Libertarian Party of Ohio v. Husted, 188 F. Supp. 3d 665

Background

Plaintiffs (Libertarian Party of Ohio and members/candidates) challenge enforcement of Ohio Rev. Code § 3501.38(E)(1) after part-petitions were invalidated and plaintiffs were removed from the 2014 primary ballot. Plaintiffs allege selective enforcement and a conspiracy to deprive First and Fourteenth Amendment rights under 42 U.S.C. § 1983.
Plaintiffs assert new evidence (depositions of ORP chair Matt Borges, political strategist Terry Casey, and protest-filer Gregory Felsoci, plus e-mails/texts and ORP payment records to counsel) showing coordination among ORP, Governor Kasich’s campaign staff, Casey, and state officials regarding the protest.
Defendants (Ohio Secretary of State Jon Husted and Felsoci) move for summary judgment; plaintiffs move for summary judgment on Count Seven. Court previously denied preliminary relief twice, finding plaintiffs unlikely to succeed on selective-enforcement/conspiracy theories.
Central factual disputes concern: (a) whether a private protester (Felsoci) acted as part of a conspiracy with state actors to effectuate selective enforcement; (b) the nature and significance of communications among Casey, ORP/campaign staff, and Secretary Husted’s office; and (c) whether any state official acted under color of law with discriminatory intent.
Court reviewed the new documentary and deposition evidence and concluded it does not show a conspiratorial plan, state action, or discriminatory intent sufficient to sustain a § 1983 selective-enforcement claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether filing of the private protest and related communications constitute state action via a civil conspiracy (§ 1983)	Communications/depositions show coordinated plan among Casey, ORP, Kasich campaign, and state officials to target LPO; protest was ratified by ORP and aided by campaign/state actors	Protest was private action; communications are routine, many post-date Secretary's ruling, and do not show an agreement or state action	No conspiracy or state action shown; protest remains private conduct and § 1983 claim fails; summary judgment for defendants granted
Whether Secretary Husted selectively enforced the employer-disclosure rule with discriminatory intent	Secretary Husted’s decision and Felsoci’s protest were influenced by political animus and ORP/campaign pressure	No direct evidence of discriminatory intent; prior findings and new record do not show state actor animus or control	No evidence of selective enforcement or discriminatory intent; defendants entitled to summary judgment
Whether Terry Casey acted under color of state law in orchestrating protest	Casey’s government role (chair of State Personnel Board) and his coordination with officials made his protest-related acts state action	Title/office alone insufficient; plaintiffs provide no evidence Casey acted in official capacity or used his office to further protest	Casey acted as private political actor; not under color of state law; no § 1983 liability
Whether involvement of Governor Kasich/campaign or Secretary Husted staff (e.g., Damschroder) made private protest a state action	Campaign communications, use of law firm paid by ORP, and emails showing “we”/“our” demonstrate campaign/state involvement	Communications mostly from private actors, to campaign staff; campaign staff are private political actors when working for a candidate; being blind-copied or informed is not conspiracy	No evidence of joint action or plan by Kasich or state officials to convert private protest into state action; summary judgment for defendants granted

Key Cases Cited

Celotex Corp. v. Catrett, 477 U.S. 317 (establishes summary judgment burden-allocation)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard on genuine dispute)
West v. Atkins, 487 U.S. 42 (defines "under color of state law")
Stemler v. City of Florence, 126 F.3d 866 (elements of selective prosecution/enforcement claim)
Hooks v. Hooks, 771 F.2d 935 (civil conspiracy elements)
Pittman v. Cuyahoga Cnty. Dept. of Children & Family Servs., 640 F.3d 716 (summary judgment and inference-drawing principles)
Jackim v. Sam’s East, Inc., [citation="378 F. App'x 556"] (private party may be liable under § 1983 if acting with state actors)