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O'Toole v. O'Connor

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

May 17, 2017

COLLEEN M. O'TOOLE, et al., Plaintiffs,
v.
MAUREEN O'CONNOR, et al., Defendants.

          Deavers Magistrate Judge.

          OPINION & ORDER

          JAMES L. GRAHAM United States District Judge.

         Under 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.

         This matter is before the Court on the parties' cross-motions for summary judgment, (Docs. 43[1], 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.

         I) Factual Background

         After 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).

         Plaintiffs 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.

         The one 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. [2].

         In ruling on Defendants' Motion for Judgment on the Pleadings, the Court held that Rule 4.3(C), when interpreted in light of Comment [2], 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.

         II) Discussion

         Before moving to the analysis of Rule 4.3(C), the Court discusses Plaintiffs' Motion for Reconsideration.

         A) The Court Will Deny Plaintiffs' Motion for Reconsideration

         The 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).

         First, 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.

         Fed. R. 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 presented.

         Defendants 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' motion.

         Now to 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 scrutiny.

         Plaintiffs' 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 their ...


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