Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 1 of 16 - Page ID#: 553

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1 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 1 of 16 - Page ID#: 553 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY COVINGTON DIVISION CIVIL ROBERT A. WINTER, ESQ. : Case No. 2:14-cv ART-CJS Plaintiff : v. : Hon. STEVEN D. WOLNITZEK, et. al. : Defendants : MEMORANDUM IN SUPPORT OF INTERVENING PLAINTIFF S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION WITH VERIFIED COMPLAINT IN SUPPORT Intervening Plaintiff, Mr. Cameron Blau, seeks a temporary restraining order and preliminary injunction to prevent the enforcement of Canon 5(A)(1)(a) and Canon 5(B)(1)(c) against him as it applies to mailers that identify Mr. Blau as a Registered Republican, or the Republican Candidate (or words to a similar effect) and his opponent as a Registered Democrat, or the Democrat Candidate (or words to a similar effect). Mr. Blau is a candidate, who wishes to send mailers to voters that is or may be in violation of Canon 5(A)(1)(a) and Canon 5(B)(1)(c), necessitating the emergency relief of the temporary restraining order sought herein. I. FACTS In 2014, Mr. Blau was, and is at present, a candidate for District Judge, for the 17 th Judicial District, which comprises Campbell County, Kentucky. (Blau Declaration 3). That district has elected a Republican Judge/Executive, Republican County Attorney, and other Republican officials. (Id. at 4). Mr. Blau s opponent in the race, the incumbent District Court Judge, Judge Gregory Popovich, is a registered Democrat. (Id. at 5). Most of Judge Popovich s 1

2 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 2 of 16 - Page ID#: 554 donors are registered Democrats. 1 (Id. at 6). Most of the people endorsing Judge Popovich are registered Democrats. 2 (Id. at 7). The race between Mr. Blau and Judge Popovich is close. (Id. at 10). Mr. Blau desires to run mailers accurately identifying his longtime Republican affiliation, as well as Judge Popovich s longtime Democrat affiliation. (Id. at 11). More specifically, Mr. Blau intends to send mail that identifies himself as Registered Republican, or the Republican Candidate (or words to a similar effect) and his opponent as a Registered Democrat, or the Democrat Candidate (or words to a similar effect). Upon information and belief, the JCC is currently prosecuting a case against another judicial candidate, other than Mr. Winter, who ran in a primary election this past May, for revealing his political affiliation and commenting upon the affiliation of his opponents. (Id. at 16). Mr. Blau fears engaging in the activity set forth herein, in light of the actions taken against Mr. Winter to date, the currently pending action against another candidate Mr. Blau understands is in progress for similar mailers, and the existence of Judicial Canons that prohibit, or have been construed by the JCC to prohibit, his proposed course of conduct. (Id. at 17). Specifically, Mr. Blau believes that his proposed course of conduct would result in charges by the JCC under Canon 5(A)(1)(a) and Canon 5(B)(1)(c). (Id. at 18). In fact, it is his opinion, to a reasonable degree of legal certainty, that his proposed course of conduct is and would be a violation of these Canons. (Id.). As a consequence, his free speech is chilled, and, at present, unless intervention and a restraining order is granted, he will mail out mailings that do not refer to Judge Popovich and his 1 See (last visited 10/19/2014) 2 (last visited 10/19/2014) 2

3 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 3 of 16 - Page ID#: 555 party affiliation. (Id. at 19). Because of timing considerations, time is of the essence. (Id. at 21). Mr. Winter, in connection with his candidacy, sent twelve separate mailers; six of these mailers targeted Democrat voters, and six targeted Republican voters. In the six mailers that targeted registered Republican voters, Mr. Winter identified himself as a registered Republican, and identified certain of his opponents as registered Democrats. (Verified Int. Compl. 28). The identification of party affiliation by each candidate was accurate at the time of the mailing. (Id.). On June 2, 2014, Mr. Winter received a letter threatening enforcement against him by the JCC. (Id. at 29). A true and accurate copy of that correspondence is attached as Exhibit 7 to Mr. Winter s Complaint. (Id.). Kentucky Judicial Canon 5(A)(1)(a) provides, in relevant part, [e]xcept as permitted by law, a judge or a candidate for election to judicial office shall not: (a) campaign as a member of a political organization. Kentucky Judicial Canon 5(B)(1)(c) provides, in relevant part, [a] judge or candidate for election to judicial office: shall not knowingly, or with reckless disregard for the truth, misrepresent any candidate's identity, qualifications, present position, or make any other false or misleading statements. The JCC, has, in recent election cycles, enforced the Canons to reach the conduct contemplated by Mr. Blau. Thus, Mr. Blau s proposed activities of obtaining endorsements from current partisan officials is clearly prohibited by this Canon. They have likewise taken action against judicial candidates for liking Facebook pages of other candidates and making political 3

