Kathy Magda et al., Plaintiffs-Appellants, v. Ohio Elections Commission et al., Defendants-Appellees.
No. 14AP-929 (C.P.C. No. 12CV-13674)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
July 21, 2016
[Cite as Magda v. Ohio Elections Comm., 2016-Ohio-5043.]
BRUNNER, J.
(REGULAR CALENDAR)
D E C I S I O N
Rendered on July 21, 2016
On brief: The Law Firm of Curt C. Hartman, and Curt C. Hartman; Finney Law Firm, LLC, and Christopher P. Finney, for appellants. Argued: Christopher P. Finney.
On brief: Michael DeWine, Attorney General, Tiffany Carwile, and Sarah E. Pierce, for appellee Ohio Elections Commission. Argued: Tiffany Carwile.
BRUNNER, J.
{¶
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} To support a bid for election to the office of Ashtabula County treasurer, appellants published a campaign flyer and newspaper advertisement with a graрhic stating “Kathy Magda” and “Ashtabula County Treasurer” directly beneath it. L. George Distel, a former Ashtabula county commissioner and Ohio state representative, filed a complaint with the Commission, alleging that appellants had violated
{¶ 3} The trial court consolidated appellants’ action with a separate administrative appeal filed by a candidate for state senate, Teresa Scarmack, and her cаmpaign committee, of a similar Commission violation order. The trial court reversed the Commission‘s Scarmack decision, but it affirmed the Commission‘s Magda decision and denied on cross-motions for summary judgment appellants’ claims for declaratory judgment relief that
{¶ 4} The statute in question, applied and considered in both the administrative appeal and declaratory judgment, is
(B) No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcоme of such campaign do any of the following:
(1) Use the title of an office not currently held by a candidate in a manner that implies that the candidate does currently hold that office or use the term “re-elect” when the candidate has never been elected at a primary, general, or special election to the office for which he or she is a candidate.
{¶ 5} From the outset, appellants have maintained that any implication or suggestion in the campaign flyer and newspaper advertisement that Magda was the current Ashtabula County treasurer was inadvertent and unintentional, and there was no evidence of any design or purpose to mislead.
{¶ 6} In ODP, the Commission had dismissed the individual candidates named as respondents in the administrative complaint, and the violation applied only to the remaining respondent, the state party chairman. We resolved that the Commission had clear and convincing evidence that the chairman knowingly, and with intent to affect the outcome of a political campaign, had used in campaign material, titles of offices not currently held, in a manner that implied incumbency. Id. at ¶ 33. The chairman was expressly identified on the flyer as the sender, and nothing in the record suggested that he did not authorize and apрrove its distribution. There was no dispute that he knew that none of the candidates currently held the offices they were seeking. We further decided that, since
{¶ 7} In the matter under review, the trial court found that a reasonable reader would interpret the campaign flyer and advertisement to imply that Magda was the Ashtabula County treasurer, and the trial court considered this misstatement to have been a more apparent violation of
Anthony List at 476. The Sixth Circuit agreed that the state‘s interest in election integrity is compelling, but it held that its “political false-statement laws” are not “narrowly tailored in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.” Id. at 474.
II. ASSIGNMENTS OF ERROR
{¶ 8} Appellants argue the following assignments of error:
[1.] The trial court erred in granting summary judgment in favor of the Appellees so as to find that the Appellees satisfied their evidentiary burden of actually satisfying the “well-nigh insurmountable obstacle” of strict scrutiny so as to establish that
R.C. 3517.21(B)(1) satisfies the requirements of the First Amendment.[2.] The trial court erred in denying summary judgment in favor of Appellants when the Appellees failed to meet their evidentiary burden of actually satisfying the “well-nigh insurmountable obstacle” of strict scrutiny so as to establish that
R.C. 3517.21(B)(1) satisfies the requirements of the First Amendment.[3.] The trial court erred in affirming the decision of the Ohio Elections Commission finding, by clear and convincing evidence, a violation of
R.C. §3517.21(B)(1) .
