Hicks v. Crowley

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHRISTOPHER HICKS,

:

Plaintiff,

Case No. 2:22-cv-2204

v. Judge Sarah D. Morrison

Magistrate Judge Chelsey M.

Vascura

KATHLEEN CROWLEY, et al.,

:

Defendants.

OPINION AND ORDER

Christopher Hicks is a “government transparency advocate” who brought this

suit after the Ohio Board of Tax Appeals (the “BTA”) refused to let him record

certain public hearings and then banned him from hearings unless he was a party

to a proceeding. Naming the BTA, its Executive Director, and its three Board

members as defendants, Mr. Hicks alleges that they violated his First Amendment

rights of access and of expression (Claims 1, 3), denied him procedural due process

under the Fourteenth Amendment (Claim 2), retaliated against him in violation of

the First Amendment (Claim 4), and violated the Ohio Open Meetings Act (Claim

5). His federal claims are brought under 42 U.S.C. § 1983.

The matter is before the Court on two motions. First, Mr. Hicks filed a

Motion for Preliminary Injunction. (ECF No. 6.) The Defendants opposed (ECF No.

8), and Mr. Hicks replied (ECF No. 22). Defendants then filed a Motion to Dismiss

the Complaint. (ECF No. 24.) Mr. Hicks opposed1 (ECF No. 28), and Defendants

replied. (ECF No. 29). Both motions are ripe for decision.

The Court will address the Motion to Dismiss before turning to the Motion for

Preliminary Injunction.

I. BACKGROUND

On a Motion to Dismiss, all factual allegations are taken as true. The

following summary is drawn from the factual allegations in the Complaint.2

BTA is Ohio’s administrative tax court, resolving justiciable disputes between

parties in appeals from decisions, orders, determinations, and actions of the tax

commissioner, tax administrative agencies, county budget commissions, and county

boards of revision. Ohio Rev. Code § 5703.02. It hears appeals from decisions of

county boards of revision concerning the valuation of real property for tax purposes.

Id. It is created by statute. Id. Kathleen Crowley is the Executive Director of the

BTA, David Harberger is its Chair, Jasmine Clements is its Vice Chair, and Jeffrey

Caswell is a board member. (Compl. ¶¶ 7–11.) Mr. Hicks has named these

individuals as defendants in both their individual and official capacities. (Id.)

The BTA conducts two kinds of meetings: nonadjudicatory meetings (when

1Mr. Hicks did not substantively oppose the Motion to Dismiss with regard to

his Ohio Open Meetings Act claim, instead he indicated that he is “willing to

dismiss Claim Five.” (ECF No. 28, PageID 220.) Accordingly, Claim 5 is

DISMISSED.

2The Court does not construe the Complaint’s factual allegations in the light

most favorable to the Plaintiff for purposes of a Motion for Preliminary Injunction.

See Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir.

2002) (movant carries burden on preliminary injunction motion of proving

circumstances clearly demand it).

the BTA conducts its business not involving tax disputes between parties) and

adjudicatory hearings (administrative hearings at which the parties to a tax appeal

may present new evidence regarding a specific tax dispute). See Ohio Admin. Code

§§ 5717-1-16, 5717-1-22. Both types of meeting are open to the public, but the BTA

has separate rules for each. Id.

Nonadjudicatory meetings are governed by § 5717-1-22 of the Ohio

Administrative Code. These meetings are open to the public unless a subject to be

discussed at the meeting is specifically excepted from public disclosure by law. Id.

§ 5717-1-22(A). The BTA must give notice of each of these meetings to the public

and must maintain minutes of the meetings that notify the public what was

discussed. Id. §§ 5717-1-22(A), (C), (E), (H). If someone wants to record

nonadjudicatory meetings, the BTA rules provide:

Consent to film, photograph, or record meetings of the board shall be

obtained from the chairperson of the board, or with written consent of

two members of the board, prior to the start of the meeting. The board

may terminate such consent upon its determination that such filming,

photographing, or recording is distracting or otherwise disruptive to the

meeting process.

Id. § 5717-1-22(I).

BTA adjudicatory hearings proceed in a “similar manner to a civil action,

with witnesses to be sworn and subject to cross-examination.” Id. § 5717-1-16(G). If

someone wants to record an adjudicatory hearing, the rules provide:

All hearings before the board shall be open to the public. Hearings may

be recorded, and such recordings shall be made available for

examination at the board’s office.

Id. § 5717-1-16(H).

In 2021, Mr. Hicks went to several BTA adjudicatory hearings. The first was

on October 20, and he was personally a party to the hearing on that day. (Compl.

¶ 22.) Mr. Hicks brought a camera, which he set up to the side of the room. (Id. ¶¶

23, 24.) However, the presiding hearing officer asked Mr. Hicks to stop the

recording, telling him that he needed to complete a media request to record the

hearing. (Id. ¶ 24.) When Mr. Hicks asked the hearing officer for the legal authority

that would allow her to stop him from recording the hearing, “she was unable to

provide him with support for her decision” and did not provide him a form for a

media request. (Id.) The October 20 hearing was then canceled and was not

rescheduled. (Id. ¶ 25.)

Following the October 20 hearing, Mr. Hicks sent a public records request to

Defendant Crowley seeking, among other things, any form used to request media

access to BTA hearings and copies of any policies that would govern the positioning

of cameras in BTA hearing rooms. (Id. ¶ 26.) Ms. Crowley responded that the BTA

did not have any documents that were responsive to the request regarding the

positioning of cameras and that Mr. Hicks’s request for media forms was not

sufficiently particularized to enable a response. (Id.) She later amended her

response to indicate that the BTA did not have any records that were responsive to

Mr. Hicks’s request for media access forms. (Id.)

