AN '?'; In VC C^l", CtllJR`f t1f'":eml t;fjt JEi`1 71 (}^^!t^ Relators,. Case Number IN THE SUPREME COURT OF OHIO

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1 STATE EX REL. LETOHIOVOTE.ORG, et. al, IN THE SUPREME COURT OF OHIO Relators, Case Number V. JENNIFER BRUNNER, OHIO SECRETARY OF STATE, Original Action in Prohibition Respondent. STATE EX REL. NEW MODELS, et. al, Relators,. Case Numb V. JENNIFER BRUNNER, SECRETARY OF STATE, Original Action in Prohibition Respondent. S'I'ATE EX REL. NORMAN B. CUMMINGS, et. al, Relators,. Case Number V. JENNIFER BRUNNER, SECRETARY OF STATE, Original Action in Prohibition Respondent. MERIT BRIEF OF RESPONDENT OHIO SECRETARY OF STATE JENNIFER BRUNNER AN '?'; In VC C^l", CtllJR`f t1f'":eml t;fjt JEi`1 71 (}^^!t^

2 David R. Langdon ( ) *Counsel of Record 'Phomas W. Kidd, Jr. ( ) Bradley M. Peppo ( ) Langdon Law, LLC Reading Road, Suite 104 Cincinnati, Ohio (513) (513) fax com Attorneys, for Relators LetOhioVote. org, Thomas E. Brinknaan, Jr., Gene Pierce, and Carlo LoParo John II. Burtch ( ) *Counsel ofrecord Rodger L. Eckelberry ( ) Robert J. Tucker ( ) Balcer & I-lostetler, LLP 65 East State Street, Suite 2100 Cohimbus, Ohio (614) (614) fax jburtch@bakerlaw.com reckelberiy@bakerlaw.com rtuckcr@bakerlaw.com Richard Cordray ( ) Ohio Attorney General Richard N. Coglianese ( ) *Coun.rel ofrecord Erick D. Gale ( ) Pearl M. Chin ( ) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio (614) (614) fax richard.coglianesc@ohiouttomcygeneral.gov erick.gale a)ohioattorneygeneral.gov pearl.chin@ohioattorneygeneral.gov Attorneys for Respondent Ohio Secrelary af State Jennifer Brunner Attorneys for Relators New Models and 1'imothy Crawford Brian J. Laliberte ( ) *Counsel of Record David F. Axelrod ( ) Axelrod, LLC 250 Civic Center Dr., Suite 500 Columbus, Ohio (614) (614) fax brianlaliberte@,me.com Attorneys for Relator Norman B. Cummings

3 TABLE OF CONTENTS TABLE OF AUTHORITIES iii INTRODUCTION...1 STATEMENT OF FACTS...4 1'he Secretary of State's Campaign Finance Division...4 LetOhioVote.org's 2009 Annual Campaign Finance Statement...5 The Secretary of State's Issuance of Subpoenas...7 Revocation of New Models' Corporate Status...8 LAW AND ARGUMEN T The Secretary's issuance of subpoenas to Relators was clearly authorized by law...10 A. ijnder R.C , the Secretary was clearly authorized to issue subpoenas to Relators B. Relators have failed to demonstrate that the Secretary's actions were clearly unauthorized by law l. R.C (N) does not "expressly exclude" the Secretary ftonr investigating campaign finance irregularities, and, even if it did, R.C does not limit the Secretary's subpoena authority to "investigations" under R.C (N)(1) This Court's decision in State ex rel. Ohio Democratic Party v. 13lackwell does not stand for the proposition that the Ohio Elections Commission has exclusive jurisdiction to investigate alleged campaign finance violations Relators mischaracterize the role of the Ohio Elections Commission 'fhe Secretary's statutory duties under R.C. Chapter 3517 are not limited to a "facial examination" of the filed statements Statements by former Secretary Blaclcwcll in a 2006 brief in a different case on a different issue are iirelevant as to

4 whether Secretary Bninner is authorized to issue the subpoenas here The number of complaints filed by the Secretary witlr the Oliio Elections Commission is irrelevant to whether the Secretary has subpoena authority in this case...19 II. 'I'he Secretary's use of subpoena and investigatory powers under R.C does not constitute an exercise of quasi-judicial power...20 III. Relators have an adequate remedy at law...24 IV. Relator New Models lacks capacity to sue V. The Court should deny Relator New Models' motion for sanctions CONC LU SION...32 CERTIFICATE OF SERVICE......unnumbered ii

5 TABLE OF AUTI-IORITIES CASES Accurate Constr. Co. v. Washington (D.C. App. Ct. 1976), 378 A.2d ,27 Bourbeau v. The Jonathan Woodner Co. (D.D.C. 2008), 549 F.Supp , 26, 27 Buckeye Foods v. Cuyahoga Cty. Bd ofrevision, 78 Ohio St. 3d 459, 1997-Ohio Community Credit Union Servs.; Inc. v. Federal Express Svcs. Corp. (D.C. App. Ct. 1977), 534 A.2d Haught v. City of Dayton (1973), 34 Ohio St. 2d In re Appeal of Howard (1991), 73 Ohio App.3d M.T. Kelley Co. v. Cleveland (1972), 32 Ohio St. 2d Ohio Ass'n ofpublic School Employees, Chapter 643 v. Dayton City School Dist. Bd. off,duc. (1992), 59 Ohio St. 3d Ohio Historical Soc. v, Slate Employment Relcitions Board ( 1990), 48 Ohio St. 3d ,22 Oldahoma Natural Gas Co. v. Oklahoma (1927), 273 U.S Petro v. N. Coast Villas Ltd. (2000), 136 Ohio App. 3d Rouse v. Lorain Civ. Serv. Comm'n., 1996 Ohio App. LF,XIS State ex rel. Celebrezze v. Butler Cly. Common Pleas Court (1979), 60 Ohio St. 2d State ex rel. Ealon Corp. v. Lancaster (1988), 40 Ohio St. 3d State ex rel. Gaydosh v. Twinsbuig (2001), 93 Ohio St.3d 576, 2001-Ohio iii

