Case 2:16-cv Document 1 Filed 10/27/16 Page 1 of 28 PageID #: 1

Transcription

1 Case 2:16-cv Document 1 Filed 10/27/16 Page 1 of 28 PageID #: 1 STEPHEN O. CALLAGHAN, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON Plaintiff, v. Civil Action No.: 2:16-cv HONORABLE JUDGE RONALD E. WILSON, in his official capacity as a member and chairman of the West Virginia Judicial Investigation Commission; ROBBY J. ALIFF, in his official capacity as a member and chairman of the West Virginia Lawyer Disciplinary Board; HONORABLE JUDGE LAWRANCE J. MILLER, JR., in his official capacity as a member of the West Virginia Judicial Hearing Board; TERESA A. TARR, in her official capacity as West Virginia Judicial Disciplinary Counsel; and RACHAEL L. FLETCHER CIPOLETTI, in her official capacity as West Virginia Lawyer Disciplinary Counsel Defendants. COMPLAINT For his COMPLAINT for injunctive and declaratory relief against Defendants Honorable Judge Ronald E. Wilson, Robby J. Aliff, Honorable Judge Lawrance J. Miller, Jr., Teresa A. Tarr, and Rachael L. Fletcher Cipoletti, all of whom are sued in their official capacities, Plaintiff Steven O. Callaghan alleges the following: I. Introduction 1. This case involves the actual and threatened deprivation of Plaintiff Stephen O. Callaghan s First Amendment rights by the official capacity Defendants named herein. Specifically this case challenges Rule 4.1(A)(9) of the Rules of Judicial Conduct Court and Rule 8.2(a) of the Rules of Professional Conduct, to be

2 Case 2:16-cv Document 1 Filed 10/27/16 Page 2 of 28 PageID #: 2 unconstitutional under the First Amendment both facially and as applied to Plaintiff under these facts involving political speech during a campaign for judicial office. 2. Rule 4.1(A)(9), provides: Rule 4.1 Political and Campaign Activities of Judges and Judicial Candidates in General (A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall not: 3. Rule 8.2(a), provides: (9) knowingly, or with reckless disregard for the truth, make any false or misleading statement. RULE 8.2 JUDICIAL AND LEGAL OFFICIALS (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. 4. The United States Supreme Court has recognized a State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest. Williams-Yulee v. The Florida Bar, U.S.,, 135 S.Ct. 1656, 1665, 191 L.Ed.2d 570, (2015)(Upholds the judicial ethics rule prohibiting judicial candidates from soliciting campaign funds personally); Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002)(Finds the judicial ethics rule prohibiting judicial candidates from announcing their position on disputed political or legal issues violated the First Amendment). 2

3 Case 2:16-cv Document 1 Filed 10/27/16 Page 3 of 28 PageID #: 3 5. In White, 536 U.S. at , 122 S.Ct. at , 153 L.Ed.2d at, the United States Supreme Court explained how the strict scrutiny test is applied under these circumstances: Under the strict-scrutiny test, respondents have the burden to prove that the announce clause is (1) narrowly tailored, to serve (2) a compelling state interest. E.g., Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 222, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). In order for respondents to show that the announce clause is narrowly tailored, they must demonstrate that it does not unnecessarily circumscrib[e] protected expression. Brown v. Hartlage, 456 U.S. 45, 54, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982). 6. The West Virginia Supreme Court has recognized the interaction between the judicial ethics rules and the First Amendment in Syllabus Point 2 of Matter of Hey, 192 W.Va. 221, 452 S.E.2d 24 (1994): The State may accomplish its legitimate interests and restrain the public expression of its judges through narrowly tailored limitations where those interests outweigh the judges free speech interests. 7. Restrictions of political speech is particularly challenging, as explained by the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1, 14-15, 96 S.Ct. 612, 632, 46 L.Ed.2d 659, (1976), the United States Supreme Court explained the importance of political speech: Discussions of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957). Although First Amendment protections are not confined to the exposition of ideas, Winters v. New York, 333 U.S. 507, 510, 3

4 Case 2:16-cv Document 1 Filed 10/27/16 Page 4 of 28 PageID #: 4 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948), there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs,... of course includ[ing] discussions of candidates... Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966). This no more than reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971), it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office. (Emphasis added). 8. The West Virginia Supreme Court has recognized the interaction between the judicial ethics rules and the First Amendment in Syllabus Point 2 of Matter of Hey, 192 W.Va. 221, 452 S.E.2d 24 (1994): The State may accomplish its legitimate interests and restrain the public expression of its judges through narrowly tailored limitations where those interests outweigh the judges free speech interests. See also Syllabus Point 2 of State ex rel. Loughry v. Tennant, 229 W.Va. 630, 732 S.E.2d 507 (2012)(Statute limiting campaign funds available to a judicial candidate was not narrowly tailored and violated the First Amendment). 9. In Syllabus Points 4 and 5 of Lawyer Disciplinary Board v. Hall, 234 W.Va. 298, 765 S.E.2d 187 (2014), the West Virginia Supreme Court explained how it balances a lawyer s First Amendment right to criticize a judge with the restriction imposed under Rule 8.2(a): 4