4 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 4 of 16 - Page ID#: 556 contributions to them. 3 And they have taken action against persons acting as leaders in political organizations. 4 At present, Mr. Blau faces threat of enforcement by Bar Counsel and/or the JCC if he engages in the activities set forth herein. His speech is thus chilled. II. LAW AND ARGUMENT A. Standard for Granting Temporary Restraining Orders and Preliminary Injunctions When deciding whether to issue a temporary restraining order or preliminary injunction, the court must consider the following four factors: (1) whether the movant has demonstrated a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable harm; (3) whether issuance would cause substantial harm to others; and (4) whether the public interest would be served by issuance. Suster v. Marshall, 149 F.3d 523, 528 (6th Cir. 1998). These "are factors to be balanced, not prerequisites that must be met." In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). When analyzing a motion for temporary restraining order or preliminary injunction, "the 'likelihood of success' prong is the most important [factor] and often determinative in First Amendment cases." Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009); see also Aristotle Pub. v. Brown, 61 F. App'x 186, 188 (6th Cir. 2003). B. Likelihood of Success on the Merits

5 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 5 of 16 - Page ID#: 557 The First Amendment of the U.S. Constitution provides, in relevant part, that Congress shall make no law... abridging the freedom of speech... The First Amendment has been incorporated under the Fourteenth Amendment to apply to the states, including the Commonwealth of Kentucky, under Gitlow v. New York, 268 U.S. 652 (1925). The United States Supreme Court in Republic Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), which involved a challenge to certain provisions of the Minnesota Judicial Canons, noted that free speech challenges involved an application of strict scrutiny. Under the strict-scrutiny test, the state has the burden to prove that the challenged clause is (1) narrowly tailored, to serve (2) a compelling state interest. Id. at 775. In order for the state to show that the challenged clause is narrowly tailored, they must demonstrate that it does not unnecessarily circumscribe protected expression. Id. In 2010, then candidate Hon. Marcus Carey sued the JCC in federal court raising First Amendment issues. Carey v. Wolnitzek, 614 F.3d 189, (6th Cir. 2010). Carey confirmed that strict scrutiny applied to Canon 5, that the regulations in question were presumptively invalid, and that Canon 5 involved core free speech. Id. at 199. In fact, the Sixth Circuit noted that the canons instead are of a piece with the kinds of speech regulation--telling candidates what they can and cannot say before an election--that the courts have scrutinized most rigorously. Id. As the Sixth Circuit noted in Carey, for a facial challenge to be warranted, the claimant must "show one of two things: (1) that there truly are 'no' or at least few 'circumstances' in 'which the Act would be valid,' (citations omitted); or (2) that a court cannot sever the unconstitutional textual provisions of the law or enjoin its unconstitutional applications." (citations omitted). Id. at The courts, however, "rightly lighten this load in the context of free-speech 5

6 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 6 of 16 - Page ID#: 558 challenges to the facial validity of a law." Id. In view of the risk that "enforcement of an overbroad law" may "deter[] people from engaging in constitutionally protected speech" and may "inhibit[ ] the free exchange of ideas," the overbreadth doctrine permits courts to invalidate a law on its face "if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" The compelling interests the Sixth Circuit recognized in Carey are: having a judiciary that is biased neither in fact nor in appearance and diminishing reliance on political parties in judicial selection. Id. at As a general matter, however, each of these Judicial Canons restrict the free flow of information to voters. As the Court noted in In Wolfson v. Concannon, 750 F.3d 1145, 1155 (9 th Cir. 2014), there is an equally compelling state interest in the free flow of information during a political campaign. Deciding the relevance of candidate speech is the right of the voters, not the State. Id. Whether and to what extent a judicial candidate chooses to engage in activities such as endorsing and making speeches on behalf of other candidates, fundraising for or taking part in other political campaigns, or asking for contributions is information that the electorate can use to decide whether he or she is qualified to hold judicial office. Id. "The vast majority of states have judicial elections because of a belief that judges as government officials should be accountable to their constituents. By making this choice, the states, by definition, are turning judges into politicians." Id. Along with knowing a candidate's views on legal or political issues, voters have a right to know how political their potential judge 5 Mr. Blau acknowledges that the first interest was articulated in White and is valid. As for political party reliance, he raises his objection to this being a compelling state interest for purposes of en banc review in the Sixth Circuit or U.S. Supreme Court review, but acknowledges the binding precedent in Carey. 6