6 State ex rel. Ministerial Day Care v. Montgomery, 100 Ohio St. 3d 343, 2003-Ohio State ex rel. Ohio Democratic Party v. Blackwell, 111 Ohio St. 3d 246, 2006-Ohio , 19 State ex rel. Rosch v. Ohio Civil Rights Comm'n. (10th Dist. App.), 2005-Ohio State ex rel. Summit County Republican Party Exec. Comm. v. Brzanner (2009), 117 Ohio St. 3d State ex rel. 1 aft v. Court of'cornmon Pleas of Franklin County (1992), 63 Ohio St. 3d :.:...:..:..:...:..::...:... passim State ex rel. Wright v. Ohio Adult Parole A uth. (1996), 75 Ohio St. 3d Wells Fargo Bank v. Byrd, 178 Ohio App. 3d 285, 2008-Ohio STATUTES D.C. Code D.C. Code (c) D.C. Code (d) D.C. Code O. R. C (A) O.R.C (B) O.R.C O.R.C O.R.C O.R.C O. R. C O.R.C passim O.R.C (N)... passim iv

7 STATUTES (CONTINUED) O.R.C (N)(1)... 14, 15, 16 O.R.C (N)(2)... 14, 15, 16, 22 O.R.C , 12, 15 O.R.C ,18 O.R.C O.R.C (I)(1)... 9 O.R.C O.R.C (R)(4)(a)... 12, 13, 18 O.R.C (C)... 4 O.R.C (C)(1) ,19 O.R.C (G)... 8 O.R.C (A)... 17,18 O.R.C (A) O.R.C (B) O.R.C OTHER AUTHORITIES O.A.C O.A. C ,22 O.A.C (A)(2)(e)... 12, 13 RULES Ohio R. Civ. P. 26(B)... 30, 31, 32 S. Ct. Prac. R. X, S.Ct. Prac. R. XIV, , 32, 34 S.Ct.Prac.R. X, v

8 INTRODUCTION The Ohio General Assembly has determined that it is the public policy of this state that the citizens of Ohio have available to them the means to determine the identity of financial contributors to political candidate and issue campaigns. 'I'o implement that public policy, the General Assembly has enacted in Revised Code Chapter 3517 comprehensive campaign tinance legislation that includes requirements that financial contributors disclose their identities. As part of the statutory scheme, the General Assembly has entrusted to the elected Secretary of State (the "Secretary") authority to investigate potential violations of Ohio's campaign finance laws, and, where appropriate, to refer those potential violations to either the Ohio Elections Commission or a criminal prosecutor. R.C (N). The premise that the Secretary has authority to review and investigate potential violations of campaign finance disclosure laws has been consistently accepted for decades, regardless of the identity or political allegiances of the particular incumbent Secretary. This Court itself recognized in 1992 that R.C creates "a general obligation of the Secretary of State to investigate and report violations of the elections laws," and that R.C "commands an administrative act - an investigation - not an adjudicatory proceeding" in matters of potential election offenses, including possible campaign finance violations. State ex rel. Taft v. Court of Common Pleas of Franklin County (1992), 63 Ohio St. 3d 190, 195. In this case, the Relators posit a creative and unprecedented, but legally unfounded, argument that the Secretary lacks authority to issue subpoenas even when the Secretary determines them necessary to conduct a meaningful investigation. Relators make this argument despite the fact that the Revised. Code specifically entrusts the Secretary with subpoena power. In so arguing, the Relators ask this Court to radically change the status quo and effectively transform the office of the Secretary into little more than a campaign finance filing office while I

9 restricting true investigative authority to only the Ohio Elections Commission. The Relators' argument should be summarily rejected. Ohio law requires a ballot issue committee that seeks to invoke the referendum process to disclose the amount and identity of its financial contributors. Relator LetOhioVote.org is such a committee. In its 2009 campaign finance statement, LetOhioVote.org reported that its sole financial support came in the form of $1.55 million from one out-of-state contributor - an entity called New Models, located in McLean, Virginia. LetOhioVote.org therefore is using an out-ofstate entity to affect the outcome of an Ohio ballot issue that would overturn duly enacted legislation passed by both chambers of the General Assembly and signed by the Ohio Governor. Moreover, New Models' certificate and articles of incorporation were revoked on September 14, 2009, prior to LetOhioVote.org's alleged receipt of most of its contributions from New Models, whose legal status and standing in a court of law, if any, is uncertain. In reviewing LetOhioVote.org's campaign finance statement, the office of Secretary of State Jennifer Brunner discovered other irregularities and discrepancies, including but not limited to the following: The amount that New Models contributed to LetOhioVote.org in 2009 doubled the amount of revenue that New Models reported to the Internal Revenue Service each year from 2004 to LetOhioVote.org's amiual statement reports New Models as its only donor; however, LetOhioVote.org's website solicited contributions from the public-at-large. This non-exhaustive list of discrepancies, set forth more fully in this Brief and in Respondent's Submission of Evidence, shows that LetOhio.Vote.org may not have properly accounted for hundreds of thousands of dollars in contributions and may not have fully disclosed the nature of its relationship to New Models. Therefore, in the exercise of her duties to investigate elections fraud and campaign finance irregularities pursuant to R.C , 2