5 Case 2:16-cv Document 1 Filed 10/27/16 Page 5 of 28 PageID #: 5 4. The Free Speech Clause of the First Amendment protects a lawyer s criticism of the legal system and its judges, but this protection is not absolute. A lawyer s speech that presents a serious and imminent threat to the fairness and integrity of the judicial system is not protected. When a personal attack is made upon a judge or other court official, such speech is not protected if it consists of knowingly false statements or false statements made with a reckless disregard of the truth. Finally, statements that are outside of any community concern, and are merely designed to ridicule or exhibit contumacy toward the legal system, may not enjoy First Amendment protection. Syl. Pt. 1, Comm. on Legal Ethics v. Douglas, 179 W.Va. 490, 370 S.E.2d 325 (1988). 5. Within the context of assessing an alleged violation of Rule 8.2(a) of the West Virginia Rules of Professional Conduct, a statement by an attorney that such attorney knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office is not protected by the First Amendment as public speech on a matter of public concern where such statement is not supported by an objectively reasonable factual basis. The State s interest in protecting the public, the administration of justice, and the legal profession supports use of the objectively reasonable standard in attorney discipline proceedings involving disparagement of the credibility of the aforementioned judicial officers. 10. In Williams-Yulee, U.S., 135 S.Ct. 1656, , 191 L.Ed.2d 570, (2015), the United States Supreme Court noted rarely will a restriction on speech survive First Amendment analysis: The Florida Bar faces a demanding task in defending Canon 7C(1) against Yulee s First Amendment challenge. We have emphasized that it is the rare case in which a State demonstrates that a speech restriction is narrowly tailored to serve a compelling interest. Burson v. Freeman, 504 U.S. 191, 211, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (plurality opinion). But those cases do arise. See ibid.; Holder v. Humanitarian Law Project, 561 U.S. 1, 25 39, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010); McConnell, 540 U.S., at 314, 124 S.Ct. 619 (opinion of KENNEDY, J.); cf. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237, 115 S.Ct. 2097, 132 L.Ed.2d 158 5

6 Case 2:16-cv Document 1 Filed 10/27/16 Page 6 of 28 PageID #: 6 (1995) ( we wish to dispel the notion that strict scrutiny is strict in theory, but fatal in fact ). Here, Canon 7C(1) advances the State s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny. (Emphasis added). 11. In Winter v. Wolnitzek, 2016 WL at *9 (6 th Cir. 2016), where the Sixth Circuit address several different provisions in Kentucky s Code of Judicial Conduct, the Sixth Circuit commented on the challenges inherent in balancing the interests in restricting the content of a judicial candidate s speech with the judicial candidate s First Amendment rights: Regulating campaign speech is not easy. It s not supposed to be. But treating elections for the courts just like elections for the political branches does not make sense either. Candidates for judicial office, if elected, are supposed to follow the rule of law no matter current public opinion, no matter the views of the political branches, no matter the views of the parties that support them. But candidates for the other offices are permitted to, indeed often expected to, listen to the views of their constituents and parties. Navigating these crosscurrents is no simple task and for that we have considerable sympathy for the efforts of the Commission. At the same time Kentucky has the right to elect its judges on a nonpartisan basis, however, it has no right to suspend the First Amendment in the process. If the Commission wishes to impose mandatory sanctions on the speech of judicial candidates for office, as opposed to nonenforceable guidelines or best practices, it must satisfy the rigors of the First Amendment in doing so. 12. In Winter, one of the rules addressed was Kentucky s judicial ethics rule prohibiting judicial candidates from knowingly and with reckless disregard for the truth, mak[ing] any false or misleading statement, which is the same language as Rule 4.1(A)(9). Although the Kentucky rule was found to be facially constitutional with 6

7 Case 2:16-cv Document 1 Filed 10/27/16 Page 7 of 28 PageID #: 7 respect to knowingly making a false statement, the Sixth Circuit as well as the Kentucky Supreme Court read into this rule the requirement that only a false statement material to the campaign was actionable. However, when this rule was applied to the facts, where a formerly appointed judge used the word re-elect in her campaign materials, the Sixth Circuit held this provision was unconstitutional because there was a truthful interpretation of the word re-elect and any prohibition against using that word when the judge previously had been appointed fails to give candidates the breathing space necessary to free debate. Brown v. Hartlage, 456 U.S. 45, 60 61, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982); see Weaver, 309 F.3d at Id., at * With respect to this same Kentucky rule prohibiting a judicial candidate from knowingly and with reckless disregard for the truth making misleading statements, which again is identical to the language in Rule 4.1(A)(9), the Sixth Circuit found this provision to be unconstitutional facially: Canon 5(B)(1)(c) s ban on misleading statements fails across the board. If misleading adds anything to false, it is to include statements that, while technically true or ambiguous, create false implications or give rise to false inferences. But only a ban on conscious falsehoods satisfies strict scrutiny. See Weaver, 309 F.3d at [E]rroneous statement is inevitable in free debate, and [t]he chilling effect of... absolute accountability for factual misstatements in the course of political debate is incompatible with [an] atmosphere of free discussion. Brown, 456 U.S. at 60 61, 102 S.Ct (quotation omitted). Negligent misstatements, in contrast to knowing misstatements, must be protected in order to give protected speech the breathing space it requires, even in judicial elections. Weaver, 309 F.3d at Unknowing lies do not undermine the integrity of the judiciary in the same way that knowing lies do, and the ability of an opponent to correct a misstatement 7

8 Case 2:16-cv Document 1 Filed 10/27/16 Page 8 of 28 PageID #: 8 more than offsets the danger of a misinformed electorate. Id. This clause adds little to the permissible ban on false statements, and what it adds cannot be squared with the First Amendment. See generally Butler v. Alabama Judicial Inquiry Commission, 802 So.2d 207, 218 (Ala. 2001); In re Chmura, 464 Mich. 58, 626 N.W.2d 876 (2001); In re O Toole, 141 OhioSt.3d 355, 24 N.E.3d 1114 (2014); Attorney Grievance Commission of Maryland v. Stanalonis, 445 Md. 129, 126 A.3d 6, 15 (2015); Reikert v. State, Public Disclosure Commission, 161 Wash.2d 843, 168 P.3d 826 (2007). 14. Challenges to rules similar to Rule 4.1(A)(1), and Rule 8.2(a), have been made in many different states and often temporary restraining orders are entered to halt any underlying threatened or pending ethics actions so the parties can fully address the First Amendment issues. Kishner v. Nevada Standing Committee on Judicial Ethics and Election Practices, 2010 WL (D.Nev. 2010)(Nevada equivalent of Rule 4.1(A)(9), declared unconstitutionally vague with respect to misleading statements, unconstitutional as applied to the facts, and temporary restraining order granted); Magda v. Ohio Elections Commission, 58 N.E.3d 1188 (OhioCt.App. 2016)(Judicial ethics rule prohibiting judicial candidate from knowingly or with reckless disregard for the truth implying the candidate holds an office when he or she does not facially unconstitutional and enforcement permanently enjoined). 15. Rule 4.1(A)(9), and Rule 8.2(a), are not narrowly tailored to serve a compelling interest. These rules, particularly in the context of political speech expressed in a judicial campaign, are facially unconstitutional insofar as these rules: (a) generally prohibit any false or misleading statement, rather than prohibiting material false 8

