United States District Court, S.D. Ohio, Eastern Division
WILLIAM T. SCHMITT, et al, Plaintiffs,
OHIO SECRETARY OF STATE FRANK LaROSE, et al., Defendants.
Elizabeth P. Deavers Chief Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. JUDGE
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.
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'
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
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).
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.
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.
August 7, 2019, the Sixth Circuit reversed this Court's
Order and vacated the permanent injunction. Secretary LaRose
then filed his Bill of Costs.
Motion for Attorney's Fees and Costs
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, ...