UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT LIBERTARIAN PARTY OF OHIO, KEVIN KNEDLER, CHARLES EARL, AARON HARRIS, Appellants-Plaintiffs, v. No. 14-3230 JON HUSTED, in his Official Capacity as Ohio Secretary of State, and GREGORY FELSOCI, Appellee-Defendant, Appellee-Intervenor-Defendant. / APPELLANTS' REPLY TO FELSOCI'S RESPONSE TO MOTION TO STRIKE APPENDIX Appellee-Intervenor-Defendant (Felsoci) seeks to make a mountain out of a mole-hill, for reasons known only to him. Notably, the Secretary, the primary party in this appeal, has not joined any of his motions, pleadings and papers. First, Felsoci moved to dismiss this appeal for failure to comply with Federal Rules of Appellate Procedure 10 and 11. Specifically, Felsoci asserted that Appellants have failed to file a "full transcript of the district court s proceedings below" and have "failed to file the vast majority of the relevant record on appeal." Intervenor-Defendant-Appellee's Motion to Dismiss Appeal, Doc. No. 29 (filed April 10, 2014) at 1-2. 1
Appellants responded to that Motion the same day, pointing out, inter alia, that the Federal Rules of Appellate Procedure, Sixth Circuit Rules, and internal operating procedures do not require that Appellants order a full transcript of everything for an appeal. Federal Rule of Appellate Procedure 10 says simply that the appellant should choose the transcripts they deem necessary for the appeal. That is what Appellants did. Felsoci replied today, arguing that under Federal Rule of Appellate Procedure 10(b)(2), the appellant had to have filed a complete transcript of the proceedings and testimonies taken before the District Court. Appellants duly reported via a Rule 28(j) letter to the Clerk of this Court several cases ruling that Rule 10(b)(2) only requires a transcript of relevant testimony where an appellant challenges factual findings as being unsupported by the evidence. See, e.g., Spurling v. Allstate Indemnity Co., 487 Fed. Appx. 982 (6th Cir. 2012); In re Producers, Inc., 526 F.3d 942 (6th Cir. 2008). Even then, this Court has ruled that in the absence of prejudice "the appellant's failure to provide a transcript" is irrelevant. McLaurin v. Cole, 46 Fed. Appx. 802, **2 (6th Cir. 2002). 1 1 Felsoci also attempts to fashion a complaint about timely notice of the issues and Appellants' intent to order partial transcripts. Appellants served Felsoci with a statement of the issues the day they noticed their appeal. If this were not enough, Appellants' principal Brief, filed on March 30, 2014, just eleven days (and within the fourteen days Felsoci insists is required) after its notice of appeal, made even more clear the issues presented. Felsoci's complaint about a lack of timely notice of the issues in this case is specious. Appellants' Brief, moreover, thoroughly described the record evidence Appellants relied upon to make their facial First Amendment claim. Felsoci had been previously electronically noticed that Appellants had ordered Felsoci's transcript. Appellants had filed their Brief eleven days after their notice of appeal. Felsoci knew with fourteen days of the filing of the appeal that Appellants had ordered a partial transcript. Felsoci was clearly on notice that if wished to add to the record additional transcripts he had better do so before his brief was due on April 10, 2014. 2
The rule is clear that where an appellate challenge is one of law, as here, no transcript (beyond what Appellants deem necessary and Appellees choose to submit) need be placed in the electronic record. Next, at the same time he filed his Motion to Dismiss the Appeal, Felsoci attached an Appendix to his Brief containing documents and portions of transcripts that are in the Electronic Record. While admitting that most of these documents are already in the electronic record -- there is "some overlap" he says -- he still complains that some documentation submitted before the District Court has not yet been made electronically available. "If Appellee had not filed the appendix, this Court would be left to guess what non-testimonial evidence was presented during the district court hearing." Memorandum of Intervening-Defendant-Appellee Gregory Felsoci in Opposition to Appellants' Motion to Strike Appendix, Doc. No. 43, at 3. Harkening back to his claim that Appellants were under a duty to transcribe everything below, Felsoci then argues that "[t]his is especially true given Appellants' failure to order even the portion of the transcript showing which exhibits were admitted into evidence at the district court's hearing." Id. at 3-4. Felsoci's argument is wrong on several levels. Foremost are the Sixth Circuit's Rules and the Federal Rules of Appellate Procedure. Rule 10 of the Federal Rules of Appellate Procedure, for instance, does not require that an appellant transcribe everything below. It simply says that an appellant must transcribe what it deems necessary, notify the appellee of the issues, and then leave to the appellee whether to add more. If an appellant wishes to challenge factual findings as not being supported by the evidence, of course, it must provide a transcript of all relevant testimony. But Appellants here do not challenge any factual findings made by the District Court as not being supported by the evidence. Theirs is a facial First Amendment challenge; it is presents 3