9 Case 2:16-cv Document 1 Filed 10/27/16 Page 9 of 28 PageID #: 9 or misleading statements; (b) prohibit truthful statements that an individual may find to be misleading; (c) are unconstitutionally vague; and (d) prohibit technically true or ambiguous statements, which may create false implications or give rise to false inferences, but which are protected by the First Amendment. These rules also are unconstitutional as applied to Plaintiff, who has been charged by Defendants with violating Rule 4.1(A)(9), and Rule 8.2(a), based upon one single flyer, a color copy of which will be provided on disk under Tab 1, that was mailed to the voters in Nicholas County, West Virginia during the May, 2016 nonpartisan election for Nicholas County Circuit Court Judge, which Plaintiff won. II. Jurisdiction 16. Plaintiff files this COMPLAINT, pursuant to 42 U.S.C. 1983, alleging violations of his constitutional rights. Specifically, Plaintiff alleges that his rights under the First Amendment to the United States Constitution have been and will be violated by these official capacity Defendants. This suit seeks injunctive and declaratory relief under 42 U.S.C. 1983, and attorneys fees under 42 U.S.C Subject matter jurisdiction over the claims and causes of action asserted by Plaintiff in this action is conferred on this Court pursuant to 42 U.S.C. 1983, 42 U.S.C. 1988, 28 U.S.C. 1343, 28 U.S.C and 2202, and other applicable law. 18. Venue in this District and division is proper, pursuant to 28 U.S.C. 1391, and other applicable law, because all of the deprivations of Plaintiff s constitutional rights occurred in Nicholas County, West Virginia, and future deprivations of this constitutional rights are threatened and likely to occur in this District. 9

10 Case 2:16-cv Document 1 Filed 10/27/16 Page 10 of 28 PageID #: 10 III. Parties 19. Plaintiff Stephen O. Callaghan at all times relevant to this COMPLAINT is a resident of Nicholas County, West Virginia, and is the duly elected Circuit Court Judge for Nicholas County, who will assume that office on January 1, At the time of the events triggering this COMPLAINT, Plaintiff was not yet a judge, but rather was a judicial candidate. 20. Defendant Honorable Judge Ronald E. Wilson is sued in his official capacity as a member and chairman of the West Virginia Judicial Investigation Commission (Defendant Commission). Defendant Commission was created by the West Virginia Supreme Court, pursuant to Rule 1 of the West Virginia Rules of Judicial Disciplinary Procedure as well as the authority the West Virginia Supreme Court has under the West Virginia Constitution, to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct promulgated by the West Virginia Supreme Court to govern the ethical conduct of judges or that a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve. At all times alleged herein, Defendant Wilson, in his official capacity as a member and the chairman of Defendant Commission, was acting under color of law. 21. Defendant Robby J. Aliff is sued in his official capacity as a member and chairman of the West Virginia Lawyer Disciplinary Board (Defendant Board). Defendant Board was created by the West Virginia Supreme Court, pursuant to Rule 1 of the West Virginia Rules of Lawyer Disciplinary Procedure as well as the authority the 10

11 Case 2:16-cv Document 1 Filed 10/27/16 Page 11 of 28 PageID #: 11 West Virginia Supreme Court has under the West Virginia Constitution, to investigate complaints of violations of the West Virginia Rules of Professional Conduct of those admitted to the practice of law in West Virginia or any individual admitted to the practice of law in another jurisdiction who engages in the practice of law in West Virginia and to take appropriate action in accordance with the provisions of the West Virginia Rules of Lawyer Disciplinary Procedure. At all times alleged herein, Defendant Aliff, in his official capacity as a member and chairman of Defendant Board, was acting under color of law. 22. Defendant Honorable Judge Lawrance J. Miller, Jr., is sued in his official capacity as a member of the West Virginia Judicial Hearing Board (Defendant Hearing Board) assigned to hear the ethics charges filed against Plaintiff. Defendant Hearing Board was created by the West Virginia Supreme Court, pursuant to Rule 3 of the West Virginia Rules of Judicial Disciplinary Procedure as well as the authority the West Virginia Supreme Court has under the West Virginia Constitution, to conduct hearings on formal complaints filed by the Judicial Investigation Commission and to make recommendations to the West Virginia Supreme Court regarding disposition of those complaints. At all times alleged herein, Defendant Miller, in his official capacity as a member of Defendant Hearing Board assigned to hear the ethics charges filed against Plaintiff, was acting under color of law. 23. Defendant Teresa A. Tarr is sued in her official capacity as an employee of the West Virginia Office of Disciplinary Counsel who specifically serves as West Virginia Judicial Disciplinary Counsel. The West Virginia Office of Disciplinary Counsel 11

12 Case 2:16-cv Document 1 Filed 10/27/16 Page 12 of 28 PageID #: 12 was created by the West Virginia Supreme Court, pursuant to Rule 4 of the West Virginia Rules of Lawyer Disciplinary Procedure as well as the authority the West Virginia Supreme Court has under the West Virginia Constitution, which established a Lawyer Disciplinary Counsel and a Judicial Disciplinary Counsel. The Lawyer Disciplinary Counsel shall be primarily responsible for the investigation of complaints of ethical violations by lawyers. The Judicial Disciplinary Counsel shall be primarily responsible for the investigation of complaints of ethical violations by judges. However, the Lawyer Disciplinary Counsel can investigate and prosecute ethics charges involving judges and the Judicial Disciplinary Counsel has the authority to investigate and prosecute ethics charges involving lawyers. At all times alleged herein, Defendant Tarr, in her official capacity as a member of the West Virginia Office of Disciplinary Counsel who specifically serves as West Virginia Judicial Disciplinary Counsel, was acting under color of law. 24. Defendant Rachael L. Fletcher Cipoletti is sued in her official capacity as an employee of the West Virginia Office of Disciplinary Counsel who specifically serves as West Virginia Lawyer Disciplinary Counsel. The West Virginia Office of Disciplinary Counsel was created by the West Virginia Supreme Court, pursuant to Rule 4 of the West Virginia Rules of Lawyer Disciplinary Procedure as well as the authority the West Virginia Supreme Court has under the West Virginia Constitution, which established a Lawyer Disciplinary Counsel and a Judicial Disciplinary Counsel. The Lawyer Disciplinary Counsel shall be primarily responsible for the investigation of complaints of ethical violations by lawyers. The Judicial 12

