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Platt v. Board of Commissioners on Grievances and Discipline of Ohio Supreme Court

United States Court of Appeals, Sixth Circuit

June 25, 2018

Joseph J. Platt; Platt for Judge Campaign Committee; Mark W. Miller, Plaintiffs-Appellants,
Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court, et al., Defendants, Maureen O'Connor; Richard A. Dove; Scott J. Drexel, Defendants-Appellees.

          Argued: January 25, 2018

          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.


          Christopher P. Finney, FINNEY LAW FIRM LLC, Cincinnati, Ohio, for Appellants.

          Drew H. Campbell, BRICKER & ECKLER LLP, Columbus, Ohio, for Appellees.

         ON BRIEF:

          Christopher P. Finney, FINNEY LAW FIRM LLC, Cincinnati, Ohio, for Appellants.

          Drew H. Campbell, Maria J. Armstrong, Gregory J. Krabacher, BRICKER & ECKLER LLP, Columbus, Ohio, for Appellees.

          Before: ROGERS, McKEAGUE, and WHITE, Circuit Judges.


          KEAGUE, Circuit Judge.

         Like many states, Ohio wants the voting public to determine who will serve as its judges. Yet Ohio, mindful of the potentially corrosive effects of uninhibited fundraising and partisanship, also wants to protect public trust in the judiciary's independence. To serve these twin goals, the state fills judicial offices through elections, but imposes fundraising and advocacy limitations on anyone who seeks them. This case requires us to decide whether those limitations accommodate both priorities in a manner consistent with the Constitution.

         The plaintiffs in this case say they do not. They object to six limitations, arguing that each variously violates the Constitution's free speech, due process, and equal protection guarantees. In two separate summary judgment orders, the district court rejected the plaintiffs' claims. Because Ohio's rules strike the delicate balance between the Constitution's commands and the state's desire to protect judicial integrity, we AFFIRM.


         In Ohio, judges of the supreme court, courts of appeals, courts of common pleas, and all courts of record (including municipal courts) are selected through judicial elections. The fundraising and political conduct of candidates for judicial office is governed by Canon 4 of the Ohio Code of Judicial Conduct.

         Plaintiff Joseph Platt, an Ohio attorney, is such a candidate. Platt formed the Platt for Judge Campaign Committee in June of 2013, naming Mark Miller as its treasurer. The Committee and Miller join Platt as co-plaintiffs in this case (collectively, "Platt").[1] With the Committee formed, Platt became a "judicial candidate" within the meaning of the Ohio Code of Judicial Conduct and thus subject to its commands.

         Platt believes that some of those commands violate his constitutional rights-to free speech, due process, and equal protection under the law. Specifically, Platt objects to six provisions in Canon 4:

• Rule 4.1(A)(2), which prohibits a candidate from making speeches on behalf of a political party or another candidate for public office
• Rule 4.1(A)(3), which prohibits a candidate from publicly endorsing or opposing a candidate for another public office
• Rule 4.4(A), which, save for three exceptions, prohibits a judicial candidate from personally soliciting campaign contributions
• Rule 4.4(E), which creates a permissible window for soliciting and receiving campaign contributions, starting 120 days before the primary and ending 120 days after the general election
• Rule 4.4(F), which limits the solicitation and receipt of contributions for candidates defeated before the general election, until the earlier of 120 days after the primary election or until the candidate pays off her campaign-related debts
• Rule 4.4(G), which regulates the solicitation and receipt of contributions for candidates who die or withdraw from the election, until the earlier of 120 days after death or withdrawal or until the candidate pays off her campaign-related debts.

         Wanting to engage in the sort of political advocacy and fundraising prohibited by these rules, Platt filed suit in June of 2013 in the Southern District of Ohio. Platt named as defendants the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court, [2] which enforces the Code of Judicial Conduct, the Ohio Supreme Court, which promulgates the Code, and the individual members of both entities (collectively, the "Board").[3]

         Platt's complaint included three counts. Count I challenged Rules 4.4(E), (F), and (G) (the "Fundraising Rules"). The Committee claimed those rules violated its right to receive contributions and disseminate information on Platt's behalf. Treasurer Miller claims they violate his right to "receive information and ideas from judicial candidates." And Platt personally alleges that the rules infringe on his rights to free speech, association, due process, and equal protection. Count II targeted Rule 4.4(A)'s personal-solicitation provision (the "Solicitation Rule"), under the same basic theories as Count I, but without Platt's personal equal protection challenge. Count III included only claims by Platt personally. He alleged that Rules 4.1(A)(2) and 4.1(A)(3) (the "Endorsement Rules") violate his rights to free speech, association, due process, and equal protection.