III. STANDARD OF REVIEW
{¶ 9} As we stated in ODP:
Pursuant to
R.C. 119.12 , when a common pleas court reviews an order of anadministrative agency, it must consider the entire record to determine whether the agency‘s order is supported by reliable, probative, and substantial evidence and is in accordance with law. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111, 407 N.E.2d 1265; see, also, Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280, 131 N.E.2d 390. Generally, an appellate court determines whether the trial court abused its discretion in review of the agency order. Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 260-261, 533 N.E.2d 264. However, on questions of law, the review of the court of appeals is plenary. Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd.(1992), 63 Ohio St.3d 339, 587 N.E.2d 835, paragraph one of the syllabus. In cases involving the First Amendment, as in the case at bar, “an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of United States, Inc. (1984), 466 U.S. 485, 499, 104 S.Ct. 1949, quoting New York Times Co. v. Sullivan (1964), 376 U.S. 254, 284-286, 84 S.Ct. 710; see, also, The Team Working for You v. Ohio Elections Comm. (2001), 142 Ohio App.3d 114, 119, 754 N.E.2d 273, citing Bose Corp.
(Emphasis added.) Id. at ¶ 9-10.
{¶ 10} Thus, we review the trial court‘s decision pursuant to
The appellate court reviews factual issues to determine whether the court of common pleas abused its discretion in determining that the administrative action either was or was not supported by reliable, probative and substantial evidence. Alternative Residences, Two, Inc. v. Ohio Dept. of Job and Family Servs., 10th Dist. No. 04AP-306, 2004-Ohio-6444, ¶ 17. See also Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140 (1983) (” ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.“). Absent an abuse of discretion, a court of appeals may not substitute its judgment for that of an administrative agency or the common pleas court. Pons [v. Ohio State Med. Bd., 66 Ohio St. 3d 619] at 621. An appellate court, however, has plenary review of purely legal questions. Big Bob‘s, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d 498, 2003-Ohio-418, ¶ 15, 784 N.E.2d 753 (10th Dist.).
{¶ 11} Additionally, the standard of review through the lens of summary judgment calls for a de novo review of issues decided by the trial court on summary judgment. “Appellate review of summary judgment motions is de novo.” Hershey v. Edelman, 187 Ohio App.3d 400, 2010-Ohio-1992, ¶ 11 (10th Dist.). This includes the review of cross-motions for summary judgment. Watley v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 07AP-902, 2008-Ohio-3691, ¶ 24. On motions for summary judgment the appellate court “conducts an independent review, without deference to the trial court‘s determination.” Smallwood v. MCL, Inc., 10th Dist. No. 14AP-664, 2015-Ohio-1235, ¶ 6. Here, as well, our review of issues of law is plenary. Calo v. Ohio Real Estate Comm., 10th Dist. No. 10AP-595, 2011-Ohio-2413, ¶ 11, citing Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343 (1992). As such, we examine on review whether it was appropriate for the trial court to rule as it did on the cross-motions for summary judgment before it.
Civ.R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is mаde.
Watley at ¶ 22.
IV. DISCUSSION OF LAW
A. Third Assignment of Error—Appeal from Finding of Violation of R.C. 3517.21(B)(1)
{¶ 12} We first address appellants’ third assignment of error respecting the trial court‘s decision affirming the Commission‘s order finding a violation of
{¶ 13} Appellants maintain in their appeal from the Commission‘s finding of violation of
{¶ 14} To satisfy the knowledge element of the statute, there had to be clear and convincing evidence that appellants used the title of “Ashtabula County Treasurer” knowingly to imply that Magda currently held the office. ODP at ¶ 15, citing
{¶ 15} Comparatively, in the consolidated Scarmack matter, the trial court in its administrative appellate review relied on commissioners’ statements to the effect that Scarmack‘s situation was unfortunate: she did not mean to violate the statute, and may not have recognized what she was doing. The problematic Facebook post in the Scarmack campaign was worded in this way: “Thanks in advance for your support as we all work to put Senator Teresa Scarmack into the statehouse.” Scarmack v. Ohio Elections Comm., Franklin C.P. No. 12CVF-13753 (May 22, 2015) (herein after the ”Scarmack Decision“). The trial court decided in reversing the Commission‘s decision in that case that an objective and reasonable reader would understand that Scarmack wanted to be put into the statehouse since she was not yet there, and, therefore, there was no clear and convincing evidence that Sсarmack had used the title in a manner implying she already held the office. The trial court also accepted Scarmack‘s testimony that she never intended the Facebook post to be construed as implying that she was a senator. This, along with individual commissioners’ comments, sufficed for the trial court to negate the Commission‘s finding that Scarmack knowingly implied she was an incumbent, in violation of
{¶ 16} By contrast, the trial court did not give the same credit to Steve Magda‘s testimony, however uncontroverted, that identification of his wife with “Ashtabula County Treasurer” without the words “for” or “elect” in the flyer and advertisement, was an inadvertent oversight. The Magda advertisements listed the candidate‘s name with the phrase, “Ashtabula County Treasurer,” directly beneath it. Magda has never held the office of Ashtabula County treasurer.