7 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 7 of 16 - Page ID#: 559 might be. To the extent states wish to avoid a politicized judiciary, they can choose to do so by not electing judges. Id. The challenged Canons, in fact, do a true disservice to the voters of Kentucky. As explained herein, they restrict the free flow of accurate and truthful information in the course of a campaign, and, essentially, cause a fraud to be committed each election cycle on the public. A judge can identify his own political party affiliation, but cannot identify that of his opponent. The bottom line with all of these challenges is simple: the public never finds out all the information that they might want to. Mr. Winter sent mailers that identified himself as a Republican and his opponent as a Democrat which was sent to Republican voters. He did not identify his party affiliation at all to Democratic voters. If his opponents, however, wanted to identify his Republican Party affiliation to those same Democratic voters, they could not do so under existing Canons. And the Commonwealth wants us to believe that this is a good thing? Whitney v. California, 274 U.S. 357, 377, 47 S. Ct. 641, 71 L. Ed (1927) (Brandeis, J., concurring) ( If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence ). The theory of our Constitution is that the best test of truth is the power of the thought to get itself accepted in the competition of the market, Abrams v. United States, 250 U.S. 616, 630, 40 S. Ct. 17, 63 L. Ed (1919) (Holmes, J., dissenting). The Judicial Canons significantly restrict the free flow of information and the activities of judges in a political arena, essentially forcing silence, under a misguided attempt to maintain the appearance of a politic-free judiciary, when, in reality, the situation may be very different. Again, there is a simple description for this: perpetuating a fraud on the voting public. 7

8 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 8 of 16 - Page ID#: 560 Because the precedent, and analysis, of each Canon may be slightly different, each is analyzed below. a. Canon 5(A)(1)(a) Kentucky Judicial Canon 5(A)(1)(a) provides, in relevant part, [e]xcept as permitted by law, a judge or a candidate for election to judicial office shall not: (a) campaign as a member of a political organization. In Carey, noting the party affiliation issues presented core First Amendment issues, the Sixth Circuit noted that [a] party platform after all is nothing more than an aggregation of political and legal positions, a shorthand way of announcing one's views on many topics of the day. Id. Nor did the Commonwealth s argument about non-partisan elections carry any weight with the Court, which noted that Mr. Carey just wishes to communicate about a matter of potential interest to the voters and one that is often already a point of public knowledge--party affiliation--on his own terms. Id. In Carey, the political party affiliation clause stated: A judge or candidate shall not identify himself or herself as a member of a political party in any form of advertising, or when speaking to a gathering. If not initiated by the judge or candidate for such office, and only in answer to a direct question, the judge or candidate may identify himself or herself as a member of a particular political party. It was subsequently modified, and now reads: [e]xcept as permitted by law, a judge or a candidate for election to judicial office shall not: (a) campaign as a member of a political organization. 6 It has been construed by the JCC to preclude identification of a candidate s party and that of his opponents. 6 Indeed, it is hard to discern what exactly this means. Per the commentary to the Canon, a candidate is allowed to affiliate with a party. But apparently he or she cannot campaign as a member of the party. It is difficult to discern the difference. Apparently, however, identification of a candidate s political party affiliation, in a non-partisan race, and that of his opponents, is construed to violate the Canon. 8

9 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 9 of 16 - Page ID#: 561 As Carey noted, [s]trict scrutiny applies. Id. at 198. Thus, the Canons are presumptively invalid Id. In fact, [t]he canons instead are of a piece with the kinds of speech regulation--telling candidates what they can and cannot say before an election--that the courts have scrutinized most rigorously. Id. Thus, it is the rare law that survives this kind of review. Id. To survive, the canons must be narrowly tailored to advance a compelling state interest. " Id. In Carey, the Court held that censoring speech must be a government's measure of last- -not first resort in advancing its policy interests. Id. Furthermore, as was the case in Carey, [p]arty affiliation, as it turns out, is not a forbidden topic. Id. The information Mr. Blau disseminated to voters will be, in fact, publicly available voter registration information, and anyone, except the judicial candidate themselves, can send the same information. As the Carey Court noted, insofar as the party affiliation clause was concerned, and insofar as the narrow tailoring requirement is concerned: [i]f a law does too much, or does too little, to advance the government's objectives, it will fail. This canon does both. Id. Since the JCC construes the revised version of the Canon to likewise prohibit identification of a candidate s political party and that of his opponents in campaign literature, it too does too much and too little in alleviating First Amendment concerns. As the Carey Court noted, [a] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited. Id. The fact that anyone other than a candidate can disseminate the same information, or even identify judicial candidates as being part of a political party, renders the entirety of the Canon unconstitutional. 9