13 Case 2:16-cv Document 1 Filed 10/27/16 Page 13 of 28 PageID #: 13 Disciplinary Counsel shall be primarily responsible for the investigation of complaints of ethical violations by judges. However, the Lawyer Disciplinary Counsel can investigate and prosecute ethics charges involving judges and the Judicial Disciplinary Counsel has the authority to investigate and prosecute ethics charges involving lawyers. At all times alleged herein, Defendant Cipoletti, in her official capacity as an employee of the West Virginia Office of Disciplinary Counsel who specifically serves as West Virginia Judicial Disciplinary Counsel, was acting under color of law. IV. Facts 25. Plaintiff grew up in Richwood, West Virginia, graduated law school in 1994, and was admitted to practice law in West Virginia that same year. Presently Plaintiff is admitted to appear before the West Virginia Supreme Court, the West Virginia Northern and Southern District Courts, and the Fourth Circuit Court of Appeals. 26. Plaintiff practices law with his wife in Summersville in the firm of Callaghan & Callaghan, PLLC. His law firm has a general legal practice involving personal injury, real estate, bankruptcy, abuse and neglect, and appointed State and federal criminal defense. He has served as the Municipal Judge in Summersville for about seven years and as the City Attorney for Richwood for about ten years. Until the circumstances giving rise to the present case, Plaintiff has never had any ethics complaints filed against him nor has he been disciplined in any way by any court or administrative agency. 13

14 Case 2:16-cv Document 1 Filed 10/27/16 Page 14 of 28 PageID #: When Plaintiff decided he was going to run for the Nicholas County Circuit Court Judge position, he formed a committee called Callaghan for Judge 2016, and he actively began campaigning in May, In December, 2015, Plaintiff contracted with Rainmaker, Inc., to provide campaign consulting and advertising services. 28. After being retained, Rainmaker conducted research on the public life of Mr. Callaghan and his opponent, incumbent Judge Gary Johnson. In doing this research, Rainmaker found a July 2015 news story detailing Judge Johnson s visit to the White House on June 10, (A copy of this story is attached under Tab 2). A press release publicizing this same event was issued by the West Virginia Supreme Court. (A copy of this press release is attached under Tab 3). 29. When Plaintiff learned of this fact, it was his opinion that any association between the White House and Judge Johnson at a time when coal jobs were being lost in Nicholas County would not be viewed favorably by the voters. The story would be viewed by the voters in evaluating the judgment of Judge Johnson, who chose to attend this event when he did. Since the event was held at the White House, the official residence and office of the President, Plaintiff contends it was reasonable for anyone to conclude or have the opinion that this event was sanctioned and approved by President Obama. The event at the White House was sponsored by the federal Administration for Children and Families (Tabs 2 & 3). As a federal agency, President Obama is responsible for and directs its policies and projects. 30. Although it is not critical to establish the essential truth expressed in this flyer, news reports published about the event do not mention anything about whether or not 14

15 Case 2:16-cv Document 1 Filed 10/27/16 Page 15 of 28 PageID #: 15 President Obama was present or absent. According to the Chicago Sun-Times, which published a news release from the White House press secretary, the President was at the White House on June 10, (A copy of this story is attached under Tab 4). Plaintiff now is aware that the Chicago Sun-Times story is contradicted by a news story published in a Charleston Gazett editorial column. (A copy of this column is attached under Tab 5). The source for the Gazett story is not known to Plaintiff. 31. In March, 2016, Judge Johnson referenced the visit to the White House on his campaign s Facebook page. (A copy of this Facebook page is under Tab 6). Given the exposure of the visit in the media and Judge Johnson s own advertising of his visit, it is apparent Judge Johnson wanted the public to be aware of the visit and his invitation. Also, since it was on his official campaign Facebook page, the post should be viewed as an advertisement in support his re-election. Because Judge Johnson referenced his visit to the White House, he must have deemed that information relevant to the public s evaluation of him as a circuit court judge. Again by Judge Johnson featuring this event in his own advertising, Plaintiff was well within his rights to express his own opinion about Judge Johnson s decision to attend this event. 32. In the most recent nonpartisan election for the one position on the West Virginia Supreme Court, television ads ran accusing two Supreme Court Justice candidates of failing to keep President Obama from rolling over West Virginia and shutting down jobs. As with many of his predecessors, it is not uncommon for the President 15

16 Case 2:16-cv Document 1 Filed 10/27/16 Page 16 of 28 PageID #: 16 of the United States to be referenced in political advertising, regardless of the political office being sought. 33. The same month that Judge Johnson attended the White House event, economic reports were published showing the loss in coal jobs across West Virginia. One of the hardest hit areas was Nicholas County, home of the Twenty-Eighth Judicial Circuit. (A copy of this report is under Tab 7). Upon this review of the information available in the public domain, Plaintiff decided to exercise his First Amendment right to engage in political speech and to express his opinion regarding Judge Johnson s visit to the White House. To the extent some citizens of Nicholas County may have the opinion that any association between Judge Johnson and President Obama is completely unacceptable, regardless of the circumstances, Plaintiff sought to create advertising consistent with that opinion. To that end, Rainmaker created a flyer, which was fully approved by Plaintiff, to be mailed to voters to illustrate the facts of the visit as researched and shown by the exhibits presented. The flyer was distributed only once to likely primary voters in Nicholas County in the first week of May, The substance of this flyer was never again used by Plaintiff in any of his other advertising, other than it did appear initially on the Facebook page of his campaign, his person page, and his wife s page. 34. The front of the flyer has different colored party streamers in the background, photoshopped pictures of President Obama and Judge Johnson, and it appears President Obama is holding a glass of beer. The text at the top of the front of this flyer states, Barack Obama and Gary Johnson Party At the White House... 16

