Allen Freeman et al., Appellants-Appellants, v. Ohio Elections Commission, Appellee-Appellee.
No. 23AP-14
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 29, 2024
2024-Ohio-1223
BOGGS, J.; JAMISON and EDELSTEIN, JJ., concur.
C.P.C. No. 22CV-1290 | REGULAR CALENDAR
Rendered on March 29, 2024
On brief: Isaac Wiles & Burkholder LLC, and Donald C. Brey, Dale D. Cook, and Ryan C. Spitzer, for appellant. Argued: Dale D. Cook.
On brief: Dave Yost, Attorney General, Andrew D. McCartney, and Bryan B. Lee, for appellee. Argued: Bryan B. Lee.
APPEAL from the Franklin County Court of Common Pleas
BOGGS, J.
{¶ 1} Appellants, Allen Freeman and the Committee to Elect Allen Freeman (“committee”), appeal from a judgment of the Franklin County Court of Common Pleas affirming the order of appellee, the Ohio Elections Commission (“commission”). For the reasons that follow, we affirm the judgment of the common pleas court.
I. Facts & Procedural History
{¶ 2} Freeman was a candidate in the 2020 Republican primary election for the 66th District of the Ohio House of Representatives. At that time, the 66th District encompassed portions of Clermont County and Brown County in southwestern Ohio. After Freeman became a candidate, he met with Anna Lippincott and Megan Fitzmartin from the
{¶ 3} The 2020 primary election was scheduled for March 17, 2020, but was extended to April 28, 2020 in response to the COVID-19 pandemic. Freeman did not win the primary election.
{¶ 4} In August and September of 2020, Christopher Hicks, a citizen of Clermont County, filed two pro se affidavits of complaint with the commission. The complaints both alleged that Freeman and his committee failed to “file a complete and accurate campaign finance statement” and failed to “keep a strict account of all contributions” in violation of
{¶ 5} Hicks’ September complaint alleged that Freeman “made extensive use of TV and radio advertising in his run for office,” but that neither the committee’s pre- nor post-primary financial disclosure statements “showed [any] debts, loans, or in-kind contributions” which would account for the “significant media purchases.” (Sept. Compl. at 1-2.) Hicks attached six invoices he found on a Federal Communications Commission (“FCC”) database to the September complaint. The invoices demonstrated that Strategic Media Placement (“Strategic”) spent $118,094.50 to place television and radio advertisements on behalf of the Freeman campaign between late February and March of 2020.
{¶ 6} The commission held hearings on the complaints on October 7, October 28, and November 18, 2021. The evidence presented at the hearings demonstrated that Freeman participated in the production of the television and radio advertisements,
{¶ 7} Scott Schweitzer, the Chief Operating Officer of Strategic, explained that Constant Content hired Strategic to produce and place the advertisements for the Freeman campaign. JPL and Constant Content were both companies created and operated by Jeff Longstreth. Schweitzer and Jones both noted that there was little distinction between JPL and Constant Content. Freeman claimed that he had never heard of Constant Content and “had no clue * * * how they were related to [his] campaign.” (Nov. 18, 2021 Tr. at 141.)
{¶ 8} Between February and March of 2020, Strategic sent Constant Content invoices totaling $137,982.81 for media services performed for the Freeman campaign. Constant Content paid some of the invoices, but not all of them. Schweitzer noted that he worked closely with Longstreth, Fitzmartin, and Lippincott to produce and place the advertisements, but that he saw Freeman only once and did not interact with him beyond that.
{¶ 9} On April 1, 2020, Constant Content sent an email to Freeman and Jones containing a $290,744.63 invoice. An itemized list detailing the services and charges represented in the invoice was attached to the email. When Jones received the invoice, she emailed Lippincott and asked, “is this for real or are you kidding me or something like that? Because [Jones] thought the invoice was quite high.” (Oct. 28, 2021 Tr. at 329, 412-13.) Jones never opened the attachment to the email. Lippincott responded to Jones and told her not to worry about the invoice. Freeman stated that he never saw the April 1, 2020 email from Constant Content.
{¶ 10} R.J. Mancini served as the campaign manager for the Freeman campaign. Mancini explained that JPL instructed him to work on the Freeman campaign and that the Ohio Republican Party (“ORP”) compensated him for his services. The executive director of the ORP stated that the ORP paid Mancini and then “in-kinded his payroll.” (Oct. 7, 2021
{¶ 11} Neither the Freeman committee’s pre-primary financial disclosure statement submitted on March 5, 2020, nor the committee’s post-primary financial disclosure statement submitted on June 4, 2020, reflected any in-kind contributions or expenditures related to the campaign’s television and radio advertisements or the services of JPL, Mancini, Caraway, Strategic, or Constant Content. The committee’s financial disclosure statements demonstrated that it made expenditures of $14,000 during the campaign and had $96,000 cash-on-hand when the election ended.