         The district court rejected all of Platt's claims, and he now appeals. He challenges four decisions by the district court: a protective order denying discovery, a refusal to take judicial notice, and two summary judgment orders. First, in September 2015, the court granted the Board's motion for a protective order, concluding that fact discovery was not necessary to evaluate whether Ohio had a compelling interest in maintaining its judiciary's integrity. Then, roughly one year later, the court granted the Board's cross-motion for summary judgment, concluding that the Endorsement Rules and the Solicitation Rule are not unconstitutionally vague. In the same order, the court also declined to take judicial notice of three news reports that Platt maintains would have aided his vagueness claim. And finally, in March 2017, the court granted the Board's motion for partial summary judgment, concluding that the Endorsement, Solicitation, and Fundraising Rules do not violate the First or Fourteenth Amendments.


         We note at the outset that mootness concerns occupied this court at the preliminary injunction stage, Platt v. Bd. of Comm'rs on Grievances & Discipline of Ohio Supreme Court, 769 F.3d 447, 451-53 (6th Cir. 2014), and the district court at summary judgment. While mootness remains a thorny question-Platt did not run in either the 2014 or 2016 elections, and shows no intent to run in 2018-Platt's claims are saved from mootness under the "capable of repetition, yet evading review" exception. Sosna v. Iowa, 419 U.S. 393, 399-400 (1975). This circuit, and others, have been especially hesitant to find pre-enforcement election law challenges mooted by the passage of an election. So long as a candidate "retains the right to run for judicial office again," as Platt does here, they are ordinarily "sav[ed] . . . from mootness." Carey v. Wolnitzek, 614 F.3d 189, 197 (6th Cir. 2010); accord Wolfson v. Brammer, 616 F.3d 1045, 1055 (9th Cir. 2010) (holding claims not moot when candidate says he intends to run in some "future" election). The Board, for its part, does not even bother to argue that Platt's claims have been mooted. It seems instead that more than four years of litigation have left both sides eager to resolve this case. Confident that it still presents a live controversy, so are we.

         A. Protective Order

         The district court granted the Board's motion for a protective order denying Platt's discovery requests. Platt sought to compel fact discovery probing, among other things, the state's claim that it has a compelling interest in regulating judicial integrity through the challenged Code provisions and whether the provisions are under-inclusive or over-inclusive. The Board moved for a protective order against Platt's discovery request, based on the Supreme Court's decision in Williams-Yulee v. Florida Bar, 135 S.Ct. 1656 (2015), which held in part that fact discovery was not necessary to substantiate a state's interest in regulating judicial integrity.

         A district court may grant a protective order under Fed.R.Civ.P. 26(c) to prevent "annoyance, embarrassment, oppression, or undue burden or expense." While the district court did not specifically refer to any of those reasons here, it ultimately concluded that Platt's discovery was simply "unnecessary" since the court could evaluate the merits of Platt's claims "without regard for evidentiary support." We review the district court's decision for abuse of discretion. Samad v. Jenkins, 845 F.2d 660, 663 (6th Cir. 1988) (citing Davis v. Marathon Oil Co., 528 F.2d 395 (6th Cir. 1975)). An abuse of discretion occurred only if we are "left with a definite and firm conviction that [the district court] committed a clear error of judgment." In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528 (6th Cir. 2008) (alteration in original) (quoting Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 781 (6th Cir. 2002)).

         The district court committed no clear error of judgment in granting the Board's protective order. It determined that fact discovery was unnecessary because such discovery would not aid the court in determining whether Ohio had a compelling interest in maintaining judicial integrity. That reasoning came straight from the Supreme Court's decision in Williams-Yulee: "The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling." 135 S.Ct. at 1667 (emphasis added). If Williams-Yulee concluded that a documentary record is unnecessary to substantiate a state's interest in maintaining judicial integrity, the district court correctly concluded that a record need not be created to undermine that interest.

         The district court also relied on Williams-Yulee to conclude that discovery would not help Platt show that the Code was under-inclusive and thus did not advance the state's compelling interest. Because the Supreme Court assessed Williams-Yulee's tailoring arguments "without regard for evidentiary support," the district court felt it could do the same with Platt's. That conclusion shows no clear error of judgment. To the contrary, the district court fairly read and applied Williams-Yulee. The challenged provision in Williams-Yulee serves the same general purpose of the Code provisions that Platt challenges here, and yet the Court rejected Yulee's under-inclusivity arguments without considering documentary evidence. 135 S.Ct. at 1668-69. Any doubt that the Court did so is relieved by Justice Scalia's dissent, in which he criticized the majority for relying on its intuition rather than evidence that Florida's judicial regulations served their claimed purpose. Id. at 1678 (Scalia, J., dissenting) ("Neither the Court nor the State identifies the slightest evidence that banning requests for contributions will substantially improve public trust in judges."). Whatever fair criticism exists of the majority's approach in Williams-Yulee, the district court committed no clear error of judgment by duplicating that approach in this case.

