Schmitt v. Larose

          Argued: June 26, 2019

          Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:18-cv-00966-Edmund A. Sargus, Jr., Chief District Judge.

         ARGUED:

          Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant.

          Mark R. Brown, CAPITAL UNIVERSITY LAW SCHOOL, Columbus, Ohio, for Appellees.

         ON BRIEF:

          Benjamin M. Flowers, Michael J. Hendershot, Stephen P. Carney, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant.

          Mark R. Brown, CAPITAL UNIVERSITY LAW SCHOOL, Columbus, Ohio, Mark G. Kafantaris, Columbus, Ohio, for Appellees.

          Before: CLAY, WHITE, and BUSH, Circuit Judges.

          WHITE, J., delivered the opinion of the court in which CLAY, J., joined, and BUSH, J., joined in part.

          OPINION

          HELENE N. WHITE, CIRCUIT JUDGE.

         Plaintiffs William T. Schmitt and Chad Thompson submitted proposed ballot initiatives to the Portage County Board of Elections that would effectively decriminalize marijuana possession in the Ohio villages of Garrettsville and Windham. The Board declined to certify the proposed initiatives after concluding that the initiatives fell outside the scope of the municipalities' legislative authority. Plaintiffs then brought this action asserting that the statutes governing Ohio's municipal ballot-initiative process impose a prior restraint on their political speech, violating their rights under the First and Fourteenth Amendments. The district court issued a permanent injunction against the Portage County Board of Elections and Defendant Frank LaRose, in his official capacity as the Secretary of State of Ohio, prohibiting the enforcement of the statutes in any manner that failed to provide adequate judicial review. Defendant LaRose now appeals.

         Because the Ohio statutes at issue do not violate Plaintiffs' First or Fourteenth Amendment rights, we REVERSE the district court's order and VACATE the permanent injunction.

         I.

         The Ohio Constitution reserves the power of legislation by initiative "to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action." Ohio Const. art. II, § 1f. "Because citizens of a municipality cannot exercise [initiative] powers greater than what the [Ohio] Constitution affords," an initiative may only propose "legislative action," as opposed to "administrative action." State ex rel. Ebersole v. Del. Cty. Bd. of Elections, 20 N.E.3d 678, 684 (Ohio 2014) (per curiam). "The test for determining whether an action is legislative or administrative is whether the action taken is one enacting a law, ordinance, or regulation, or executing a law, ordinance or regulation already in existence." Id. (citation and internal quotation marks omitted).

         Under Ohio law, "[e]lection officials serve as gatekeepers, to ensure that only those measures that actually constitute initiatives or referenda are placed on the ballot." State ex rel. Walker v. Husted, 43 N.E.3d 419, 423 (Ohio 2015) (per curiam). Specifically, Ohio Revised Code (O.R.C.) § 3501.11(K) requires county boards of elections to "[r]eview, examine, and certify the sufficiency and validity of petitions," and to "[e]xamine each initiative petition . . . 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 as described [by Ohio law]." O.R.C. § 3501.38(M)(1) further provides that, "[u]pon receiving an initiative petition," the relevant board of elections "shall examine the petition to determine":

Whether the petition falls within the scope of a municipal political subdivision's authority to enact via initiative, including, if applicable, the limitations placed by Sections 3 and 7 of Article XVIII of the Ohio Constitution on the authority of municipal corporations to adopt local police, sanitary, and other similar regulations as are not in conflict with general laws, and whether the petition satisfies the statutory prerequisites to place the issue on the ballot. The petition shall be invalid if any portion of the petition is not within the initiative power[.]

Id. § 3501.38(M)(1)(a). If a petition "falls outside the scope of authority to enact via initiative or does not satisfy the statutory prerequisites to place the issue on the ballot," neither the board of elections nor the Ohio Secretary of State may accept the initiative. Id. § 3501.39(A)(3). The ballot-initiative statutes do not set forth the legislative-administrative distinction. However, the Ohio Supreme Court has explained that, "[b]ecause [an initiative] on an administrative matter is a legal nullity, boards of elections have not only the discretion but an affirmative duty to keep such items off the ballot." Walker, 43 N.E.3d at 423 (citation omitted). "It necessarily follows that the boards have discretion to determine which actions are administrative and which are legislative." Id.

         When a board of elections declines to place an initiative on the ballot on the basis that it proposes an administrative action, the proponent has no statutory right to immediate judicial review. Instead, the proponent must seek a writ of mandamus in Ohio state court requiring the board of elections to put the initiative on the ballot. To show entitlement to mandamus relief, the 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 members to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law." State ex rel. Bolzenius v. Preisse, 119 N.E.3d 358, 360 (Ohio 2018) (per curiam) (citation omitted). In reviewing a decision by a board of elections, an Ohio court may only issue the writ if the board members "engaged in fraud or corruption, abused their discretion, or acted in clear disregard of applicable legal provisions." Id. Typically, the "proximity of the [next] election" satisfies the requirement that there be no adequate remedy in the ordinary course of the law. See, e.g., State ex rel. Harris v. Rubino, 119 N.E.3d 1238, 1246 (Ohio 2018); Ebersole, 20 N.E. at 491.