{¶ 12} Freeman testified that JPL was supposed “to be paid upon presentation of an invoice,” but that JPL “never presented an invoice to [him].” (Freeman Aff. at ¶ 5-9.) On July 30, 2020, the federal government indicted former Speaker Larry Householder, Jeff Longstreth, and others on racketeering conspiracy charges. Jones believed JPL’s and Constant Content’s records were seized in July 2020 in connection with the federal indictments.
{¶ 13} On April 15, 2021, the Freeman committee filed a $0 amendment to its financial disclosure statements with the Secretary of State’s office. The committee submitted an explanation with the amendment, stating that it never received a final invoice from JPL, that it first learned of the Strategic/Constant Content invoices on April 9, 2021, and that it had no contractual relationship with Constant Content. The committee acknowledged it once received a “highly questionable email from Constant Content asking us to pay them over $290,000,” but explained that it was told to “disregard it, which we did.” (Hearing Ex. 19.)
{¶ 14} Following a public deliberation on December 7, 2021, the commission adopted its final order and decision in the case on December 16, 2021. The commission reviewed the evidence and determined that the Freeman committee received a “variety of in-kind contributions,” that included the “production and airing of television and radio advertisements” and “personal assistance to the campaign committee including a campaign manager and multiple campaign and media consultants.” (Commission Decision at 5.) The
{¶ 15} Appellants filed a timely
II. Assignments of Error
{¶ 16} Appellants appeal, assigning the following errors for our review:
- The trial court erred in affirming the Commission’s abuse of discretion in summarily excluding the testimony of Donald Brey without undertaking the appropriate analysis.
- The trial court erred in affirming the Commission’s misapplication of statutes that do not apply to candidates and compounded the error by affirming statutory violation based on statutes and conduct not alleged in the complaint, thus depriving Mr. Freeman of due process.
- The trial court erred in affirming the Commission’s erroneous finding of vicarious liability on the part of Mr. Freeman when the treasurer was not named.
- The trial court erred in affirming the Commission’s imposition of fines in excess of its statutory authority upon entities that no longer exist.
III. Standard of Review
{¶ 17} In an administrative appeal pursuant to
{¶ 18} An appellate court’s review of an administrative decision is more limited than that of the common pleas court. Pons v. Ohio State Med. Bd., 66 Ohio St. 3d 619, 621 (1993). The appellate court is to determine only whether the common pleas court abused its discretion. Id.; Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St. 3d 257, 261 (1988). An abuse of discretion implies that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). See Huffman v. Hair Surgeon, Inc., 19 Ohio St. 3d 83, 87 (1985). Absent an abuse of discretion, this court may not substitute its judgment for that of the administrative agency or the common pleas court. Pons at 621. However, on the question of whether the commission’s order was in accordance with the law, this court’s review is plenary. Kistler v. Ohio Bur. of Workers’ Comp., 10th Dist. No. 04AP-1095, 2006-Ohio-3308, ¶ 9, citing Univ. Hosp. v. State Emp. Relations Bd., 63 Ohio St. 3d 339, 343 (1992).
IV. First Assignment of Error—Attorney’s Testimony
{¶ 19} Appellants’ first assignment of error asserts the common pleas court erred by affirming the commission’s decision to exclude the testimony of appellants’ attorney, Donald Brey. The common pleas court noted that, although Attorney Brey initially proposed to testify, he then submitted a written proffer and “chose to rest his case without a determination by the Commission on whether he could testify.” (Dec. 9, 2022 Decision & Jgmt. Entry at 4.) As such, the court concluded that the commission “did not make a final determination that counsel could not testify.” (Decision & Jgmt. Entry at 4.)
{¶ 21} During the presentation of appellants’ case, Attorney Brey informed the commission he intended to testify. The commissioners told Attorney Brey he would “have a conflict of representing yourself,” and that testifying would “disqualify [him] as counsel in the case.” (Nov. 18, 2021 Tr. at 81, 90.) Attorney Brey responded stating that he could testify and continue as counsel because his testimony was “not going to be contradicted” and because he was “in a unique position to represent the client in this case.” (Nov. 18, 2021 Tr. at 83.) The commissioner’s informed Attorney Brey they would need to continue the hearing to research the issue of counsel testifying. (Nov. 18, 2021 Tr. at 98-102.) In response, Attorney Brey asked if he could make a proffer of his testimony, noting that he “want[ed] to get this thing done.” (Nov. 18, 2021 Tr. at 99, 103.) Attorney Brey then consulted with his client and informed the commission appellants would “go forward with
{¶ 22} Appellants presented testimony from Philip Richter, the executive director of the commission, and Freeman. Attorney Brey then submitted a written proffer of his testimony and rested his case.