On December 2, 2021, Mr. Hicks returned to the BTA to observe adjudicatory

hearings. (Id. ¶ 27.) He had told Ms. Crowley that he intended to attend and record

the December 2 hearings. (Id.) Before driving to Columbus that day, Mr. Hicks

checked the BTA’s online docket; the docket did not indicate that the hearings

would not be in person and there was no information on how to call-in or access the

hearings telephonically. (Id.) When he arrived at the BTA office building, Mr. Hicks

was detained in the lobby by a BTA employee who had been informed to stop him

and to contact security. (Id. ¶ 28.) Mr. Hicks was then escorted by two Ohio State

Highway Patrol Troopers to the BTA offices, where he was informed that the

hearings that day were not in person, but by telephone. (Id.) When he asked how he

(or any citizen) would have known the hearings were telephonic and how to access

the telephonic hearing, Ms. Crowley told him that he would have had to call the

BTA. (Id. ¶ 29.) Mr. Hicks was then provided the call-in information for the

hearings that day. (Id. ¶ 30.) Because the first hearing had already started, Mr.

Hicks tried to use the BTA waiting area to call-in, but he was told he had to leave

and was threatened with arrest if he did not. (Id. ¶¶ 30, 31.) By the time Mr. Hicks

left the building and got to his car to call-in to the first hearing, it was over. (Id.

¶ 32.)

After confirming that the December 6 adjudicatory hearings were in-person,

Mr. Hicks tried again to attend the proceedings. (Id. ¶ 33.) He also drafted and

submitted requests to record the December 6 hearings using a form that he created,

which requests he emailed to Ms. Crowley directly. (Id. ¶ 34.) The BTA emailed a

response to his requests the morning of December 6, shortly before the first hearing

was to start, stating that a decision would be made on his requests at each hearing.

(Id. ¶ 35.) Mr. Hicks did not see that email before going to the BTA. (Id.)

When he arrived at the BTA on December 6, Mr. Hicks was “monitored by

Ohio State Highway Patrol Troopers.” (Id. ¶ 36.) Nevertheless, he quietly entered a

hearing room and walked towards the seating area for observers. (Id. ¶ 37.) The

presiding hearing officer then stopped the hearing and questioned Mr. Hicks, telling

him that his request to record the hearing was denied. (Id.) In response, Mr. Hicks

asked for the basis of the denial of his request. (Id.) Mr. Hicks was then “rushed by

a uniformed officer” and escorted out of the hearing. (Id. ¶ 38.)

Once outside of the hearing room, Mr. Hicks questioned the basis for his

treatment. (Id.) The uniformed officer directed Mr. Hicks to a sign in the lobby and

to the BTA’s website, but neither the sign nor the website explained why Mr. Hicks

could not record the hearing. (Id.) Mr. Hicks was again threatened with arrest, and

he was unable to observe all of the BTA hearings he desired to see that day. (Id.

¶¶ 38–39.)

Shortly after he was removed on December 6, the BTA permanently banned

Mr. Hicks from attending any adjudicatory hearings other than those to which he is

a party (“the December 9 Ban”). (Id. ¶ 40; Ex. 3 to Compl., ECF No. 5-3, PageID 59.)

The stated reason for the December 9 Ban is that Mr. Hicks disrupted hearings on

December 2 and December 6 causing the hearings not to go forward. (Id. ¶ 42; Ex. 3

to Compl.) Mr. Hicks disputes both that he disrupted the hearings and that he

caused them not to go forward. (Id.) The BTA subsequently banned Mr. Hick’s wife

from attending BTA meetings and hearings other than those to which she is a

party. (Id. ¶ 43.) That ban alleges that Mrs. Hicks surreptitiously recorded small

claims hearings at the BTA in violation of the rules. (Id.) Both bans are indefinite—

neither provide an expiration date or a procedure by which Mr. or Mrs. Hicks can

appeal or seek review of the bases or terms of the bans. (Id. ¶ 44.) Mr. Hicks sought

reconsideration of the December 9 Ban at a BTA nonadjudicatory meeting, but no

one responded to him. (Id.)

After the issuance of the December 9 Ban, Defendant Crowley denied a public

record request from Mr. Hicks asking for communications between her and board

members relating to the December 9 Ban; the request was denied as too vague. (Id.

¶ 45.) Mr. Hicks then filed a complaint in the Ohio Court of Claims under Ohio’s

public records law to get her to respond to his request. (Id. ¶ 46.) After he filed suit,

Ms. Crowley responded to his records request. (Id. ¶ 47.) The Court of Claims

assessed court costs against the BTA in the amount of $43.73 in that case; the BTA

appealed this assessment. (Id. ¶¶ 49–53.)

Mr. Hicks alleges that the December 9 Ban and the BTA’s decision to appeal

the assessment of court costs in the Court of Claims case are intended to chill his

efforts to exercise his right to access the government. (Id. ¶ 53.) He brought this suit

seeking to vindicate that right, and he seeks the following relief:

1. A declaration that the December 9, 2021 order banning him from

attending BTA hearings other than those to which he is a party

violates the First Amendment . . . ; a declaration that Hicks was

improperly excluded from the December 2, 2021 and December 6,

2021 hearings; a declaration that Defendants retaliated against

Hicks in violation of his First Amendment rights; and a declaration

that the Ban violates Fourteenth Amendment procedural due

process;

2. Preliminary and permanent injunctive relief barring the

enforcement of the December 9, 2021 order, prohibiting Defendants

from retaliating against Hicks for exercising his constitutional

rights . . . ;

3. Monetary damages against the individual Defendants for violations

of Hicks’ First and Fourteenth Amendment rights . . . ;

4. An award of attorney fees and costs pursuant to 42 U.S.C. § 1988 . .

. ; and

5. Any other relief that is appropriate, just, and warranted in law or

equity.