10 Respondent Secretary of State Jemiifer Brunner issued administrative subpoenas asking LetOhioVote.org and New Models to provide certain documents and testimony to account for these gaps and inconsisteneies. Ratller than submit its finances to full public scrutiny, LetOhioVote.org and the otlier Relators in this case seek a writ of prohibition to quash the Secretary's subpoenas. However, Relators are not entitled to the writ for multiple reasons. Most importantly, the Secretary's power to issue subpoenas in the performance of her duties is expressly authorized by statute. In furtherance of the State's interest in promoting electoral transparency, the General Assembly has conferred upon the Ohio Secretary of State the role of "chief elections officer" and the broad authority to investigate elections fraud and campaign finance irregularities. See R.C One of the tools that the General Assembly has given to the Secretary to carry out her duties is the power to subpoena documents and witnesses. Second, the issuance of an administrative, investigatory subpoena is not a quasijudicial act and is therefore not subject to a writ of prohibition. Third, Relators have an adequate remedy at law through declaratory or injunctive relief which precludes issuance of extraordinary relief in prohibition. Furtherinore, Relator New Models lacks capacity to bring this suit because its corporate charter was revoked well before it filed its Complaint. Therefore, New Models cannot invoke this Court's jurisdiction to ask for any relief, including sanctions against Secretary Brunner for requesting discovery. For these reasons, the Court should deny all of Relators' requests for relief. 3

11 STATEMENT OF FACTS The Secretary of State's Campaign Finance Division The Secretary has the statutory duty to ensure that all campaign finance stateinents filed with her ofiice are complete and accurate and in compliance with all Ohio campaign finance laws. R.C (C). The Secretary also has the statutory duty to investigate election law frauds and irregularities, and, in the perfoiniance of these duties, may administer oaths, issue subpoenas, summon witnesses, and compel the production of books, papers, records, and other evidence. R.C In order to fiilfill these duties, the Secretary ernploys a campaign finance division with cleven employees who audit and conduct examinations on the reports filed in her office. Respondent's Submission of Evidence ("Resp. Evid."), Mayhew Aff When the campaign finance division determines that an entity filing a statement has violated campaign finanae law, the Secretary must file a complaint with the Ohio Elections Commission (the "Commission"), setting forth the laws at issue and sufficient evidence to support her complaint. Mayhew Aff. 4-5; R.C (N)(2); O.A.C The Secretary reports other violations of elections law to the relevant prosecuting attorney. R.C (N). Before this lawsirit, the Secretary has routinely (and lawfully) conducted investigations into potential campaign finance irregularities, including through the issuance of subpoenas.' That authority has never before been questioned in a court of law. 1 For example, in 2004, Secretary 131ackwell conducted an investigation of potential irregularities arising from the use of the Montgomery County Republican Party's operating account. Mayhew Aff. ^ 12. As part of that investigation, the Secretary's office reviewed records of financial accounts, issued subpoenas, and condticted depositions and interviews. Id., 13-14, Exs. E and F. Also in 2004, the Secretary's office conducted an investigation of potential irregularities arising from the use of the operating account oc the Ohio House Republican Campaign Committee and agreements with certain political consultants. Id., 11 15, Ex. G. Similarly, the Secretary of State's office previously investigated potential irregularities arising from the 4

12 LetOhioVote.org's 2009 Annual Campaign Finance Statement On January 29, 2010, LetOhioVote.org electronically filed its amiual campaign finance report for calendar year 2009, which, by law, must disclose all contributions to the committee in Mayhew Aff. 18. "I'he Secretary's staff immediately noticed several irregularities with the filing. First, LetOhioVote.org's report indicated that all of its contributions, totaling $1,550,000 for the entire year, were from "New Models" from McLean, Virginia. Id., 9. New Models made six contributions to LetOhioVote.org from August 12, 2009 to December 16, 2009, ranging from $20,000 to $487,000. Id., Ex. C. Based on the experience of professional career staff in the Secretary's campaign finance department, it is rare for a statewide ballot issue committee to report all of its eont ibutions from a single source. Id., 10. Second, an inquiry into New Models also uncovered several irregularities. On February 4, 2010, the Secretary's staff retrieved the IRS Form 990, Retum of Organization Exempt from Income Tax, reports filed by New Models for 2004 through Kimsey Aff. 7. 'fhe forms indicated that New Models was a 501(c) organization located in MeLean, Virginia. Id., 1( 7, Exs. B-F. 'I'he reports further indicated that the majority of New Models' expenses for years 2004 through 2008 were described as "[n]ational polling" or "messaging polling" to determine "what issues are critical to the people." Id., 8-12, Exs. B-F. There was no indication from New conduct and fundraising activities of the Ohio Taxpayers Association. Id., As part of both of these investigations, the Secretary's office issued subpoenas to gather the necessary facts. Id., , Ex. G. More recently, Secretary Brunner conducted extensive investigations into potential campaign finance irregularities involving the activities of the Dann For Ohio Committee and the Committee to Elect Ray Miller, both of which resulted in complaints filed by the Secretary with the Ohio Elections Commission. Id., 17-18, Exs. I and J. 5