{¶ 17} There was no mitigating language, such as “put her in office” as there was in Scarmack‘s situation (“put Senator Teresа Scarmack into the statehouse“). Scarmack Decision at 11. Additionally, the medium used for communication in Scarmack‘s case was a single Facebook post, as opposed to printed and purposefully disseminated hard copy campaign materials in appellants’ case. The trial court did not abuse its discretion in finding that Magda and her campaign used the title of the office she did not currently hold in a manner that implies that she did currently hold the office. The evidence was clear and convincing that Magda and her campaign knew that she did not hold the office. The determination whether the statement is a false assertion of fact is made from the perspective of the reasonable reader and not from that of the publisher of the statement. McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139, 144 (2000).
{¶ 18} The trial court did not abuse its discretion in finding that the Commission had before it reliable, substantial, and probative evidence from which to conclude under the statutory sсheme, that by advertising Magda as the Ashtabula County treasurer, appellants had acted knowingly and with intent to affect the outcome of the campaign. Based on our review of the facts, we do not find any error of law or judgment in the decision to affirm the Commission‘s violation order. Nor do we find that the decision of the trial court was so unreasonable, arbitrary, or unconscionable as to constitute an abuse of discretion. The third assignment of error is overruled. Having found appellants violated
R.C. 3517.21(B)(1)
{¶ 19} Appellants argue their first and second assignments of error together, and we similarly address them together. In the parties’ cross-motions for summary judgment, appellants attacked the constitutionality of
1. Strict Scrutiny of Content-Based Government Regulation of Political Speech
{¶ 20} The Sixth Circuit Court of Appeals in its recent (2016) Susan B. Anthony List opinion held that
[O]n their face, Ohio‘s political false-statements laws target speech at the core of First Amendment protections—political speech. * * * Ohio‘s laws reach not only defamatory and fraudulent remarks, but all false speech regarding a political candidate, even that which may not be material, negative, defamatory, or libelous. Comparе
Ohio Rev. Code § 3517.21(B)(9) (prohibiting false statements about a candidate‘s voting record), with§ 3517.21(B)(10) (a catchall provision, prohibiting, in general, “a false statement concerning a candidate.“). Accordingly, strict scrutiny is appropriate.* * *
The Supreme Court‘s 2015 decision in Reed v. Town of Gilbert, 135 S. Ct. 2218, 192 L. Ed. 2d 236, sought to clarify the level of review due to certain speech prohibitions. That test focused on whether a law was content-based at all, rather than the type of content the law targeted. The Reed Court held that strict scrutiny is the appropriate level of review when a law governs any “specific subject matter . . . even if it does not discriminate among viewpoints within that subject matter.” Id. at 2230 (citing Consol. Edison Co. of N.Y. v. Public Serv. Comm‘n of N.Y., 447 U.S. 530, 537, 100 S. Ct. 2326, 65 L. Ed. 2d 319 (1980)). Content-based laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed, 135 S. Ct. at 2226. Ohio‘s political false-statements laws only govern speech about political candidates during аn election. Thus, they are content-based restrictions focused on a specific subject matter and are subject to strict scrutiny.
