Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 1 of 13 PAGEID #: 2038

Transcription

1 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 1 of 13 PAGEID #: 2038 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LIBERTARIAN PARTY OF OHIO, et al., : : Case No. 2:13-cv Plaintiffs, : : Judge Watson -vs- : : Magistrate Judge Kemp JON HUSTED, in his Official Capacity as : Ohio Secretary of State, : : Defendant, : : and : : STATE OF OHIO, : : Intervenor-Defendant. : INTERVENOR-APPLICANT GREGORY FELSOCI S MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT I. Introduction [T]he exercise of a choice allowed by state law where the initiative comes from [the private party to whom the choice has been given] and not the State, does not make [that private party s] action in doing so state action for the purposes of the Fourteenth Amendment. [Jackson v. Metropolitan Edison, 419 U.S. 345, 357 (1974)] This is the controlling law here and is fatal to Plaintiffs new proposed claim that the State via Gregory Felsoci or the Republican Party which supposedly backed his protest of LPO candidate Charles Earl selectively enforced Ohio Rev. Code (E)(1) against Earl. See Doc. 72-1, Plaintiffs Proposed Third Amended Complaint, Counts Nine and Ten. A private party s voluntary choice to protest the candidacy of a political candidate, as allowed by Ohio

2 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 2 of 13 PAGEID #: 2039 Rev. Code , does not constitute state action and thus does not implicate either the First or Fourteenth Amendments. The motivations of the protestor or anyone allegedly associated with him are therefore irrelevant. Plaintiffs newly proposed novel and unsupported claims are telling proof of the weakness of their existing First Amendment claim in the second amended complaint. Their latest amended complaint is nothing more than a last-minute act of desperation to salvage their lawsuit. II. Plaintiffs New Proposed Third Amended Complaint Is Futile As A Matter Of Law The most fundamental reason why Plaintiffs motion for leave to file a third amended complaint should be denied is that their two new proposed claims are legally futile. It is wellsettled that a court should deny a motion to amend if the proposed new pleading is futile. Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995); Marx v. Centran Corp., 747 F.2d 1536, 1550 (6th Cir. 1984) (affirming district court s denial of motion to amend complaint for the reason that the amended claims would be futile because they lacked any substantial merit ); Frank v. D Ambrosi, 4 F.3d 1378, 1386 (6th Cir. 1993) ( a trial court need not grant leave to amend when the amendment would be futile ). Here, the voluntary choice of a private member of the Libertarian Party of Ohio ( LPO ), Intervenor-Applicant Gregory Felsoci, to protest the Plaintiff Earl s candidacy does not constitute state action. This is true regardless of whether Felsoci himself or someone associated with the Republican Party will pay his attorneys for having handled the protest action. Plaintiffs therefore cannot state a claim under either the First or Fourteenth Amendments as a matter of law because state action is a prerequisite for both of their proposed new constitutional claims. 2

3 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 3 of 13 PAGEID #: 2040 A. First And Fourteenth Amendment Rights Are Triggered Only By State Action It is well established that the First Amendment s rights of free speech, assembly and association are protected only from state action. It is undisputed that First Amendment protections are triggered only in the presence of state action. Wilcher v. City of Akron, 498 F.3d 516, 519 (6th Cir. 2007). A private party, acting on its own, cannot ordinarily be said to deprive a citizen of her [First Amendment] right[s]. Id. Likewise, the Equal Protection Clause of the Fourteenth Amendment applies only against state action. Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 257 (2009) ( [t]he Equal Protection Clause reaches only state actors ), citing West v. Atkins, 487 U.S. 42, (1988); Black v. Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998) ( the Equal Protection Clause prohibits only discrimination by the State, not by a private actor ). This state action requirement is important because it not only exempt[s] private action from the reach of the Constitution s prohibitions, it stops the Constitution short of preempting individual liberty of denying to individuals the freedom to make certain choices, such as choices of the persons with whom they will associate. Tribe, American Constitutional Law (2d ed. 1988). Thus, Plaintiffs cannot state a claim for violation of the First or Fourteenth Amendments against a private actor such as Felsoci or the Ohio Republican Party. B. A Private Individual s Voluntary Choice To Protest A Political Candidate Is Not State Action Ohio Rev. Code broadly permits any private elector who is a member of a political party to file a protest against the candidacy of a person in the same political party: Protests against the candidacy of any person filing a declaration of candidacy for party nomination or for election to an office or position 3

