Platt v. Board of Commissioners on 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.