{¶ 23} Appellants contend the commission effectively denied Attorney Brey’s request to testify because it failed to expressly rule on the request. (Appellants’ Brief at 21.) See Huntington Natl. Bank v. Bywood, Inc., 10th Dist. No. 12AP-994, 2013-Ohio-2780, ¶ 15 (stating that “[g]enerally, when a trial court enters judgment without expressly ruling on a pending motion, it is presumed that the court overruled the motion”); Wells Fargo Bank, N.A. v. Rahman, 10th Dist. No. 13AP-376, 2013-Ohio-5037, ¶ 18. We disagree. The record demonstrates that Attorney Brey rested his case without requesting a determination from the commission regarding whether he could testify.1 Appellants effectively waived any claim of error by failing to renew their request for Attorney Brey to testify before the close of the evidence. Compare Odita v. Phillips, 10th Dist. No. 09AP-1172, 2010-Ohio-4321, ¶ 56 (holding that, even if a party objects to exhibits during the trial, the “fail[ure] to renew an objection at the time exhibits are admitted into evidence, * * * waives the ability to raise the admission as error on appeal, unless plain error is shown”); Chemical Bank of New York v. Neman, 52 Ohio St. 3d 204, 207 (1990) (holding that a party “waive[s] any claim of error in the denial of the directed verdict by failing to renew his motion at the close of all evidence”); Sanders v. Fridd, 10th Dist. No. 12AP-688, 2013-Ohio-4338, ¶ 45, quoting State v. Smith, 7th Dist. No. 11 MA 120, 2013-Ohio-756, ¶ 128 (noting that a motion in limine “ ‘must be renewed at trial or the argument made therein [are] waived for purposes of appeal’ ”).
V. Second Assignment of Error—Due Process
{¶ 25} Appellants’ second assignment of error asserts the common pleas court erred by finding that the commission did not violate Freeman’s right to due process. Appellants contend that the commission found Freeman in violation of statutes which do not apply to candidates, and that the commission found appellants violated statutes and engaged in conduct not identified in the complaints. The common pleas court reviewed the record and concluded that appellants “had a reasonable opportunity to know the claims against them and a reasonable opportunity to meet those claims at the hearing before the Commission.” (Decision & Jgmt. Entry at 6.) The court also determined that, pursuant to
{¶ 26} The Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution require that administrative proceedings comport with due process. Richmond v. Ohio Bd. of Nursing, 10th Dist. No. 12AP-328, 2013-Ohio-110, ¶ 10, citing Mathews v. Eldridge, 424 U.S. 319 (1976). Due process contains two components: procedural due process and substantive due process. State v. Pennington, 10th Dist. No. 01AP-657, 2002 Ohio App. LEXIS 251 (Jan. 29, 2002). “ ‘Procedural due’ process ensures that a state will not deprive a person of life, liberty, or property unless fair procedures are used in making that decision.” Kistler at ¶ 14, quoting State v. Ward, 130 Ohio App. 3d 551, 557 (8th Dist. 1999). “The essence of substantive due process is the protection from certain arbitrary, wrongful governmental actions irrespective of the fairness of the procedures used to implement them.” Id., citing Southern Health Facilities, Inc. v. Somani, 10th Dist. No. 95APE06-826, 1995 Ohio App. LEXIS 5866 (Dec. 29, 1995). Whether due process requirements have been
{¶ 27} “ ‘Although due process is flexible and calls for such procedural protections as the particular situation demands, the basic requirements of procedural due process are notice and an opportunity to be heard.’ ” Edmands v. State Med. Bd. of Ohio, 10th Dist. No. 14AP-778, 2015-Ohio-2658, ¶ 23, quoting Fairfield Cty. Bd. of Commrs. v. Nally, 143 Ohio St. 3d 93, 2015-Ohio-991, ¶ 42. The notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Althof v. Ohio State Bd. of Psychology, 10th Dist. No. 05AP-1169, 2007-Ohio-1010, ¶ 19, quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Accord Korn v. Ohio State Med. Bd., 61 Ohio App. 3d 677, 684 (10th Dist. 1988), citing Luff v. State, 117 Ohio St. 102 (1927).