II. MOTION TO DISMISS

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim

with sufficient specificity to “give the defendant fair notice of what the claim is and

the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal alteration and quotations omitted). A complaint which falls short of

the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). The Supreme Court has explained:

To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is

plausible on its face. A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. The

plausibility standard is not akin to a probability requirement, but it asks

for more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations

omitted). The complaint need not contain detailed factual allegations, but it must

include more than labels, conclusions, and formulaic recitations of the elements of a

cause of action. Directv, Inc. v. Treesh, 487 F.3d, 471, 476 (6th Cir. 2007).

“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 555).

Defendants move to dismiss the Complaint on several grounds. First, they

argue that they are entitled to Eleventh Amendment immunity. Second, they are

entitled to absolute immunity because they were operating in a quasi-judicial

capacity or as a judicial agency. Third, they argue that the individual Defendants

are entitled to qualified immunity for certain of Mr. Hicks’s claims. And finally,

they argue that Mr. Hicks fails to state a claim upon which relief can be granted in

Claims 2, 3, and 5. The Court will address each argument in the order in which

Defendants raise it.

A. Eleventh Amendment Immunity

Defendants seek dismissal of the claims against the BTA and the individual

Defendants in their official capacities under the Eleventh Amendment, which states

that “[t]he judicial power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of a Foreign State.” U.S.

Const. amend. XI; (see Mot. to Dismiss, ECF No. 24, PageID 198–200). The

amendment “‘denies to the federal courts authority to entertain a suit brought by

private parties against a state without its consent.’” Maben v. Thelen, 887 F.3d 252,

270 (6th Cir. 2018) (quoting Ford Motor Co. v. Dep’t of Treasury of Indiana, 323 U.S.

459, 464 (1945)).

The Sixth Circuit directs that the scope of the Eleventh Amendment is “far

reaching. It bars all suits, whether for injunctive, declaratory or monetary relief,

against the state and its departments, . . . by citizens of another state, foreigners or

its own citizens. . . . The amendment also bars suits for monetary relief against

state officials sued in their official capacity.” Thiokol Corp. v. Dep’t of Treas., 987

F.2d 376, 381 (6th Cir. 1993) (internal citations omitted). And it “bars federal

jurisdiction over suits against state officials when the relief sought is retrospective

or compensatory in nature.” MacDonald v. Vill. of Northport, 164 F.3d 964, 971 (6th

Cir. 1999).

“There are three exceptions to sovereign immunity: (1) when the state has

waived immunity by consenting to the suit, (2) when Congress has expressly

abrogated the states’ sovereign immunity, and (3) when the doctrine set forth in Ex

Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) applies.” Boler v.

Early, 865 F.3d 391, 410 (6th Cir. 2017) (citation omitted). Mr. Hicks argues in

response to the Motion to Dismiss that the Ex Parte Young exception applies here

because he is seeking to enjoin the BTA and the individual Defendants in their

official capacities from enforcing a ban against his presence at BTA hearings and

from retaliating against him in the future.3 (Mot. to Dismiss Memo Contra, ECF No.

28, PageID 220); see also infra Section II.C.

3To the extent he seeks monetary damages, he can seek that relief only

against the individual Defendants in their individual capacities. The Eleventh

Amendment does not bar suits against a government official in his or her individual

capacity for monetary damages, but an award of damages can be executed only

against the official’s personal assets. See Kentucky v. Graham, 473 U.S. 159, 165–

The Ex Parte Young exception to sovereign immunity allows a plaintiff “to

bring claims for prospective relief against state officials sued in their official

capacity to prevent future federal constitutional or statutory violations, regardless

of whether compliance might have an ancillary effect on the state treasury.” Boler,

865 F.3d at 412 (internal quotation marks and citation omitted). The exception

applies where the plaintiff alleges “an ongoing violation of federal law and seeks

relief properly characterized as prospective.” Dubuc v. Mich. Bd. of Law Exam’rs,

342 F.3d 610, 616 (6th Cir. 2003) (quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of

Md., 535 U.S. 635, 645 (2002)).

Ex Parte Young saves Mr. Hicks’s claims seeking preliminary and permanent

injunctive relief. (See Compl., PageID 51.) He can obtain prospective injunctive

relief against the BTA and the individual Defendants in their official capacities.

B. Absolute Immunity for Judicial or Quasi-Judicial Officers

Defendants next argue that they have absolute immunity because they were

acting as quasi-judicial officers or as a judicial agency. (Mot. to Dismiss, PageID

200–02.) In response, Mr. Hicks does not dispute that that the BTA is a quasi-

judicial body. Rather, he argues that absolute immunity is not applicable because

the acts of which he complains are not tied to the individuals’ adjudicatory functions

but are non-adjudicatory acts. (Mot. to Dismiss Memo Contra, PageID 221–26.)

Judicial officers are immune from liability for damages for “acts committed

within their judicial jurisdiction.” Pierson v. Ray, 386 U.S. 547, 554 (1967). This

66 (1985).

immunity shields judges and other public officers “from undue interference with

their duties and from potentially disabling threats of liability.” Harlow v.

Fitzgerald, 457 U.S. 800, 806 (1982). The doctrine of absolute judicial immunity

does not apply to suits for prospective injunctive relief. Pulliam v. Allen, 466 U.S.

