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Russell v. Grimes

United States District Court, E.D. Kentucky, Northern Division, Covington

October 14, 2014

JOHN RUSSELL, ET AL., PLAINTIFFS
v.
ALISON LUNDERGAN GRIMES, SECRETARY OF STATE OF THE COMMONWEALTH OF KENTUCKY, ET AL., DEFENDANTS

For John Russell, Campbell County Auto Body, Inc., Plaintiffs: Brandon N. Voelker, LEAD ATTORNEY, Cold Spring, KY; Christopher David Wiest, LEAD ATTORNEY, Christopher Wiest, Atty at Law, PLLC, Crestview Hills, KY; Jack S. Gatlin, Thomas B. Bruns, LEAD ATTORNEYS, Freund, Freeze & Arnold - Ft. Mitchell, Ft. Mitchell, KY.

For Allison Lundergan-Grimes, Secretary of State of the Commonwealth of Kentucky, David Cross, Member State Board of Elections, John Hampton, Member State Board of Elections, Stephen Huffman, Member State Board of Elections, Denise May, Member State Board of Elections, Ronald Morgan, Member State Board of Elections, Executive Director Maryellen Allen, Kentucky State Board of Elections, George Russell, Member State Board of Elections, Official Defendants: Lynn Sowards Zellen, LEAD ATTORNEY, Kentucky Secretary of State, Frankfort, KY.

For Attorney General Jack Conway, Official Defendant: Jacob Clark Walbourn, Jessica R.C. Malloy, LEAD ATTORNEYS, Attorney General's Office - Kentucky, Frankfort, KY; Laura Shannon Crittenden, Office of Attorney General - KY, Frankfort, KY.

For Campbell Cnty Clerk Jack Snodgrass, Member of the Campbell County Board of Elections, Jeff Kidwell, Campbell County Sherriff and Member of the Campbell County Board of Elections, John Fisher, Member of the Campbell County Board of Elections, Catherine Longshore, Member of the Campbell County Board of Elections, Steve Franzen, Official Defendants: Jeffrey C. Mando, Jennifer Haddad Langen, LEAD ATTORNEY, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, KY.

Page 1005

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER

William O. Bertelsman, United States District Judge.

This matter is before the Court following a hearing and consolidated trial on the merits of Plaintiffs' Amended Motion for Preliminary and Permanent Injunction (Doc. 36) on October 13, 2014. Having heard argument and reviewed the parties' filings, the Court now issues the following Findings of Fact and Conclusions of Law and Order. See Fed.R.Civ.P. 52(a)(1).

I. INTRODUCTION

Plaintiffs John Russell and Campbell County Auto Body, Inc. (collectively " Plaintiffs" ) filed a 42 U.S.C. § 1983 suit against Defendants: Jack Conway, in his official capacity as Kentucky Attorney General; Alison Lundergan Grimes, in her official capacity as Kentucky Secretary of State and Chair of the Kentucky State Board of Elections (" KSBE" ); Maryellen Allen, in her official capacity as Executive Director of the KSBE; David Cross, John Hampton, Stephen Huffman, Denise May, George Russell, and Ronald Morgan, in their official capacities as Members of the KSBE (collectively " State Board Defendants" ); Jack Snodgrass, in his official capacity as Campbell County Clerk and a Member of the Campbell County Board of Elections (" CCBE" ); Jeff Kidwell, in his official capacity as Campbell County Sheriff and a Member of the CCBE; John Fisher and Catherine Longshore, in their official capacities as Members of the CCBE; Steve Franzen, in his official capacity as Campbell County Attorney; and John Does 1-4, in their official capacities as Campbell County Deputy Sheriffs (collectively " County Defendants" ). Plaintiffs bring a facial challenge, or in the alternative an as-applied challenge, to the constitutionality of the Commonwealth of Kentucky's electioneering ban, Ky. Rev. Stat. § 117.235(3), alleging that it violates their First Amendment free speech rights.[1]

II. PROCEDURAL HISTORY

Plaintiffs filed this lawsuit on June 16, 2014, and subsequently filed a Motion for Preliminary Injunction on September 10. (Docs. 1, 25.) On July 7, the Attorney General filed a motion to dismiss the complaint (Doc. 12). The State Board Defendants filed a motion to dismiss on July 10 (Doc. 13). After a hearing on September 15, the Court denied the motions to dismiss (Doc. 27).

Plaintiffs subsequently filed an Amended Complaint on September 29 (Doc. 28) and an Amended Motion for Preliminary and Permanent Injunction on October 2 (Doc. 36).

After Plaintiffs filed their amended motion for an injunction, they entered into a settlement with the County Defendants (Doc. 37).

The parties have fully briefed the preliminary injunction motion. ( See Docs. 36,

Page 1006

44, 45, 46, 53.) The Court held a hearing and, by agreement of the parties, consolidated the trial on the merits with the hearing on the motion for preliminary injunction. Fed.R.Civ.P. 65(a)(2).

III. FINDINGS OF FACT

On October 10, 2014, for purposes of the amended motion for an injunction, the parties agreed and stipulated to the facts alleged in paragraphs 1-17 and 19 of Plaintiff John Russell's declaration (Doc. 36-2). Those facts are as follows:

1. Plaintiff John Russell is one of the owners and the President of Campbell County Auto Body, Inc.

2. In 2012, in his personal capacity and as President of Campbell County Auto Body, Russell gave permission and invited several candidates for office to place political signs in the green space located at 4411 Alexandria Pike, Cold Spring, Kentucky 41076, which is owned by Campbell County Auto Body. Russell gave this permission for both the 2012 primary and general ...


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