{¶ 28} Appellants initially contend the commission erred by finding that Freeman violated
{¶ 29} Although
{¶ 30} Appellants next assert that the commission found violations of Revised Code sections which were not alleged in the complaints. Appellants claim that the complaints asserted violations of only
{¶ 32}
{¶ 33} The commission’s decision demonstrates that it found appellants failed to file the pre- and post-primary financial disclosure statements required by
{¶ 34} Thus, although each complaint expressly alleged that Freeman and/or his committee violated
{¶ 35} Appellants lastly assert that the commission found appellants violated
{¶ 36} At a September 23, 2021 hearing, appellants moved to limit the evidentiary hearings to facts concerning “Luke Householder” and “the six invoices” from the FCC database. (Sept. 23, 2021 Tr. at 29-30.) Hicks responded to the motion arguing that his September complaint concerned a general failure to report “media spending,” and was not limited to the six FCC invoices. (Sept. 23, 2021 Tr. at 44.) Hicks noted that he first learned of the Strategic/Constant Content invoices and the $290,744.63 Constant Content invoice after he submitted his complaints, and further noted that appellants “had [his] exhibits” and knew “exactly what [he was] going to talk about, what exactly [he was] going to focus on” at the hearings. (Sept. 23, 2021 Tr. at 33-34, 51-52.)
{¶ 37} The commission denied appellants’ motion to limit the evidentiary hearings. Accordingly, appellants knew the evidentiary hearings would not be limited to evidence concerning Luke Householder and the six FCC invoices. Compare Pruneau v. State, 191 Ohio App. 3d 588, 2010-Ohio-6043, ¶ 36-37, 40 (10th Dist.) (holding that, because the notice letter alleged only a “very specific violation of
{¶ 38} The record demonstrates that appellants presented or solicited evidence at the hearings regarding the $290,000 invoice and the unreported services of the campaign’s manager and consultants. In response to appellants’ questions on cross-examination, Jones explained that she did not believe it was appropriate to report the $290,744.63 Constant Content invoice on the committee’s financial disclosure statement after Lippincott told her to disregard it. Appellants also addressed the $290,000 invoice in their April 15, 2021 filing with the Secretary of State’s office.
{¶ 40} The commission found the statements in the testimony “disingenuous” as they “relate[d] to a candidate’s responsibility to properly investigate amounts owed by the campaign committee when there is sufficient evidence that numerous, substantial expenditures remain outstanding.” (Commission Decision at 6.) Thus, the commission did not find appellants’ explanations for why they did not report the services of their campaign personnel to be meritorious.
{¶ 41} Reviewing the record, it is apparent that appellants knew the charges against them and had a reasonable opportunity to meet those charges at the hearing before the commission. Althof, 2007-Ohio-1010 at ¶ 20; Cowans v. Ohio State Racing Comm., 10th Dist. No. 13AP-828, 2014-Ohio-1811, ¶ 36; Johnson v. State Med. Bd. of Ohio, 10th Dist. No. 98AP-1324, 1999 Ohio App. LEXIS 4487 (Sept. 28, 1999). Moreover, appellants do not identify any additional evidence they would have presented or arguments they would have made had Hicks’ pro se complaints contained additional information. As such, appellants fail to demonstrate any prejudice resulting from the due process violation they allege. See Griffin v. State Med. Bd. of Ohio, 10th Dist. No. 11AP-174, 2011-Ohio-6089, ¶ 26; Wilson v. State Chiropractic Bd., 10th Dist. No. 18AP-739, 2019-Ohio-3243, ¶ 30.
{¶ 42} Based on the foregoing, appellants’ second assignment of error is overruled.
{¶ 43} Appellants’ third assignment of error asserts that the common pleas court erred in affirming the commission’s decision to impose vicarious liability on Freeman, because Hicks did not make the treasurer a party to the case. Appellants contend that the commission lacked “authority to impose vicarious liability [solely] upon the candidate” because Hicks did not satisfy “the legal duty under
{¶ 44} The commission is required to “prescribe the form for complaints” filed with it.
{¶ 45} During a September 9, 2021 pre-trial hearing, appellants’ counsel noted that the “Complaint [was] pretty clear, [that Jones was] not” a party to the case. (Sept. 9, 2021 Tr. at 24.) At the start of the October 7, 2021 evidentiary hearing, appellants’ counsel noted that “Susan Jones [was] a witness. She’s not a party * * *. The two parties are the campaign committee and Mr. Freeman.” (Oct. 7, 2021 Tr. at 8.) Thus, appellants acknowledged that Jones was not a party early in the administrative proceedings.