a question of law to be reviewed de novo by this Court. Appellants' partial transcript order therefore satisfied Rule 10. Because this is a legal challenge and not a factual challenge under Rule 10(b)(2), Felsoci's obligation, if he really believed the testimony and exhibits he submitted to the District Court were relevant to his defense of the appeal, was to insure that they became part of the electronic record. He did not do that. That is his problem. Not Appellants'. Felsoci would have this Court believe that the only record evidence it may consider is that prevented before the District Court on March 13, 14 and 17, 2014, the days of the evidentiary hearing. Even if this were a final jury trial on the merits, that would not necessarily be true. And the evidentiary hearing here was simply part of a broader consideration of Appellants' motion for a preliminary injunction. At this stage, District Courts consider a wealth of information, ranging from verified complaints to affidavits to depositions to live testimony taken in open court. Courts are not constrained to rely only on live testimony. An evidentiary hearing does not become the full scope of the record. Here, for example, the Secretary submitted the full administrative record from the hearing conducted before Professor Smith, which provides much of the focus for this Court's review. The Secretary here routinely relies on this record evidence presented at the administrative hearing in his Brief, even though the witnesses did not testify in front of the District Court. See, e.g., Secretary's Brief at 32 (quoting Hatchett's testimony before the Hearing Officer (RE 63-1, Page ID # 1327-28)). More to the point, Felsoci does, too. See, e.g., Brief of Intervenor-Defendant- Appellee-Felsoci (hereinafter "Felsoci's Brief") at 27 (citing RE 63-2, Page ID # 1543, 1550). 2 2 Courts, for instance, have always relied on affidavits, as well as live testimony, when considering motions for preliminary injunctions. See C. A. WRIGHT, ET AL., 11A FEDERAL 4
Felsoci repeatedly conflates the testimony and exhibits submitted at the preliminary evidentiary hearing with matters that are, should be and must be in electronic record. His argument is that Appellants had a duty to make sure all of the material he submitted at a preliminary evidentiary hearing became electronically available so that he could electronically access it on appeal. His argument is that the evidentiary hearing is the electronic record for purposes of an interlocutory legal challenge to a District Court's denial of preliminary relief. The argument is absurd. There never has been such a rule. No authority that Appellants can locate stands for such a proposition. To the extent the matter in his Appendix is already in the electronic record, it is redundant. If the matter he includes in the Appendix is not electronically available, that is his fault. He should have made it electronically available. He should have ordered the transcripts. Either way, the Appendix is not proper and should be stricken. Sixth Circuit Rule 30(a) makes clear that an appendix "must not" be filed; that the Court has access to and will use the electronic record. Felsoci's Appendix violates this Rule and should be stricken. PRACTICE AND PROCEDURE CIVIL 2949 (2013) ("Affidavits are appropriate on a preliminaryinjunction motion and typically will be offered by both parties."); Welch v. Brown, 2014 WL 25641 (6th Cir., Jan. 3, 2014); Golden v. Kelsey-Hayes Co., 73 F.3d 648 (6th Cir. 1996). Indeed, t it. 5
CONCLUSION Felsoci's Appendix should be STRICKEN. Respectfully submitted, s/mark R. Brown Mark R. Brown 303 East Broad Street Columbus, OH 43215 (614) 236-6590 (614) 236-6956 (fax) mbrown@law.capital.edu Mark G. Kafantaris 625 City Park Avenue Columbus, OH 43206 (614) 223-1444 (614) 300-5123(fax) mark@kafantaris.com CERTIFICATE OF SERVICE I certify that copies of this Reply were filed using the Court's electronic filing system and will thereby be electronically delivered to all parties through their counsel of record. s/mark R. Brown Mark R. Brown 6