Joseph Platt v. Bd. of Comm'rs of Grievances

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0252p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOSEPH J. PLATT; PLATT FOR JUDGE CAMPAIGN ┐
COMMITTEE; MARK W. MILLER, │
Plaintiffs-Appellants, │
│ No. 14-3037
│
v. >
│
│
BOARD OF COMMISSIONERS ON GRIEVANCES AND │
DISCIPLINE OF THE OHIO SUPREME COURT, et al., │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:13-cv-00435—Michael R. Barrett, District Judge.
Argued: August 8, 2014
Decided and Filed: October 8, 2014
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.
*
The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting
by designation.
1
No. 14-3037 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 2
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OPINION
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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 enforcement 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 for 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 “independent, 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 money 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
No. 14-3037 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 3
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 requested 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 interest. 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 candidate 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 OHIO REV. CODE § 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
No. 14-3037 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 4
whether we have Article III jurisdiction to hear Platt’s claims. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 101–03 (1998).
A.
The standing requirement ensures that the plaintiff has a personalized injury that the court
can directly redress. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). And the
ripeness requirement prevents courts from hearing premature or abstract disagreements. See
Abbott Laboratories v. Gardner, 387 U.S. 136, 148–49 (1967); Carey, 614 F.3d at 196–97.
These doctrines “originate from the same Article III limitation” and may be analyzed together as
part of “standing.” E.g., Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 n.5 (2014);
Kiser v. Reitz, ___F.3d___, No. 13-3956, 2014 WL 4211193, at *3 (6th Cir. Aug. 27, 2014).
To have standing, the plaintiff must have suffered “injury in fact”—a “concrete and
particularized” or “actual or imminent” injury. Lujan, 504 U.S. at 560. But in a pre-enforcement
review case under the First Amendment (like this one), courts do not closely scrutinize the
plaintiff’s complaint for standing when the plaintiff “claims an interest in engaging in protected
speech that implicates, if not violates, each [provision of the law at issue].” Carey, 614 F.3d at
196; see also Steffel v. Thompson, 415 U.S. 452, 459 (1974). A plaintiff meets the injury-in-fact
requirement—and the case is ripe—when the threat of enforcement of that law is “sufficiently
imminent.” Susan B. Anthony List, 134 S. Ct. at 2342. This occurs when (1) the plaintiff alleges
“an intention to engage in a course of conduct” implicating the Constitution and (2) the threat of
enforcement of the challenged law against the plaintiff is “credible.” Babbitt v. United Farm
Workers Nat. Union, 442 U.S. 289, 298 (1979).
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
No. 14-3037 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 5
parts of the Code “at least chill, and in some instances prohibit, [Platt’s desired] forms of
communication.” Carey, 614 F.3d at 196. Platt thus must “censor[] himself” to avoid violating
the Code, which amounts to a “credible fear of enforcement.” See id. (holding that an analogous
challenge to the Kentucky Code of Judicial Conduct was justiciable under Article III); see also
Kiser, 2014 WL 4211193, at *5–6.
Two more considerations support our conclusion 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, 134 S. Ct. at 2345. And second, when directly asked at oral argument, the State
refused to disavow the enforcement of the Code as applied to Platt, further adding credibility to
Platt’s alleged fear. See id.; see also Appellees’ Br. 11–12. Platt’s asserted fear is credible, and
he has therefore alleged an injury in fact that is ripe for judicial review.
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., 133 S. Ct. 721, 726 (2013). And Platt
seems to have lost his personal stake: The only form he filed to become a “judicial candidate”
lists “2014” as his election year, and he is not running in 2014. At oral argument, Platt
essentially responded: “Once a judicial candidate under the Code, always a judicial candidate
under the Code.” The State largely agreed. To resolve mootness on this view, we would have to
determine whether Platt’s still-existing Campaign Committee makes him a “judicial candidate”
when he is not actually running in 2014—an unbriefed and unanswered question of state law.
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, yet evading review.” See
Sosna v. Iowa, 419 U.S. 393, 399–400 (1975); Carey, 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,
No. 14-3037 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 6
423 U.S. 147, 149 (1975). Challenges to election laws “quintessential[ly]” evade review because
“the remedy sought is rendered impossible by the occurrence of the relevant election.”
Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005) (case not moot even though the
“occurrence of the 2004 election made it impossible for the courts to grant the preliminary
injunctive relief Plaintiffs sought”); see also Carey, 614 F.3d at 197. And challenges by a
former candidate are typically capable of repetition because the plaintiff “retains the right to run
for judicial office again.” Carey, 614 F.3d at 197; see also Lawrence, 430 F.3d at 371; Green
Party of Tennessee v. Hargett, ___F.3d___, No. 13-5975, 2014 WL 4116483, at *7 n.1 (6th Cir.
Aug. 22, 2014).
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 evade review because of the short-term nature of each election. See
Lawrence, 430 F.3d at 371. Platt’s challenge is thus “capable of repetition, yet evading review”
and is saved from any mootness concerns.