* * *
Laws subject to strict scrutiny are presumptively unconstitutional and can only survive if they (1) serve a compelling state interest and (2) are narrowly tailored to achieve that interest. Id.; McIntyre, 514 U.S. at 346-47. ” ‘[I]t is the rare case in which a speech restriction withstands strict scrutiny.’ ” Reed, 135 S. Ct. at 2236 (Kagan, J., concurring in the judgment) (citation and alterations omitted).
{¶ 21} In our decision in ODP, we recognized the particular importance of First Amendment protection in political campaigns:
Political speech is ” ‘at the core of our First Amendment freedoms.’ ” Republican Party v. White (2002), 536 U.S. 765, 774, 122 S.Ct. 2528, 153 L. Ed. 2d 694, quoting Republican Party of Minn. v. Kelly (C.A.8, 2001), 247 F.3d 854, 861. ” ‘Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ ” McIntyre v. Ohio Elections Comm. (1995), 514 U.S. 334, 346, 115 S.Ct. 1511, 131 L. Ed. 2d 426, quoting Buckley v. Valeo (1976), 424 U.S. 1, 14-15, 96 S.Ct. 612, 632, 46 L. Ed. 2d 659. Hence, the First Amendment has
” ‘its fullest and most urgent application’ ” in campaigns for political office. McIntyre, at 347, quoting Buckley, at 14-15.
Id. at ¶ 12. In doing so, we framed our decision within the holding in Pestrak v. Ohio Elections Comm., 926 F.2d 573, 577 (6th Cir.1991) that knowing false speech merits no constitutional protection. Pestrak at 577. The Sixth Circuit Court of Appeals opinion in (2016) Susan B. Anthony List has now held that the “fundamental premise” of Pestrak is undermined by the United States Supreme Court‘s holding in United States v. Alvarez, _ U.S. _, 132 S.Ct. 2537 (2012), that the government cannot “selectively regulate false statements on certain topics.” In (2016) Susan B. Anthony List, the Sixth Circuit reasoned that, “giving governments this power could lead to unwanted consequences and abuses.” Citing Alvarez at 2547-48 (plurality opinion); (2016) Susan B. Anthony List at 472.5
{¶ 22} When the trial court rejected appellants’ constitutional challenge of
to be narrowly tailored to serve such a state interest. We address the trial court‘s decision under both plenary review of issues of law in an administrative appeal and on de novo review on cross-motions for summary judgment. We also distinguish the differing compelling interests as expressed in the nonjudicial context of (2016) Susan B. Anthony List from that stated within the judicial campaign context of O‘Toole as stated by the Supreme Court, along with discussion of the narrowness of regulations to protect them.
2. The State‘s Compelling Interest in Regulating Political Speech
{¶ 23} The Sixth Circuit Court of Appeals in (2016) Susan B. Anthony List recognized the State‘s compelling interest in enacting and administering
Here, Ohio‘s interests in preserving the integrity of its elections, protecting “voters from confusion and undue influence,” and “ensuring that an individual‘s right to vote is not undermined by fraud in the election process” are compelling. Burson v. Freeman, 504 U.S. 191, 199, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992) (plurality opinion); see also McIntyre [v. Ohio Elections Comm., 514 U.S. 334,] 349 [(1995)] (Ohio‘s interest in preventing fraud and libel “carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large.“), id. at 379 (Scalia, J., dissenting). (“[N]o justification for regulation is more compelling than protection of the electoral process. Other rights, even the most basic, are illusory if the right to vote is undermined.” (internal quotation marks and citation omitted)).
(Emphasis added.) (2016) Susan B. Anthony List at 473-74. This is same interest as in appellants’ case concerning
{¶ 24} In O‘Toole, the Supreme Court‘s stated compelling interest goes beyond protecting the integrity of elections of even judicial elections—more broadly, the State‘s interest is in public confidence in the judiciary. O‘Toole at ¶ 53. In O‘Toole, the Supreme Court upheld the constitutionality of part of its rule punishing judicial candidates for uttering false
The Code of Judicial Conduct as a whole is premised on our recognition that the judicial branch of government differs from the legislative and executive branches of government in fundamental ways. “Unlike the other branches of government, the authority of the judiciary turns almost exclusively on its
credibility and the respect warranted by its rulings.” Carey v. Wolnitzek, 614 F.3d 189, 194 (6th Cir.2010).
