Suster v. Marshall
| Decision Date | 30 July 1998 |
| Docket Number | 96-4287,Nos. 96-4048,96-4115,96-4380 and 97-3174,s. 96-4048 |
| Citation | 149 F.3d 523 |
| Parties | Ronald SUSTER; Patricia Cleary, Plaintiffs-Appellees/Cross-Appellants (96-4115), Beth Smith; Jack Durkin; Robert Lisotto; Stuart Saferin; Christopher A. Boyko; Gail Rose Kane; Timothy P. Maloney, Intervenors-Appellees, v. Jonathan W. MARSHALL; Robin G. Weaver; David T. Evans; Thomas J. Moyer, Chief Justice; Andrew Douglas; Alice Robie Resnick; Francis E. Sweeney; Paul E. Pfeifer; Deborah L. Cook; Evelyn L. Stratton, Defendants-Appellants (96-4048/4287/4380; 97-3174)/Cross-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Michael J. Renner (argued and briefed), Office of the Attorney General of Ohio, Columbus, Ohio, for Defendants-Appellants/Cross-Appellees.
Timothy J. Grendell (argued and briefed), Grendell & Targove, Independence, Ohio Timothy J. Grendell (argued and briefed), Grendell & Targove, Independence, Ohio, for Plaintiffs-Appellees/Cross-Appellants in Nos. 96-4114, 96-4287, 96-4380, 97-3174.
Mark A. Ferguson, Taft, Stettinius & Hollister, Cleveland, Ohio, for Plaintiffs-Appellees/Cross-Appellant in No. 96-4048.
Steven J. Miller (argued and briefed), John A. Wasleff (briefed), Goodman, Weiss & Miller, Cleveland, Ohio, for Intervenors-Appellees Smith, Durkin and Lisotto.
Sarah J. DeBruin, Warren I. Grody, John F. Birath, Jr. (argued), Bricker & Eckler, for Intervenors-Appellees Saferin, Boyko and Kane.
James S. Gentile, Huberman & Gentile, Youngstown, Ohio, for Intervenor-Appellee Maloney.
Elizabeth M. Osenbaugh (briefed), Department of Justice, Des Moines, Iowa, for Arizona, Amici Curiae.
Eugene P. Whetzel (briefed), Ohio State Bar Association, Columbus, Ohio, for Ohio State Bar Association, Amici Curiae.
Joan M. Englund (briefed), American Civil Liberties Union of Ohio Foundation, Cleveland, Ohio, Scott T. Greenwood (briefed), Greenwood & Associates, Cincinnati, Ohio, for American Civil Liberties Union of Ohio Foundation, Inc., Amici Curiae.
Before: KEITH, SILER, and DAUGHTREY, Circuit Judges.
Defendants-Appellants appeal the district court's grant of preliminary injunction, enjoining the enforcement of Canon VII(C)(6) of the Ohio Code of Judicial Conduct. Plaintiffs-Appellees, Suster and Clearly, cross-appeal the district court's denial of preliminary injunction to enjoin enforcement of Canon VII(C)(8) of the Ohio Judicial Code of Conduct. For the reasons set forth below, we AFFIRM the decision of the district court.
Plaintiffs are judges on the Cuyahoga County Common Pleas Court. Judge Ronald Suster ("Suster") was appointed to the judiciary in October 1995. His judicial term expired on December 31, 1996. From 1981 to 1995, prior to his appointment to the judiciary, Suster served as an elected member of the Ohio House of Representatives from Cuyahoga County. During Suster's tenure as a State Representative, Suster received campaign contributions which were deposited with his campaign committee, "Friends of Ron Suster."
Effective July 1, 1995, the Ohio Supreme Court, pursuant to its powers to regulate the judiciary and bar of the State of Ohio, enacted Judicial Canons VII(C)(6)(d) and VII(C)(8). Judicial Canon VII(C)(6)(d), in its original form, prohibited any candidate in a judicial election from spending more than $75,000.00 in a race for judgeship for the Ohio Common Pleas Court. The provision also prohibited a judicial candidate from spending more than $18,750.00 in the primary election.
In 1996, Suster, while campaigning for re-election, brought suit challenging the constitutionality of the primary campaign spending limit of $18,750.00 ("Suster I"). Prior to a ruling in Suster I, however, the Ohio Supreme Court amended and removed the portion of the Canon which imposed an expenditure limit in primary elections. On February 20, 1996, without a hearing, a Final Consent Decree was entered enjoining Defendants from enforcing the primary election campaign spending limit. Suster, thereafter, spent $72,710.01 to communicate his qualifications and experience to the voters.