522, 536–43 (1983). “[T]he official seeking absolute immunity bears the burden of

showing that immunity is justified for the function in question.” Burns v. Reed, 500

U.S. 478, 478 (1991). Courts have thus been “quite sparing” in extending absolute

immunity to state actors in the § 1983 context. Buckley v. Fitzsimmons, 509 U.S.

259, 269 (1993) (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). “The

presumption is that qualified, rather than absolute, immunity is sufficient to

protect government officials in the exercise of their duties.” Id. at 486–87. This

caution is reflected in the case law from the Sixth Circuit—that Court has observed

that the application of quasi-judicial immunity to state governmental boards should

be considered on a case-by-case basis. See Flying Dog Brewery, LLP v. Mich. Liquor

Control Comm’n, 597 F. App’x 342, 349 (6th Cir. 2015).

Nevertheless, the doctrine of absolute judicial immunity has been extended to

some non-judicial government officials who “perform functions closely associated

with the judicial process.” See Flying Dog Brewery, 597 F. App’x at 347 (quoting

Cleavinger v. Saxner, 474 U.S. 193, 200–01 (1985)). The level of immunity granted

to various public officials is adjusted because it is “the nature of the function

performed, not the identity of the actor who performed it, that inform[s the]

immunity analysis.” Id. Thus quasi-judicial immunity “attaches to public officials

whose roles are functionally comparable to that of a judge.” Id. (quoting Keystone

Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011)).

To determine whether a public official is entitled to quasi-judicial immunity,

the Court must examine “the nature of the functions with which a particular official

or class of officials has been lawfully entrusted,” and “evaluate the effect that

exposure to particular forms of liability would likely have on the appropriate

exercise of those functions.” Id. at 347–48 (quoting Forrester, 484 U.S. at 224).

The touchstone for the doctrine’s applicability has been performance of

the function of resolving disputes between parties, or of authoritatively

adjudicating private rights. When judicial immunity is extended to

officials other than judges, it is because their judgments are functionally

comparable to those of judges—that is, because they, too, exercise

discretionary judgment as a part of their function.

Antoine v. Byers & Anderson, 508 U.S. 429, 435–36 (1993) (citations and quotations

omitted). Using this approach, the Court considers a non-exhaustive list of factors to

determine whether a public official should be afforded quasi-judicial immunity:

1. the need to assure that the individual can perform his functions

without harassment or intimidation;

2. the presence of safeguards that reduce the need for private

damages actions as a means of controlling unconstitutional conduct;

3. insulation from political influence;

4. the importance of precedent;

5. the adversary nature of the process; and

6. the correctability of error on appeal.

Flying Dog Brewery, 597 F. App’x at 348.

Here, the Defendants fail to establish that they are entitled to quasi-judicial

immunity. Construing his allegations in the light most favorable to him, Mr. Hicks

has alleged that the individual Defendants were performing duties that were more

ministerial or administrative in nature, not duties functionally comparable to those

of a judicial officer. In the context of the allegations here, Defendants did not hear

evidence, made no findings of fact, and drew no conclusions of law. (Compl. ¶¶ 22–

39.) Mr. Hicks had no right to appeal the December 9 Ban. (See id. ¶ 44; Ex. 3 to

Compl.) If the Defendants were not acting as hearing officers presiding over

adjudicatory hearings when they issued the December 9 Ban, they were acting as

administrators4 and, as such, they are not entitled to judicial or quasi-judicial

immunity.

C. Individual Liability—Qualified Immunity

To state a § 1983 claim, Mr. Hicks must allege two elements: (1) a

deprivation of rights secured by the Constitution and laws of the United States, and

(2) that the Defendants deprived him of this federal right under the color of law.

Jones v. Duncan, 840 F.2d 359, 361–62 (6th Cir. 1988). In the case sub judice, Mr.

Hicks asserts that the individual Defendants deprived him of his First Amendment

right to access BTA hearings and right to freedom of expression (Compl. ¶¶ 55–64,

72–78), his right to procedural due process (id. ¶¶ 65–71), and his right to be free

from retaliation for exercising his First Amendment rights (id. ¶¶ 79–83), all while

acting under color of law.

To the extent that Mr. Hicks seeks damages against the individual

4In fact, in their Memorandum Contra to the Motion for Preliminary

Injunction, Defendants acknowledge that Board members do not attend the

adjudicatory hearings, which are conducted by attorney examiners. (ECF No. 8,

PageID 104.)

Defendants in their official capacity (id. PageID 51), he is not permitted to do so.

Section 1983 imposes liability only upon a “person” who, under color of law, subjects

another person to a deprivation of federal rights, and state officials acting in their

official capacity are not “persons” under § 1983. Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989); Gean v. Hattaway, 330 F.3d 758, 766 (6th Cir. 2003)

(explaining that § 1983 claims against agents of the state in their official capacity

are not cognizable).

To the extent that Mr. Hicks seeks monetary damages against the individual

Defendants in their individual capacities, Defendants argue that they are entitled

to qualified immunity.

Qualified immunity protects government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). “[Q]ualified immunity balances two important

interests—the need to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S.

223, 231 (2009).

A district court may consider qualified immunity on a Rule 12(b)(6) motion,

see Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 677 (6th Cir. 2001), but it is

“generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on

the basis of qualified immunity.” Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir.

2015). An officer’s entitlement to qualified immunity is a “threshold question to be

resolved at the earliest possible point” in litigation, but “that point is usually

summary judgment and not dismissal under Rule 12.” Id. at 433–34 (quoting in part

Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003)); see also Evans–Marshall v.

