David R. Langdon (0067046) Thomas W. Kidd, Jr. (0066359) Bradley M. Peppo (0083847) Trial Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO LETOHIOVOTE.ORG 208 East State Street Columbus, Ohio 43215, THOMAS E. BRINKMAN, JR. 3215 Hardisty Avenue Cincinnati, OH 45208, GENE PIERCE 208 East State Street Columbus, Ohio 43215, and CARLO LOPARO 208 East State Street Columbus, Ohio 43215, vs. Plaintiffs, JENNIFER BRUNNER OHIO SECRETARY OF STATE 180 East Broad Street Columbus, Ohio 43215, Defendant. Case No. Judge Ethna M. Cooper VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT, TEMPORARY RESTRAINING ORDER, AND PRELIMINARY AND PERMANENT INJUNCTIONS Now come Plaintiffs LetOhioVote.org, Thomas E. Brinkman, Jr., Gene Pierce, and Carlo LoParo, and for their Complaint against Defendant Ohio Secretary of State Jennifer Brunner, state as follows
INTRODUCTION 1. Plaintiffs LetOhioVote.org, Thomas E. Brinkman, Jr., Gene Pierce, and Carlo LoParo seek a judgment declaring that the Secretary has no authority to issue or enforce certain subpoenas against them. Plaintiffs further ask this court to issue a temporary restraining order and preliminary and permanent injunctions directing the Secretary to cease and desist from attempting to enforce these subpoenas and from attempting to compel Plaintiffs to appear to testify at a deposition or to produce documents. Because the Secretary is without authority to issue these subpoenas commanding Plaintiffs to appear before her and testify at a deposition or to produce documents, or to take any action to enforce the subpoenas, a temporary restraining order and preliminary and permanent injunctions should issue. JURISDICTION AND VENUE 2. This court has jurisdiction over this action pursuant to R.C. 2305.01 and 2721.02, which sections provide for a declaration with respect to rights, status, and other legal relations whether or not further relief is or could be claimed, generally, and pursuant to R.C. 2727.03, which permits the common pleas courts to grant injunctive relief. 3. Venue is proper in this court pursuant to Ohio Civ. R. 3(B)(3) in that Hamilton County, Ohio, is the location in which Defendant conducted activity giving rise to the claim for relief. PARTIES 4. Plaintiff LetOhioVote.org is the ballot issue committee designated under R.C. 3519.02 to represent the petitioners in a Referendum Petition seeking to refer certain portions of Amended Substitute House Bill No. 1 to the Ohio voters for their approval or rejection at the - 2 -
election in November of 2010. Plaintiffs Thomas E. Brinkman, Jr. and Gene Pierce are individual members of LetOhioVote.org, the committee designated to represent the petitioners in the Referendum Petition. Plaintiff Gene Pierce is the Treasurer of LetOhioVote.org. Plaintiff Carlo LoParo is a media relations consultant for LetOhioVote.org. (Plaintiffs are collectively referred to herein as either Plaintiffs or the Committee. ) 5. Defendant Jennifer Brunner is the Ohio Secretary of State and the chief elections officer of the State of Ohio. FACTUAL ALLEGATIONS 6. On December 21, 2009, the Committee filed its Referendum Petition with the Ohio Secretary of State. On January 22, 2010, the Secretary notified the Committee that the Petition was deficient by approximately 27,000 signatures. On February 8, 2010, the Committee filed in excess of 175,000 supplemental signatures with the Secretary. On March 26, 2010, the Secretary certified the Referendum Petition to the ballot. 1 7. In connection with its Referendum Petition effort, the Committee has filed three campaign finance reports under Chapter 3517 of the Revised Code. More specifically, the Committee has filed a. in compliance with R.C. 3517.12(B), a campaign finance report disclosing, among other things, that the Committee had received funding from New Models to pay petition circulators; and b. in compliance with R.C. 3517.10(A)(3), an annual campaign finance report disclosing the total amount of contributions received, and the total amount of expenditures made, by the Committee through December 31, 2009, as well as the name and address of the Committee s one contributor (New Models) and the names and addresses of the Committee s vendors, along with the amounts contributed by, or paid to, each. 1 The facts leading to the Committee s filing of the Referendum Petition are set forth in the Ohio Supreme Court s opinion in LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462. - 3 -
8. Upon information and belief, it is the latter report, filed in compliance with R.C. 3517.10(A)(3), that is the subject of the Secretary s investigation. 9. With the exception of one alleged deficiency not at issue in this case, the Secretary has not notified the Committee of any deficiencies in its campaign finance reports or any alleged violations by the Committee of Ohio s campaign finance laws. 2 10. On February 17, 2010, the Secretary issued a press release announcing that she had opened a campaign-finance investigation regarding LetOhioVote.org. (A true and accurate copy of the press release is attached as Exhibit 1 and made a part hereof. 