Having nearly surpassed the $75,000 spending cap in a judicial election, Suster, along with Judge Patricia Cleary ("Cleary"), filed the instant action seeking declaratory and injunctive relief from the amended Judicial Canon VII(C)(6). 1 They also sought to enjoin and declare unconstitutional Judicial Canon VII(C)(8). 2 Canon VII(C)(8) prohibits anyone from using money raised in a previous non-judicial campaign in a subsequent judicial campaign. Suster challenged this provision because he desired to use the remainder of his state representative campaign contributions toward his efforts for a judgeship.
Conversely, Cleary sought to challenge both Canons arguing that when her term expires in December 2000, she would like to spend more than $75,000 on her re-election campaign. Cleary and Suster both maintain that as registered voters they are entitled to hear as much campaign speech as a candidate wishes to utter.
After a hearing, the district court determined that there was a strong likelihood that Plaintiffs would succeed in establishing on the merits that Canon VII(C)(6) was unconstitutional. The district court determined, however, that Plaintiffs were unlikely to succeed in establishing on the merits that Canon (VII)(C)(8) was unconstitutional. Consequently, the district enjoined Defendants from enforcing Canon VII(C)(6) and refused to enjoin Defendants from enforcing Canon VII(C)(8).
Defendants filed a motion for stay pending appeal stating that the language of the injunction was over-broad. The district court, rather than granting the motion for stay, modified its original order and enjoined enforcement of Canon VII(C)(6) against Plaintiffs only. Defendants filed a timely notice of appeal, and Plaintiffs filed a timely notice of cross-appeal.
On October 10, 1996, Jack Durkin, Beth Smith, and Robert Lisotto filed a motion to intervene as plaintiffs and requested a preliminary injunction. On October 15, 1996, Stuart Saferin, Christopher Boyko, and Gail Rose Kane also filed a motion to intervene as plaintiffs and requested a preliminary injunction. As there was no opposition to the proposed intervention, the district court granted both motions. The district court also granted the Intervenors' motion for preliminary injunction, to which Defendants filed a timely notice of appeal.
Both set of Intervenors were sitting as judges on the Court of Common Pleas for Cuyahoga County or they were judicial candidates for such position. The Intervenors stated in their petition for injunctive relief that they had the "wherewithal to spend, and intended to spend, sums in excess of the campaign spending cap." (Response Brief for Intervenors at 2.) They argued that if they exceeded the cap, they faced investigations from the Judiciary of Ohio, and possible disciplinary sanctions, fines, cease and desist orders, and an assessment of costs.
Nancy Russo, a judicial opponent of Intervenor Saferin, sought to intervene as a new party defendant and to have the case dismissed. The court denied Russo's motion to dismiss. Thereafter, Russo filed a motion to be dismissed as a defendant. The court granted that motion.
On October 22, 1996, the district court issued an order granting preliminary injunction to all plaintiffs and, upon consent by all the parties, extended the preliminary injunction order to include not only Plaintiffs and Intervenor-Plaintiffs, but also their respective opponents.
On November 1, 1996, Timothy Maloney sought to intervene as an additional plaintiff. He also moved for preliminary injunction. On November 25, 1996, the district court granted Maloney's motion to intervene and for preliminary injunction. Defendants again filed a timely notice of appeal.
On January 27, 1997, the district court entered a marginal order denying without prejudice Defendants' motion to dismiss Count three of Suster's and Cleary's complaint pending this appeal. Defendants appeal that decision as well.
Amicus Curiae briefs were filed by the American Civil Liberties Union of Ohio, the Ohio State Bar Association, and the National Voting Rights Institute and the Brennan Center for Justice.
This Court has jurisdiction over the issuance of a preliminary injunction, pursuant to 28 U.S.C. § 1292(a)(1). Jurisdiction to consider Defendants' appeal of the district court's refusal to dismiss Plaintiffs' substantive due process claim under the Eleventh Amendment, is also appropriate pursuant to the collateral order doctrine and 28 U.S.C. § 1291.
Although the 1996 election is over, all of the parties assert that this action is not moot as the controversy is "capable of repetition, yet evading review." See Norman v. Reed, 502 U.S. 279, 288, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992).
In Weinstein v. Bradford, 423 U.S. 147, 148, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975), the Supreme Court held that:
[I]n absence of a class action, the 'capable of repetition, yet evading review' doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.
The instant action was not filed until August, 1996, three months prior to the general election. Although the parties may have won their respective seats in that election, all have indicated that they intend to seek re-election. Given the short duration between the filing of this action and the general election, there is a "reasonable expectation" that these same litigants, in addition to any other potential candidates in a subsequent election, "would be subjected to the same [constitutional] action again." Id; see also Renne v. Geary, 501 U.S. 312, 319-20, ...
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