Bd. of Educ. of Tipp City Exempted Village Sch. Dist., 428 F.3d 223, 235 (6th

Cir.2005) (Sutton, J., concurring) (observing that the fact-intensive nature of the

applicable tests make it “difficult for a defendant to claim qualified immunity on the

pleadings before discovery” (emphasis in original)). At the motion to dismiss stage,

the relevant inquiry is whether the plaintiff has alleged “facts which, if true,

describe a violation of a clearly established statutory or constitutional right of which

a reasonable public official, under an objective standard, would have known.”

Adams v. Ohio Univ., 300 F.Supp.3d 983, 1002 (S.D. Ohio 2018) (quoting Doe v.

Ohio State Univ., 219 F.Supp.3d 645, 664 (S.D. Ohio 2016)).

To determine whether a defendant is entitled to qualified immunity, the

Court asks two questions: “whether the facts that a plaintiff has alleged . . . make

out a violation of a constitutional right,” and “whether the right at issue was ‘clearly

established’ at the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at 231

(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). It does not matter which query is

addressed first; for immunity to attach, both must be satisfied. Pearson, 555 U.S. at

236–42; see also Doe v. Miami Univ., 882 F.3d 579, 604 (6th Cir. 2018) (internal

citations omitted). When a defendant raises qualified immunity as a defense, the

plaintiff bears the burden of demonstrating that the defendant is not entitled to the

defense. Baker v. City of Hamilton, 471 F.3d 601, 605 (6th Cir. 2006).

1. Defendant Crowley

To succeed on his § 1983 claim against each individual defendant, Mr. Hicks

must plead and prove personal involvement of each Defendant in causing his injury.

Hardin v. Straub, 954 F.2d 1193, 1196–97 (6th Cir. 1992); Greene v. Barber, 310

F.3d 889, 899 (6th Cir. 2002). A person cannot be held liable under § 1983 unless he

or she personally participated in, or otherwise authorized, approved, or knowingly

acquiesced in, the allegedly unconstitutional conduct. Leach v. Shelby Co. Sheriff,

891 F.2d 1241, 1241 (6th Cir. 1989); Breen v. Barber, 310 F.3d 889, 899 (6th Cir.

2002) (stating that, “[a]t a minimum a 1983 plaintiff must show that a supervisory

official at least implicitly authorized, approved, or knowingly acquiesced in the

unconstitutional conduct”). A plaintiff must demonstrate that a supervisory

defendant “did more than play a passive role in the alleged violation or showed

mere tacit approval of the goings on.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th

Cir. 1999).

Mr. Hicks does not allege that Ms. Crowley was personally involved in the

issuance of the December 9 Ban. (See generally Compl. ¶¶ 40–44.) The

documentation that he provides shows that the December 9 Ban was a decision by

the three members of the BTA Board, not by Ms. Crowley. (See Ex. C to Compl.)

Accordingly, Defendant Crowley is hereby DISMISSED.

2. First Amendment Right of Access, Fourteenth

Amendment Right to Procedural Due Process, and First

Amendment Retaliation

In Claim 1, Mr. Hicks claims that Defendants violated his First Amendment

right of access to the BTA’s adjudicatory hearings. (Compl. ¶¶ 55–64.) In Claim 2,

he claims that Defendants denied him of his First Amendment rights without due

process—he alleges that they did not give him notice of the accusations against him,

an opportunity to be heard by an unbiased decision-maker, or the right to appeal or

seek review of the December 9 Ban. (Id. ¶¶ 65–71.) And in Claim 4, Mr. Hicks

alleges that Defendants retaliated against him for his exercise of his First

Amendment rights. (Id. ¶¶ 79–83.)

Defendants argue that they are entitled to qualified immunity on these

claims because Mr. Hicks has no constitutional or statutory right to attend

adjudicatory hearings to which he is not a party and that they banned him from the

hearings because of his “repeated disruptive behavior.” (Mot. to Dismiss, ECF No.

24, PageID 206.)

A “major purpose of [the First] Amendment was to protect the free discussion

of government affairs.” Globe Newspaper v. Superior Ct., 457 U.S. 596, 604 (1982)

(internal quotation marks omitted). Accordingly, “[i]t is now well established that

the Constitution protects the right to receive information and ideas.” Stanley v.

Georgia, 394 U.S. 557, 564 (1969). The public and the press have the right to attend

certain types of government proceedings (Globe Newspaper, 457 U.S. at 604

(criminal trials); Publicker Indus. Inc. v. Cohen, 733 F.2d 1059, 1067–1070 (civil

trials)), and the Sixth Circuit has recognized that there is “a limited First

Amendment right of access to certain aspects of the executive and legislative

branches.” See Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 (6th Cir. 2002).

The focus of Defendants’ argument is that they can exclude Mr. Hicks from

adjudicatory hearings because he was disruptive and interfered with multiple

hearings. (Mot. to Dismiss, PageID 203–6.) And they are correct that a public body

does not violate the First Amendment by the temporary removal of a disruptive

participant from a limited public forum. See Barna v. Bd. of School Directors, 877

F.3d 136, 142–3 (3d Cir. 2017). However, Mr. Hicks specifically avers in his

Complaint that he was not disruptive (Compl. ¶ 42) and on a 12(b)(6) motion, his

factual allegations are taken as true. Moreover, Defendants’ motion does not

address the fact that the December 9 Ban is more than a “temporary” removal—it

appears to be a permanent ban from BTA adjudicatory hearings.

Defendants are not entitled to dismissal of Claims 1, 2, or 4.