O‘Toole at ¶ 22. In sanctioning the former judge in O‘Toole for using the title “judge” when she was not currently a judge, the Supreme Court explicitly described its compelling interest as avoiding injury to the judiciary and the public‘s confidence in an independent judiciary:
Ohio has a compelling interest in promoting and maintaining an independent judiciary, ensuring public confidence in the independence, impartiality, integrity, and competence of judges, and ensuring that the conduct of judicial candidates furthers, rather than impairs, these interests. There is every reason to expect and insist that [judicial] candidates will be truthful in their campaign speech when they are seeking a judicial position.
(Emphasis added.) Id. at ¶ 29.
This intentional misrepresentation is not protected speech under the First Amendment. By repeatedly calling herself a judge when she was not, O‘Toole undermined public confidence in the judiciary as a whole. Such misconduct injures both the public and the judiciary from the moment the lie is uttered, and that injury cannot be undone with corrective speech. Under the circumstances, we perceive no constitutional infirmity in the commission‘s application of Jud.Cond.R. 4.3 to this conduct.
(Emphasis added.) Id. at ¶ 53.
{¶ 25} It is notable that the Ohio Code of Judicial Conduct contains within its canons, Canon 4, governing judicial campaigns, while other canons within the same Code govern judges’ actions generally, whether or not they are engaged in an election. Because judicial campaigns are viewed in Ohio as an extension of judicial conduct and not separate from it, the Supreme Court of Ohio rejected the application of Alvarez, stating the following:
Alvarez does not consider whether the state can ever have a compelling interest in restricting false speech solely on the basis that it is false so that such prohibition could withstand strict scrutiny.
We determine that neither [Republican Party of Minnesota v. White, 536 U.S. 765, (2002)] nor Alvarez forces us to reject the compelling interests identified in our Code of Judicial Conduct as justification for its regulation of certain speech.
O‘Toole at ¶ 28-29. In rejecting the application of Alvarez in then former Judge O‘Toole‘s case, the Supreme Court found that judicial campaigns have more to do with public confidence in the judiciary than the integrity of Ohio‘s election process. The Supreme Court not only found the State‘s interest to be compelling, but it also found at least a part of the regulatory scheme within Canon 4 of the Code of Judicial Conduct to be narrowly tailored to protect the compelling interest so as to withstand strict scrutiny. O‘Toole at ¶ 28. As such, the Supreme Court‘s rejection of Alvarez in O‘Toole, freed the trial court to consider rather than deny the application of Alvarez in appellants’ case, since the State‘s compelling interests between judicial and nonjudicial elections were explicitly stated in O‘Toole not to be the same.
3. Narrowness of Content Regulation of Protected Political Expression
{¶ 27} “To survive strict scrutiny * * * a State must do more than assert a compelling state interest—it must demonstrate that its law is necessary to serve the asserted interest.” Burson v. Freeman, 504 U.S. 191, 199 (1992) (plurality opinion). When strict scrutiny of content-based regulation is required, the regulation is presumed unconstitutional, and the government must show that the statute is the least restrictive means among available, effective alternatives of furthering the asserted compelling state interest. Brown v. Entertainment Merchants Assn., 564 U.S. 786, 799 (2011), citing Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 874 (1997) and United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
{¶ 28} The Sixth Circuit Court of Appeals found concerning
The rule must also be shown to be “the least restrictive means among available, effective alternatives” of furthering that interest. Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 874, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).
O‘Toole at ¶ 20. “Ohio‘s laws do not pass constitutional muster because they are not
{¶ 29} Having recognized that, despite the fact that both
for narrowly tailored state regulation to protect them. Since Magda‘s election is nonjudicial, we apply the legal and constitutional tests in (2016) Susan B. Anthony List.
