections rejected the proposed initiative for two reasons. First, the Board determined that "the $0 fine and no license consequences are administrative in nature." (Id. ) Second, the Board found that "[t]he $0 court costs is administrative in nature and is an impingement on the judicial function by a legislature." (Id. ) On August 21, 2018, the Portage County Board of Elections notified Schmitt and Thompson that it would not certify the proposed initiatives for the ballot. (Id. )

On August 28, 2018, Plaintiffs filed their Complaint (ECF No. 1) and a Motion for Temporary Restraining Order and/or Preliminary Injunction. (ECF No. 3.) Defendants filed Responses in Opposition to Plaintiffs' Motion (ECF Nos. 17, 18) to which Plaintiffs answered with their Reply. (ECF No. 19.) On September 17, 2018, this Court held a hearing on Plaintiffs' requested injunctive relief.

B. Ohio's Ballot Initiative Scheme

Ohio has created an initiative process for its citizens. Ohio Const. Art. II, Sec. 1. Relevant to this case, Ohio law requires petitioners for the initiation of legislation in a municipality to submit an initiative petition to a board of elections. O.R.C. § 3501.11(K)(1). The board of elections then reviews, examines, and certifies the sufficiency and validity of the petition. Id. The boards of elections are also required to "determine whether the petition falls within the scope of authority to enact via initiative and whether the petition satisfies the statutory prerequisites to place the issue on the ballot." O.R.C. § 3501.11(K)(2). This is known as the "gatekeeper mechanism." State ex rel. Walker v. Husted , 144 Ohio St.3d 361, 43 N.E.3d 419, 423 (2015). The Supreme Court of Ohio has held that boards of elections have discretion when determining "which actions are administrative and which are legal." Id. Administrative actions are not appropriate for the initiative process; legislative actions are. See O.R.C. §§ 3501.38(M)(1) and 3501.39(A)(3). While recognizing that this Court is without jurisdiction to decide whether the initiative petition contains legislative or administrative action, the parties dispute this issue, which would otherwise determine whether the matter should be placed on the ballot.

When a local elections board determines that an action is administrative (and therefore improper) or legislative (and therefore proper), Ohio law creates a fork in its procedural road. If the initiative petition is deemed valid, then citizens opposing the petition's validity—and in a practical sense, the board's decision—have an original cause of action for review of the board's decision in the Supreme Court of Ohio. Ohio Const. Art. II, Sec. 1g. On the other hand, if the board or secretary rejects a petitioner's submission for a substantive reason, as in the administrative versus legislative divide, supra ,¹ neither the Ohio Constitution nor state laws provide a remedy. As a result, a party aggrieved by the rejection of an initiative petition has no right, by statute or otherwise, to review of an executive board's legal conclusion. An aggrieved petitioner may seek a writ of mandamus, which is wholly separate from an appeal of right.

Under Ohio law, to be entitled to a writ of mandamus, a petitioner must prove, by clear and convincing evidence: (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the board to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Khumprakob v. Mahoning Cty. Bd. of Elections , 2018-Ohio-1602, 109 N.E.3d 1184 (citing State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13 ). Only the Supreme Court of Ohio or the courts of appeals have original jurisdiction in mandamus. Ohio Const. Art. IV, Sec. 3 ; State ex rel. Jones v. Husted (Ohio, 2016) 149 Ohio St.3d 110, 73 N.E.3d 463, 2016-Ohio-5752. When the Ohio Supreme Court or courts of appeals reviews a decision by a county board of elections, such court may only issue the writ if the board "engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions." Id. ¶ 4 (citing State ex rel. Jacquemin v. Union County Bd. of Elections , 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9 ).

Applied to these narrow facts, Ohio's initiative scheme denies a rejected petitioner "an adequate remedy ... of law" for review of a local board of election's legal determination. Instead, the only recourse available is a petition for a writ of mandamus. A writ is an extraordinary remedy that is discretionary and "will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction." State ex rel. Sparto v. Juvenile Court of Darke County (1950), 153 Ohio St. 64, 65, 90 N.E.2d 598. In other words, rejected petitioners are stuck between a rock and a hard place. But is there any constitutional violation?

On that question, the parties disagree. Plaintiffs allege that by following Ohio law, Defendants violated their rights protected by the First and Fourteenth Amendments. Defendants argue that the gatekeeper mechanism and the possibility of a writ of mandamus are constitutionally sound. To remedy their alleged violations, Plaintiffs move this Court to order injunctive relief, pursuant to Federal Rule 65 of Civil Procedure.

II.

Federal Rule 65 of Civil Procedure allows a party to seek injunctive relief if the party believes that it will suffer irreparable harm or injury. Fed. R. Civ. P. 65. To determine whether injunctive relief should be issued, the Court considers these four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether granting the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction. McPherson v. Michigan High School Athletic Ass'n , 119 F.3d 453, 459 (6th Cir. 1997) (en banc).

These factors are not prerequisites; each must be weighed against the others. Id. at 459. "Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal." Gonzales v. Nat'l Bd. of Med. Exam'rs , 225 F.3d 620, 625 (6th Cir. 2000). A district court is required to make specific findings concerning each of the factors unless fewer are dispositive of the issue. Performance Unlimited v. Questar Publishers, Inc. , 52 F.3d 1373, 1381 (6th Cir. 1995). The Court will now analyze each of the four factors below.

III.

A. Likelihood of Success

Plaintiffs argue that Ohio's ballot initiative procedure violates their rights guaranteed by the United States Constitution. In their Reply Brief (ECF No. 19), Plaintiffs make clear that they "do not challenge Ohio's ability to limit the subject matter of its initiatives. What Plaintiffs challenge is how Ohio has chosen to implement this otherwise lawful task." (Id. ) At oral argument, however, Plaintiffs argued that the Ohio procedure for proposing initiatives violates constitutional due process protections.

At the same oral argument, Defendants responded that the mandamus relief is constitutionally sufficient. Defendants conceded that mandamus relief is only appropriate when there is no adequate remedy at law, and that the Supreme Court or courts of appeals must review local board of election's decision by a "clear disregard of law" standard.

The right to initiate legislation through the initiative process is not a federal constitutional right. Taxpayers United for Assessment Cuts v. Austin , 994 F.2d 291, 295 (6th Cir. 1993). Concomitantly, once the initiative or, if its counterpart, the referendum process, is made a part of state law, the process becomes a "democratic tool" to be regulated in a manner consistent with the First and Fourteenth Amendments. City of Eastlake v. Forest City Enterprises, Inc. , 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976).

In Meyer v. Grant , the United States Supreme Court held that once a right of initiative is...