3. First Amendment Right to Record

As to Mr. Hicks’s asserted right to record the BTA adjudicatory hearings, the

right of access does not necessarily create a federal constitutional right to record

meetings, “particularly where the public is granted alternative means of compiling a

comprehensive record.” See Whiteland Woods v. Twshp. of West Whiteland, 193 F.3d

177, 183 (3d Cir. 1999); Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) (while the

collection of information is an important aspect of the First Amendment, the ability

to gather information is not an absolute right, and “[n]either the First Amendment

nor the Fourteenth Amendment mandates a right of access to government

information or sources of information within the government’s control.”).

The Court has serious doubts about whether Mr. Hicks has a right to record

meetings of the BTA, but this issue is best deferred. The Court and the parties will

benefit from a more complete record so that the threshold access issues can be

addressed and so that, if Mr. Hicks has a right of access to the BTA adjudicatory

hearings, the parties can develop a factual record regarding whether there are

alternative means by which Mr. Hicks can compile a record of the adjudicatory

hearings. At that time, the parties can also brief whether this constitutional

question is beyond debate for purposes of qualified immunity.

Defendants are not entitled to dismissal of Claim 3.

D. Failure to State a Claim

Finally, Defendants argue that Mr. Hicks has failed to state a claim under

the First Amendment for violation of his freedom of expression and that he has not

stated a justiciable claim for lack of procedural due process under the Fourteenth

Amendment. (Mot. to Dismiss, PageID 208.) However, Mr. Hicks has sufficiently

alleged constitutional claims for the same reasons that Defendants are not entitled

to qualified immunity at this time.

E. Conclusion as to the Motion to Dismiss

Defendants’ Motion to Dismiss is GRANTED as to Claim 5 brought under

the Ohio Open Meetings Act, as to Defendant Crowley, and to the extent that Mr.

Hicks seeks damages against the individual Defendants in their official capacities.

The Motion DENIED in all other respects. (ECF No. 24.)

III. MOTION FOR A PRELIMINARY INJUNCTION

Mr. Hicks moves for a preliminary injunction prohibiting the enforcement of

the December 9 Ban. Specifically, Mr. Hicks “seeks only to remove the permanent,

unchallengeable prohibition on his attendance at . . . open, public hearings.” (P.I.

Mot., ECF No. 6, PageID 77.) Thus, Mr. Hicks is not asking the Court to decide at

this time whether or not he can record BTA adjudicatory hearings.

Rule 65 of the Federal Rules of Civil Procedure governs the issuance of

preliminary injunctions. “A preliminary injunction is an extraordinary remedy

which should be granted only if the movant carries his or her burden of proving that

the circumstances clearly demand it.” Overstreet, 305 F.3d at 573 (citing Leary v.

Daeschner, 228 F.3d 729, 739 (6th Cir. 2000) (finding that issuance of a preliminary

injunction “involve[es] the exercise of a very far-reaching power, which is to be

applied only in the limited circumstances which clearly demand it”)).

To determine the appropriateness of a preliminary injunction, the Court

must examine four factors: (1) whether the plaintiff has established a strong

likelihood of success on the merits; (2) whether the plaintiff would suffer irreparable

injury if a preliminary injunction did not issue; (3) whether the injunction would

cause substantial harm to others; and (4) whether the public interest would be

served if the court were to grant the requested injunction. Leary, 228 F.3d at 736.

Each of these factors “are to be balanced against one another and should not be

considered prerequisites to the grant of a preliminary injunction.” Id.

In the context of a First Amendment claim, the balancing of factors is skewed

toward the first factor. As the Sixth Circuit has stated:

[w]hen a party seeks a preliminary injunction on the basis of the

potential violation of the First Amendment, the likelihood of success on

the merits often will be the determinative factor. With regard to the

factor of irreparable injury, for example, it is well-settled that “loss of

First Amendment freedoms . . . unquestionably constitutes irreparable

injury.”

Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (quoting Elrod v.

Burns, 427 U.S. 347, 373 (1976) (plurality)). Accordingly, in cases like this one

implicating the First Amendment, the other three factors often hinge on this first

factor. “[T]he determination of where the public interest lies [ ] is dependent on a

determination of the likelihood of success on the merits of the First Amendment

challenge because it is always in the public interest to prevent the violation of a

party’s constitutional rights.” Id. (internal quotation marks omitted).

A. Likelihood of Success on the Merits

As discussed above, the First Amendment confers a limited public right of

access to certain government proceedings. Detroit Free Press, 303 F.3d at 695.

A government operating in the shadow of secrecy stands in complete

opposition to the society envisioned by the Framers of our Constitution.

“[F]ully aware of both the need to defend a new nation and the abuses

of the English and Colonial governments, [the Framers of the First

Amendment] sought to give this new society strength and security by

providing that freedom of speech, press, religion, and assembly should

not be abridged.”

Id. at 710 (citing New York Times Co. v. United States, 403 U.S. 713, 719 (1971)

(Black, J., concurring)). At its foundation, access to government proceedings is

“implicit in the guarantees of the First Amendment.” Richmond Newspapers, 448

U.S. 555, 580 (1980). This right of access is grounded generally in a “purpose of

assuring freedom of communication on matters relating to the functioning of

government.” Id. at 575.

To determine whether there is right of public access to BTA adjudicatory

hearings, this Court applies Richmond Newspapers’s two-part “experience and

logic” test. 5 Id. Part one of this test asks whether the proceeding at issue has

“historically been open to the press and the general public” and part two asks

whether “public access plays a significant positive role in the functioning of the

particular process in question.” In re Search of Fair Fin., 692 F.3d at 429. If the

answer to both of these questions is yes, then there is a presumptive right to access

that cannot be overcome unless the government demonstrates a compelling interest

in restricting access and any restriction is narrowly tailored. Detroit Free Press, 303

F.3d at 705.