4 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 4 of 13 PAGEID #: 2041 may be filed by any qualified elector who is a member of the same political party as the candidate and who is eligible to vote at the primary election for the candidate whose declaration of candidacy the elector objects to, or by the controlling committee of that political party. (Emphasis added). Plaintiffs new proposed allegation that, by virtue of Section s authorization, any qualified elector who files a protest action is a state actor is baseless. Plaintiffs do not have a single authority that remotely supports their new claim. The cases on which Plaintiffs rely simply stand for the unremarkable proposition that where the State delegates an essential State duty to a private actor, that person s performance of that State function still constitutes state action. Thus, in Smith v. Allwright, 321 U.S. 649 (1944), the Court held that, because fix[ing] the qualifications of primary elections is delegation of a state function, the Democratic Party s policy of excluding non-whites from voting in its primary election was considered to be state action. Id. at 660 (emphasis added). The Court explained: We think that this statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the state in so far as it determines the participants in a primary election. The party takes its character as a state agency from the duties imposed on upon it by state statutes. [Id. at 663 (emphasis added)] Accord: Terry v. Adams, 345 U.S. 461, 469 (1953) (extending Smith s holding to the primary of the Jaybird Democratic Association, a county Democratic organization, which was perfunctory[ily] ratifie[d] by the county-operated primary, because the Court found this was a flagrant abuse of the election process to defeat the purposes of the Fifteenth Amendment s ban on racial discrimination in voting); Morse v. Republican Party of Virginia, 517 U.S. 186, (1996) (opinion of Justice Stevens joined only by Justice Ginsburg) (finding state action 4

5 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 5 of 13 PAGEID #: 2042 because Virginia had delegated special powers and privileges to the two major parties to determine part of the field of candidates from which the voters must choose, and thus [t]hose parties are effectively granted the power to enact their own qualifications for placement of candidates on the ballot ); Texas Democratic Party v. Benkiser, 459 F.3d 582, 588, 589 n.9 (5th Cir. 2006) (where Texas statute stated that party officer shall declare a candidate ineligible where public records established ineligibility, there was no dispute that application of the statutory mandate constituted state action). The other cases Plaintiffs cite do not even address whether a private party s actions can constitute state action. In fact, in Bullock v. Carter, 405 U.S. 134 (1972), the Court explicitly stated: We are here concerned with the constitutionality of a statute rather than action by a political party and thus have no occasion to consider the scope of the holding in Smith v. Allwright. Id. at 140 n.16. Worse yet, Plaintiffs mischaracterize Duke v. Cleland, 5 F.3d 1399 (11th Cir. 1993). In that case, the Republican Party did not remove a candidate s name from a ballot, as the Plaintiffs would have this Court believe. Instead, state actors did: members of a state-sanctioned committee that included Georgia s Secretary of State, the Speaker of the House, the majority leader of the state Senate, and the minority leaders of both the house and the senate. Id. at 1401 n.1, The court thus had no trouble concluding that these members vote to remove a candidate s name from the Republican ballot for president was state action. Id. at Here, unlike the all-white primary cases on which Plaintiffs rely, the State of Ohio has not delegated a State duty to a major party or any particular person by simply allowing any qualified elector of a political party to bring a protest action. Ohio Rev. Code