13 Models' filings that it was organized for the ptuposes of engaging in political activities relating to ballot initiatives in other states. In addition, the forms indicated that New Models reported the following total revenue for years 2004 through 2008: 2004: $768, : $581,13.39 s 2006: $830, : $656, : $647, Id., 8-12, Exs. B-F. The $1.55 million that New Models contributed to LetOhioVote.org in 2009 was double the annual revenue it reported to the IRS since 2004 (with a small exception in 2006). Id.,11 L3. Next, the Secretary's staff accessed LetOhioVote.org's website. Id., 4, 14; Neer Aff. 3. Although LetObioVote.org has reported only one donor, its website solicited contributions from the public-at-large. The website directed individuals interested in making contributions to LetOhioVote.org to send an electronic mail inessage to the electronic mail address "donate@letohiovote.org" to start the process of making a contribution. Kimsey Aff.1( 14, Bx G (screenshot of LetOhioVote.org homepage); Neer Aff. 4. On or about February 4, 2010, a Secretary of State employee directed an from his personal account to "donate@letohiovote.org." Neer Aff In response, the employee received an "erroi" 6

14 message, indicating that the electronic mail address "donate a letohiovote.org" did not exist on the server. Id., 5, Ex. A.2 The Secretary of State's Issuance of Subpoenas Given these irtegularities, and in order to determine whetlrer LetOhioVote.org's annual campaign finance statement was complete, accurate, and in compliance with Ohio's campaign finance law - as required by R.C the Secretary issued subpoenas for depositions and requesting the production of documents to LetOhioVote.org, New Models, and individuals associated with these entities. (Shinn Aff. 5.) Specifically, the Secretary issued subpoenas to Gene Pierce and Carlo LoParo as members of LetOhioVote.org and to the custodian of records for LetOhioVote.org. Id., 6. The Secretary issued a subpoena to Tim Crawford, President of New Models (id.) and to the custodian of records of New Models (id., 10). Finally, the Secretary also issued a subpoena to Norrnan Cummings. Id., 7, z Interestingly, LetOhioVote.org's annual statement indicates that it received its first contribution from New Models on August 12, Mayhew Aff. Ex. C. Howcver, in its Amended Complaint in a prior case, LetOhioVote.org alleged that since July 1, 2009, it had already incurred "costs in excess of $10,000 to collect the signatures for the summary petition." Am. Compi., State cx rel. LetOhioVote.org v. Brunner, No , After the filing of LetOhioVote.org's annual campaign finance staternent, the Secretary's staff performed a search related to the registration infoimation for the Internet domain address " Kimsey Aff. 6. The search result indicated that the domain name had been registered by "Norman Cunimings." Id., Ex. A. Accordingly, the Secretary issued the subpoena to obtain any relevant information about LetOhioVote.org - especially its website - from Mr. Cummings. The subpoena issued to Mr. Cummings was delivered to "The Sycanlore Condominiums, 716 Sycamore Place, Coluwnbus, Ohio, 43206" based on information from the Franklin County Auditor's website showing that Mr. Cummings owns property at that address. Shinn Aff. 7. There is simply no support for Mr. Cummings' allegation that the Secretary's Office "knew the property was vacant" since Cuminings Br. at 4; Cummings Aff. 6. In fact, the Auditor's website showed that Mr. Cummings claimed a 2.5% owner-occupied property tax reduction for 2009, available only to applicants who own and occupy their home as their principal place of residence on January 1st of that year. See httn //franklincountyoh.metacama.com/do/search ByOwner isessionid=5e3e 14ECA768F3AAA7BDBC4AOD4FF629. 7

15 The documents requested by the subpoenas were relevant to whether LetOhioVote.org's annual campaign finance statement was complete, accurate, and in compliance with Ohio campaign finance laws. For example, the Secretary requested the following information from LetOhioVote.org and its members: bank statements for LetOhioVote.org, records of funds transfers, any fundraising solicitations, and infonnafion about its website. Shinn Aff., Exs. A, B, and C. Similarly, the Secretary requested the following from New Models: records of electronic transfers, fundraising solicitations, contributors to New Models, and documents regarding funds transfers to LetOhioVote.org. Id., Ex. F. Such infonnation is necessary to determine whethcr LetOhioVote.org and/or New Models was directing or soliciting contributions to LetOhioVote.org's efforts tlirough New Models, which would be a possible violation of Ohio's prohibition against concealing contributors or inaking a contribution "in the name of another," or Ohio's requirement to report all monies received to influence an election. See, e.g., R.C , R.C (G). Revocation of New Models' Corporate Status Instead of appearing at the requested depositions or responding to the Secretary's document requests, Relators filed these lawsuits. New Models' Complaint alleges that it is a "not-for profit 501(c)(4) corporation" that is "incorporated in the [sic] Washington, D.C." New Models Compl. T 3. That allegation, however, is not consistent witli official corporate records. According to the D.C. Department of Consumer and Regulatory Affairs, New Models' Certificate of Incorporation and Articles of Incorporation were revoked on September 14, 2009, for failure or ref'usal to file reports and pay all fees due to the D.C. Department. Resp. Evid. "I'ab 1; Shea Aff According to LetOhioVote.org's annual campaign finance statement, New Models contributed $1,530,000 to LetOhioVote.org after September 14, Mayhew Aff., Ex. C. These contributions are now further called into question, as New Models no longer 8