{¶ 46} After Hicks rested his case before the commission, appellants moved to dismiss Hicks’
{¶ 48} Generally, when the common pleas court fails to address an argument, this court will remand the matter for the common pleas court to make the determination in the first instance. See State ex rel. Ewart v. State Teacher Retirement Sys. Bd. of Ohio, 10th Dist. No. 18AP-826, 2019-Ohio-2459, ¶ 53 (noting that “[a]lthough STRB raised this argument in its brief to the trial court, the trial court did not address [the argument],” and therefore this court remanded the “matter to the trial court to make this determination in the first instance”); Glassco v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 03AP-871, 2004-Ohio-2168, ¶ 29. However, we need not remand the matter to the common pleas court, because appellants waived their argument by failing to raise it during the administrative proceedings.
{¶ 49} When a party fails to raise an issue they could have raised at the administrative level, the party has waived the issue. See Golden Christian Academy. v. Zelman, 144 Ohio App. 3d 513, 516-17 (10th Dist. 2001) (stating that “[i]ssues not raised at the administrative level are waived”); BRT Transp., LLC v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 14AP-800, 2015-Ohio-2048, ¶ 29 (holding that because the argument “was not raised at the administrative level,” this court “decline[d] to further address th[e] issue”); Jain v. Ohio State Med. Bd., 10th Dist. No. 09AP-1180, 2010-Ohio-2855, ¶ 10 (explaining that “[a]llowing a claimant to raise an issue for the first time in an appeal to the court of common pleas would frustrate the statutory system for having issues raised and decided through the administrative process”); Sammor v. Ohio Liquor Control Comm., 10th Dist. No. 09AP-20, 2009-Ohio-3439, ¶ 25; Trish’s Café & Catering, Inc. v. Ohio Dept. of Health, 195 Ohio App. 3d 612, 2011-Ohio-3304, ¶ 19 (10th Dist.); State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St. 3d 78, 81 (1997). See also Edmands, 2015-Ohio-2658,
{¶ 50} Appellants could have, but did not, raise their vicarious liability argument during the administrative proceedings. As such, appellants have waived the issue. We therefore overrule appellants’ third assignment of error.
VII. Fourth Assignment of Error—Fine
{¶ 51} Appellants’ fourth assignment of error asserts the common pleas court erred by affirming the commission’s imposition of a $50,000 fine against Freeman and his committee. Appellants contend that the commission could not impose the fine against the committee and that the amount of the fine exceeded the commission’s statutory authority.
{¶ 52} Following the conclusion of the evidentiary hearings and the commission’s public deliberation on the case, appellants filed a Notice of Termination and Motion to Dismiss on December 15, 2021. Appellants informed the commission that the Freeman committee had terminated effective December 13, 2021, and argued that the commission did not have jurisdiction to address Hicks’
{¶ 53} Appellants continue to assert that the commission “lacked jurisdiction over Hicks’
{¶ 54} A campaign committee is an entity authorized by a candidate to receive contributions and make expenditures. See
{¶ 55} The Freeman committee was in existence when it failed to file complete and accurate financial disclosure statements, when Hicks filed his complaints, and throughout the commission’s evidentiary hearings on the complaints. The committee’s termination three days before the commission issued its final order did not affect the commission’s ability to render judgment against the committee.
{¶ 56} Appellants further contend that the commission’s fine was contrary to law because any violation of
{¶ 57} As noted,
{¶ 58} Pursuant to
{¶ 59} However, as we explained in our analysis of appellants’ second assignment of error, Hicks’ complaints alleged a failure to file complete and accurate pre- and post-primary statements, and the evidentiary hearings were not limited to evidence concerning the six FCC invoices. The record demonstrates that Strategic sent Constant Content invoices on February 21, 2020 and February 24, 2020 for radio production and airtime for the Freeman campaign. Constant Content paid the February 24, 2020 invoice on February 24, 2020. Constant Content’s payment of the February 24, 2020 invoice was a contribution to the Freeman campaign which should have been reflected on the committee’s March 5, 2020 pre-primary financial statement. Appellants’ contention that any violation of
{¶ 60} Appellants claim that any violation of
{¶ 62} Based on the foregoing, appellants’ fourth assignment of error is overruled.
VIII. Conclusion
{¶ 63} Having overruled appellants’ first, second, third, and fourth assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
JAMISON and EDELSTEIN, JJ., concur.