10 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 10 of 16 - Page ID#: 562 As Carey also noted, [a]lthough candidates may not reveal their party affiliation, they may discuss their membership in, affiliation with or support of any other type of organization, including organizations that take positions on judges and judicial philosophy. Id. Mr. Blau seeks to run mailers accurately identifying his longtime Republican affiliation, as well as Judge Popovich s longtime Democrat affiliation. (Declaration of Cameron Blau at 11). This is exactly the type of protected speech that deserves the highest protection. The Canons do not prevent, for instance, the Campbell County Republican Party from running the same mailers, or a third party Political Action Committee nor could they. As such, they are not narrowly tailored, and are unconstitutional. The problem, of course, is that the Canon is under-inclusive because they only address speech that occurs beginning the day after a non-judge candidate has filed his intention to run for judicial office. Wolfson, 750 F.3d 1145, Wolfson likewise noted another issue with narrow tailoring, namely: why the less restrictive remedy of recusal of a successful candidate from any case in which he or she was involved in a party's political campaign or gave an endorsement is an unworkable alternative. Id. at In many Kentucky counties, there is a church or series of churches that constitute the centerpiece of life for the residents of those counties. In fact, a centerpiece of Kentucky politics is hosted in just such a church Fancy Farm. In those counties, Deacons of the Church are held in high regard. A judge could identify himself as a Deacon in that church, which may well demonstrate some sort of bias towards the church or its members, and this is perfectly permissible, and he could even point out that his opponent is not such a person, but if he labels himself as a Republican and his opponent a Democrat, there is a violation of the Canons. 10

11 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 11 of 16 - Page ID#: 563 Similarly, in certain places in Kentucky, and elsewhere, Judges and other officials are members of other civic or social organizations, such as the Masons. 7 These organizations may, in fact, help the judge get elected and, if a fellow member of the organization came forward and needed assistance, could such an event at least present the appearance of bias? The Canons are simply under-inclusive in this regard. And, in yet other locations, the local Country Club is the centerpiece of political life among the movers and shakers. A judge can go to the same country club with business and civic leaders, share meals, or a round of golf, or even act as a leader in such an organization, but not place a party label on himself or herself? If the compelling interest is diminishing reliance on political parties in judicial selection, simply being a member of a political party, and being able to affiliate with a party, creates the same issues from a non-partisan perspective. The difference is that this rule prohibits the public from finding out just how partisan the judge or judicial candidate may be. b. Canon 5(B)(1)(c) Canon 5(B)(1)(c), provides, in relevant part, [a] judge or candidate for election to judicial office: shall not knowingly, or with reckless disregard for the truth, misrepresent any candidate's identity, qualifications, present position, or make any other false or misleading statements. A substantial number of instances exist in which the law cannot be applied constitutionally. These include, among other things, and without limitation: (i) forbidding expressions of opinion, versus fact, that may be construed as misleading; (ii) stating accurate statements of fact about a candidate and his or her opponent, which could be deemed to be misleading about the nature of an election itself; and (iii) stating accurate statements of fact, 7 See, e.g. (last visited 10/21/2014). 11

12 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 12 of 16 - Page ID#: 564 which, if not absolutely complete, could be construed as misleading by enforcement authorities. These same concerns led to the United States Court of Appeals striking down a provision similar to Kentucky Canon 5(B)(1)(c), in Weaver v. Bonner, 309 F.3d 1312 (11 th Cir. 2002). There, the Court noted that [o]n its face, [the Canon about false or misleading statements] has the effect of chilling even more core political speech than the statute that was held unconstitutional in Brown. Canon 7(B)(1)(d) not only prohibits false statements knowingly or recklessly made, it also prohibits false statements negligently made and true statements that are misleading or deceptive or contain a material misrepresentation or omit a material fact or create an unjustified expectation about results. Id. This is not merely a hypothetical situation. The JCC found that Mr. Winter s speech about his party affiliation and that of his opponent was misleading about the nature of the election. They cited the same Canons in their pursuit of charges against another candidate besides Mr. Winter. Mr. Blau seeks to inform voters that Judge Popovich is a Democrat and that Mr. Blau is a Republican. That does not make the race partisan, but the JCC has previously construed Canon 5(B)(1)(c) as being misleading when Mr. Winter and another candidate -- engaged in the same conduct. Mr. Blau fears exposing this truthful information, because if he does not word it in just the right way that the JCC will judge after-the-fact, it may be that it is deemed to misrepresent Judge Popovich s qualifications, or constitute any other false statements. That danger would not be found in a standard that prohibited knowingly or recklessly false statements of material fact. But that is not the standard Kentucky has adopted. 12

