Case Information
*1 Before: GIBBONS and McKEAGUE, Circuit Judges; LAWSON, District Judge. [*] _________________
COUNSEL ARGUED: Curt C. Hartman, THE LAW FIRM OF CURT C. HARTMAN, Amelia, Ohio, for Appellants. Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Curt C. Hartman, THE LAW FIRM OF CURT C. HARTMAN, Amelia, Ohio, Christopher P. Finney, FINNEY LAW FIRM LLC, Cincinnati, Ohio, for Appellants. Zachery P. Keller, Bridget E. Coontz, Darlene Fawkes Pettit, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. As a judicial candidate, Joseph Platt wants to openly endorse other candidates, personally and directly solicit campaign funds, and receive campaign contributions without time limitations. But he cannot do so because the Ohio Code of Judicial Conduct prohibits these activities. He sought to preliminarily enjoin enforcemеnt of these parts of the Code under the First and Fourteenth Amendments, but the district court denied his request. At this early stage—reviewing the denial of a preliminary injunction on interlocutory appeal— we agree with the district court and thus affirm.
I.
A. Because Ohioans elect their state-court judges, Ohio Const. art. IV, § 6, aspiring judges run fоr office. When campaigning, these candidates must follow the Ohio Code of Judicial Conduct. Ohio Code J. Cond. Application I(A). Promulgated by the Ohio Supreme Court, see Ohio Const. art. IV, § 5(B), the Code places certain limits on a candidate’s campaign-related speech to help maintain an “independеnt, fair, and impartial judiciary”—one free of “both impropriety and the appearance of impropriety.” Ohio Code J. Cond. Pmbl. ¶¶ 1–3. After our decision in Carey v. Wolnitzek , 614 F.3d 189 (6th Cir. 2010), striking certain parts of the Kentucky Code of Judicial Conduct, Ohio narrowed its Code. As amended, all judicial candidates—incumbents and challengers—are subject to Canon 4 of the Code, which places restrictions on direct, personal monetary solicitation, Ohio Code J. Cond. 4.4(A); bans public political party speeches and endorsements of another candidate, id. at 4.1(A)(2)–(3); and restricts a candidate’s campaign committee from receiving mоney earlier than 120-days before the primary, id. at 4.4(E)–(G).
The Supreme Court’s Board of Commissioners on Grievances and Discipline, a defendant here, enforces the Code by disciplining its violators. The Board also enforces the Ohio Rules of Professional Conduct, which independently prohibit Ohio attorneys from violating the Code. See Ohio R. Prof. Conduct 8.2(b). A separate office—the Office of Disciplinary Counsel, also a defendant here—investigates and prosecutes suspected violators of the Code.
B.
Joseph Platt, an attorney who wishes to run for Ohio judicial office, formed his Campaign Committee by filing a Designation of Treasurer Form on June 20, 2013. As part of his campaign, Platt wanted to publicly endorse other candidates, directly solicit campaign funds in person, and receive campaign contributions without the Code’s time limitations. But he could not, at least without facing penalties, because the rules of Canon 4 prohibited him from doing so. Platt sued to preliminarily enjoin enforcement of these rules as applied to non-sitting judicial candidates under the First and Fourteenth Amendments.
On January 6, 2014, the district court denied Platt’s request. It first held that Platt failed to show a strong likelihood of success on the merits of his First Amendment claims. It then held that Platt’s requеsted injunction—which would apply only to non -sitting judicial candidates— would cause substantial harm to sitting judicial candidates because they would still be subject to the Code’s restrictions. The district court therefore concluded that the balance of equities did not tip in Platt’s favor and that the injunction was not in the public intеrest. Balancing the proper factors, the district court denied the preliminary injunction. Platt then appealed.
II.
On August 8, 2014, we heard oral arguments. Until then, all involved assumed that Platt
fell within Ohio’s Judicial Code because Rule 4.6(F) defines “judicial candidate” as “a person
who has . . . declared or filed as a cаndidate for judicial office with the election authority,” and
Platt had filed his initial form.
See
Appellant Br. 4; Appellees’ Br. 11–12. But during the
argument, Platt admitted that he failed to file the required petitions to appear on the ballot in
2014. He also apparently missed the deadline to declare his intent to run as a write-in
candidate—his last chance for eligibility in 2014—which expired seventy-two days before the
general election (August 25, 2014).
See
O HIO R EV . C ODE § 3513.041. So despite Platt’s still-
existing Campaign Committee and his alleged desire to run for judicial office in the future, Platt
will not in fact be a candidate in the 2014 election. Given this fact, we must first determine
whether we have Artiсle III jurisdiction to hear Platt’s claims.
See Steel Co. v. Citizens for a
Better Env’t
,
A.
The standing requirement ensures that the plaintiff has a personalized injury that the court
can directly redress.
See Lujan v. Defenders of Wildlife
,
To have standing, the plaintiff must have suffered “injury in fact”—a “concrete and
particularized” or “actual or imminent” injury.
Lujan
,
Platt has alleged a sufficient injury in fact. First, from the formation of his Campaign
Committee onward, Platt has desired to engage in political speech (certainly implicating the First
Amendment) that violates the Code.
Id.