         Platt's best argument is one he doesn't thoroughly develop: Despite what Williams-Yulee says about fact discovery in the context of a First Amendment challenge to judicial campaign regulations, that case did not involve the vagueness and equal protection challenges that Platt's does. Therefore, Platt contends, even if discovery is unnecessary to evaluate the state's compelling interest in maintaining judicial integrity, it is necessary to evaluate whether the Code violates these other constitutional prohibitions. The district court addressed Platt's equal protection argument, and rightly dismissed it, noting that Platt's equal protection challenge implicates the same sort of theory he must develop under the First Amendment-namely, that the state's regulations do not satisfy strict scrutiny. But the district court said nothing about whether the existence of Platt's vagueness challenge altered the discovery analysis.

         Nevertheless, especially in light of the deferential abuse-of-discretion standard, we must affirm the district court's decision. The district court likely concluded that discovery targeted to develop Platt's vagueness claims was just as unnecessary as it was to develop his other claims. Why? Platt's vagueness claim required the district court to analyze whether the Code's language gave due notice of what behavior is prohibited and whether procedures exist to protect against arbitrary enforcement. But answering the first question-whether the Code "provide[s] a person of ordinary intelligence fair notice of what is prohibited," Holder v. Humanitarian Law Project, 561 U.S. 1, 20 (2010) (alteration in original) (quoting United States v. Williams, 553 U.S. 285, 304 (2008))-is a matter of reading the Code's language for its plain meaning. And the second question could readily be answered by reference to Ohio's publicly available enforcement procedures, including its practice of issuing advisory opinions to clarify the Code's enforcement. The district court did not commit a clear error of judgment by denying Platt further discovery related to these questions. We therefore affirm its grant of the Board's protective order.

         B. Judicial Notice

         Platt next argues that the district court erred in refusing to take judicial notice of three news reports. These reports concerned alleged political endorsements made by sitting members of the Ohio Supreme Court that were found not to violate the Code. Platt sought judicial notice for these reports in response to the district court's grant of the protective order.

         Under Federal Rule of Evidence 201(b), a "court may take judicial notice of at least some documents of public record." Passa v. City of Columbus, 123 Fed.Appx. 694, 697 (6th Cir. 2005). Such notice, however, is limited: a court may take notice of the documents and what they say, but it "[cannot] consider the statements contained in the document for the truth of the matter asserted." In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 467 (6th Cir. 2014). This court reviews the district court's refusal to take judicial notice only for an abuse of discretion. Toth v. Grand Trunk R.R., 306 F.3d 335, 349 (6th Cir. 2002).

         The district court did not abuse its discretion. For while Platt averred in his motion that he sought notice only of "the existence of these news reports themselves as being in the public domain," he in reality asked for much more. Platt in fact asked the court to consider statements in the articles concerning the disposition of the complaint against an Ohio Supreme Court Justice as evidence that "one must guess at the scope of what is permitted and prohibited under [the Code]." That request runs afoul of the rule that notice of public documents is "proper only for the fact of the documents' existence, and not for the truth of the matters asserted therein." Passa, 123 Fed.Appx. at 697. As a result, the district court was well within its discretion to deny Platt's request.

         Besides, even if Platt wanted judicial notice only of the existence of the news reports, that would not aid his vagueness claim. The mere existence of news reports involving the Code does not somehow substantiate his claim that the Code is unconstitutionally vague. Cf. In re Omnicare, 769 F.3d at 468 ("Moreover, this document helps KBC only if we can consider the contents of the agreement for the truth of the matter."). Platt instead needs the court to accept that the articles contain true information-that the Ohio Supreme Court Justice said what the articles say she did, that the statements were made publicly, and that a review of those statements found no wrongdoing. Only then might the statements, as Platt promises of them, "further reinforce and demonstrate the lack of the requisite precision and clarity necessary" to avoid vagueness problems with Rule 4.1(A)(3).[4]

         We affirm the district court's denial of Platt's motion to take judicial notice.

         C. Vagueness

         Platt alleges that three provisions of the code are unconstitutionally vague. He first targets the Endorsement Rules: 4.1(A)(2), which prohibits judicial candidates from making speeches on behalf of a political party or another candidate for public office; and 4.1(A)(3), which prohibits judicial candidates from publicly endorsing or opposing another candidate for public office. He then takes aim at the Solicitation Rule, 4.4(A), which prohibits judicial candidates from personally soliciting financial contributions. The district court granted summary judgment in favor of the Board, finding that each of the challenged provisions provided candidates with fair notice of what conduct is prohibited.

