The State Ex Rel. Letohiovote.Org v. Brunner

CourtUnited States State Supreme Court of Ohio
Citation928 N.E.2d 1066,2010 Ohio 1895,125 Ohio St.3d 420
Docket Number2010-0415,No. 2010-0367,2010-0421.,2010-0367
PartiesThe STATE ex rel. LETOHIOVOTE.ORG et al.v.BRUNNER, Secy. of State.The State ex rel. New Models et al.v.Brunner, Secy. of State.The State ex rel. Cummingsv.Brunner, Secy. of State.
Decision Date03 May 2010

125 Ohio St.3d 420
928 N.E.2d 1066
2010 Ohio 1895

The STATE ex rel. LETOHIOVOTE.ORG et al.
v.
BRUNNER, Secy.
of State.
The State ex rel. New Models et al.
v.
Brunner, Secy.
of State.
The State ex rel. Cummings
v.
Brunner, Secy.
of State.

Nos. 2010-0367, 2010-0415, 2010-0421.

Supreme Court of Ohio.

Submitted April 27, 2010.
Decided May 3, 2010.


928 N.E.2d 1067
Langdon Law, L.L.C., David R. Langdon, Thomas W. Kidd Jr., and Bradley M. Peppo, for relators LetOhioVote.org, Thomas E. Brinkman Jr., Gene Pierce, and Carlo LoParo.

Baker & Hostetler, L.L.P., John H. Burtch, Rodger L. Eckelberry, and Robert J. Tucker, for relators New Models and Timothy Crawford.

Axelrod, L.L.C., Brian J. Laliberte, and David F. Axelrod, for relator Norman B. Cummings.

Richard Cordray, Attorney General, and Richard N. Coglianese, Erick D. Gale, and Pearl M. Chin, Assistant Attorneys General, for respondent.

PER CURIAM.

{¶ 1} These are consolidated actions for writs of prohibition to prevent respondent, Secretary of State Jennifer Brunner, from enforcing subpoenas to compel relators to appear and testify at depositions and to produce documents related to their efforts to exercise their constitutional right of referendum. Because the secretary of state did not exercise judicial or quasi-judicial authority in issuing the subpoenas, we deny the writ.

Facts

{¶ 2} Relator LetOhioVote.org is a ballot-issue committee that requested a referendum on the video-lottery-terminal (“VLT”) provisions of 2009 Am.Sub.H.B. No. 1 (“H.B. 1”), and relators Thomas E. Brinkman Jr. and Gene Pierce are committee members. Pierce is also the treasurer

928 N.E.2d 1068
of LetOhioVote.org, relator Carlo LoParo is a media-relations consultant for the committee, and relator Norman B. Cummings is a political consultant for the committee.

{¶ 3} On September 21, 2009, we granted a writ of mandamus in favor of LetOhioVote.org and its committee members to compel the secretary of state to treat the VLT provisions of H.B. 1 as subject to referendum because these provisions do not fall within any of the exceptions to the constitutional right of referendum. State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462. We stayed the VLT provisions for 90 days from the date of the decision to allow the committee and its members a meaningful opportunity to circulate a referendum petition. Id. at ¶ 54.

{¶ 4} On December 21, 2009, the committee filed its referendum petition with the secretary of state. After the secretary notified the committee that its petition was deficient by about 27,000 signatures, the committee filed over 175,000 supplemental signatures. On March 26, 2010, the secretary of state certified the VLT provisions of H.B. 1 to the November 2010 ballot for a referendum election.

{¶ 5} On January 29, 2010, the committee electronically filed its annual campaign-finance report for 2009 with the secretary of state's office. In its report, the committee listed $1,551,000 in contributions received in 2009, with all of the contributions coming from relator New Models. New Models claims to be a Washington, D.C. corporation with a principal place of business in McLean, Virginia, but its corporate status had been revoked by the District of Columbia in September 2009 “for having failed and/or refused to file reports and pay all fees due and owing on or before April 15, 2009.” On March 29, 2010, New Models' corporate status was reinstated by the District of Columbia.

{¶ 6} Upon examining LetOhioVote.org's 2009 campaign-finance report, the secretary's staff found what they considered to be irregularities. The secretary of state decided to further investigate whether relator LetOhioVote.org's campaign-finance statement complied with the law, and on February 16, 2010, the secretary's office issued subpoenas for relators Pierce, LoParo, Brinkman, Cummings, and the committee's records custodian to appear and testify as witnesses at depositions scheduled for March 5 and to produce certain documents related to the committee's finances and Internet website. The secretary of state's office also issued subpoenas for the custodian of records of relator New Models and its president, relator Tim Crawford, to appear and testify at the March 5 depositions and to produce certain documents related to financial and corporate information about New Models. The subpoenas claimed to be issued pursuant to R.C. 3501.05(N) and (CC) and threatened criminal sanctions pursuant to R.C. 3599.37 for a failure to appear, testify, and produce requested documents. All of the subpoenas were successfully served except for the ones issued to Cummings.

{¶ 7} On February 17, the day after she issued the subpoenas to relators, the secretary of state issued a press release entitled “Secretary Brunner Opens Campaign-Finance Investigation Regarding LetOhioVote.org.” In her press release, the secretary of state opined that LetOhioVote.org had violated campaign-finance law by concealing the true sources of its funding. Notably, since Secretary of State Brunner took office in January 2007, she has filed approximately 764 complaints with the Ohio Elections Commission. She has not, however, issued subpoenas in connection with an investigation of alleged

928 N.E.2d 1069
violations of campaign-finance law except for those that she issued in her investigation of LetOhioVote.org.

{¶ 8} In March 2010, relators filed these original actions for writs of prohibition to prevent the secretary of state from enforcing her subpoenas. We granted alternative writs and issued schedules for the submission of evidence and briefs. State ex rel. LetOhioVote.org v. Brunner, 124 Ohio St.3d 1489, 2010-Ohio-739, 922 N.E.2d 225; State ex rel. New Models v. Brunner, 124 Ohio St.3d 1502, 2010-Ohio-809, 922 N.E.2d 966; State ex rel. Cummings v. Brunner, 124 Ohio St.3d 1503, 2010-Ohio-863, 922 N.E.2d 967. We later granted the parties' joint motion to consolidate these cases. State ex rel. LetOhioVote.org v. Brunner, 124 Ohio St.3d 1511, 2010-Ohio-919, 923 N.E.2d 154; State ex rel. New Models v. Brunner, 124 Ohio St.3d 1512, 2010-Ohio-919, 923 N.E.2d 154; State ex rel. Cummings v. Brunner, 124 Ohio St.3d 1512, 2010-Ohio-919, 923 N.E.2d 155.

{¶ 9} When the secretary of state attempted to depose some of the relators in the course of discovery in these cases, we granted their motions for protective orders to prevent the depositions and deferred consideration of relators New Models' and its president's motion for sanctions until the merits determination. See, e.g., State ex rel. LetOhioVote.org v. Brunner, 124 Ohio St.3d 1525, 2010-Ohio-1230, 923 N.E.2d 624. We then denied the secretary's motion to vacate the protective orders. See, e.g., State ex rel. LetOhioVote.org v. Brunner, 124 Ohio St.3d 1527, 2010-Ohio-1247, 923 N.E.2d 1157.

{¶ 10} This case is now before the court for our consideration of the merits as...

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  • Cummings v. Husted, Case Nos. 2:10–cv–982
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    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
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