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
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,
H. Campbell, BRICKER & ECKLER LLP, Columbus, Ohio, for
Christopher P. Finney, FINNEY LAW FIRM LLC, Cincinnati, Ohio,
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.
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.
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
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
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"). 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.
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
• Rule 4.4(A), which, save for three exceptions,
prohibits a judicial candidate from personally soliciting
• 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
• 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
• 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
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,  which enforces the Code of Judicial
Conduct, the Ohio Supreme Court, which promulgates the Code,
and the individual members of both entities (collectively,
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.
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.
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.
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.
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)).
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.
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
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.
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
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
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).
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.
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).
affirm the district court's denial of Platt's motion
to take judicial notice.
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.
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").
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).
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.
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).
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." 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.
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.
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.
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
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 ...