17 Case 2:16-cv Document 1 Filed 10/27/16 Page 17 of 28 PageID #: The back of the flyer has text at the top stating, While Nicholas County loses hundreds of jobs. Below that headline is a pink slip with the words: LAYOFF NOTICE While Nicholas County lost hundreds of jobs to Barack Obama s coal policies, Judge Gary Johnson accepted an invitation from Obama to come to the White House to support Obama s legislative agenda. That same month, news outlets reported a 76% drop in coal mining employment. Can we trust Judge Gary Johnson to defendant Nicholas County against job-killer Barack Obama? On May 10, Put Nicholas County First. Vote for Steve Callaghan. (Bold in original). 36. Plaintiff specifically and categorically denies that this flyer was created to mislead the public or imply that Judge Johnson was personally responsible for the loss of Nicholas County jobs. The intended purpose of the advertisement was to illustrate voluntary actions made by a public official that the electorate may find to be inconsistent with their expectations and desires. Plaintiff s opinion was that the public had the right to question the judgment of Judge Johnson attending this event at the White House. 37. The front of the flyer is designed for editorial and artistic purposes and to get the attention of the person reading it. The flyer shows two separate images of President Obama and Judge Johnson taken from the public domain. The use of photoshopped pictures is extremely common in all forms of advertising, including political ads. 38. Images in advertising are designed to get the public s attention, to inform, and to provide context to enhance written or spoken language. President Obama is presented in the flyer not as a representation of himself as a person, but as the 17

18 Case 2:16-cv Document 1 Filed 10/27/16 Page 18 of 28 PageID #: 18 personification of his policies. The joining of the two as partying is a form of rhetorical hyperbole or parody meant to illustrate the fact that Judge Johnson and President Obama are together at the White House focusing on issues that are inconsistent with alleviating the horrible employment conditions in Nicholas County. 39. The flyer does not imply that Judge Johnson was at the White House to support any anti-coal legislative program. It does state that Judge Johnson was there to support President Obama s legislative agenda, which was the purpose of the conference. Judge Johnson states: The state team decided that the trafficking workgroup of the Center for Children's Justice will partner with the West Virginia Court Improvement Program, which Johnson chairs, to implement legislation and protocols to protect children in the state's care from falling prey to sex trafficking and to treat children who have been trafficked. (Tab 2). 40. Judge Johnson was not forced to appear at the White House and it was not a constitutional or statutorily-mandated duty as a circuit judge. Thus, Judge Johnson voluntarily attended this White House event, referenced this event in his own political advertising and publicity, and it is up to the public to decide how to interpret these facts in making a decision whether or not to vote for Judge Johnson. Judge Johnson just as easily could have boycotted this meeting, based upon his disagreement with President Obama s policies, and he could have publicized such a boycott for political purposes. However, instead, he voluntarily chose to attend the White House event. 18

19 Case 2:16-cv Document 1 Filed 10/27/16 Page 19 of 28 PageID #: This particular flyer, which is one of five separate flyers mailed on behalf of Plaintiff, was mailed once to Nicholas County voters. The record will show that within hours after this flyer had been mailed and became public, Defendant Tarr called Plaintiff. The first Defendant Tarr sent to Plaintiff was sent on May 5, 2016, at 5:59 p.m. (A copy of the relevant string between Defendant Tarr and Mr. Callaghan is attached under Tab 8). From the , Defendant Tarr apparently concluded the flyer, rather than being a statement of opinion protected by the First Amendment, somehow actually was a statement of literal fact that she deemed to be false. In her , she outlined the steps she believed Plaintiff needed to take. To avoid any controversy over this advertising and to mitigate any perceived harm, Plaintiff took the responsible action of agreeing to act very quickly and he did so. 42. In Plaintiff s May 5, response, sent at 7:02 p.m., he explained he already had taken the following actions: 1. Removed all images/tags of the advertisement from his campaign Facebook page; 2. Notified Rainmaker of the issue; 3. Issued a statement on his campaign Facebook page apologizing for any misunderstanding that may have been caused by the mailer and acknowledging the mailer was inappropriate; and 4. Arranged to run a radio spot prior to the election apologizing and admitting the mailer was inappropriate. The ad was placed on a station that covers Nicholas County and was scheduled to run four times per day, for two days. The radio station was instructed not to run these ads in the middle of the night. 19

20 Case 2:16-cv Document 1 Filed 10/27/16 Page 20 of 28 PageID #: In explaining why he acted so quickly, Plaintiff further noted in this When we talked you indicated that these actions would be an acceptable manner to resolve this issue informally. I am taking these actions [in] order to resolve this issue. If a complaint is filed despite my corrective actions I do not intend these actions to be taken as any admissions and I reserve all defenses. You indicated that unless this action is taken it would result in a formal complaint. I have tried in good faith to comply with your directions. 44. In additional discussions between Defendant Tarr and Plaintiff, it was suggested the flyer still appeared on Plaintiff s Facebook pages. While Defendant Tarr did receive at least one subsequent complaint that this information was still on Plaintiff s Facebook pages, Plaintiff investigated the matter, represented that the material had indeed been removed as indicated, and that any person who still found the flyer on his Facebook pages must have been referencing an old screen shot. 45. While Plaintiff immediately took these actions, after being contacted by Defendant Tarr, he was not in any way conceding that he had knowingly, or with reckless disregard for the truth, made any false or misleading statement. Any person reading the flyer was free to reach his or her own conclusions about the significance of Judge Johnson voluntarily attending an event at the White House at a time when a jobs report revealed a substantial drop in coal related employment attributed by many to President Obama s policies. The First Amendment protects all persons, including candidates for judicial office, to freely express opinions, particularly in connection with political advertising designed to provide the public with information voters may deem to be relevant in their evaluation of the candidates. 20