{¶ 30} In (2016) Susan B. Anthony List, the Sixth Circuit Court of Appeals affirmed the district court‘s decision and succinctly stated the problems with the Commission‘s statutory procedures, citing timing, lack of a screening process for frivolous complaints, the law‘s application to non-material statements, its application to commercial intermediaries and its over-inclusiveness and under-inclusiveness. (2016) Susan B. Anthony List at 474. As to timing, the Sixth Circuit stated as follows:
First, the timing of Ohio‘s administrative process does not necessarily promote fair elections. While the laws provide an expedited timeline for complaints filed within a certain number of days before an election, complaints filed outside this timeframe are free to linger for six months.
Ohio Rev. Code §§ 3517.154(A)(2)(a) ,3517.155 ,3517.156(B)(1) . Even when a complaint is expedited, there is no guarantee the administrative or criminal proceedings will conclude before the election or within time for the candidate‘s campaign to recover from any false information that was disseminated. Indeed, candidates filing complaints against their political opponents count on the fact that “an ultimate decision on the merits will be deferred until after the relevant election.” Driehaus, 134 S. Ct. at 2346 (quoting Br. of Amicus Curiae Ohio Att‘y Gen. Michael DeWine in Supp. of Neither Party (filed U.S. Mar. 3, 2014) (No. 13-193), 2014 U.S. S. Ct. Briefs LEXIS 891, 2014 WL 880938, at *14-15 (“DeWine Amicus Br.“)). A final finding that occurs after the election does not preserve the integrity of the election. On the other hand, in many cases, “a preelection probable-cause finding . . . itself may be viewed [by the electorate] as a sanction by the State,” Driehaus, 134 S. Ct. at 2346 (quoting DeWine Amicus Br., 2014 U.S. S. Ct. Briefs LEXIS 891, 2014 WL 880938, at ¶ 13), that “triggers ‘profound’ political damage, even before a final [Commission] adjudication,” Ohio Elections Comm‘n, 45 F. Supp. 3d at 772 (quoting DeWine Amicus Br., 2014 U.S. S. Ct. Briefs LEXIS 891, 2014 WL 880938, at *6). The timing ofOhio‘s process is not narrowly tailored to promote fair elections.
(2016) Susan B. Anthony List at 474. Thus, the inherent timing problems with the Commission‘s statutory and regulatory processes may actually hinder fair elections.
{¶ 31} Concerning lack of a screening process for frivolous complaints, the Sixth Circuit Court of Appeals in (2016) Susan B. Anthony List said:
Ohio fails to screen out frivolous complaints prior to a probable cause hearing. See
Ohio Rev. Code § 3517.154(A)(1) . While this permits a panel of the Commission to review and reach a probable cause conclusion on complaints as quickly as possible, it also provides frivolous complainants an audience and requires purported violators to respond to a potentially frivolous complaint. “Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents.” Driehaus, 134 S. Ct. at 2345; see alsoOhio Rev. Code §§ 3517.21(C) ,3517.153 . There is no process for screening out frivolous complaints or complaints that, on their face, only complain of non-actionable statements, such as opinions. SeeOhio Rev. Code § 3517.154(A)(1) . Indeed, some complainants use the law‘s process “to gain a campaign advantage without ever having to prove the falsity of a statement . . . tim[ing] their submissions to achieve maximum disruption . . . forc[ing political opponents] to divert significant time and resources . . . in the crucial days leading up to an election.” Driehaus, 134 S. Ct. at 2346 (quoting DeWine Amicus Br., 2014 U.S. S. Ct. Briefs LEXIS 891, 2014 WL 880938, at ¶ 7, ¶ 14-15).
Id. at 474-475. We agree that this applies to complaints made pursuant to
(D) At the [Commission] probable cause panel meeting:
(1) The panel shall not hear arguments, receive evidence or take testimony unless:
(a) All parties (whether pro se or through counsel) have filed a stipulation agreeing to such procedure and a majority of panel members, in their sole discretion, agree to do so; or
(b) Any panel member wishes to request specific information which will aid in a proper determination of the matter.
(2) The panel will review the complaint and any additional information which may be presented to it and receive any recommendation from counsel.