         In early 2018, Plaintiffs William Schmitt and Chad Thompson submitted two proposed ballot initiatives to the Portage County Board of Elections (the Board). The initiatives eliminated criminal penalties associated with possession of marijuana in Garrettsville and Windham, two villages within Portage County, by abolishing criminal fines, court costs, and consequences related to driver's licenses. Although the proposed initiatives met Ohio's statutory prerequisites-each addressed only a single subject and contained the requisite number of signatures-the Board declined to certify the petitions. In an August 21, 2018 email to Plaintiffs, a representative of the Board explained that the initiatives were rejected because the Board deemed them administrative, rather than legislative:

Reviewing the language in the proposals presented by the Village of Garrettsville and the Village of Windham, the $0 fine and no license consequences are administrative in nature. The $0 court costs is administrative in nature and is an impingement on the judicial function by a legislature. Accordingly, as the Garrettsville Village and Windham Village petitions deal with subject matter that is not subject to the initiative process, the Board of Elections, in its discretion, has chosen not to certify these issues to the ballot.

(R. 1-4, PID 35.)

         Rather than petitioning for mandamus relief, Plaintiffs filed this action, bringing facial and as-applied challenges to the Ohio ballot-initiative statutes under 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution. Plaintiffs allege that the statutes impose a prior restraint on their protected political speech, and that the ballot-initiative process must therefore comply with the procedural safeguards set forth in Freedman v. Maryland, 380 U.S. 51 (1965). Because the process fails to provide de novo judicial review of a board's decision, Plaintiffs argued, it fails to satisfy the Freedman requirements. Plaintiffs sought a temporary restraining order and preliminary injunction against the Portage County Board of Elections members Craig Stephens, Patricia Nelson, Doria Daniels, and Elayne Cross, as well as then-Ohio Secretary of State Jon Husted.

         After a hearing, the district court issued a temporary restraining order directing the Ohio Secretary of State and the Portage County Board of Elections to place both initiatives on the ballot for the November 2018 election. Schmitt v. Husted, 341 F.Supp.3d 784 (S.D. Ohio 2018). Applying the balancing test set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992), the district court determined that the Plaintiffs' right to ballot access was impermissibly burdened by the statutory framework:

Recognizing [the state's interest in regulating elections], the Court finds no legitimate state interests in preventing an adequate legal remedy for petitioners denied ballot access by a board of elections. While the availability of mandamus relief is essentially a judicially imposed remedy when the law does not otherwise provide one, the high burden on petitioners to prove entitlement to an extraordinary remedy is no substitute for de novo review of the denial of a First Amendment right.^[1]

Schmitt, 341 F.Supp.3d at 791. The district court later converted the temporary restraining order to a preliminary injunction that would expire the day after the election. On election day, the two proposed ordinances met different fates; the Windham initiative passed by a vote of 237 to 206, but the Garrettsville initiative failed 471 to 515.

         After the election, the district court ordered additional briefing on Plaintiffs' facial challenge.^[2] Plaintiffs maintained that the ballot-initiative statutes constituted a prior restraint in violation of the First Amendment "because [they] vest[] discretion in local election officials to select initiatives for ballots without providing timely and meaningful judicial review." (R. 32, PID 240.) Plaintiffs alternatively argued that the statutes authorized content-based review by local boards of elections and were therefore subject to strict scrutiny. Ohio, on the other hand, argued that the ballot-initiative statutes were not susceptible to a First Amendment challenge because they merely set forth the process by which legislation is made, and therefore did not implicate any expressive interests. Ohio also argued that even if the First Amendment is implicated, the state's interests in regulating elections, reducing voter confusion, and simplifying the ballot all justify the alleged infringement on Plaintiffs' constitutionally protected interests.

         The district court found that Plaintiffs were entitled to de novo review of the denial of their ballot initiative, and issued a permanent injunction barring the Ohio Secretary of State "from enforcing the gatekeeper function in any manner that fails to provide a constitutionally sufficient review process to a party aggrieved by the rejection of an initiative petition." Schmitt v. LaRose, 2019 WL 1599040, at *2 (S.D. Ohio Apr. 15, 2019). Notably, the district court did not analyze Plaintiffs' claim under the First Amendment, but rather under procedural due process. This approach had no basis in the pleadings or arguments below; the complaint did not separately state a procedural due process claim, and the parties' supplemental briefing did not invoke due process. On appeal, neither party defends the district court's analysis in its order granting the permanent injunction. The State disputes the merits of the procedural due process claim, and Plaintiffs insist their claim is founded only on First Amendment law. Because Plaintiffs did not raise a procedural due process argument below, and did not address it in their appellate briefing, we would ordinarily deem the issue waived. See Watson v. ...