21 Case 2:16-cv Document 1 Filed 10/27/16 Page 21 of 28 PageID #: On or about May 16, 2016, Nicholas S. Johnson, a son of Judge Gary Johnson, filed a formal complaint against Plaintiff with the West Virginia Lawyer Disciplinary Board and with the West Virginia Judicial Investigation Commission. (A copy of his complaint is attached under Tab 9). 47. On or about July 18, 2016, the West Virginia Judicial Investigation Commission issued a FORMAL STATEMENT OF CHARGES, signed by Defendant Wilson in his official capacity as the chairman of Defendant Commission, against Plaintiff. (A copy of this document is attached under Tab 10). Plaintiff is charged with violating six Rules in the Code of Judicial Conduct [Rule 4.1(A)(9, Rule 4.1(B), Rule 4.2(A)(1), Rule 4.2(A)(3), Rule 4.2(A)(4), and Rule 4.2(A)(5)] and two Rules in the Code of Professional Responsibility [Rule 8.2(a) and Rule 8.2(b)]. All of the charges are related directly to the flyer attached under Tab 1. Defendant Tarr is prosecuting this action. 48. On or about August 15, 2016, Plaintiff filed his ANSWER to the FORMAL STATEMENT OF CHARGES. (A copy of this document is attached under Tab 11). 49. This case was assigned to Defendant Miller to serve as the hearing judge and Defendant Miller entered a scheduling order on September 28, 2016, with a pretrial telephone conference scheduled to be held on November 3, 2016, and a final hearing set for November 21, (A copy of this document is attached under Tab 12). 50. On or about October 17, 2016, Defendant Tarr filed JUDICIAL DISCIPLINARY COUNSEL S MOTION FOR EXPEDITED DECISION AND/OR MOTION 21

22 Case 2:16-cv Document 1 Filed 10/27/16 Page 22 of 28 PageID #: 22 TO ENJOIN AND MEMORANDUM OF LAW IN SUPPORT THEREOF. (A copy of this document is attached under Tab 13). 51. In this MOTION, which presently is pending before the West Virginia Supreme Court, Defendant Tarr seeks an order from the West Virginia Supreme Court to enjoin [Plaintiff] from taking the oath of office for Judge of the 28 th Judicial Circuit pending the outcome of the disciplinary proceedings. (Tab 13, at 1). 52. At the time this COMPLAINT was filed, Plaintiff had not yet filed his response to this MOTION, thus no action has yet been taken by the West Virginia Supreme Court. This MOTION threatens to delay Plaintiff from taking the oath of office and assuming the duties as the Nicholas County Circuit Court Judge, which not only would be contrary to the will of the Nicholas County voters, who elected Plaintiff, but also would have a prejudicial impact on Plaintiff s ability to serve the citizens of Nicholas County as their Judge. 53. Thus, at this time, formal ethics charges are pending against Plaintiff, alleging violations of the Code of Judicial Conduct and the Rules of Professional Conduct. Unless Defendants are enjoined, they will continue to enforce Rule 4.1(A)(9) of the Rules of Judicial Conduct Court and Rule 8.2(a) of the Rules of Professional Conduct against Plaintiff in violation of his First Amendment rights. While the other Rules Plaintiff has been charged with violating may not be facially unconstitutional, to the extent they are being applied under these facts in violation of Plaintiff s First Amendment rights, such application is unconstitutional and also must be enjoined. 22

23 Case 2:16-cv Document 1 Filed 10/27/16 Page 23 of 28 PageID #: 23 COUNT I Rules Facially Unconstitutional 54. Plaintiff hereby realleges and incorporates by reference the preceding paragraphs of this COMPLAINT as if fully set forth herein. 55. Plaintiff is a citizen of the United States of America. 56. Plaintiff has clearly established rights and protections under the United States Constitution and its statutes to Freedom of Speech, Association, Expression, and other First Amendment guarantees. 57. Defendants, in their official capacities, using their respective offices and acting under color of law, violated and are violating Plaintiff s First Amendment Rights, which have deprived, are depriving, and will deprive him of his rights to Free Speech, Expression, and Association guaranteed to him under the First Amendment of the United States Constitution, which rights are clearly established. Defendants, in their official capacities, subjected themselves under 42 U.S.C. 1983, to injunctive and declaratory relief under 28 U.S.C. 2201, et seq. 58. The First Amendment to the United States Constitution provides, in relevant part, that Congress shall make no law...abridging freedom of speech. The First Amendment has been incorporated under the Fourteenth Amendment to apply to the states, including West Virginia, under Gitlow v. New York, 268 U.S. 652 (1925). 59. Defendants, in their official capacities, while acting under color of law and with knowledge of Plaintiff s clearly established rights, used their offices to violate Plaintiff s First Amendment rights. 23

24 Case 2:16-cv Document 1 Filed 10/27/16 Page 24 of 28 PageID #: In the context of political speech expressed in a judicial election, Rule 4.1(A)(9), and Rule 8.2(a), are void for vagueness because they are not limited to false or misleading material facts or false or misleading objective facts, but permit a great deal of interpretation and discretion in their enforcement. A substantial number of instances exist in which these Rules cannot be applied constitutionally. These include, without limitation, forbidding expressions of opinion, prohibiting statements of fact which may be interpreted by others as misleading, making accurate statements of fact about a candidate or his or her opponent that could be construed as misleading, and making accurate statements of fact which, if not absolutely complete, could be construed as misleading by Defendants. 61. Plaintiff seeks declaratory and injunctive relief under 42 U.S.C and 28 U.S.C and 2202 enjoining Defendants from going forward with the ethics action presently pending against Plaintiff and declaring Rule 4.1(A)(9), and Rule 8.2(a) unconstitutional on their face. Plaintiff also seeks a permanent injunction enjoining the enforcement of these Rules. Plaintiff further seeks recovery of his costs and reasonable attorneys fees under 42 U.S.C COUNT II Rules Unconstitutional As Applied 62. Plaintiff hereby realleges and incorporates by reference the preceding paragraphs of this COMPLAINT as if fully set forth herein. 63. Plaintiff is a citizen of the United States of America. 24