16 enjoyed corporate status and therefore, under Ohio law, those contributions must be attributed to other individuals or legal entities. R.C (1)(1); O.A.C LAW AND ARGUMENT Relators contend that this case presents a single legal issue:"' whether the Secretary has anthority to issue subpoenas in the performance of her duties. For a writ of prohibition to issue to prevent the issuance of the Secretary's subpoenas, Relators must establish that: (1) the Secretary's issuance of subpoenas constitutes an exercise of judicial or quasi-judicial power, (2) the exercise of the Secretary's subpoena powers is clearly unauthorized by law, and (3) that the refusal of the writ would result in injury for which there is no adequate remedy in the ordinary course of law. State ex rel. `l"aft v. Court of Common Pleas of Franklin County, 63 Ohio St. 3d 190, 197 n. 1, citing State ex rel. Celebrezze v. Butler Cty. Cornmon Pleas Court (1979), 60 Ohio St. 2d 188, 189. Prohibition is generally not available miless the respondent "patently and unambiguously" lacks jurisdiction to do a particular act (here, issue subpoenas). State ex rel. Ministerial Day Care v. Montgomery, 100 Ohio St. 3d 343, 2003-Ohio-6446, 13. In the absence of sucl-i lack of jurisdiction, the ordinary course of law provides an adequate legal remedy. Id. Relators cannot meet any one of these requirements. First, and most importantly, the Secretary's power to issue subpoenas in the performance of her duties is expressly authorized by statute. Therefore, Relators cannot show that the Secretary "patently and unambiguously" lacks autliority to issue the subpoenas in question. Second, Relators are not entitled to a writ because the Secretary's exercise of her subpoena powers under R.C is an investigatory and ^ See, e.g., LetOhioVote.org Motion for Protective Order at 3(filed March 25, 2010) ("The sole issue in this case is the purely legal question of whether the Secretary has the authority to issue subpoenas."); New Models Br. at 3("[T]he sole issue before this Court is wliether Secretary Brunner had the authority to issue and serve the subpoena in question."). 9

17 administrative act, not an exercise of quasi-judicial authority. State ex rel. Taft v. Court of Common Pleas offranklin County (1992), 63 Ohio St. 3d 190. Third, Relators have an adequate remedy at law to contest the Secretary's authority to issue subpoenas and other ancillary issues - such as the sufficiency and service of the subpoenas - by filing an action for declaratory and injunctive relief in the conunon pleas court. Therefore, the extraordinary remedy of a writ of prohibition is not warranted here. To the extent that Relators raise various peripheral challenges to the facial validity and service of the subpoenas themselves, those issues are not properly before the Court, although perhaps cognizable in a different court. A writ of prohibition "tests and detennines `solely and only' the subject matter jurisdiction of the lower court or administrative tribunal." State ex rel. Eaton Cotp. v. Lancaster (1988), 40 Ohio St. 3d 404, 409; Slate ex rel. Rosch v. Ohio Civil Rights Comm'n. (10th Dist. App.), 2005-Ohio-1625, Therefore, the determinative question before this Court is whether the Secretary is authorized to issue subpoenas in the performance of her duties. The answer to that question is an unequivocal "yes." Finally, Relator New Models lacks the capacity to sue because its articles of incorporation were revoked by the District of Columbia before the filing of this action. Because New Models did not exist as a corporate entity, New Models is legally incapable of invoking this Courk's jurisdiction and asking for any relief, including sanctions against Secretary Brminer. 1. The Secretary's issuance of subpoenas to Relators was clearly authorized by law. For a writ of prohibition to issue, Relators must demonstrate that the Secretary's issuance of subpoenas to Relators was clearly rmauthorized by law. Relators attempt to cloud this issue by fraining it as whether the Secretary has statutory authority to investigate campail,m finance issues under R.C (N). While the Secretary asserts that she has such investigatory authority and addresses this question immediately below, whether the Secretary has such 10

18 authority is not relevant to whether the Secretary was authorized to issue the subpoenas in this case. That is, regardless of whether this Court accepts the Secretary's interpretation of R.C (N) or Relators' construction, the Secretary's subpoena authority is clear: she may issue subpoenas in the performance of her duty to report to the Ohio Elections Commission potential violations of campaign finanee laws through a complaint based on her knowledge. For the foregoing reasons, the Secretary was clearly authorized to issue subpoenas to Relators. A. Under R.C , the Secretary was clearly authorized to issue subpoenas to Relators. The Secretary's subpoena authority is provided in the general provisions at the end of R.C , which provide: (emphasis added). In the performance of the secretary of state's duties as the chief election officer, the secretary of state may administer oaths, issue subpoenas, summon witnesses, compel the production of books, papers, records, and other evidence, and fix the tiine and place for hearing any matters relating to the administration and enforcement of the election laws. Thus, the scope of the Secretary's subpoena authority is limited only in the "performance of the secretary of state's duties as the chief election officer." The Secretary's duties as chief election officer are listed throughout R.C Most important here, subsection (N) provides: The secretary of state shall do all of the following: (N)(1) Except as otlierwise provided in division (N)(2) of this section, investigate the administration of election laws, frauds, and iiregularities in elections in any county, and report violations of election laws to the attorney general or prosecuting attorney, or both, for prosecution; (2) On and after August 24, 1995, report a faihire to comply with or a violation of a provision in sections to , , , to 3517,22, , or of the Revised Code, whenever the secretary of state has or should have knowledge of a failure to comply with or a violation of a 11