3 ) 11. In the press release, the Secretary states a. that as the state s chief elections officer, she is responsible for overseeing campaign finance filings for statewide ballot issues ; b. that she is investigating the source of funding for LetOhioVote.org, a ballot issue committee; c. that the law is clear that what is spent for proposed ballot issues must be reported and that using a straw-person out-of-state corporation to hide the real sources of funding not only violates the public trust, it looks like concealment, which is against the law. d. that, according to LetOhioVote.org s 2009 annual campaign finance report, it raised $1.55 million, all from New Models; e. that she has issued subpoenas to LetOhioVote.org, New Models, and others reported to be connected to New Models, commanding them to submit to depositions and to produce certain records in connection with the investigation; and f. that campaign finance laws require those behind statewide ballot issue efforts to say who they are. 2 The Secretary notified the Committee that the report it filed in accordance with R.C. 3517.12(B) failed to disclose the names and addresses of paid circulators, and the amounts paid to each, as required by R.C. 3517.12(B)(3). The Committee filed a lawsuit in the United States District Court for the Southern District of Ohio challenging this disclosure provision as a violation of the First Amendment, and that court issued a permanent injunction enjoining the Secretary and the Ohio Elections Commission from enforcing it. See Citizens in Charge v. Brunner, Case No. 10-cv-00095 (S.D. Ohio Feb. 25, 2010). 3 The press release is also available on the Secretary s website, at http//www.sos.state.oh.us/sos/pressreleases/2010/2009-02-17.aspx (last checked on May 27, 2010). - 4 -
12. On or about February 17, 2010, Brian Shinn, then Assistant General Counsel and Chief Elections Counsel for the Secretary, personally served Plaintiff Gene Pierce with three subpoenas. The subpoenas were addressed to the Custodian of Records of LetOhioVote.org, Carlo LoParo, and Gene Pierce, respectively. On or about the same date, the Secretary also served Plaintiff Thomas E. Brinkman, Jr. with a subpoena by certified mail. The Secretary also served subpoenas on New Models and Tim Crawford, and attempted, but never actually served, a subpoena on Norm Cummings. 13. On March 1, 2010, Plaintiffs filed an original action in the Ohio Supreme Court seeking a writ of prohibition to prevent the Secretary from enforcing the subpoenas. The Court granted an alternative writ in favor of Plaintiffs, which had the effect of staying enforcement of the subpoenas until the Court issued a final decision in the case. 4 14. On April 30, 2010, the Court issued an order and opinion denying a writ of prohibition for the reason that the Secretary s issuance of subpoenas was not a quasi-judicial act. 5 The Court also held, however, that Plaintiffs were not without remedy but were able to challenge the propriety of the subpoenas in a common pleas court action for a prohibitory injunction. 6 15. On May 27, 2010, the Secretary reissued subpoenas to each of the Plaintiffs. 16. The Secretary sent the subpoena to Plaintiff Brinkman via certified mail at his residence in Hamilton County, Ohio. 17. A true and accurate copy of the subpoena delivered to Plaintiff Brinkman is attached as Exhibit 2 and made a part hereof. 4 State ex rel. LetOhioVote.org v. Brunner, 124 Ohio St.3d 1489, 2010-Ohio-739, 922 N.E.2d 225. 5 State ex rel. LetOhioVote.org v. Brunner, Slip Opinion No. 2010-Ohio-1895. 6 Id. at P22. - 5 -
18. Each of the subpoenas commands the subpoenaed party to appear before the Secretary to testify as a witness at a deposition on June 11, 2010, at the office of the Ohio Secretary of State. 19. Each of the subpoenas also commands the subpoenaed party to produce documents related to the Committee s finances and its internet web site. 20. Each of the subpoenas includes a copy of Part C and D of Rule 45 of the Ohio Rules of Civil Procedure. 21. Each of the subpoenas threatens the subpoenaed party with criminal punishment for noncompliance. More specifically, each states that Failure to appear and refusal to testify pursuant to this subpoena is a violation of Ohio Revised Code Section 3599.37, a misdemeanor of the first degree. R.C. 3599.37 prohibits any person having been subpoenaed or ordered to appear before a grand jury, court, board, or officer in a proceeding or prosecution upon a complaint, information, affidavit, or indictment for an offense under an election law from failing to appear, refusing to answer a question pertinent to the matter under inquiry or investigation, or refusing to produce documents. 22. In her nearly-four years as Ohio Secretary of State, though she has filed in excess of 750 complaints for alleged campaign-finance violations with the Ohio Elections Commission, Secretary Brunner has not issued subpoenas in connection with any investigation of alleged violations of campaign finance laws other than her present investigation of Plaintiffs. - 6 -