6 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 6 of 13 PAGEID #: 2043 Instead, a protest results from a private elector s voluntary choice to protest the candidacy of a political candidate. The Supreme Court holds that the exercise of a private party s choice, even if authorized by state law, is not state action. In Jackson v. Metropolitan Edison, 419 U.S. 345, 357 (1974), the Court found no state action where a private utility company terminated customers electric service pursuant to a procedure authorized and approved by the state utility commission. The Court explained: [T]he exercise of a choice allowed by state law where the initiative comes from [the private party to whom the choice has been given] and not the State, does not make [that private party s] action in doing so state action for the purposes of the Fourteenth Amendment. [Id. at 357 (emphasis added; footnote omitted)] This ruling is equally applicable here. A private individual s choice to protest a political candidate does not constitute state action. The motivations of the protestor or those who may pay attorneys fees incurred in connection with the protest are therefore irrelevant. Plaintiffs state-action argument fails for another reason: the Sixth Circuit holds that Smith v. Allwright, supra, and its progeny are limited to situations in which a party is performing the State function of actually conducting an election. In Banchy v. Republican Party of Hamilton County, 898 F.2d 1192 (6th Cir. 1990), the plaintiffs brought an action under 42 U.S.C. 1983, alleging that the Republican Party of Hamilton County had engaged in state action by denying them the right to participate in the election of the Party s ward chairman because they were sympathetic to the right-to-life movement. Like the Plaintiffs in the instant action, the plaintiffs in Banchy relied upon Smith v. Allwright and Terry v. Adams, supra, for their state action theory. The Sixth Circuit not only rejected this argument, the Court held that the plaintiffs state action theory was groundless. Id. at 1194, The court explained: 6

7 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 7 of 13 PAGEID #: 2044 These cases are easily distinguishable from the case before us. The Supreme Court did not assert that the Jaybirds had become a state actor for every purpose, only that the Jaybirds were state actors, acting under color of state law insofar as they had been assigned an integral part in the election process, a governmental function. The primary election cases do not hold that a political party is part of the state, or that any action by a political party other than conducting an election is state action. The primary election cases merely hold that conducting an election is a governmental function and constitutes state action, no matter who actually conducts the election. [Id. at 1196 (emphasis added)] Here, Plaintiffs do not (and cannot) assert that merely bringing a protest action against a candidate for violating facially neutral election disclosure laws even comes close to the governmental function of conducting an election found in the white-only primary cases. Even assuming Plaintiffs allegations as true at this stage, they simply have no basis for maintaining that Felsoci or the Republican Party is a state actor. Without state action, Plaintiffs have no claim that the filing of the underlying protest action before the Secretary of State violated Plaintiffs rights under the First or Fourteenth Amendment. Plaintiffs proposed third amended complaint is legally futile for this reason alone. Thus, the testimony Plaintiffs attempt to elicit concerning who will supposedly pay for Felsoci s attorney fees incurred in bringing the protest action is irrelevant. III. Plaintiffs Proposed New Claims Are Also Futile From A Factual Standpoint Plaintiffs should be denied leave to amend their complaint a third time for another reason: their proposed new claims are futile because they have no factual basis. Marx v. Centran Corp., 747 F.2d 1536, (6th Cir. 1984) (affirming district court s denial of motion to amend complaint on grounds of futility because the new proposed claims lacked any substantial merit ; the new claims were premised on the existence of a loan but there was, in fact, no loan); Bell v. 7

8 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 8 of 13 PAGEID #: 2045 Tennessee, 2012 WL , at **5-6 (E.D. Tenn. 2012) (denying motion for leave to amend complaint on grounds of futility because the materials appended to the motion in support of the proposed amendment undermine or directly contradict many of Plaintiff s factual contentions ). Even if state action did exist (and it doesn t), Plaintiffs claim that the Secretary of State, Felsoci, and the Republican Party are selectively enforcing Ohio Rev. Code (E)(1) against LPO candidate Earl must still fail because Plaintiffs have absolutely no facts to support their claim. One of the essential elements of a selective enforcement claim is an actual discriminatory effect, and Plaintiffs have no evidence that Section (E)(1) has not been enforced against anyone who is similarly situated with the LPO candidates whose petitions consistently failed to comply with the statute s facially neutral requirement to disclose the person employing their petition circulators. Selective enforcement claims are judged according to ordinary Equal Protection standards, which require a petitioner to show both a discriminatory purpose and a discriminatory effect. Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000) (emphasis added). Accord: Futernick v. Sumpter Township, 78 F.3d 1051, 1060 (6th Cir.1996) (overruled on other grounds). Thus, the Sixth Circuit urges courts to be cautious when determining whether such a violation has occurred: There is no right under the Constitution to have a law go unenforced against you, even if you are the first person against whom it is enforced, and even if you think (or can prove) you are not as culpable as some others who have gone unpunished. The law does not need to be enforced everywhere to be legitimately enforced somewhere. [Futernick, 78 F.3d at 1056] Here, Plaintiffs have nothing to support their selective enforcement claim, except for hypothetical facts based on their lawyer s hypothetical questions. Plaintiffs have merely asked a 8