;
see also Kiser
, 2014 WL 4211193, at *4–5. And
second, Platt’s fear that the Board may enforce the Code against him is credible. His Campaign
Committee remains in place, and he could begin campaigning for another election today—which
the State recognized at oral argument. And when campaigning, he wishes to publicly endorse
candidates, personally and directly solicit campaign funds, and begin receiving campaign
contributions earlier than 120-days before the primary—all of which the Code restricts. These
parts of the Code “at least chill, and in some instances рrohibit, [Platt’s desired] forms of
communication.” ,
Two more considerations support our cоnclusion that Platt has standing. First, as in
Susan B. Anthony List
, any person—not just a prosecutor or state agency—may initiate
enforcement of the Code.
See Filing a Grievance
, The Supreme Court of Ohio & The Ohio
Judicial System, http://www.supremecourt.ohio.gov/DisciplinarySys/odc/complaint.asp (last
visited Oct. 7, 2014). This feature of the Code “bolster[s]” the credibility of enforcement.
Susan
B. Anthony List
,
B.
But has Platt’s case become moot because he is no longer actually running for judicial
office in 2014? The mootness requirement ensures that the plaintiff’s stake in the outcome of the
case remains personal.
See Already, LLC v. Nike, Inc.
,
There is an easier way to resolve the mootness issue: Regardless of whether Platt remains
a “candidate” under the Code, his claims are “capable of repetition, yеt evading review.”
See Sosna v. Iowa
, 419 U.S. 393, 399–400 (1975); , 614 F.3d at 197. This doctrine applies
when (1) the challenged action necessarily evades review, and (2) there is “a reasonable
expectation” that the same plaintiff will have the same complaint again.
Weinstein v. Bradford
,
Under this framework, Platt’s claims may proceed. Even if he is no longer a “judicial
candidate,” Platt plans to run again, making this case capable of repetition.
See Carey
, 614 F.3d
at 197. And his claims evadе review because of the short-term nature of each election.
See
Lawrence
,
With the standing, ripeness, and mootness doctrines satisfied, this case falls within Article III’s limits. We may now address whether the district cоurt abused its discretion in denying Platt’s request for a preliminary injunction.
III.
Platt seeks to preliminarily enjoin certain provisions of the Ohio Code of Judicial
Conduct until a full hearing on the merits can occur. If we agree with Platt, we would
necessarily disrupt the state-law status quo before each side has had full oppоrtunity to make its
case before the district court. That is why preliminary injunctions are “extraordinary and drastic
remed[ies] . . . never awarded as of right.”
Munaf v. Geren
,
A.
Once a district court balances those four factors, appellate courts have “always applied
the abuse of discretion standard on review of a preliminary injunction”—even in the First
Amendment context.
Ashcroft v. ACLU
,
In our Circuit’s preliminary-injunction cases on the First Amendment, however, we have
occasionally applied
de novo
review across the board.
See, e.g.
,
Am. Freedom Def. Initiative v.
Suburban Mobility Auth. for Reg’l Transp. (SMART)
, 698 F.3d 885, 889–90 (6th Cir. 2012)
(“[I]n cases with First Amendment implications, the standard of review [for preliminary
injunctions] is
de novo
.”);
Bays v. City of Fairborn
, 668 F.3d 814, 818–19 (6th Cir. 2012)
(same).
But see, e.g.
,
McNeilly
,
Yet, lest we forget, our authority at this point in the litigation is limited. Before us is a
preliminary
injunction—here on interlocutory appeal—that preserves the state-law status quo.
This is the kind of relief that the Supreme Court has characterized as “extraordinary” and
“drastic.”
Munaf
,
Keeping these limits in mind, our cases can be reconcilеd. We “review the District
Court’s legal rulings
de novo
” (including its First Amendment conclusion), “and its ultimate
conclusion [as to whether to grant the preliminary injunction] for abuse of discretion.”
McCreary Cnty. v. ACLU of Ky.
, 545 U.S. 844, 867 (2005). That is the same standard we
recently stated and applied in a unanimous en banc decision.
City of Pontiac Retired Emps.
Ass’n v. Schimmel
,
B.
Independently applying the First and Fourteenth Amendments, we are not persuaded that
the district court erred in its success-on-the-mеrits determination. Ohio has compelling state
interests, , 614 F.3d at 194, 201; it narrowed its Code to comport with ; and the
majority of federal courts have held the same or similar provisions constitutional.
E.g.
,
Ohio
Council 8 Am. Fed’n of State, Cnty., & Mun. Employees, AFL-CIO v. Brunner
, 912 F. Supp. 2d
556, 569 (S.D. Ohio 2012);
compare, e.g.
,
Wersal v. Sexton
,
Nor did the district cоurt err regarding the other factors. Platt has not shown irreparable
harm, largely because he has not demonstrated a strong likelihood of success on the merits.
See
Mich. Catholic Conference
,
IV.
Our opinion does not guarantee the State a win on the merits. Far from it: We, like the
Supreme Court, do not “intimate [a] view” on the merits one way or the other.
Doran
, 422 U.S.
at 934. The ultimate issue—whether Ohio’s narrower Code provisions satisfy the First
Amendment principles discussed in —remains an open question, one in which the
Supreme Court may soon provide guidance.
See Florida Bar v. Williams-Yulee
,
For these reasons, we AFFIRM.
Notes
[*] The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting by designation. 1