# Schmitt v. Husted

> District Court, S.D. Ohio · December 4, 2019

URL: https://www.frixlaw.com/law-library/cases/10374412

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** December 4, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLIAM T. SCHMITT, et ai.,
Plaintiffs,
Case No. 2:18-cv-966
v. JUDGE EDMUND A. SARGUS, JR.
Chief Magistrate Judge Elizabeth P. Deavers
OHIO SECRETARY OF STATE
FRANK LaROSE, et ai.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Attorneys’ Fees (ECF No. 45),
Renewed Motion for Attorneys’ Fees (ECF No. 68), and Defendant Secretary of State Frank
LaRose’s Bill of Costs (ECF No. 55). The parties have fully briefed these motions, which are thus
ripe for review. For the reasons stated below, the Court DENIES Plaintiffs’ Motion for Attorneys’
Fees (ECF No. 45), DENIES Plaintiffs’ Renewed Motion for Attorneys’ Fees (ECF No. 68), and
DENIES Defendant’s Bill of Costs (ECF No. 55). Accordingly, Plaintiffs’ Motion to Stay the Bill
of Costs (ECF No. 57) is rendered MOOT. Further, because the Court granted Defendant LaRose’s
Bill of Costs based on the parties’ briefs, Plaintiffs’ Motion to File Surreply to Defendant LaRose’s
Bill of Costs (ECF No. 65) is rendered MOOT.
I. Background
Plaintiffs submitted proposed ballot initiatives to the Portage County Board of Elections
that would decriminalize marijuana possession in the Ohio villages of Windham and Garrettsville.
The Board rejected the proposed initiatives upon concluding that they fell outside the scope of the
villages’ legislative authority.

Rather than petitioning for mandamus relief, Plaintiffs brought this 42 U.S.C. § 1983 action
against the Board and the Ohio Secretary of State alleging the statutes that govern Ohio’s ballot
initiative process impose a prior restraint on Plaintiffs’ political speech, thereby violating their
rights under the First and Fourteenth Amendments. Lodging as-applied and facial challenges,
Plaintiffs sought a temporary restraining order compelling Defendants to place Plaintiffs’ proposed
initiatives on the ballots so that citizens of Windham and Garrettsville could vote to accept or reject
the initiatives. Plaintiffs also sought an order striking down Ohio’s initiative procedure as
unconstitutional.
This Court granted Plaintiffs a temporary restraining order after concluding Ohio’s
initiative process lacked de novo judicial review and therefore violated the First Amendment.
Accordingly, the Court directed Defendants to place the initiatives on the ballots, pursuant to the
relief requested by Plaintiffs’ as-applied challenges. Because the temporary restraining order
would expire before the election day, the parties agreed to convert the temporary restraining order
into a preliminary injunction that would then expire the day after the election. On election day, the
Windham initiative passed, but the Garrettsville initiative failed. At that point, the preliminary
injunction and as-applied challenges were moot. Schmitt, 933 F.3d at 636, n.2 (6th Cir. 2019).
The parties then agreed to additional briefing to address Plaintiffs’ facial challenges to
Ohio’s initiative process. After fully briefing the issues and conducting oral argument, this Court
permanently enjoined Defendants from enforcing the ballot initiative process without de novo
judicial review. On March 12, 2019, Secretary of State LaRose timely appealed. The Portage
Board of Elections did not join the appeal.
On March 15, 2019, Plaintiffs filed their Motion for Attorneys’ Fees and Costs under
42 U.S.C. § 1988(b). Given Secretary LaRose’s then-pending appeal, Plaintiffs recognized in their

Motion that this Court had discretion to defer acting until the completion of the appeal. Plaintiffs
also conceded that “[t]hey filed their Motion for Costs and Attorneys’ Fees to ensure that they
comply with Local Rule 54.2’s 45-day window.” (See Pls.’ Mot. for Fees at 5.) The Court then
stayed briefing on Plaintiffs’ Motion for Attorneys’ Fees and Costs for the duration of the appeal.
On August 7, 2019, the Sixth Circuit reversed this Court’s Order and vacated the permanent
injunction. Secretary LaRose then filed his Bill of Costs.
Il. Motion for Attorney’s Fees and Costs
“The common law contains no right to attorney’s fees for the winning party to a lawsuit.”
Miller v. Caudill, 936 F.3d 442, 448 (6th Cir. 2019) (citing McQuery v. Conway, 614 F.3d 591,
596 (6th Cir. 2010)). Instead, the “American Rule” applies, and so each party pays its own fees
unless a statute explicitly provides otherwise. /d. (citing Buckhannon Bd. & Care Home v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 602 (2001)). When a party prevails in a civil rights
action brought under 42 U.S.C. § 1983, then 42 U.S.C. § 1988 supplants the American Rule:

In any action or proceeding to enforce a provision of...[Section] 1983..., the court,
in its discretion, may allow the prevailing party, other than the United States, a
reasonable attorney’s fee....
42 U.S.C. § 1988(b).
The issue, then, is whether Plaintiffs prevailed. To be a prevailing party, a plaintiff must
have obtained an injunction that: (1) was court-ordered, and (2) caused a material, (3) irrevocable
change in the legal relationship between the plaintiff and defendants that directly benefitted the
plaintiff, Miller, 936 F.3d at 448. Therefore, determining whether the winner of a preliminary
injunction is a prevailing party is a contextual and case-specific inquiry. Jd. In such instances,
courts address this question “with both hesitancy and skepticism because the ‘preliminary’ nature

of the relief ... generally counsels against fees in the context of preliminary injunctions.” Miller,
936 F.3d at 448 (quoting McQuery, 614 F.3d at 601).
So, context is key. See McQuery, 614 F.3d at 598-99. Fortunately, the Supreme Court has
addressed the context in which this matter is presented. In Sole, the Supreme Court found “that a
plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees under
§ 1988(b) if the merits of the case are ultimately decided against her.” Sole v. Wyner, 551 U.S. 74,
86 (2007).
Plaintiffs contend that Sole is inapposite. According to them, Sole does not categorically
bar awarding fees in the absence of final judgment favoring Plaintiffs. (Pls.’ Reply at 5.) On that
point, the Court agrees. See Sole, 551 U.S. at 86 (“We express no view on whether, in the absence
of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a
preliminary injunction may sometimes warrant fees.”).
Plaintiffs overlook, however, when Sole does bar awarding fees, which is whenever a final
judgment on the merits reverses the sole ground on which the plaintiff initially succeeded. That is
this case. See id. (“A plaintiff who ‘secures a preliminary injunction, then loses on the merits as
the case plays out and judgment is entered against her,’ has ‘won a battle but lost the war.,”””}
(quoting Watson v. Cnty. of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002) (cleaned up)); see also
Bowman v. Corr. Corp. of Am., 350 F.3d 537, 551 (6th Cir. 2003) (“Since we now reverse the sole
ground on which Bowman succeeded, Bowman is no longer entitled to an award of attorney’s fees
or costs, as she is no longer a “prevailing party” for purposes of the statute.”).
Here, the merits were the same at both the preliminary and permanent injunction stages.
The Plaintiffs won a preliminary injunction because the Court found that the First Amendment
guarantees judicial review when a board of elections denies a ballot initiative petition as an

administrative action. The Sixth Circuit ultimately concluded that the First Amendment does not
guarantee such review. Therefore, the merits that won preliminary injunction for Plaintiffs were
identical to those that lost the appeal. Accordingly, Sole applies and bars attorney’s fees.
Next, Plaintiffs argue that they prevailed on the preliminary injunction because the Sixth
Circuit only reversed the permanent injunction. In Sole, however, the Supreme Court expressly
rejected that argument:
Viewing the two stages of the litigation as discrete episodes, plaintiffs
below, respondents here, maintain that they prevailed at the preliminary injunction
stage, and therefore qualify for a fee award for their counsels’ efforts to obtain that
interim relief. Defendants below, petitioners here, regard the case as a unit; they
urge that a preliminary injunction holds no sway once fuller consideration yields
rejection of the provisional order’s legal or factual underpinnings. We agree with
the Jatter position and hold that a final decision on the merits denying permanent
injunctive relief ordinarily determines who prevails in the action for purposes of
§ 1988(b).
Sole, 551 U.S. at 77-78. Accordingly, the Court must regard the injunctions and their outcomes as
a unit. In doing so, the final determination on the legal underpinning of this unit is that Plaintiffs
lacked a right to judicial review. Thus, Plaintiffs are not entitled to attorney’s fees.
Finally, Plaintiffs rely on Planned Parenthood Sw. Ohio Region v. DeWine, 931 F.3d 530
(6th Cir. 2019) and McQueary to repeat their argument that they are not required to win a final
judgment to prevail. Again, the Court agrees. But as discussed supra, those cases are not this case.
Plaintiffs do not lose because they never won a final judgment; rather, they lose because Defendant
LaRose won a final judgment and did so on the issue addressed at the preliminary injunction Stage.
In other words, the determinative factor is not the absence of Plaintiffs’ final judgment but the
existence of Defendant LaRose’s final judgment. Accordingly, this case does not fall outside Sole
and into DeWine and McQueary.

In conclusion, Sole is on point because Plaintiffs secured a preliminary injunction, then
ultimately lost the case on the same merits. Sole, 551 U.S. at 82. Since “a plaintiff cannot claim
prevailing-party status prevailing-party status if its success is ultimately ‘reversed, dissolved, or
otherwise undone by the final decision in the same casef,}’ ” Plaintiffs cannot collect attorney’s
fees under § 1988. DeWine, 931 F.3d at 538 (quoting So/e, 551 U.S. at 83). Thus, the Court denies
Plaintiffs’ motions for attorney’s fees.
III. Bill of Costs
Defendant LaRose timely filed a Bill of Costs, seeking to recover $757.20 for filing and
transcript fees. Plaintiffs oppose this request.
Under Federal Rule of Civil Procedure 54(d), prevailing parties may recover certain,
allowable, reasonable, and necessary costs. The types of costs allowed are listed 28 U.S.C. § 1920
as follows:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript
necessarily obtained for use in the case;
(3) Fees for disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the
case;
(5) Docket fees under [28 U.S.C. § 1923];
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under
[28 U.S.C. § 1828].
A bill of costs shall be filed in the case and, upon allowance, included in the
judgment or decree.
28 U.S.C. § 1920.

Under Rule 54(d), “[uJnless a federal statute, these rules, or a court order provides
otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” This
language “creates a presumption in favor of awarding costs, but allows denial of costs at the
discretion of the trial court.” White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 730
(6th Cir. 1986). An unsuccessful party has the burden of showing circumstances to overcome the
presumption that favors the award of permissible costs to the prevailing party. White & White, 787
F.2d at 732; see also 10 Wright, Miller, Kane, Federal Practice and Procedure: Civil 3d § 2679
(1998). In exercising that discretion, a court should look “first to whether the expenses are
allowable cost items and then to whether the amounts are reasonable and necessary.” Jefferson v.
Jefferson Cnty. Pub. Sch. Sys., 360 F.3d 583, 591 (6th Cir. 2004).
Plaintiffs do not argue whether Defendant LaRose’s expenses are allowable costs under
§ 1920. Instead, Plaintiffs contend that this Court should exercise its discretion and deny all costs.
The Sixth Circuit has identified several factors a losing party may put forward that may justify
denying the prevailing party’s costs. White & White, 786 F.2d at 732-33; see also Singleton y.
Smith, 241 F.3d 534, 539 (6th Cir. 2001). Those include the losing party’s good faith and the
difficulty of the case. Jd. Here, both are present and both persuade the Court to exercise its
discretion and reject Defendant LaRose’s request for costs.
First, Plaintiffs brought their claims in good faith. Plaintiffs are political activists and voters
who seek to change the law in Ohio, which they ultimately achieved. Due to Plaintiffs’ effort in
this case, citizens of two Ohio villages were able to engage in a vote that would have otherwise
never occurred. Although Plaintiffs chose not to seek a writ from the Supreme Court of Ohio and
instead filed suit in this Court, Plaintiffs were reasonable to do so since there was no definitive
answer on the matter. Thus, Plaintiffs brought their claims in good faith.

Second, this case was “close and difficult.” It was a case of first impression, and also
presented intricate legal issues that analyzed the interplay between state and federal constitutions,
implicated agency deference, and questioned the scope of voting rights incorporated to the states.
All told, four federal judges arrived at three conclusions. For these reasons, this case was close and
difficult, and the Court accordingly denies Defendant LaRose’s Bill of Costs.
IV. Conclusion
For the reasons stated above, the Court DENIES Plaintiffs’ Motion for Attorneys’ Fees
(ECF No. 45), DENIES Plaintiffs’ Renewed Motion for Attorneys’ Fees (ECF No. 68), and
DENIES Defendant’s Bill of Costs (ECF No. 55). Accordingly, Plaintiffs’ Motion to Stay the Bill
of Costs (ECF No. 57) is rendered MOOT. Further, because the Court granted Defendant LaRose’s
Bill of Costs based on the parties’ briefs, Plaintiffs’ Motion to File Surreply to Defendant LaRose’s
Bill of Costs (ECF No. 65) is rendered MOOT
IT IS SO ORDERED.

[a-4 - W014 / aS
DATE ED D sARGUS, JR.
UNTER St) ES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10374412. Public record. Not legal advice.