9 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 9 of 13 PAGEID #: 2046 series of what-if questions based on assumed, dreamed-up facts that are found no where in the record. In actuality, Plaintiffs have no real facts to support their selective enforcement claim. 1 Plaintiffs can t deal with the actual evidence because it undermines their new claim. The facts are undisputed that when a circulator signs a petition that leaves the employer box blank, the Secretary of State reasonably presumes that the circulator is not being paid. Not a shred of evidence exists that known material violations of Section (E)(1) s disclosure requirements are not being challenged. In other words, Plaintiffs cannot establish selective enforcement that similarly situated violators are getting away with it. In Cornett v. Sheldon, 894 F. Supp. 715 (S.D.N.Y. 1995), the court rejected the plaintiff s selective enforcement claim arising from the invalidation of his petitions to be placed on the ballot as the Right to Life Party s candidate for the U.S. House of Representatives. The court reasoned that the plaintiff like the Plaintiffs in the instant action failed to show that the Board of Elections treated him differently than other similarly situated candidates. Id. at The Board had invalidated the plaintiff s candidacy petitions even though he was not properly served with notice of the protestor s objections as required by New York law, but, in the same proceeding, the Board had dismissed objections to another candidate s petitions because that candidate was not properly notified of the objections. Id. at 719. The court held that the two candidates were not similarly situated. Id. at 723. The difference was that service of process on the second candidate was invalid on its face because it was addressed to the wrong entity; 1 Plaintiffs reliance on Oscar Hatchett s testimony at the protest hearing that he had not previously disclosed who had employed him on his petitions is misplaced. Hatchett vaguely stated that the last time he had circulated petitions for a statewide ballot in Ohio was back in 2000, what was it -4, or -6. [Hearing Tr. at 98] And, the payor disclosure was not added to Ohio Rev. Code (E)(1) until March 31,

10 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 10 of 13 PAGEID #: 2047 whereas, the Board had every reason to presume that notice was properly served on the plaintiff because the process sent to him merely had a minor typographical error in the address. Id. Here, as in Cornett, Plaintiffs proposed selective enforcement claims fail because they cannot identify a single candidate who submitted petitions with known wholesale disclosure violations like those of the LPO candidates, but whose petitions were not challenged. And, as in Cornett, the Secretary of State has every reason to believe that other circulators who have left the employer box blank on their petitions are complying with Ohio law and not getting paid. In short, Plaintiffs are not being treated differently from similarly situated candidates. Thus, Plaintiffs selective enforcement claims are as baseless as their contention that a private protestor whether it be Felsoci or the Republican Party is a state actor. IV. Plaintiffs Wait-And-See Approach Before Seeking To Amend Their Complaint Is Unduly Prejudicial It is truly ironic that Plaintiffs premised their March 7, 2014 motion for preliminary injunction on the allegation that the State of Ohio had supposedly moved the proverbial goalpost in the midst of the game. [Doc. 57, Plaintiffs Motion at 18] That s exactly what Plaintiffs are trying to do. They are seeking to move the goalpost to bring yet another new claim in their proposed third amended complaint in the midst of the evidentiary hearing on Plaintiffs proposed second amended complaint. It is well settled that denying leave to amend is appropriate in instances of undue delay and undue prejudice to the opposing party. Glazer v. Chase Home Finance LLC, 704 F.3d 453, 458 (6th Cir. 2013), quoting Foman v. Davis, 371 U.S. 178, 182 (1962). Where, as here, a party seeks to amend the complaint at a later stage of the proceedings here, near the end of perhaps the only evidentiary hearing on the claims alleged in Plaintiffs proposed second amended 10