19 provision in one of'those sections, by filing a complaint with the Ohio elections commission under section of the Revised Code. (emphasis added). 'I'his subsection mandates that the Secretary investigate election law frauds and irregularities, including potential campaign finance violations under Chapter 3517 of the elections code. If the Secretary determines that an election law may have been violated, she must "report" the violation to either (1) the attorney general or prosecuting attorney, or both, for prosecution; or (2) in the case of a potential campaign finance irregularity, to the Ohio Elections Commission by filing a complaint based on knowledge of the violation. R.C (N). 11ie Secretary's subpoena and investigatory authority under R.C is a necessary predicate to the Secretary being able to carry out her duties under R.C. Chapter nalnely, (1) to enstire that all campaign finance statements filed in her office are complete, accurate, and in "compliance" with Ohio campaign finance law, and (2) if a statement is not complete, accurate, or in compliance wit'h Ohio law, to promptly file a complaint with (7ie Ohio Elections Commission based on "sufficient facts." R.C (B)(4)(a); O.A.C (A)(2)(e). When campaign finance staternents are filed in her office, R.C (B)(4)(a) requires the Secretary to "examine all statements for compliance witli sections to of the Revised Code." In addition, "if any filed statement... is incomplete or inaccurate or appears to disclose a failure to comply with or a violation of law, the [Secretary]... shall promptly file a complaint with the Ohio elections commission." R.C (C)(1). 1'his complaint "shall... clearly set forth sufficient facts, supported by affidavits, exhibits and/or other documents to constitute a prinia facie violation of Ohio election law cross-referenced to the relevant revised code sections, aaid contain by attaclnnent all exhibits and other documents relied upon in alleging the violation or tending to support the allegations." O.A.C (A)(2)(e) 12

20 (emphasis added). In order to be able to plead the requisite "sufficient facts" and to demonstrate a prima facie violation for the filing of an Elections Commission complaint, the Secretary rnust gather those facts by way of her investigation and subpoena authority. The Secretary was clearly authorized by statute to issue the subpoenas to Relators. As explained above, the Secretary's staff noticed several election law irregularities with LetOhioVotc.org's annual catnpaign finance statement. See supra Statement of Facts, 3-8. In furtherance of her duties to investigate election law irregularities and ensure that all canipaign finance statements filed in her office are accurate, complete and in compliance with law, the Secretary issued subpoenas to Relators, all of whom may have knowledge regarding whether LetOhioVote.org's annual statement complies with Ohio's cainpail,nr finance law. Id. Becanse the issuance of the subpoenas was "in perfomiance of the secretary of state's duties as the chief election officer," her actions were authorized by law. B. Relators have failed to demonstrate that the Secretary's actions were clearly unautbot7zed by law. None of Relators' argunients demonstrate that the Secretary was clearly unauthorized by law to issue the subpoenas. 'I he Secretary will address each argument in tuni. 1. R.C (N) does not "expressly exclude" the Secretary from investigating campaign finance irregularities, and, even if it did, R.C does not limit the Secretary's subpoena authority to "investigations" under R.C (N)(1). Relators contend that R.C (N) "expressly excludes" the Secretary from investigating potential campaign finance violations. (Cunimings Br. at 16; New Models Br. at 5; LOV Br. at 8.) Subsection (N), however, does not use any such prohibitory language, and Relators' interpretation fails to give effect to all the words and phrases in the statute. More importantly, Relators' construction of subseetion (N) is irrelevant to the legal question of whether the Secretary was authorized to issue subpoenas here. Under either the Secretary's or 13

21 Relators' construction of R.C (N), the Secretary was authorized by law to issue the subpoenas. Under Relators' interpretation of R.C (N), the Secretary is prohibited from investigating campaign finance irregularities but must instead only "report" those violations to the OEC. However, subsection (N)(2) requires that the Secretary "report" those violations by filing a "complaint" based on "knowledge of a faihtre to comply with or a violation of' a campaign finance statute. The Secretary cannot form this "knowledge" if she is not permitted to investigate any campaign finance irregularity. Thus, Relators' argument does not give effect to all of the words and phrases used in R.C (N)(1) & (2). When snbsections (N)(1) and (N)(2) are read togetlier, the statute maudates that the Secretary investigate all election irregularities, including potential campaign finance violations. Rather than reporting campaign finance violations to a prosecutor or the Attorney General, the Secretary must report potential campaign finance violations through a complaint based on knowledge to the OEC. Regardless of whetlier the Court agrees with the Secretary's or Relators' construction of R.C (N), the Secretary's subpoena authority was authorized by law because it was in performance of her duties as chief elections officer. Although the parties here disagree over whether the Secretary has a duty to "investigate" campaign finance violations under R.C (N)(1), all parties agree that the Secretary has the duty to report potential campaign finance violations to the OEC. See LOV Br. at 13 ("[H]er only duty is to report known or apparent violations to the Ohio Elections Commission."). The Secretary's subpoena authority applies to all of the Secretary's duties, including her duty to report cainpaign finance violations to the Connnission through a complaint based on knowledge. Nothing in R.C Iimits the Secretary's subpoena authority to "investigations" under R.C (N)(l). Thus, even i1'the 14

22 Secretary were not authorized to issue the subpoena as part of an "investigation" under (N)(1), she was authorized to issue the subpoena to form the "knowledge" required by (N)(2) to file a complaint with the Connnission. To accept Relators' arguments, the Court must read limiting language into the Secretary's statutory subpoena powers. That is, under Relators' theory, the Secretary's subpoena authority under R.C should include language such as, "tliis section does not apply to any of the Secretary's duties related to R.C. Chapter 3517." The Court, however, cannot judicially construe the statute to limit what the General Assembly has authorized the Secretary to do. This Court has repeatedly stated: "we cannot add words to the statute." State ex rel. Brinda v. Lorain Cty. Bd, qf Elections, 115 Ohio St.3d 299, 303, 2007-Ohio-5228, at 24; Steele v. Morrissey, 103 Ohio St.3d 355, 360, 2004-Ohio-4960, at 30 ("Couits have a duty to give efl'ect to the words used in a statute and not to delete words used or to insert words not used.") (quoting State ex rel. Gaydosh v, 7winsburg, 93 Ohio St.3d 576, 579, 2001-Ohio-1613). The General Assembly broadly authorized the Secretary to issue subpoenas "in the performance of her duties," and one of the Secretary's duties is to report violations of campaign finance law through a complaint based on knowledge. Regardless of whether this Court agrees with the Secretary's interpretation of R.C (N), the Secretary was acting either pursuant to her "investigatory" authority under R.C (N)(l) or her duty to file a complaint based on knowledge to the Elections Commission under R.C (N)(2). Thus, not only is Relators' interpretation of R.C (N) wrong, it is also irrelevant to the legal issue here. R.C (N) does not exclude the Secretary from issuing the subpoenas in this case. 2. This Court's decision in State ex ret. Ohio Democratic Party v. Blackwell does not stand for the proposition that the Qhio Elections Commission has exclusive jurisdiction to investigate alleged campaign finance violations. 15

