United States District Court, S.D. Ohio, Eastern Division
COLLEEN M. O'TOOLE, et al., Plaintiffs,
MAUREEN O'CONNOR, et al., Defendants.
Deavers Magistrate Judge.
OPINION & ORDER
L. GRAHAM United States District Judge.
the Ohio Code of Judicial Conduct, incumbent judges running
for re-election can call themselves judges. Other sitting
judges seeking election to a different bench cannot. Since
this is an unconstitutional restraint on free speech, the
Court will grant summary judgment to Plaintiffs.
matter is before the Court on the parties' cross-motions
for summary judgment, (Docs. 43, 44), and Plaintiffs' Motion
for Reconsideration, (Doc. 42), of this Court's Opinion
and Order that granted in all parts but one Defendants'
Motion for Judgment on the Pleadings, (Op. & Order, Doc.
41). The Court will DENY Plaintiffs'
Motion for Reconsideration. The Court will
GRANT summary judgment to Plaintiffs on
their as-applied challenge; the Court will
GRANT summary judgment to Defendants on
Plaintiffs' facial challenge.
ruling on a motion for preliminary injunction and a motion
for judgment on the pleadings, this matter is back before the
Court, and the facts are essentially the same as before.
Ohio's citizens elect their judges, Ohio has established
rules governing how judicial candidates may conduct their
campaigns, and Plaintiffs challenged several of those rules.
Three plaintiffs bring claims. One: Colleen M. O'Toole,
who currently presides as a judge on Ohio's Eleventh
District Court of Appeals. O'Toole is a candidate for
election to the Ohio Supreme Court. Two: Friends to Elect
Colleen M. O'Toole (“the Committee”), a
campaign committee that registered with the Ohio Secretary of
State to receive contributions and make expenditures on
behalf of O'Toole in her campaigns for judicial office.
Three: Gary Broska, a would-be contributor to
O'Toole's campaign fund.
Plaintiffs sue three defendants: (1) Maureen O'Connor,
Chief Justice of the Ohio Supreme Court; (2) Scott J. Drexel,
disciplinary counsel of the Ohio Supreme Court; and (3)
Richard A. Dove, Secretary to the Board of Commissioners on
Grievances and Discipline of the Ohio Supreme Court. (Am.
Compl. at ¶¶ 10- 12). Plaintiffs allege Defendants
adopted, promulgated, and have enforced or threaten to
enforce certain unconstitutional provisions of the Ohio Code
of Judicial Conduct. (Am. Compl. at ¶ 14).
(Op. & Order at 1-2).
challenged various provisions of the Ohio Code of Judicial
Conduct. Defendants moved for judgment on the pleadings.
(Doc. 27). The Court granted Defendants' motion on all
but one of Plaintiffs' claims. (Doc. 41). Plaintiffs ask
the Court to reconsider its order and ask for judgment in
their favor on the one outstanding claim. Defendants also ask
for judgment on the one outstanding claim.
outstanding claim is this: Rule 4.3(C) of the Ohio Code of
Judicial Conduct violates Plaintiffs' freedom of speech.
Rule 4.3 says, “[A] judicial candidate . . .
shall not knowingly or with reckless disregard . . .
(C) Use the title of a public office or position immediately
preceding or following the name of the judicial
candidate, when the judicial candidate does not hold that
office or position . . . .” Ohio Jud. Cond. Rule 4.3
(emphasis in original denotes a term defined in the Ohio Code
of Judicial Conduct). The Ohio Code of Judicial Conduct also
includes comments to the rules. In this case, the pivotal
comment says, “A sitting judge, who is a judicial
candidate for a judicial office other than the court on which
he or she currently serves, violates Rule 4.3(C) if he or she
uses the title ‘judge' without identifying the
court on which the judge currently serves.” Ohio Jud.
Cond. Rule 4.3(C), cmt. .
ruling on Defendants' Motion for Judgment on the
Pleadings, the Court held that Rule 4.3(C), when interpreted
in light of Comment , prohibits true speech. And since the
First Amendment protects almost all true speech in campaign
communications, the rule likely fails to pass strict
scrutiny. But, the Court refused to enter judgment for
Plaintiffs sua sponte.
moving to the analysis of Rule 4.3(C), the Court discusses
Plaintiffs' Motion for Reconsideration.