25 Case 2:16-cv Document 1 Filed 10/27/16 Page 25 of 28 PageID #: Plaintiff has clearly established rights and protections under the United States Constitution and its statutes to Freedom of Speech, Association, Expression, and other First Amendment guarantees. 65. Defendants, in their official capacities, using their respective offices and acting under color of law, violated and are violating Plaintiff s First Amendment Rights, which have deprived, are depriving, and will deprive him of his rights to Free Speech, Expression, and Association guaranteed to him under the First Amendment of the United States Constitution, which rights are clearly established. Defendants, in their official capacities, subjected themselves under 42 U.S.C. 1983, to injunctive and declaratory relief under 28 U.S.C. 2201, et seq. 66. The First Amendment to the United States Constitution provides, in relevant part, that Congress shall make no law...abridging freedom of speech. The First Amendment has been incorporated under the Fourteenth Amendment to apply to the states, including West Virginia, under Gitlow v. New York, 268 U.S. 652 (1925). 67. Defendants, in their official capacities, while acting under color of law and with knowledge of Plaintiff s clearly established rights, used their offices to violate Plaintiff s First Amendment rights. 68. In the context of political speech expressed in a judicial election, Rule 4.1(A)(9), and Rule 8.2(a), are void for vagueness because they are not limited to false or misleading material facts or false or misleading objective facts, but permit a great deal of interpretation and discretion in their enforcement. A substantial number of instances exist in which these Rules cannot be applied constitutionally. These include, without 25

26 Case 2:16-cv Document 1 Filed 10/27/16 Page 26 of 28 PageID #: 26 limitation, forbidding expressions of opinion, prohibiting statements of fact which may be interpreted by others as misleading, making accurate statements of fact about a candidate or his or her opponent that could be construed as misleading, and making accurate statements of fact which, if not absolutely complete, could be construed as misleading by Defendants. 69. Plaintiff seeks declaratory and injunctive relief under 42 U.S.C and 28 U.S.C and 2202 enjoining Defendants from going forward with the ethics action presently pending against Plaintiff and declaring Rule 4.1(A)(9), and Rule 8.2(a) unconstitutional on their face. Plaintiff also seeks a permanent injunction enjoining the enforcement of these Rules. Plaintiff further seeks recovery of his costs and reasonable attorneys fees under 42 U.S.C PRAYER WHEREFORE, Plaintiff Stephen O. Callaghan respectfully demands judgment against Defendants and respectfully pray for the following: 1. Issue a declaration that Rule 4.1(A)(9) of the Rules of Judicial Conduct and Rule 8.2(a) of the Rules of Professional Conduct are unconstitutional on their face in violation of the First Amendment and because of vagueness, overbreadth, or otherwise; 2. Issue a declaration that Rule 4.1(A)(9, Rule 4.1(B), Rule 4.2(A)(1), Rule 4.2(A)(3), Rule 4.2(A)(4), and Rule 4.2(A)(5) of the Rules of Judicial Conduct and Rule 8.2(a) and Rule 8.2(b) of the Rules of Professional Conduct are unconstitutional as applied 26

27 Case 2:16-cv Document 1 Filed 10/27/16 Page 27 of 28 PageID #: 27 to Plaintiff under these facts, in violation of his First Amendment rights and because of vagueness, overbreadth, or otherwise; 3. Enter a temporary restraining order and a preliminary injunction to enjoin enforcement of the Rules described above on a facial and/or as applied basis; 4. Award a permanent injunction prohibiting the further enforcement of the Rules described above based on these Rules being either unconstitutional on their face or as applied; 5. Award Plaintiff his costs in this action, including reasonable attorneys fees under 42 U.S.C. 1988; and 6. Award such other relief as this Court shall deem just and proper. /s/ Lonnie C. Simmons Lonnie C. Simmons (W.Va. I.D. No. 3406) DITRAPANO, BARRETT, DIPIERO, MCGINLEY & SIMMONS, PLLC P.O. Box 1631 Charleston, West Virginia (304) lonnie.simmons@dbdlawfirm.com STEPHEN O. CALLAGHAN, Plaintiff, By Counsel 27