         Before reaching the merits of this claim, the Board argues that Platt did not preserve his vagueness challenge by failing to explicitly characterize his challenge as such in his complaint. We disagree. While it is true that Platt's complaint did not mention the words vague or vagueness, plaintiffs are not required to identify specific theories of relief; they need only specify a claim. See Skinner v. Switzer, 562 U.S. 521, 530 (2011); Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 379 (1995). Platt alleged the necessary claim: an unconstitutional deprivation of due process. See R. 1, Compl., ¶¶ 31, 35, 42, 48. He did not stipulate the legal theory underpinning that claim-that the regulations are void for vagueness, failing to provide fair notice and inviting arbitrary enforcement-but he is not required to do so. Platt's pleading was inexact, perhaps even sloppy, but it was not so inscrutable that it warrants a finding that he forfeited any vagueness claim. Skinner, 562 U.S. at 530 (emphasizing that a complaint need not be "a model of the careful drafter's art" nor provide "an exposition of his legal argument").

         Platt's vagueness challenge nevertheless fails on the merits. A district court may grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The district court held that the Board was so entitled and granted summary judgment against Platt's vagueness claims. We review de novo, drawing all permissible inferences in favor of Platt. Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014).

         To succeed on his vagueness claims, Platt must show either that the Code provisions (1) "fail[] to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits" or (2) "authorize[] or even encourage[] arbitrary and discriminatory enforcement." Hill v. Colorado, 530 U.S. 703, 732 (2000). While "a more stringent vagueness test should apply" to laws abridging the freedom of speech, that standard is relaxed somewhat by the fact that the Code imposes civil rather than criminal penalties and includes an implicit scienter requirement. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). Platt does not show that the Code provisions fail in either Hill respect.

         1. Fair Notice

         When determining whether a law provides sufficient notice to a person of ordinary intelligence, in the absence of state court guidance, we examine "the words of the ordinance itself." Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). We are mindful that, "[c]ondemned to the use of words, we can never expect mathematical certainty from our language." Id. The fact that a law is "marked by 'flexibility and reasonable breadth, rather than meticulous specificity'" does not render it unduly vague. Id. (quoting Esteban v. Central Missouri State College, 415 F.2d 1077, 1088 (8th Cir. 1969)). Moreover, "[w]hen the common meaning of a word provides adequate notice of the prohibited conduct, the statute's failure to define the term will not render the statute void for vagueness." United States v. Hollern, 366 Fed.Appx. 609, 612 (6th Cir. 2010) (alteration in original) (quoting United States v. Namey, 364 F.3d 843, 844-45 (6th Cir. 2004)). Said another way, where the challenged language "is commonly used in both legal and common parlance," it often will be "sufficiently clear so that a reasonable person can understand its meaning." Déjà vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trustees, 411 F.3d 777, 798 (6th Cir. 2005) (en banc).

         a. Rule 4.1(A)(2)

         This provision provides that a judge or judicial candidate shall not "[m]ake speeches on behalf of a political party or another candidate for public office."[5] Platt says the words "on behalf of" render the rule unconstitutionally vague. The district court saw it differently, and held that "the language in Rule[] 4.1(A)(2) . . . is not difficult to understand" and would provide an ordinary person fair notice of what conduct is prohibited. We agree.

         There is no impermissible vagueness lurking in the words "on behalf of." A common dictionary defines the phrase as: "in the interest of; as the representative of; for the benefit of." Webster's Third New International Dictionary Unabridged 198 (2002). Garner's Dictionary of Legal Usage 106 (2011) says the phrase means "as the agent of, as representative of." A person of ordinary intelligence would know that this language-"commonly used in both legal and common parlance"-bars them from speaking as a party or candidate's representative. Déjà vu, 411 F.3d at 798.

         And even if the words leave some wiggle room, the Code's comments, advisory opinions, and staff letters help clarify ambiguities and mitigate vagueness concerns. For example, the comments to Rule 4.1(A)(2) incorporate Rule 4.2(C), which lists various activities-among them, conducting joint fundraisers and stating an affiliation with a political party-that a judicial candidate may undertake. By clarifying what a judicial candidate may do, the reach of Rule 4.1(A)(2)'s prohibitions is clarified.

         Platt does not quibble with the Board's textual arguments, instead focusing his attack on the Board's response to two hypotheticals Platt posed in interrogatories. The interrogatories and relevant portions of the accompanying responses are:

4.May a judicial candidate, without violating Rule 4.1(A)(2) of the Ohio Code of Judicial Conduct, make a speech opposing another candidate ...

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