(3) After a review of all information available at the meeting, the panel shall:
(a) Dismiss the matter, or any part thereof:
(i) If the panel finds that there is no probable cause;
(ii) Upon request of the complainant; or
(iii) If commission jurisdiction is not found; or
(b) Find that there is sufficient probable cause and refer the complaint to the full commission for further consideration; or (c) Find that the evidence is insufficient for the panel to make a determination and request that an investigatory attorney be appointed. Such investigatory attorney shall be selected by the staff attorney to the commission upon recommendation by the chair and vice-chair of the commission. If such request is made, the panel shall also refer the matter for a timely hearing before the full commission.
(E) The full commission shall hear the complaint not later than ten business days after referral by the panel unless there is good сause for the matter to be continued consistent with paragraph (B) of rule 3517-1-06 of the Administrative Code. Said hearing shall be held in the manner outline in rule 3517-1-11 of the Administrative Code.
(Emphasis added.)
{¶ 32} The Rules for Government of the Bar further the interest of the Supreme Court of Ohio in protecting the integrity of the judiciary by preventing candidates for judge from being subjected to frivolous complaints before the public. Conversely, the rules of the Commission hazard the churning of frivolous complaints against nonjudicial candidates in a process displayed at a public probable cause hearing. Commission rules allow this to occur potentially without the opportunity for the accused candidate to speak in his or her own defense, even if both parties agree to it, unless a commission fiat is exercised to allow it. Decisions to deny or punish free speech at the probable cause stage are based on “information available at the meeting.”
{¶ 33} The Sixth Circuit Court of Appeals in (2016) Susan B. Anthony List further noted that “Ohio‘s laws apply to all false statements, including non-material statements. See {¶ 34} The Sixth Circuit Court of Appeals recognized that {¶ 35} Finally, the Sixth Circuit Court of Appeals found Ohio‘s false statement statutory scheme as contained in At the same time, the law may not timely penalize those who violate it, nor does it provide for campaigns that are the victim of potentially damaging false statements. “[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited.” Reed [v. Town of Gilbert, _ U.S. _, 135 S.Ct. 2218, 2232(2015)] (internal quotation marks and citation omitted). Thоugh Ohio‘s interests “are assuredly legitimate, we are not persuaded that they justify [such an] extremely broad prohibition.” McIntyre, 514 U.S. at 351. Indeed, courts have consistently erred on the side of permitting more political speech than less. See, e.g., Alvarez, 132 S. Ct. at 2550. * * * Such glaring oversteps are not narrowly tailored to preserve fair elections. Other courts to evaluate similar laws post-Alvarez have reached the same conclusion. (Emphasis added.) Id. at 475-76. Like the Sixth Circuit, we look to Alvarez in finding the law‘s enforcement mechanism too broad to address the State‘s compelling interest: [T]there remains a risk of chilling that is not completely eliminated by mens rea requirements; a speaker might still be worried about being prosecuted for a careless false statement, even if he does not have the intent required to render him liable. And so the prohibition may be applied where it should not be applied, for example, to bar stool braggadocio or, in the political arena, subtly but selectively to speakers that the Government does not like. (Emphasis omitted.) Alvarez at 2555. Steve Magda admittedly did not realize he could not simply state his wife‘s name on campaign literature with the title of the office she sought without qualifying it with more language. On its face and with particular application to the appellants’ situation, {¶ 36} “A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of thе franchise by an informed and thinking electorate, and does {¶ 37} {¶ 38} Since 373 (1976). Having sustained appellants’ first and second assignments of error, we hold that the granting of an injunction against the enforcement of the statute is warranted. {¶ 39} For the foregoing reasons, we overrule appellаnts’ third assignment of error and sustain appellants’ first and second assignments of error. Notwithstanding our conclusion with respect to the third assignment of error, that appellants violated the statute, the Commission‘s order finding a violation of DORRIAN, P.J., and LUPER SCHUSTER, J. concur. ________________________
4. Permanent Injunction Against Enforcement of
V. CONCLUSION
Notes
(B) No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:
* * *
(9) Make a false statement concerning the voting record of a candidate or public official;
(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.
As used in this section, “voting record” means the recorded “yes” or “no” vote on a bill, ordinance, resolution, motion, amendment, or confirmation.