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Schmitt v. LaRose

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

December 4, 2019

WILLIAM T. SCHMITT, et al, Plaintiffs,
v.
OHIO SECRETARY OF STATE FRANK LaROSE, et al., Defendants.

          Elizabeth P. Deavers Chief Magistrate Judge

          OPINION AND ORDER

          EDMUND A. SARGUS, JR. JUDGE

         This matter is before the Court on Plaintiffs' Motion for Attorneys' Fees (ECF No. 45), Renewed Motion for Attorneys' Fees (ECF No. 68), and Defendant Secretary of State Frank LaRose's Bill of Costs (ECF No. 55). The parties have fully briefed these motions, which are thus ripe for review. For the reasons stated below, the Court DENIES Plaintiffs' Motion for Attorneys' Fees (ECF No. 45), DENIES Plaintiffs' Renewed Motion for Attorneys' Fees (ECF No. 68), and DENIES Defendant's Bill of Costs (ECF No. 55). Accordingly, Plaintiffs' Motion to Stay the Bill of Costs (ECF No. 57) is rendered MOOT. Further, because the Court granted Defendant LaRose's Bill of Costs based on the parties' briefs, Plaintiffs' Motion to File Surreply to Defendant LaRose 's Bill of Costs (ECF No. 65) is rendered MOOT.

         I. Background

         Plaintiffs submitted proposed ballot initiatives to the Portage County Board of Elections that would decriminalize marijuana possession in the Ohio villages of Windham and Garrettsville. The Board rejected the proposed initiatives upon concluding that they fell outside the scope of the villages' legislative authority.

         Rather than petitioning for mandamus relief, Plaintiffs brought this 42 U.S.C. § 1983 action against the Board and the Ohio Secretary of State alleging the statutes that govern Ohio's ballot initiative process impose a prior restraint on Plaintiffs' political speech, thereby violating their rights under the First and Fourteenth Amendments. Lodging as-applied and facial challenges, Plaintiffs sought a temporary restraining order compelling Defendants to place Plaintiffs' proposed initiatives on the ballots so that citizens of Windham and Garrettsville could vote to accept or reject the initiatives. Plaintiffs also sought an order striking down Ohio's initiative procedure as unconstitutional.

         This Court granted Plaintiffs a temporary restraining order after concluding Ohio's initiative process lacked de novo judicial review and therefore violated the First Amendment. Accordingly, the Court directed Defendants to place the initiatives on the ballots, pursuant to the relief requested by Plaintiffs' as-applied challenges. Because the temporary restraining order would expire before the election day, the parties agreed to convert the temporary restraining order into a preliminary injunction that would then expire the day after the election. On election day, the Windham initiative passed, but the Garrettsville initiative failed. At that point, the preliminary injunction and as-applied challenges were moot. Schmitt, 933 F.3d at 636, n.2 (6th Cir. 2019).

         The parties then agreed to additional briefing to address Plaintiffs' facial challenges to Ohio's initiative process. After fully briefing the issues and conducting oral argument, this Court permanently enjoined Defendants from enforcing the ballot initiative process without de novo judicial review. On March 12, 2019, Secretary of State LaRose timely appealed. The Portage Board of Elections did not join the appeal.

         On March 15, 2019, Plaintiffs filed their Motion for Attorneys' Fees and Costs under 42 U.S.C. § 1988(b). Given Secretary LaRose's then-pending appeal, Plaintiffs recognized in their Motion that this Court had discretion to defer acting until the completion of the appeal. Plaintiffs also conceded that "[t]hey filed their Motion for Costs and Attorneys' Fees to ensure that they comply with Local Rule 54.2's 45-day window." (See Pis.' Mot. for Fees at 5.) The Court then stayed briefing on Plaintiffs' Motion for Attorneys' Fees and Costs for the duration of the appeal.

         On August 7, 2019, the Sixth Circuit reversed this Court's Order and vacated the permanent injunction. Secretary LaRose then filed his Bill of Costs.

         II. Motion for Attorney's Fees and Costs

         "The common law contains no right to attorney's fees for the winning party to a lawsuit." Miller v. Caudill, 936 F.3d 442, 448 (6th Cir. 2019) (citing McQuery v. Conway, 614 F.3d 591, 596 (6th Cir. 2010)). Instead, the "American Rule" applies, and so each party pays its own fees unless a statute explicitly provides otherwise. Id. (citing Buckhannon Bd. & Care Home v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 602 (2001)). When a party prevails in a civil rights action brought under 42 U.S.C. § 1983, then 42 U.S.C. § 1988 supplants the American Rule:

In any action or proceeding to enforce a provision of... [Section] 1983..., the court, in its discretion, may allow the prevailing party, other than the United States, ...

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