11 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 11 of 13 PAGEID #: 2048 complaint there is an increased burden to show justification for failing to move earlier. Szoke v. United Parcel Serv. of Am., Inc., 398 Fed. Appx. 145, 153 (6th Cir. 2010). Defendants and the Court have already expended substantial time and resources briefing and hearing evidence on Plaintiffs claim that Ohio Rev. Code (E)(1) violates the First Amendment. But now, Plaintiffs proposed third amended complaint is an obvious effort to amend themselves out from under the overwhelming evidence presented at last week s hearing that Section (E)(1) s disclosure requirement advances substantial State interests without burdening anyone s First Amendment rights. Yet, as the hearing is coming to an end, Plaintiffs try to salvage their constitutional challenge by seeking to bring new claims of selective enforcement. But Plaintiffs should not get another bite at the apple to avoid an adverse outcome for their proposed second amended complaint. They cannot wait in the wings to see how the evidence comes in and then bring new claims they have kept in their hip pocket when the hearing does not go as well as planned for them. The Sixth Circuit rejects such a wait-and-see approach because it leads to prejudicial delays, inefficiencies, and wasted resources for both the Court and opposing parties. In Glazer, supra, the plaintiff filed a motion to amend his complaint to add new allegations to salvage his case shortly after the magistrate recommended granting the defendant s motion to dismiss. The Sixth Circuit rejected the plaintiff s wait-and-see approach and affirmed the denial of leave to amend. 704 F.3d at 459. The court reasoned that allowing amendment in this situation would work against the intent of the Civil Rules by permitting a plaintiff to test out his pleading and discover defects before seeking to amend them away. Id. at 458. Allowing the amendment 11

12 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 12 of 13 PAGEID #: 2049 would also encourage delay and bad faith on the part of plaintiffs and prejudice defendants who would have wasted time and expense attacking a hypothetical complaint. Id. at Accord: Commercial Money Center, Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 347 (6th Cir. 2007) (if a party were permitted to wait in the wings for an adverse decision and then amend itself out from under the judgment, it would place an unfair burden on the opposing party ); Granger v. Bodiford, 2012 WL , *3 (D.S.C. 2012) ( The timing of Plaintiff s motion appears to be an effort to salvage his action after receiving an unfavorable recommendation from the Magistrate Judge. Therefore, Plaintiff s motion to amend his complaint is denied. ). Here, as in Glazer, allowing Plaintiffs to bring yet more new claims now that the evidentiary hearing on their motion for preliminary injunction is all but completed not only unduly prejudices Intervenor Felsoci and the other Defendants, it also smacks of waiting-in-thewings gamesmanship by Plaintiffs. In fact, the news article on which Plaintiffs rely as the basis for seeking to amend their complaint and elicit testimony from Matthew Borges, the chairman of the Ohio Republican Party, was published on March 7, 2014 several hours before Plaintiffs even filed their proposed second amended complaint. If Plaintiffs had timely brought their selective enforcement claim, the parties and the Court could have dealt with all of Plaintiffs proposed new claims in one proceeding. The parties and the Court have already expended substantial time and resources hearing Plaintiffs unwarranted First Amendment claim in their proposed second amended complaint. It would be unduly prejudicial to force Intervenor Felsoci and the other Defendants to start all over again and defend yet more baseless claims. 12

13 Case: 2:13-cv MHW-TPK Doc #: 73 Filed: 03/16/14 Page: 13 of 13 PAGEID #: 2050 V. Conclusion For all of these reasons, Plaintiffs should be denied leave to file their proposed third amended complaint. Respectfully submitted, /s/ John W. Zeiger John W. Zeiger ( ), Trial Attorney Steven W. Tigges ( ) Stuart G. Parsell ( ) Daniel P. Mead ( ) ZEIGER, TIGGES & LITTLE LLP 41 South High Street, Suite 3500 Columbus, Ohio Telephone (614) Attorneys for Proposed Intervenor- Defendant Gregory A. Felsoci CERTIFICATE OF SERVICE I hereby certify that on this 16th day of March, 2014, the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system, and notice of this filing will be sent to all attorneys of record by operation of the Court s electronic filing system. /s/ John W. Zeiger John W. Zeiger ( ) :