CLAIM FOR DECLARATORY JUDGMENT AND PRELIMINARY AND PERMANENT INJUNCTIONS 7 23. Plaintiffs restate the allegations in paragraphs 1 through 22 as if fully restated herein. 24. The Secretary has general authority to investigate the administration of election laws and to report violations of same to the attorney general or prosecuting attorney. 8 25. In the performance of her lawful duties, the Secretary is authorized to administer oaths, issue subpoenas, summon witnesses, compel the production of documents, and fix the time and place for hearing any matters relating to the administration of enforcement of the election laws. 9 26. Notwithstanding the Secretary s general authority to investigate potential violations of election laws, the Secretary has no authority to investigate alleged violations of certain campaign finance laws in Chapter 3517, namely 3517.08 to 3517.13, 3517.17, 3517.18, 3517.20 to 3517.22, 3599.03, or 3599.031 of the Revised Code (hereafter collectively referred to as the Campaign Finance Statutes ). 10 27. Rather, under R.C. 3501.05(N)(2), whenever the Secretary has or should have knowledge of a failure to comply with one of the Campaign Finance Statutes, she is required to report that failure by filing a complaint with the Ohio Elections Commission, which has exclusive jurisdiction to investigate and adjudicate alleged violations of these Statutes. 7 In addition to the state law issues raised in this complaint for an injunction, the subpoenas implicate Plaintiffs federal constitutional rights, including their First Amendment rights to freedom of speech and association. Plaintiffs reserve the right to assert any federal constitutional claims they may have in federal court. 8 R.C. 3501.05(N)(1). 9 R.C. 3501.05. 10 R.C. 3501.05(N)(2). - 7 -
28. The Secretary s duties before reporting a failure to comply are expressly set forth in the Revised Code. She is first required to examine the filed campaign finance statement for compliance, and then, if she deems the statement to be noncompliant, to afford the violator an opportunity to correct the violation. 11 29. The Secretary is attempting to use the limited subpoena power granted to her under R.C. 3501.05 limited in that it may only be used in the performance of her lawful duties for the improper purpose of seeking evidence to try to prove that the Committee and its supporters have violated the Campaign Finance Statutes. 30. More specifically, the Secretary is attempting to obtain evidence to prove that the Committee and its supporters have concealed contributions in violation of R.C. 3517.13, one of the Campaign Finance Statutes over which the Ohio Elections Commission has exclusive jurisdiction. 31. Because the Secretary has no authority to investigate potential violations of the Campaign Finance Statutes, she is without authority to issue subpoenas, to compel testimony, to command production of documents, or to seek to enforce the subpoenas in furtherance of an investigation into whether Plaintiffs violated those Statutes. 32. If temporary and permanent injunctive relief is not granted, Plaintiffs will suffer irreparable injury. WHEREFORE, Plaintiffs pray for judgment against Defendant Ohio Secretary of State Jennifer Brunner, and that the Court A. Adjudge, decree, and declare the rights and other legal relations of the parties to the subject matter in controversy in order that such declarations shall have the force and effect of final judgment and that the Court retain jurisdiction of this matter for the purpose of enforcing the Court s Orders; 11 R.C. 3517.11. - 8 -
B. Issue a declaratory judgment that the Secretary was without authority to issue the subpoenas to Plaintiffs and, consequently, that the subpoenas are void ab initio and, further, that neither the Secretary s duty to report apparent violations of the Campaign Finance Statutes to the Ohio Elections Commission nor any of the Secretary s other duties gives her the authority to conduct an investigation against Plaintiffs in this case; C. Issue a temporary restraining order and preliminary and permanent injunctions enjoining Defendant Secretary of State Jennifer Brunner from attempting to enforce the subpoenas, from threatening or otherwise pursuing criminal prosecution for noncompliance with the subpoenas, from attempting to compel Plaintiffs to appear to testify at a deposition or to produce documents, and from taking any further action to enforce the subpoenas; and D. Award Plaintiffs their costs and expenses incurred in bringing this action, including reasonable attorney fees; and E. Grant such other and further relief as the Court deems equitable, just and proper. Respectfully submitted, David R. Langdon (0067046) Thomas W. Kidd, Jr. (0066359) Bradley M. Peppo (0083847) LANGDON LAW LLC 11175 Reading Rd., Ste. 104 Cincinnati, Ohio 45241 (513) 577-7380 (513) 577-7383 fax dlangdon@langdonlaw.com tkidd@langdonlaw.com bpeppo@langdonlaw.com Trial Attorneys for Plaintiffs LetOhioVote.org, Thomas E. Brinkman, Jr., Gene Pierce and Carlo LoParo - 9 -
STATE OF OHIO ss. COUNTY OF HAMILTON AFFIDAVIT I, Thomas Brinkman, being first duly sworn according to law, depose and state that I have read the foregoing Complaint and the statements contained in the Complaint, which are incorporated and made a part of this Affidavit as if completely rewritten herein, are true based on my personal knowledge, and I am competent to testify to same. Thomas E. Brinkman, Jr. Sworn to and subscribed before me on this 28 th day of May, 2010. Notary Public - 10 -
PRAECIPE TO CLERK Please serve the foregoing Complaint on the Defendant named herein, as follows HON. JENNIFER BRUNNER Ohio Secretary of State 180 East Broad Street Columbus, Ohio 43215 David R. Langdon (0067046) - 11 -
CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing Complaint was served by electronic mail this 28 th day of May, 2010 upon the following Richard N. Coglianese Richard.Coglianese@ohioattorneygeneral.gov Pearl Chin Pearl.Chin@ohioattorneygeneral.gov Erick D. Gale Erick.Gale@ohioattorneygeneral.gov Michael J. Schuler Michael.Schuler@ohioattorneygeneral.gov David R. Langdon (0067046) - 12 -