23 Relators claim that in State ex rel. Ohio Democratic Party v. Blackwell ("ODP v. Blackwell"), 111 Ohio St. 3d 246, 2006-Ohio-5202, this Court held that the OEC "has exclusive jurisdiction to investigate and adjudicate alleged violations of certain campaign finance statutes." (New Models Br. at 5 (emphasis added); Cummings Br. at 12; LOV Br. at ) '1'he decision stands for no such proposition. The decision does not use the word "investigate," does not discuss the Secretary's subpoena authority, and does not interpret the Secretary's duties under R.C (N) - or even mention any of the Secretary's duties under R.C The decision is irrelevant to the issue before this Court. The sole issue before the Court in ODP v. Blackwell was whether this Court has subject matter jurisdiction to compel the Secretary to perform acts allegedly required by Ohio's campaign finance laws. Id. at ^1. Following the language of R.C (A), the Court came to the straightforward and uncontroversial decision that the Ohio Elections Commission has exclusive jurisdiction to initially decide eampaign finance complaints. Id. at 16. 'the decision says nothing about the Secretary's authority to issue subpoenas or to "investigate" election law irregularities under R.C (N). Most important, the decision says notliing about the Secretary's duty to gather sufficient evidence to support a complaint she may file with the Elections Commission. 3. Relators mischaracterize the role of the Ohio Elections Commission. Relators claim that the General Assembly has "decided to entrust - from the first step to the last - the entire process of investigating and adjudicating alleged violations of the campaign finance statutes" to the Ohio Elections Commission. LOV Br. at 12; see also Cummings Br. at 17 (the Commission has "exclusive authority to investigate"); New Models Br. at 12 (same). 'fhroughout their briefs, Relators confuse the meaning of "adjudicate" and "investigate." As previously explained, the Secretary's duties to investigate and report violations "commands an 16

24 administrative act - an investigation - not an adjudicatory proceeding." Slate ex Yel. Taft v. Coia t of Common Pleas, 63 Ohio St. 3d at 195. Thus, the fact that the Elections Cominission has exclusive jurisdiction to adjudicate campaign finance complaiuts does not equate into exclusive jurisdiction to investigate all canipaign finance issues. The Elections Commission's "investigatory" funetions - as opposed to its adjudicative funetions - are described in R.C (B), which provides: If the commission decides that the evidence is insufficient for it to determine whether or not the failure to act or the violation alleged in the complaint has occurred, the commission, by the affirniative vote of five members, may request that an investigatory attorney investigate the complaint. Upon that request, an investigatory attorney shall make an investigation in order to produce sufficient evidence for the commission to decide the matter.5 This statute does not provide the Elections Commission "exclusive" authority to investigate campaign finance issues by limiting the Secretary's authority to do any pre-complaint investigations.6 4. The Secretary's statutory duties under R.C. Chapter 3517 are not limited to a "facial examination" of the filed statements. Relators argue that the Secretary's duty in reviewing and auditing cainpaign finance statements is limited to a "facial examination of the filed statements." LOV Br. at 15. They further argue that the Secretary's duty to "promptly" file a complaint with the Elections Commission is "incompatible" with the notion that she may exaniine statements beyond the four corners of the filed statement. Cummings Br. at 16; New Models Br. at 7. Both argmnents fail lor two reasons. 5 See R.C for a similar provision regarding hiring an investigatory attorney in expedited hearings. 6 Moreover, after a complaint has been filed, the parties to the complaint may request discovery under Ohio R. Civ. P. 26(a). O.A.C Thus, after a complaint has been filed, the parties may conduct their own "investigatory" work. 17

25 First, the Secretary's duty upon receiving a campaign finance statement is to "examine all statements for compliance with sections to of thc Revised Code." R.C (B)(4)(a). It would be impossible for the Secretary to fulfill this duty if she is limited to examining only the face of each statement. For example, suppose a statewide candidate filed a report listing 100 contributions from "John Sn-iith," with 100 different addresses, each for $10,000. On its face, this looks suspicious. However, there are surely 100 John Smiths in the IJnited States, and they each could have given $10,000. Under Relators' theory, the Secretary is limited to the face of each filed statement: she could not "investigate" into whether the addresses of the 100 different Jolrn Smiths were legitimate or "investigate" whether the checks came from the same bank accotmt - both of which would require going beyond the "face" of the statement. By authorizing the Secretary to examine each filed statenrent for "compliance" with Ohio's campaign finance law, the General Assembly could not have intended her to be limited only to a "facial examination" of each statement. Second, the Secretary's duty to "promptly" file a complaint with the OFC is only triggered after she determines that a filed statement is incomplete, inaccurate, or appears to disclose a failure to comply with Ohio's campaign finance law. R.C (C)(1). This case is still in the initial examination phase. That is, the Secretary is attempting to deterrnine whether LetOhioVote.org's filed annual statement is complete, accurate, and in compliance with Ohio's campaign finance law. If she determines that LetOhioVote.org's statement appears to be incomplete, inaccurate, or that it lias violated Ohio's campaign finance laws, she then must "promptly" file a complaint with the OEC, along with sufficient facts to support her complaint. 5. Statements by former Secretary Blackwell in a 2006 brief in a different case on a different issue are irrelevant as to whether Secretary Brunner is authorized to issue the subpoenas here. 18