13 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 13 of 16 - Page ID#: The Canons are Facially Unconstitutional For a facial challenge to a statute or court rule, the courts, and in light of risk that "enforcement of an overbroad law" may "deter[] people from engaging in constitutionally protected speech" and may "inhibit[ ] the free exchange of ideas," the overbreadth doctrine permits courts to invalidate a law on its face "if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" United States v. Stevens, 130 S. Ct. 1577, 1587, 176 L. Ed. 2d 435, 443 (2010). In each of the foregoing examples, the lack of narrow tailoring demonstrates the substantial number of applications in which the canons are unconstitutional. 2. The Canon is Unconstitutional As Applied In the alternative, the application of either Canon to Mr. Blau s proposed conduct is unconstitutional as applied to that conduct. 3. Conclusion as to likelihood of success on the merits Either facially, or as applied to Mr. Blau, he has demonstrated a strong likelihood of success on the merits. C. Irreparable Harm "[T]o the extent that [the moving party] can establish a likelihood of success on the merits of its First Amendment claim, it also has established the possibility of irreparable harm as a result of the deprivation of the claimed free speech rights." Connection Dist. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)). After all, the United States Supreme Court has repeatedly recognized, "'[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'" Id. (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)). Having demonstrated likelihood of success, Mr. Blau has likewise demonstrated 13

14 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 14 of 16 - Page ID#: 566 irreparable harm from the enforcement of the unconstitutional Canons either facially or as applied. This case is not simply about Cameron Blau, however. It is also about the voters of Campbell County and voters throughout the Commonwealth. They never get to learn the entire truth they never get to learn the political affiliations or leanings of the judges they elect (perhaps a candidate may identify himself or herself or perhaps not). They never get to know just how political or politically connected that judge is. Instead, out of some misguided attempt to keep the public in the dark and pretend that a judge does not come to the bench with a past history and a present affiliation to create an appearance of impartiality on issues, the public never learns the truth. Thus, it is not only an irreparable harm to Mr. Blau that is at stake but an irreparable harm to the public as well. D. Harm to Others There is no harm to others that is implicated if the JCC and other state agencies and instrumentalities must obey the Constitution. Mich. Chamber of Commerce v. Land, 725 F. Supp. 2d 665 (E.D. Mich. 2010). Again, enough cannot be said about the fact that the challenged canons keep the public ignorant as to all the information that may be relevant in voting for their judges. In this regard, the harm to others in not granting the restraining order is significant and severe. E. Public Interest As for the fourth factor, the public interest always strongly favors the vindication of constitutional rights and the invalidation of any state action which infringes on those rights or chills their confident and unfettered exercise. Mich. Chamber of Commerce v. Land, 725 F. 14

15 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 15 of 16 - Page ID#: 567 Supp. 2d 665 (E.D. Mich. 2010). Again, and finally, there is a significant public interest in the free flow of information. Information that is hindered by the challenged canons. F. Notice as to TRO under FRCP 65 In fulfillment of the obligations set forth in FRCP 65, Counsel for Plaintiff gave notice to counsel for the JCC via electronic mail, on October 20, 2014, and sent a final draft copy of the foregoing (prior to filing) to him on October 21, III. CONCLUSION Mr. Blau has demonstrated his entitlement to a temporary restraining order, and setting this matter down for a hearing on the request for a preliminary injunction as soon as possible. Respectfully submitted, /s/ Christopher Wiest Christopher Wiest (KBA 90725) Chris Wiest, Atty at Law, PLLC 25 Town Center Blvd, Suite 104 Crestview Hills, KY / (v) 513/ (c) 859/ (f) chris@cwiestlaw.com /s/ Jack S. Gatlin Jack S. Gatlin (88899) Thomas B. Bruns (84985) FREUND, FREEZE & ARNOLD Chamber Office Park 2400 Chamber Center Drive, Ste 200 Ft. Mitchell, KY Phone: (859) Fax: (859) jgatlin@ffalaw.com Attorneys for Plaintiff 15

16 Case: 2:14-cv ART-CJS Doc #: 46-1 Filed: 10/21/14 Page: 16 of 16 - Page ID#: 568 CERTIFICATE OF SERVICE I certify that I have sent a copy of the foregoing to the counsel for Defendants, via filing in the Court s CM/ECF system, which provided notice and service of same this 21 day of October, /s/ Christopher Wiest Christopher Wiest (KBA 90725) 16