28 Case 2:16-cv Document 1 Filed 10/27/16 Page 28 of 28 PageID #: 28

29 Case 2:16-cv Document 1-1 Filed 10/27/16 Page 1 of 1 PageID #: 29

30 Case 2:16-cv Document 1-2 Filed 10/27/16 Page 1 of 3 PageID #: 30

31 Case 2:16-cv Document 1-2 Filed 10/27/16 Page 2 of 3 PageID #: 31

32 Case 2:16-cv Document 1-2 Filed 10/27/16 Page 3 of 3 PageID #: 32

33 Case 2:16-cv Document 1-3 Filed 10/27/16 Page 1 of 3 PageID #: 33

34 Case 2:16-cv Document 1-3 Filed 10/27/16 Page 2 of 3 PageID #: 34

35 Case 2:16-cv Document 1-3 Filed 10/27/16 Page 3 of 3 PageID #: 35

36 Case 2:16-cv Document 1-4 Filed 10/27/16 Page 1 of 3 PageID #: 36

37 Case 2:16-cv Document 1-4 Filed 10/27/16 Page 2 of 3 PageID #: 37

38 Case 2:16-cv Document 1-4 Filed 10/27/16 Page 3 of 3 PageID #: 38

39 Case 2:16-cv Document 1-5 Filed 10/27/16 Page 1 of 11 PageID #: 39

40 Case 2:16-cv Document 1-5 Filed 10/27/16 Page 2 of 11 PageID #: 40

41 Case 2:16-cv Document 1-5 Filed 10/27/16 Page 3 of 11 PageID #: 41

42 Case 2:16-cv Document 1-5 Filed 10/27/16 Page 4 of 11 PageID #: 42

43 Case 2:16-cv Document 1-5 Filed 10/27/16 Page 5 of 11 PageID #: 43

44 Case 2:16-cv Document 1-5 Filed 10/27/16 Page 6 of 11 PageID #: 44

45 Case 2:16-cv Document 1-5 Filed 10/27/16 Page 7 of 11 PageID #: 45

46 Case 2:16-cv Document 1-5 Filed 10/27/16 Page 8 of 11 PageID #: 46

47 Case 2:16-cv Document 1-5 Filed 10/27/16 Page 9 of 11 PageID #: 47

48 Case 2:16-cv Document 1-5 Filed 10/27/16 Page 10 of 11 PageID #: 48

49 Case 2:16-cv Document 1-5 Filed 10/27/16 Page 11 of 11 PageID #: 49

50 Case 2:16-cv Document 1-6 Filed 10/27/16 Page 1 of 2 PageID #: 50

51 Case 2:16-cv Document 1-6 Filed 10/27/16 Page 2 of 2 PageID #: 51

52 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 1 of 14 PageID #: 52

53 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 2 of 14 PageID #: 53

54 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 3 of 14 PageID #: 54

55 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 4 of 14 PageID #: 55

56 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 5 of 14 PageID #: 56

57 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 6 of 14 PageID #: 57

58 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 7 of 14 PageID #: 58

59 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 8 of 14 PageID #: 59

60 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 9 of 14 PageID #: 60

61 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 10 of 14 PageID #: 61

62 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 11 of 14 PageID #: 62

63 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 12 of 14 PageID #: 63

64 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 13 of 14 PageID #: 64

65 Case 2:16-cv Document 1-7 Filed 10/27/16 Page 14 of 14 PageID #: 65

66 Case 2:16-cv Document 1-8 Filed 10/27/16 Page 1 of 6 PageID #: 66

67 Case 2:16-cv Document 1-8 Filed 10/27/16 Page 2 of 6 PageID #: 67

68 Case 2:16-cv Document 1-8 Filed 10/27/16 Page 3 of 6 PageID #: 68

69 Case 2:16-cv Document 1-8 Filed 10/27/16 Page 4 of 6 PageID #: 69

70 Case 2:16-cv Document 1-8 Filed 10/27/16 Page 5 of 6 PageID #: 70

71 Case 2:16-cv Document 1-8 Filed 10/27/16 Page 6 of 6 PageID #: 71

72 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 1 of 21 PageID #: 72

73 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 2 of 21 PageID #: 73

74 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 3 of 21 PageID #: 74

75 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 4 of 21 PageID #: 75

76 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 5 of 21 PageID #: 76

77 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 6 of 21 PageID #: 77

78 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 7 of 21 PageID #: 78

79 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 8 of 21 PageID #: 79

80 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 9 of 21 PageID #: 80

81 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 10 of 21 PageID #: 81

82 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 11 of 21 PageID #: 82

83 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 12 of 21 PageID #: 83

84 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 13 of 21 PageID #: 84

85 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 14 of 21 PageID #: 85

86 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 15 of 21 PageID #: 86

87 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 16 of 21 PageID #: 87

88 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 17 of 21 PageID #: 88

89 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 18 of 21 PageID #: 89

90 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 19 of 21 PageID #: 90

91 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 20 of 21 PageID #: 91

92 Case 2:16-cv Document 1-9 Filed 10/27/16 Page 21 of 21 PageID #: 92

93 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 1 of 12 PageID #: 93

94 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 2 of 12 PageID #: 94

95 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 3 of 12 PageID #: 95

96 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 4 of 12 PageID #: 96

97 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 5 of 12 PageID #: 97

98 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 6 of 12 PageID #: 98

99 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 7 of 12 PageID #: 99

100 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 8 of 12 PageID #: 100

101 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 9 of 12 PageID #: 101

102 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 10 of 12 PageID #: 102

103 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 11 of 12 PageID #: 103

104 Case 2:16-cv Document 1-10 Filed 10/27/16 Page 12 of 12 PageID #: 104

105 Case 2:16-cv Document 1-11 Filed 10/27/16 Page 1 of 8 PageID #: 105

106 Case 2:16-cv Document 1-11 Filed 10/27/16 Page 2 of 8 PageID #: 106

107 Case 2:16-cv Document 1-11 Filed 10/27/16 Page 3 of 8 PageID #: 107

108 Case 2:16-cv Document 1-11 Filed 10/27/16 Page 4 of 8 PageID #: 108

109 Case 2:16-cv Document 1-11 Filed 10/27/16 Page 5 of 8 PageID #: 109

110 Case 2:16-cv Document 1-11 Filed 10/27/16 Page 6 of 8 PageID #: 110

111 Case 2:16-cv Document 1-11 Filed 10/27/16 Page 7 of 8 PageID #: 111

112 Case 2:16-cv Document 1-11 Filed 10/27/16 Page 8 of 8 PageID #: 112

113 Case 2:16-cv Document 1-12 Filed 10/27/16 Page 1 of 4 PageID #: 113

114 Case 2:16-cv Document 1-12 Filed 10/27/16 Page 2 of 4 PageID #: 114

115 Case 2:16-cv Document 1-12 Filed 10/27/16 Page 3 of 4 PageID #: 115

116 Case 2:16-cv Document 1-12 Filed 10/27/16 Page 4 of 4 PageID #: 116

117 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 1 of 14 PageID #: 117

118 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 2 of 14 PageID #: 118

119 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 3 of 14 PageID #: 119

120 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 4 of 14 PageID #: 120

121 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 5 of 14 PageID #: 121

122 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 6 of 14 PageID #: 122

123 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 7 of 14 PageID #: 123

124 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 8 of 14 PageID #: 124

125 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 9 of 14 PageID #: 125

126 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 10 of 14 PageID #: 126

127 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 11 of 14 PageID #: 127

128 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 12 of 14 PageID #: 128

129 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 13 of 14 PageID #: 129

130 Case 2:16-cv Document 1-13 Filed 10/27/16 Page 14 of 14 PageID #: 130

131 Case 2:16-cv Document 1-14 Filed 10/27/16 Page 1 of 1 PageID #: 131