26 Relators pluck two sentences out of Secretary Blackwell's 2006 brief in the ODP v. Blackwell case in an attempt to convince this Court that the Secretary does not have authority to investigate campaign finance issues and that her examinations are limited to the face of each filed statement. (LOV Br. at ) Previous arguments are irrelevant to this case for two reasons. First, the issue in ODP v. Blackwell was whether this Court had subject matter jurisdiction over an original mandamus action involving a campaign finance law; the case did not involve an analysis of the Secretary's sabpoena authorityunder R.C The arguments in counsels' brief -- wliich were not cited in the Court's opinion - are irrelevant to this proceeding. Second, even if the issues were siniilar, Secretary Brumier is free to interpret the law differeutly than foimer Secretary of State J. Kenneth Blackwell. Moreover, if Secretary Blackwell's inteipretation of the law is relevant at all, it is relevant to the extent that he clearly agreed that the Secretary may issue subpoenas related to campaign finance issues. Secretary Blackwell routinely (and lawfully) conducted campaign finance investigations and issued subpoenas without challenge in the courts. See Statement of Facts 3-4; Mayhew Aff , Exs. F, - G. 6. The number of complaints filed by the Secretary with the Ohio Elections Commission is irrelevant to whether the Secretary has subpoena authority in this case. Relators argue that it is "undeniable evidence" that the Secretary "need not engage in discovery prior to filing a complaint" because she has not issued a subpoena in the "764 complaints"' filed by her oftice since January (New Models Br. at 8.) This argument is irrelevant - and improper - on two levels. 7 The Secretary notes that she did not stipulate to the number of complaints filed since January 2007 and that the number of' filed complaints is not established in the record. At best, the "764 complaints" number is inadmissible hearsay. 19

27 First, the fact that the Secretary Iras not previously issued subpoenas witlr respect to a c.ampaign finance issue is irrelevant as to whether she has such authority. She has clearly investigated several campaign finance issues since January 2007 (Mayhew Aff , Exs. I & J), and it is undisputed that the Secretary's office has previously issued subpoenas as part of a campaign finance investigation Id , Exs. E-G. Second, this argument is inconsistent with previous statements made to the Court. In their motions for protective order, Relators New Models and LetOhioVote:org asserted that discovery was unnecessary because the issue before this Court was "a purely legal question" (LOV Mot. Prot. Order at 3) and a "purely legal issue" (New Models Mot. Prot. Order at 1). Yet now, Relators seek to admit as "undeniable evidence" the number of complaints filed by the Secretary since January Relators are taking a position inconsistent with one successfully and unequivocally asserted by them in a prior pleading, potentially triggering application of the doctrine of judicial estoppel. If the issue before the Court is purely legal, such "undeniable evidence" is irrelevant and should be ignored by the Court, Aecordingly, Relators have failed to deinonstrate that the Secretary's issuance of subpoenas in this case was clearly unauthorized by law. II. The Secretary's use of subpoena and investigatory powers under R.C does not constitute an exercise of quasi-judicial power. The Ohio Supreme Court has expressly stated that the Secretary's issuance of subpoenas in furtherance of an investigation is not a quasi-judicial act, and therefore not subject to a writ of prohibifion. Relators mistakenly assume that anytime a subpoena is issued by a public official, that act automatically constitutes an exercise of quasi-judicial power. See, e.g., LetOhioVote.org Br., 8-9. However, as explained below, there is a difference between subpoena powers that are conferred upon an officer or agency for investigatory versus ndjudicatory purposes. 20

28 As explained above, while the Secretary has a duty to investigate violations of campaign finance law and is given broad subpoena powers to carry out those investigations, the Secretary does not have authority to adjudicate any violations of campaign finance law. Supra pp ; Mayhew Aff. 4-5; R.C ; O.A.C Title 35 of the Revised Code does not confer upon the Secretary the authority to conduct her own adjudication of violations of campaign finance laws. The Secretary niust refer those violations to the Ohio Elections Commission for adjudieation. Accordingly, the Ohio Supreme Court has stated unequivocally that the Secretary's investigatory powers under R.C are not an exercise of quasi-judicial authority. Stale ex rel. Taft v. Court of Common Pleas of Franklin County (1992), 63 Ohio St. 3d 190: "This general obligation of the Secretary of State to investigate and report violations of the election laws imposes no specific adjudicatory procedure, does not even grant quasi-judicial attthority.... It commands an administrative act - an investigation - not an adjudicatory proceeding." Id. at 195. This holding is consistent with the Court's explanation that "quasi-judicial" proceedings are "those in which the function under consideration involves the exercise of discretion and requires notice, a hearing and the opportunity for the introduction of evidence." Haught v. City of Dayton (1973), 34 Ohio St. 2d 32, 35; M. J Kelley Co. v. Cleveland (1972), 32 Ohio St. 2d 150, 153. See also Ohio Historical Soc. v. State Employment Relations Board (1990), 48 Ohio St. 3d 45, 46 ("proceedings of administrative ofiicers and agencies are not quasi-judicial where there is no requirement for notice, hearing and the opportunity for introduction of evidence."). Therefore, the authority to issue subpoenas in itself does not automatically signal an exercise of quasi-judicial power. Rather, the dispositive question in determining whether an agency's action is quasi-judicial in nature is whether the agency is required to give notice, a 21