The Court Will Deny Plaintiffs' Motion for
Court granted Defendants' Motion for Judgment on the
Pleadings on all but one of Plaintiffs' claims. (Op.
& Order at 31). Plaintiffs ask the Court to reconsider
its entire ruling based on “two fundamental overarching
principles.” (Pls.' Mot. Recons. & Mot. J. on
the Plead-ings/Summ. J. at 3, Doc. 42). One: the alleged
violation here is of a constitutional right, not just any
right. Two: “those who govern should be the
last people to help decide who should
govern.” (Id. (quoting McCutcheon v. Fed.
Election Comm'n, 134 S.Ct. 1434, 1441-42 (2014))).
Plaintiffs also present arguments specific to one of the
Court's rulings: that the fundraising window created by
Rule 4.4(E) is constitutional. Defendants argue that
Plaintiffs motion is improper because federal courts
don't recognize a motion for reconsideration, and if the
Court construed Plaintiffs' motion as one brought under
Federal Rules of Civil Procedure 59(e) or 60(b), the motion
would be improper. The Court considers the arguments in the
following order: (1) whether the Court can entertain
Plaintiffs' motion, (2) Plaintiffs' broad arguments
regarding an elected judiciary, and (3) their specific
arguments regarding Rule 4.4(E).
can the Court reconsider its earlier ruling, and if so, what
standards govern such reconsideration? In short, yes, the
Court may reconsider its earlier ruling.
When an action presents more than one claim for relief . . .
the court may direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however designated,
that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
Civ. P. 54(b). The second sentence of Rule 54(b) describes
this Court's August 18, 2016 Opinion & Order-a
decision that adjudicated fewer than all the claims
analyze Plaintiffs' motion under Federal Rules of Civil
Procedure 59 and 60, but analyzing Plaintiffs' motion
under these rules would only be proper if the Court had
issued a judgment. See Fed. R. Civ. P. 59(e) (Motion
to Alter or Amend a Judgment); Fed.R.Civ.P. 60 (contemplating
a motion for relief from a final judgment, order, or
proceeding to be filed, but “the motion does not affect
the judgment's finality or suspend its
operation.”). Since the Court has not yet entered a
judgment but has issued an order that adjudicated fewer than
all the claims in this case, the Court may revise its orders
at any time before it enters a judgment adjudicating all the
claims and all the parties' rights and liabilities.
See Leelanau Wine Cellars, Ltd. v. Black & Red,
Inc., 118 F. App'x 942, 946 (6th Cir. 2004) (holding
that district court had power under Rule 54 to reconsider its
order sua sponte because it was an interlocutory order).
Since Plaintiffs' motion asks the Court to revise just
such an order, the Court will entertain Plaintiffs'
the second issue-Plaintiffs argue that judicial elections
suffice to promote Ohio's interest in a fair and
impartial judiciary; therefore, any additional restraint of
free speech wouldn't pass strict scrutiny. Much of
Plaintiffs' motion is spent reviewing the history and
wisdom of judicial elections. (Pls.' Mot. Recons. at
3-11). And while Ohio may have a compelling interest in
public confidence in judicial integrity, impartiality, and
independence, Plaintiffs conclude, “[t]he people of the
State of Ohio, in their infinite wisdom, put in place a
mechanism that actually and empirically advances such
interest but is significantly less intrusive on First
Amendment rights.” (Id. at 11). That mechanism
is the judicial election. Plaintiffs argue that by electing
its judges, Ohio holds them accountable, which in turn means
Ohio has already achieved the “compelling interest of
public confidence in . . . judicial integrity, impartiality
and independence.” (Id.). Thus, any additional
regulation would not be as narrowly tailored to achieve the
compelling interest at stake, which means any regulation
beyond permitting judicial elections would fail strict
argument has problems, not the least of which is a Supreme
Court opinion. States may adopt narrowly tailored
restrictions on the speech of judicial candidates. See
Wil-liams-Yulee v. Fla. Bar, 135 S.Ct. 1656, 1673
(2015). And a state's decision to elect its judges
“does not compel it to compromise public confidence in