1. Whether Tax Adjudicatory Hearings Have Traditionally

Been Accessible to the Public

“[B]ecause a tradition of accessibility implies the favorable judgment of

experience,” the Court’s analysis begins by considering “whether the place and

process has historically been open to the press and the general public.” Press-

Enterprise Co. v. Superior Ct., 478 U.S. 1, 8 (1986).

Defendants do not dispute that the adjudicatory hearings regarding the

valuation of real property for tax purposes have traditionally been accessible to the

public—they concede that adjudicatory hearings are “public hearings.” (P.I. Memo

5The “experience and logic” test was first used in the context of criminal

proceedings but has since been applied to administrative proceedings as well. See,

Detroit Free Press, 303 F.3d at 695–6 (applying the test to a “quasi-judicial

government administrative proceeding”); In re Search of Fair Fin., 692 F.3d 424, 429

(6th Cir. 2012) (test applies “in a wide variety of contexts . . . [outside the criminal

context, including] administrative proceedings”); U.S. v. Miami Univ., 294 F.3d 797,

820–24 (6th Cir. 2002) (applying test to university disciplinary records).

Contra, ECF No. 8, PageID 98 (citing Ohio Admin. Code § 5717-1-16(H))). Thus, the

first element of Richmond Newspapers is met because the BTA itself recognizes that

it has a tradition of at least some duration of allowing public access to its

adjudicatory hearings.

2. Whether Public Access to Tax Adjudicatory Hearings

Plays a Significant Positive Role in the Functioning of

Those Hearings

The Court next evaluates “whether public access plays a significant positive

role in the functioning of the particular process in question.” Press-Enterprise Co.,

478 U.S. at 8. And again, Defendants do not dispute that public access to

adjudicatory hearings regarding the valuation of real property for tax purposes

plays a positive role in the functioning of those administrative hearings. (See

generally P.I. Memo Contra.) In fact, public access to BTA adjudicatory hearings

assures that such hearings are conducted fairly and uniformly, discourages perjury

and other misconduct on the part of participants, and protects against decisions

based on secret bias or partiality. Public awareness of tax matters and the

perception of fairness are fostered by the presence of members of the public, not just

of those that are parties to a particular dispute, at BTA hearings. Participants in

BTA adjudicatory hearings, whether the hearing examiner or the parties, are put on

notice that their actions will be evaluated by the community. Accordingly, these are

precisely the type of public proceedings to which the First Amendment guarantees a

right of access.

3. There is a qualified right of access to BTA adjudicatory

hearings, and a categorical ban on attendance at those

hearings violates the First Amendment.

When a proceeding passes the “experience and logic” test, “a qualified right of

access attaches to it” and it may be sealed only if it is “essential to preserve higher

values” and is “narrowly tailored” to serve those ends. In re Search of Fair Fin., 692

F.3d at 429. To be sure, the right of access is not absolute. Rather, the right may be

curtailed when “denial [of access] is necessitated by a compelling governmental

interest, and is narrowly tailored to serve that interest.” Detroit Free Press, 303

F.3d at 705 (citing Globe Newspaper Co., 457 U.S. at 606–7). When curtailing

access, the governmental entity must articulate what interest it is protecting and

must make “findings specific enough that a reviewing court can determine whether

the closure order was properly entered.” Press-Enter. II, 478 U.S. at 9–10.

Here, Defendants argue that they have “a compelling interest in maintaining

orderly and efficient hearings and that the Board’s [December 9] Order is narrowly

tailored to accomplish that interest.” (P.I. Memo Contra, PageID 102.) The Court

agrees that the Defendants have a compelling interest in orderly and efficient

hearings and they have the right to exclude Mr. Hicks on the day or days that he is

disruptive. See Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005) (there is no right

for spectators “to interrupt a judicial proceeding”). However, the December 9 Ban is

not narrowly tailored to accomplish that interest.6

6While Mr. Hicks also argues that the December 9 Ban failed to state its basis

with sufficient particularity to enable this Court’s review (P.I. Reply, ECF No. 22,

PageID 155), the Court need not address this argument now because the failure of

the Defendants to narrowly tailor the December 9 Ban is dispositive of the instant

Factually, the parties dispute whether or not Mr. Hicks was disruptive

during the December 2 and December 6 adjudicatory hearings. If he was disruptive,

removing Mr. Hicks from a hearing to maintain order and decorum “constitute[s] an

appropriate time, place, and manner regulation.” See Olasz v. Welsh, 301 F. Appx.

142, 143 (3d Cir. 2008). However, Defendants’ sweeping and never-ending banning

of Mr. Hicks from all future adjudicatory hearings unless he is a party is not

narrowly tailored.

When a governmental entity prohibits future access to its proceedings based

on past conduct by a participant, that prohibition is not narrowly tailored. See, e.g.,

Polaris Amphitheater Concerts, Inc. v. City of Westerville, 267 F.3d 503, 507 (6th

Cir. 2001) (“where a law sets out primarily to arrest the future speech of a[n

individual] as a result of his past conduct, it operates like a censor, and as such

violates First Amendment protections against prior restraint of speech”). Courts

that have considered this issue have consistently found that such a ban violates the

Constitution. See Ritchie v. Coldwater Cmty. Sch., 947 F. Supp. 2d 791, 820 (W.D.

Mich. 2013), clarified on denial of reconsideration, No. 1:11-CV-530, 2013 WL

12421757 (W.D. Mich. July 29, 2013) (although defendant had the lawful authority

to order plaintiff (who was creating a disturbance) to leave, he exceeded that

authority by banning plaintiff for all purposes); Seum v. Osborne, No. 3:17-CV-

00069-GFVT, 2018 WL 4685442, at *2–3, 5 (E.D. Ky. Sept. 28, 2018) (granting

preliminary injunction to plaintiff who had been banned from the third floor of the

motion.