With the standing, ripeness, and mootness doctrines satisfied, this case falls within
Article III’s limits. We may now address whether the district court 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 opportunity 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, 553 U.S. 674, 689–90 (2008). And
that is why the plaintiff bears the burden to justify relief, even in First Amendment cases.
McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012). To do so, the plaintiff “must establish that
he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
No. 14-3037 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 7
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, 542 U.S. 656, 664, 666 (2004). The Supreme Court,
for example, has applied abuse-of-discretion review to preliminary injunctions enjoining
enforcement of the Child Online Protection Act on First Amendment grounds, id. at 665–66, and
enjoining enforcement of a town’s prohibition on topless dancing on First Amendment grounds,
Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975).
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, 684 F.3d at 615, 622 (applying abuse-of-discretion review to a
First Amendment case at the preliminary-injunction stage); Ohio Council 8 Am. Fed’n of State,
Cnty. & Mun. Employees, AFL-CIO v. Brunner, 462 F. App’x 557, 559 (6th Cir. 2012) (per
curiam) (same). Our occasional resort to de novo review makes some sense: Because a plurality
of the Supreme Court said that “[t]he loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373
(1976) (plurality), we have said that “the factors for granting a preliminary injunction essentially
collapse into a determination of whether restrictions on First Amendment rights are justified to
protect competing constitutional rights.” Cnty. Sec. Agency v. Ohio Dep’t of Commerce,
296 F.3d 477, 485 (6th Cir. 2002). We have sometimes concluded, therefore, that all four factors
are “essentially encompassed by the analysis of the movant’s likelihood of success on the merits,
which is a question of law that must be reviewed de novo.” SMART, 698 F.3d at 890.
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, 553 U.S. at 690. To determine whether it should grant relief, the district court
No. 14-3037 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 8
balances four factors—not one—even in First Amendment cases. See, e.g., Doran, 422 U.S. at
931 (separately balancing “irreparable injury” in a First Amendment case).
Keeping these limits in mind, our cases can be reconciled. 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, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (“Whether the movant is likely to
succeed on the merits is a question of law we review de novo[,] [but] [w]e review for abuse of
discretion . . . the district court’s ultimate determination as to whether the four preliminary
injunction factors weigh in favor of granting or denying preliminary injunctive relief.”). And we
have already applied that standard in the First Amendment context, crediting Schimmel. See
Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 382, 398 (6th
Cir. 2014). All this is to say: when we look at likelihood of success on the merits, we
independently apply the Constitution, but we still defer to the district court’s overall balancing of
the four preliminary-injunction factors.
B.
Independently applying the First and Fourteenth Amendments, we are not persuaded that
the district court erred in its success-on-the-merits determination. Ohio has compelling state
interests, Carey, 614 F.3d at 194, 201; it narrowed its Code to comport with Carey; 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, 674 F.3d 1010, 1024 (8th Cir. 2012)
(en banc) (upholding Minnesota’s similar restrictions), and Siefert v. Alexander, 608 F.3d 974,
990 (7th Cir. 2010) (same for Wisconsin’s Code), with Weaver v. Bonner, 309 F.3d 1312, 1320
(11th Cir. 2002) (holding unconstitutional a similar provision in the Georgia Code).
Nor did the district court 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, 755 F.3d at 398; McNeilly, 684 F.3d at 615. And the district court
No. 14-3037 Platt, et al. v. Bd. of Comm’rs on Grievances, et al. Page 9
did not abuse its discretion in weighing the equities and potential harm to the public.
Additionally, with Platt no longer actually running for office in 2014, the need for “expediency”
has largely ceased, and “the public interest would be best served by [a merits] proceeding and
not by enjoining Ohio from enforcing a state election statute before an upcoming election.” Ohio
Council 8, 462 Fed. App’x at 559; cf. Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341,
345 (6th Cir. 2012). The district court did not abuse its discretion in denying the preliminary
injunction.
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 Carey—remains an open question, one in which the
Supreme Court may soon provide guidance. See Florida Bar v. Williams-Yulee, 138 So. 3d 379
(Fla. 2014), cert. granted, ___ S. Ct. ___, 2014 WL 2763710 (Oct. 2, 2014) (granting certiorari
on “[w]hether a rule of judicial conduct that prohibits candidates for judicial office from
personally soliciting campaign funds violates the First Amendment”). But now is not the time
for us to answer that question. Here, we conclude only that, upon de novo review, Platt has not
established a “strong likelihood of success on the merits,” Schimmel, 751 F.3d at 430, and that
the district court did not abuse its discretion in balancing the four preliminary-injunction factors.
At this stage, that “is the extent of our appellate inquiry.” Doran, 422 U.S. at 934. The district
court’s denial of the preliminary injunction stands, and the parties and district court may now
undertake further proceedings on the ultimate merits.
For these reasons, we AFFIRM.