Capitol Annex even though plaintiff had made racist comments and the ban was

intended to avoid future harassment of defendant’s employees; the ban implicated

plaintiff’s liberty interest in access to his state legislators in their offices and he was

entitled to due process before being deprived of that right).

In Cyr v. Addison Rutland Supervisory Union, defendant school district

issued two notices of trespass prohibiting Mr. Cyr from entering its property after

school staff were intimidated by Mr. Cyr when he personally delivered letters to the

school on “nearly a daily basis” and he had engaged in other threatening conduct. 60

F. Supp. 3d 536, 539–40 (D. Vt. 2014). The notices of trespass barred Mr. Cyr from

all school property for a period of two years from issuance. Id. at 540. The court

concluded that the trespass notices violated Mr. Cyr’s First Amendment rights

because a “categorical ban” on his attendance at school board meetings was not

“narrowly tailored”:

Protecting the safety of school staff is undoubtedly a significant

government interest. See Lovern v. Edwards, 190 F.3d 648, 655–56 (4th

Cir. 1999) (school officials have discretion to remove parents from school

property in response to a threat of disruption). A categorical ban of a

single individual from open school board meetings, however, is not

narrowly tailored and does not leave open ample alternative channels of

communication.

Id. at 547–8.

The Cyr court analyzed the legality of any restriction as to time, place, and

manner of speech in a public or limited public forum: “a notice against trespass

targeting an individual rather than the public generally is equivalent to an

injunction against speech and the Supreme Court has explained, ‘[i]njunctions . . .

carry greater risks of censorship and discriminatory application than do general

ordinances.’” Id. (quoting Madsen v. Women’s Health Ctr., 512 U.S. 753, 764 (1994)).

Likewise, “a categorical ban on expressive speech singling out an individual does

not even satisfy the lower threshold of reasonableness review.” Id. at 549.

Similarly, the Second Circuit found that a categorical ban on expressive

activity in or around Vermont state court facilities or grounds was an unreasonable

restriction—“[s]uch broad restrictions are generally frowned upon even in nonpublic

forums.” Huminski v. Corones, 396 F.3d 53, 92–93 (2d Cir. 2005). And the Middle

District of Florida found that a future ban on attendance at public meetings is

unlawful. Brown v. Jacksonville, No. 3:06-CV-122-J-20MMH, 2006 WL 385085, at

*8 (M.D. Fla. Feb. 17, 2006). In Brown, the court issued a preliminary injunction

prohibiting the City of Jacksonville from barring the plaintiff from attending City

Council meetings and City Council Committee meetings for almost three months.

Id. at *1–2. Jacksonville issued its ban after plaintiff had failed to comply with

Council rules and was charged with resisting an officer and disturbing a lawful

assembly. Id. The plaintiff’s expulsion from a meeting due to her behavior was

constitutional, but the Brown Court explained:

[T]he City went beyond expelling her from the single meeting at which

she was disruptive.

. . . .

Banning Plaintiff from future meetings is not a restriction that is

“narrowly tailored” to achieve the significant governmental interest of

running the meetings efficiently, while successfully preventing her

disruptive behavior. Although the City does not have to use the “most

appropriate method” of restricting the Plaintiff, it should nonetheless

use a directive that is more “narrowly tailored” than a sweeping ban

from future meetings for months.

Id. at *3–4.

The December 9 Ban is a categorical ban on all access to adjudicatory

hearings unless Mr. Hicks is a party. It is not narrowly tailored; it entirely

forecloses Mr. Hicks’s access to almost all public BTA hearings. Mr. Hicks has

shown a likelihood of success on the merits of his First Amendment Right of Access

claim.

B. The Threat of Irreparable Injury to the Plaintiff

There is a real threat of irreparable injury to Mr. Hicks. The “loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury.” See Elrod, 427 U.S. at 373.

C. The Threat of Harm to Others

The BTA asserts that the issuance of a preliminary injunction would harm

parties to BTA adjudicatory hearings because, if allowed to attend, Mr. Hicks could

interfere with parties’ ability to consult with legal counsel and present their

evidence, and he could cause unnecessary expense and delay. (P.I. Memo Contra,

PageID 107–08.) However, a presiding BTA hearing examiner will be able to

address disruptive conduct by Mr. Hicks on a case-by-case basis. Nothing in the

requested preliminary injunction prohibits the removal of Mr. Hicks (or anyone

else) from a hearing if he is disruptive or otherwise interferes with the hearing

process.

D. The Public Interest

Based on the cited authority and discussion above, the public interest in

government proceedings is well served by the issuance of the injunction. See Reno,

154 F.3d at 288.

E. Conclusion as to the Motion for Preliminary Injunction

Mr. Hicks’s Motion for Preliminary Injunction is GRANTED. (ECF No. 6.)

The remaining Defendants are hereby ENJOINED from enforcing the December 9

Ban.

This Order does not allow Mr. Hicks to record adjudicatory hearings.

Moreover, if Mr. Hicks is disruptive or interferes with an adjudicatory hearing, he

may be removed from the proceedings that day.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED

on Claim 5 brought under the Ohio Open Meetings Act, as to Defendant Crowley,

and to the extent that Mr. Hicks seeks damages against the individual Defendants

in their official capacities. The Motion is DENIED in all other respects. (ECF No.

24.)

Mr. Hicks’s Motion for Preliminary Injunction is GRANTED, and the

remaining Defendants are hereby ENJOINED from enforcing the December 9 Ban.

(ECF No. 6.)

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE