Professional Documents
Culture Documents
2018-1523
Brian G. Svoboda*
David Lazarus*
*Motion for admission pro hac vice pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
This is an original action in prohibition filed with the Tenth District Court of Appeals,
adjudicating Ohio Elections Commission Case No. 2018G-022 on the basis that the Commission
lacks jurisdiction to adjudicate the matter. Concurrent with the filing of the Complaint, Appellants-
Relators filed an emergency motion for an alternative writ, injunction, or stay to temporarily enjoin
or stay Case No. 2018G-022 pending disposition of the prohibition action. On Monday, October
22, 2018, the Court of Appeals denied the motion. Appellants-Relators filed the instant appeal
earlier today.
For urgent reasons, Appellants-Relators respectfully move the Court for an alternative writ
setting an expedited response schedule and staying proceedings in Ohio Elections Commission
Case No. 2018G-0221 and/or for an injunction pending a final decision of Appellants-Relators’
1
S.Ct.Prac.R. 12.05 provides that, for original actions, “[i[f an alternative writ is issued, the
Supreme Court will issue a schedule for the presentation of evidence and the filing and service of
briefs or other pleadings. Unless the Supreme Court orders otherwise, issuance of an alternative
Respectfully submitted,
Brian G. Svoboda*
David Lazarus*
*Motion for admission pro hac vice pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
writ in a prohibition case stays proceedings in the action sought to be prohibited until final
determination of the Supreme Court.” While the present case is an appeal of an original action first
filed in the Court of Appeals, this Court has authority to issue alternative writs in appeals of cases
seeking extraordinary writs. If successful on appeal, a writ of prohibition will issue.
MEMORANDUM IN SUPPORT
I. INTRODUCTION
unambiguously lacks jurisdiction. The matter is Ohio Elections Commission Case No. 2018G-022
(“Case No. 2018G-022”), and Appellants-Relators had moved the Commission to dismiss the
complaint for lack of jurisdiction. The Commission partially denied Appellants-Relators’ motion
to dismiss on Thursday, October 19, 2018. Four days later, on Monday, October 22, 2018,
Appellants-Relators filed an original action in prohibition with the Tenth District Court of Appeals
seeking to prohibit the Commission from adjudicating Case No. 2018G-022. Due to impending
discovery dates and the Commission’s schedule—discovery depositions begin on October 23,
2018 and the commission’s full adjudicatory hearing is scheduled for November 1, 2018—
temporarily enjoin or stay the Commission’s proceedings pending disposition of the prohibition
action. The Commission filed a combined response and motion to dismiss, arguing solely that
Appellants-Relators could not prevail on the merits of their writ of prohibition action.
On October 22, 2018, the Court of Appeals, in a three-sentence entry, denied Appellants-
Relators’ emergency motion—not on likelihood of success on the merits, but rather on two issues
that the Commission had conceded and did not dispute.1 The entry states Relators did not show
1
The Court of Appeals' entry denying Appellants-Relators' emergency motion is a final appealable
order under R.C. 2502.02(B)(4). This statute provides that an order denying a provisional remedy,
such as a preliminary injunction or stay, is a final order if it "determines the action with respect to
the provisional remedy and prevents a judgment in the action in favor of the appealing party with
respect to the provisional remedy," and the party appealing demonstrates that they would not be
afforded a meaningful remedy following an appeal after final judgment in the action is entered.
R.C. 2502.02(B)(4). This case presents extraordinary circumstances, and without an immediate
1
that continued proceedings before the Commission will result in irreparable injury, and that an
injunction would serve the public interest. In the same entry, however, the Court of Appeals also
denied the Commission’s motion to dismiss. The following day, Appellants-Relators filed the
instant appeal.2
Appellants-Relators now respectfully request this Court to issue an alternative writ setting
an expedited response schedule and staying proceedings in Ohio Elections Commission Case No.
II. ARGUMENT
necessary to preserve the status quo pending resolution of the instant appeal.
appeal of the Court of Appeals' decision, Appellants-Relators' underlying writ of prohibition action
will become moot. This is because the Commission is needlessly rushing to make a decision at its
hearing on November 1, 2018, just five days before the election. Absent an immediate appeal--
and absent immediate relief--the Commission will unlawfully exercise quasi-judicial power on
November 1. Even if the decision on November 1 is reversed on appeal, or even if it is contradicted
by the FEC’s separate resolution of the federal questions at the heart of the OEC Complaint, that
would happen too late to undo the damage done to Appellants-Relators at the November 6 election.
Moreover, even the hearing itself, regardless of the decision, would inevitably and irreversibly
influence the results of the federal election. The OEC Complainant has made clear that he seeks to
present public testimony, in full media glare, from the candidate, his campaign manager, and his
campaign treasurer. Thus, without an immediate appeal of the Court of Appeals' decision,
Appellants-Relators would not be afforded a meaningful and effective remedy. For these reasons,
the Court of Appeals' entry denying Appellants-Relators' emergency motion is a final appealable
order.
2
Attached hereto are the following exhibits from the writ of prohibition action in the Tenth
District: Exhibit A is a copy of the Notice of Appeal and the Court of Appeals’ Entry denying
Appellants-Relators’ motion. Exhibit B is the verified complaint, sans exhibits. Exhibit C is a copy
of Appellants-Relators’ emergency motion and memorandum in support. Exhibit D is a copy of
the Ohio Elections Commission’s combined response and motion to dismiss. Exhibit E is
Appellants-Relators’ reply in support of their motion.
2
The standards for issuing an injunction or stay are the same: (1) whether the appellant has
shown a strong or substantial likelihood of success on the merits; (2) whether appellant has shown
that it will suffer irreparable injury; (3) whether the issuance of a stay will cause harm to others;
and (4) whether the public interest would be served by granting a stay. See, e.g., Vanguard Transp.
Sys. v. Edwards Transfer & Storage Co. Gen. Commodities Div., 109 Ohio App. 3d 786, 790, 673
N.E.2d 182 (10th Dist. 1996) (setting forth the standard for the issuance of a preliminary
injunction); Prince-Paul v. Ohio Bd. of Nursing, 2015-Ohio-3984, 43 N.E.3d 13, ¶ 13 (10th Dist.)
(explaining that these factors are “logical considerations” in determining whether to stay an
Balancing the considerations in the instant action favors granting an injunction or stay to
temporarily enjoin or stay Case No. 2018G-022 pending resolution of the instant appeal.
Appellants-Relators are likely to succeed on the merits of their appeal as the Court of Appeals
erred in denying the emergency motion. Further, Appellants-Relators will suffer irreparable injury
by an adverse decision of the Commission while issuance of an injunction or stay will not cause
harm to others. Moreover, the public interest would be served by granting an injunction or stay as
The Court of Appeals erred in its three-sentence entry that Appellants-Relators failed to
show that continued proceedings before the Commission will result in irreparable injury to
Appellants-Relators.
The commencement of discovery on October 23, 2018 and a needlessly rushed decision by
the Commission on November 1 in Case No. 2018G-022, when the Commission is without
jurisdiction to adjudicate the matter, will irreparably impinge upon Appellants-Relators’ First
3
Amendment rights to associate with likeminded voters and the voters’ rights to associate together
associate for the advancement of political beliefs has long been recognized as one of “our most
precious freedoms.” Anderson v. Celebrezze, 460 U.S. 780, 787, (1983) quoting Williams v.
Rhodes, 393 U.S. 23, 30-31 (1968). And it is likewise well-settled that the “loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (emphasis added).
The impact of discovery and the November 1 proceeding upon Appellants-Relators’ First
Amendment rights is twofold. First, allowing Case No. 2018G-022 to continue—despite the Court
of Appeals seemingly agreeing that the Commission lacks jurisdiction to do so—will result in a
state-sanctioned proceeding against a candidate for federal office in which his political opponents,
in full media glare, will offer purported evidence and argument that he violated the law. This will
impinge upon Appellants-Relators’ and their supporters’ right to a free and fair election in which
a state agency does not exceed its lawful jurisdiction in a way that can only politically benefit their
accusations leveled against him just days before the federal election, and voters’ decisions will
likewise be influenced. This will be the case regardless of the Commission’s ultimate disposition
on November 1, 2018, and it is damage that cannot be undone after the election.
decision at its November 1, 2018, thereby effectively rendering their writ of prohibition action
moot and subjecting them to a loss of First Amendment rights as discussed above. This is
because Appellants-Relators would no longer be able to prevent the Commission from unlawfully
4
These irreparable injuries were clearly set forth to the Court of Appeals by Appellants-
Relators (see, Exhibit C at 34-35), and the Commission had even conceded these points by failing
to contend otherwise. Thus, the Court of Appeals erred in its three-sentence entry that Appellants-
Relators failed to show that continued proceedings before the Commission will result in irreparable
injury to Appellants-Relators.
The Court of Appeals also erred in its entry that Appellants-Relators failed to show that
issuing an injunction will serve the public interest. Enjoining or staying the proceedings in Case
No. 2018G-022 while the instant appeal and the underlying writ of prohibition action are decided
actions by state agencies, and the Court of Appeals seemed to agree with Appellants-Relators that
they are likely to succeed on the merits of their claim that the Commission is without jurisdiction
to adjudicate Case No. 2018G-022.3 This is apparent from the Court of Appeals’ denial of the
Commission’s motion to dismiss that contended otherwise. It is also apparent from the Court of
Appeals not finding that Appellants-Relators failed to show a likelihood of success on the merits
of their writ of prohibition action. Thus, if there is a substantial likelihood that the Commission’s
conduct will be deemed unauthorized by law, then the public interest will be served by restraining
this unauthorized conduct pending a decision on the merits. The public interest is further harmed
3
For Appellants-Relators to establish that they are entitled to a writ of prohibition they must
demonstrate, in part, that they lack an adequate remedy in the ordinary course of law. Appellants-
Relators lack an adequate remedy at law because they could not immediately appeal the
Commission’s partial denial of their motion to dismiss, and, further, because if they wait until the
full adjudication of the case, the loss of their First Amendment rights will have already occurred
and cannot be restored through an administrative appeal under R.C. 119.12. See, Exhibit C at 33-
34.
5
by permitting a state agency to continue to exercise jurisdiction to completion and effectively
Enjoining or staying the proceedings Case No. 2018G-022 pending resolution of the instant
appeal and the underlying writ of prohibition action will also serve the public interest by preventing
the Commission from impacting the results of a federal election. A decision in Case No. 2018G-
022 on November 1, a mere five days before the federal election at which Appellant-Relator
Pureval is a candidate, will unquestionably benefit one of the candidates at the federal election. A
favorable decision for Appellant-Relator Pureval will help his candidacy and hurt his opponent’s
candidacy, while an unfavorable decision for Appellant-Relator Pureval will hurt his candidacy
and help his opponent’s candidacy. The impact of such a ruling on November 1 is unescapable
given the proximity of the November 6, 2018 election. However, by issuing an injunction or stay
pending resolution of the instant appeal and the underlying writ of prohibition action, the status
quo will be preserved and the public interest will be served by preventing a state agency from
impacting the outcome of a federal election, especially when Relators have shown a likelihood of
success in their prohibition action that the Commission lacks jurisdiction to proceed to adjudicate
That the public interest would be served by issuing an injunction or stay was clearly set
forth to the Court of Appeals by Appellants-Relators (see, Exhibit C at 36), and the Commission
had even conceded this point by failing to contend otherwise. Thus, the Court of Appeals erred in
its three-sentence entry that Appellants-Relators failed to show that issuing an injunction would
6
D. Appellants-Relators’ Likelihood of Success on the Merits of their Writ of Prohibition
Action is Not at Issue in the Instant Appeal.
The Court of Appeals’ denial stated only the two reasons above for denying Appellants-
Relators’ emergency motion. The Court of Appeals did not rule that Appellants-Relators were
unlikely to succeed on the merits of their writ of prohibition action, in which Appellants-Relators
contend that the Commission’s exercise of quasi-judicial power is unauthorized by law because of
the following reasons: (1) The OEC Complaint failed to invoke the Commission’s jurisdiction by
failing to comply with the statutory requirement for individuals filing a complaint with the
the key allegations that expenditures were made for the benefit of Appellant-Pureval’s federal
campaign were made on “information and belief,” which this Court has repeatedly explained does
not constitute “personal knowledge.” See, e.g., State ex rel. Hackworth v. Hughes, 97 Ohio St.3d
110, 2002-Ohio-5334, ¶ 24; State ex rel. Evans v. Blackwell, 111 Ohio St.3d 437, 2006-Ohio-5439,
¶ 32; State ex rel. Esarco v. Youngstown City Council, 116 Ohio St.3d 131, 2007-Ohio-5699, ¶ 14-
15; State ex rel. Commt. for the Charter Amendment for an Elected Law Dir. v. City of Bay Village,
115 Ohio St.3d 400, 2007-Ohio-5380, ¶ 13; State ex rel. Walker v. Husted, 144 Ohio St.3d, 2015-
Ohio-3749, ¶ 25. (2) The allegations raise questions of federal campaign finance law over which
the Federal Election has exclusive jurisdiction. And (3) the OEC Complaint failed to invoke the
Commission’s jurisdiction by failing to comply with the statutory requirement for complaints filed
by individuals to set forth fact that would constitute a prima facie violation of any statute within the
Commission’s jurisdiction. See, R.C. 3517.153(A). (See, Exhibit C at 10-33; Exhibit E).
7
III. CONCLUSION
For the foregoing reasons, Appellants-Relators respectfully request the Court to issue an
alternative writ setting an expedited response schedule and staying proceedings in Ohio Elections
Commission Case No. 2018G-022 and/or for an injunction pending a final decision of Appellants-
Relators’ appeal. Doing so would preserve the status quo and aid the Courts in preserving their
original jurisdiction.
Respectfully submitted,
8
/s/ Donald J. McTigue____________
Donald J. McTigue (0022849)**
**Counsel of Record
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com
Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
9
CERTIFICATE OF SERVICE
I hereby certify that on October 23, 2018 a copy of the foregoing was sent by first class
mail and by electronic mail to the following:
Mark Landes
Mark Weaver
Andrew N. Yosowitz
Isaac, Wiles, Burkholder & Teetor
2 Miranova Place, Suite 700
Columbus, Ohio 43215
mlandes@isaacwiles.com
mweaver@isaacwiles.com
ayosowitz@isaacwiles.com
10
Exhibit A
IN THE SUPREME COURT OF OHIO
Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice pending
Perkins Coie
700 Thirteenth Street, N.W.,
Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
Appellants-Relators Aftab Pureval, Friends of Aftab Pureval, and Evan Nolan, Treasurer,
Friends of Aftab Pureval hereby give notice of appeal to the Supreme Court of Ohio from the
decision of the Tenth District Court of Appeals, Franklin County, entered on October 22, 2018 in
the matter of State ex rel. Aftab Pureval, et al. v. Ohio Elections Commission, Case Number 18AP-
789, denying Appellants-Relators’ Emergency Motion for an Alternative Writ, Injunction, or Stay
Temporarily Enjoining or Staying Ohio Elections Commission Case No. 2018G-022. A date-
stamped copy of the Court of Appeals’ entry is attached hereto pursuant to S.Ct.Prac.R. 6.01(B).
This case originated in the Court of Appeals as an original action in prohibition, and this
Respectfully submitted,
/s/ Donald J. McTigue____________
Donald J. McTigue (0022849)**
**Counsel of Record
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com
Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
CERTIFICATE OF SERVICE
I hereby certify that on October 23, 2018 a copy of this Notice of Appeal was sent by
ordinary US mail and by electronic mail to the following:
Mark Landes
Mark Weaver
Andrew N. Yosowitz
Isaac, Wiles, Burkholder & Teetor
2 Miranova Place, Suite 700
Columbus, Ohio 43215
mlandes@isaacwiles.com
mweaver@isaacwiles.com
ayosowitz@isaacwiles.com
and :
:
STATE EX REL. FRIENDS OF :
AFTAB PUREVAL :
580 Walnut Street, Apt. 1302 :
Cincinnati, Ohio 45202 :
:
and :
:
STATE EX REL. EVAN :
NOLAN, Treasurer :
Friends of Aftab Pureval :
3850 Hyde Park Avenue :
Cincinnati, Ohio 45209 :
:
Relators, :
-v- :
:
OHIO ELECTIONS :
COMMISSION :
77 South High Street, Suite 1850 :
Columbus, Ohio 43215 :
:
Respondent. :
Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice
pending
Perkins Coie
700 Thirteenth Street, N.W.,
Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
pending resolution of the instant case, thereby preserving the status quo
PARTIES
Cincinnati, Ohio and is the Hamilton County Clerk of Courts, having been
FACTS
from the 1st Congressional District of Ohio at the 2018 General Election.
connection with his federal campaign on January 29, 2018. The federal
2
committee is named “Aftab for Ohio” (hereinafter referred to as the
“Federal Committee”).
11. Relator Pureval won the Democratic nomination for the 1st
13. The OEC Complaint broadly alleges that: (1) all contributions
June 30, 2018 were allegedly intended for the benefit of Relator Pureval’s
Committee, ranging in dates from August 14, 2017 to May 2, 2018, were
allegedly made for the benefit of Relator Pureval’s federal campaign; (3)
campaign for federal office, the 2017 Annual and 2018 Semi-Annual
campaign finance reports filed by the County Committee are not accurate
in violation of R.C. 3517.13(D) and that for the same reason, the
of R.C. 3517.13(O).
preliminary review for OEC Case No. 2018G-022 before the full
4
17. On September 20, 2018, Respondent Commission held the
Commission.
Commission voted to proceed with OEC Case No. 2018G-022, setting the
11(A)(3)(d).
19. This decision also initiated the discovery process under the
notified counsel for the parties that the Commission would hear and
11, 2018 meeting and would conduct a full evidentiary hearing before the
hereto as Exhibit C.
5
21. On September 28, 2018, Relators in the instant action filed a
and belief,” rather than personal knowledge as required by Ohio law and
the Commission’s rules. Relators also argued that that the OEC Complaint
had failed to set forth any claims upon which relief could be granted, and
that many of the allegations were based on federal law over which the
1, 2018, a complaint was filed against Relator Pureval and the Federal
take depositions duces tecum upon Relator Nolan for October 23, 2018
and Relator Pureval for October 26, 2018. The notices contain broad
7
28. Relators filed a Reply Brief in support of their Motion to
as Exhibit J.
the Commission to temporarily stay Case No. 2018G-022 until the FEC
resolves the complaint filed with it regarding the same matters as Case
Exhibit K.
allegations regarding the two PAC contributions after counsel for Relators
pointed out that the PACs had in fact reported making the contributions
8
contrary to what the Complaint alleged. A transcript of the relevant
granted Relators’ motion to dismiss with respect to the claims that all
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
January 1, 2018 to June 30, 2018 were allegedly intended for the benefit
evidentiary hearing with respect to the claims that the expenditures made
and reported by the County Committee were allegedly made for the
benefit of Relator Pureval’s federal campaign and the claims that the
for November 1, 2018, which is five days before the federal election.
9
CLAIMS FOR RELIEF
First Claim
Respondent Commission lacks jurisdiction to adjudicate the claims
that expenditures were made for the benefit of Relator Pureval’s
federal campaign because the linchpin allegations in the OEC
Complaint were not made on personal knowledge.
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
jurisdiction over the claims in Case No. 2018G-022 that the expenditures
were made for the benefit of Relator Pureval’s federal campaign because
the linchpin allegations that the expenditures were made for the benefit of
(Emphasis added).
10
38. O.A.C. 3517-1-02(A)(1) also requires a complaint to be “[b]y
added).
complaint shall “[c]learly set forth the specific source or basis of the
personal knowledge…”
Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 95 Ohio
2411, ¶ 22 quoting Applegate v. N.W. Title Co., 10th Dist. No. 03AP-855,
11
42. This high bar of personal knowledge was required by the
like the filing of spurious claims intended to harass parties and/or deceive
states in its final sentence “that the facts in the foregoing Complaint are
internal allegations.
expenditures that were allegedly made for the benefit of Mr. Pureval’s
3517.13(O), are in paragraphs 11-35, 42-56, 58-62, and 65-67 of the OEC
Complaint.
45. However, Paragraphs 19, 22, 29, 34, and 54-55 of the OEC
Complaint explicitly state that the linchpin allegations of these claims that
the expenditures were made in connection with federal election are based
12
46. Courts have expressly held that “information and belief” is not
Commt. for the Charter Amendment for an Elected Law Dir. v. City of
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
Bay Village, 115 Ohio St.3d 400, 2007-Ohio-5380, 875 N.E.2d 574, ¶ 13
for affidavits in support of original actions because it was not clear what
(emphasis added); see also, Alexander v. Kellog USA, Inc., 674 Fed. App
496, 499 (6th Cir. 2017) (holding that statements “based on mere
as follows:
as follows:
as follows:
14
(Emphasis added).
50. Paragraph 34 of the OEC Complaint, which refers to the
as follows:
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
as follows:
15
52. Paragraph 55 of the OEC Complaint, which also refers to the
as follows:
the OEC Complaint that the expenditures were made for the benefit of
September 20, 2018 preliminary review and October 11, 2018 hearing on
16
55. Respondent Commission’s decision to assert jurisdiction to
adjudicate Case No. 2018G-022 and to set the matter for a full hearing
for which no other adequate remedy exists in the ordinary course of law.
resolution of the instant action, thereby preserving the status quo and
17
Second Claim
Respondent Commission lacks jurisdiction over the allegations that
expenditures were made for the benefit of Relator Pureval’s federal
campaign because these allegations raise questions of federal law over
which the Federal Election Commission has exclusive jurisdiction.
represent prima facie lawful conduct under Ohio law, the finding of a
18
violation on these claims necessarily hinges on a finding of federal
expenditures.
the FEC, which has exclusive civil jurisdiction on these matters. See 52
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
U.S.C. § 30106(b).
66. Federal law clearly reserves for the FEC the power to
election activity.
amended, states that the Act shall “supersede and preempt any provision
30143(a); see also 11 C.F.R. § 108.7(a). Specifically, federal law has such
effect with respect to any state law that purports to regulate the
68. The Act’s legislative history shows that Congress intended “to
make certain that the Federal law is construed to occupy the field with
respect to elections to Federal office and that the Federal law will be the
19
sole authority under which such elections will be regulated.” H.R. Rep.
69. The Act establishes that “the power of the [Federal Election]
jurisdiction and prevent litigants from making an end run around the
federal process. See, e.g., Bunning v. Com. of Ky., 42 F.3d 1008, 1011–13
F.3d 144, 154 (5th Cir. 1998) (preventing federal candidate from initiating
Mexico v. King, 850 F. Supp. 2d 1206, 1215–16 (D.N.M. 2012), aff’d, 741
F.3d 1089 (10th Cir. 2013) (finding that plaintiff was likely to succeed on
claim that federal law preempted state law limit on solicitation and receipt
Third Claim
Respondent Commission lacks jurisdiction over the allegations that
expenditures were made in violation of R.C. 3517.13(D) because the
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
OEC Complaint failed to set forth facts that would constitute a prima
facie violation of this statute.
Complaint for the additional reason that the OEC Complaint fails to set
forth facts that would constitute a prima facie violation of any law over
jurisdiction.”
with the Commission to “[c]learly set forth each and every separate
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
alleged violation of Ohio election law over which the commission has
Code section(s).”
expenditures that were allegedly intended for the benefit of Mr. Pureval’s
federal campaign.
shall fail to file a complete and accurate statement required under division
22
80. The OEC Complaint does not contend or allege that the
Fourth Claim
Respondent Commission lacks jurisdiction over the allegations that
the County Committee allegedly failed to provide sufficient
documentation to verify reported expenditures in violation of R.C.
3517.10(D)(4) because the OEC Complaint failed to set forth facts
that would constitute a prima facie violation of this statute.
23
84. The OEC Complaint, in paragraph 63, also alleges that the
receipted bill, stating the purpose of the expenditure, that shall be filed
24
Complaint had attached as part of its Exhibit 15 bank statements for the
88. Accordingly, the OEC Complaint fails to set forth facts that
following relief:
25
Respectfully submitted,
Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice
pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
In the
Tenth District Court of Appeals
For the State of Ohio
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
Hamilton County
/ss
State of Ohio
I , Evan Nolan, having been duly swom and cautioned according to law, hereby state that I
am over the age of eighteen years and am competent to testify, and hereby state based on my
personal knowledge that:
1. I have read the facts set forth in the foregoing Complaint, and the facts as stated
2. I have personally read true copies of each of the exhibits referenced in the
Complaint.
Ohio.
1
FURTHER AFFIANT SAYETH NAUGHT
Evan Nolan
2
Exhibit C
IN THE TENTH DISTRICT COURT OF APPEALS
-v- :
:
OHIO ELECTIONS :
COMMISSION :
:
Respondent. :
request that this Court grant their Motion to temporarily enjoying or stay
Case No. 2018G-022 until the Court has had an opportunity to address the
jurisdiction.
the status quo because the first discovery deposition is scheduled for
Tuesday, October 23, 2018, and the evidentiary hearing is set for
November 1, 2018, a mere five days before the November 6, 2018 General
cause this case to become moot, thereby depriving Relators of their right
rights.
Relators also move that the Court set an expedited response date to
Wednesday, October 17, 2018 and a reply date of Thursday, October 18,
2018. Relators have served a copy of the Complaint and Motion filed
mail.
A Memorandum in Support is attached for the Court’s
consideration.
Respectfully submitted,
**Counsel of Record
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com
Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice
pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
Relators suffering irreparable injury. For the reasons set forth herein,
the status quo and aiding the Court in its original jurisdiction.
FACTUAL BACKGROUND
General Election. Relator Pureval has two campaign committees, one for
referred to as the “County Committee”), and one for his federal campaign,
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
Committee”). Relator Evan Nolan is the treasurer for both the County
two committees is expressly permitted under both federal and Ohio law.
https://www.sos.state.oh.us/globalassets/candidates/cfguide/chapters/cha
pter2.pdf.
The OEC Complaint broadly alleges that: (1) all contributions received
and reported by the County Committee from January 1, 2018 to June 30,
2018 were allegedly intended for the benefit of Relator Pureval’s federal
made for the benefit of Relator Pureval’s federal campaign; (3) the County
two PAC contributions that the PACs did not report making them. The
office, the 2017 Annual and 2018 Semi-Annual campaign finance reports
3517.13(D) and that for the same reason, the expenditures constituted
review of the case before the full commission for September 20, 2018. On
September 13, 2018, Relators filed their response to the OEC Complaint
to proceed with OEC Case No. 2018G-022, setting the matter for a full
3
evidentiary and merits hearing before the commission, pursuant to O.A.C.
notified counsel for the parties that the Commission would hear and
11, 2018 meeting and would conduct a full evidentiary hearing before the
the instant action filed a Motion to Dismiss Case No. 2018G-022 with the
also argued that that the OEC Complaint failed to set forth any claims
upon which relief could be granted and made allegations that hinged on
group called the Foundation for Accountability and Civic Trust filed a
complaint against Relator Pureval and others with the Federal Election
October 8, 2018, Relators also filed a Motion to Stay with the Commission
to temporarily stay Case No. 2018G-022 until the FEC resolves the
upon Relator Nolan for October 23, 2018 and Relator Pureval for October
5
26, 2018. The notices contain broad requests for production of documents
to Relators’ Complaint.
contributions, after Relators pointed out that the PACs had in fact reported
Committee from January 1, 2018 to June 30, 2018, that allegedly violated
forward to a full evidentiary hearing with respect to the claims that the
made for the benefit of Relator Pureval’s federal campaign and the claims
6
voted further to deny Relators’ motion to stay the proceedings pending
November 1, 2018, a mere five days before the federal election. Relator
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
to occur in 2020.
ARGUMENT
This is precisely what the OEC Complainant hoped for, when taking
dubious federal law claims, and dressing them up as unsupported state law
7
obtain a public hearing five days before the election, which would make
it impossible for this Court to review and redress the Commission’s lack
of jurisdiction.
moot the instant action, thereby eliminating Relators’ ability to seek relief
questions at the heart of the OEC Complaint, that would happen too late
and irreversibly influence the results of the federal election. The OEC
full media glare, from the candidate, his campaign manager, and even his
of the instant action and to aid the Court in its original jurisdiction. The
standards for issuing an injunction or stay are the same: (1) whether the
merits; (2) whether appellant has shown that it will suffer irreparable
injury; (3) whether the issuance of a stay will cause harm to others; and
(4) whether the public interest would be served by granting a stay. See,
e.g., Vanguard Transp. Sys. v. Edwards Transfer & Storage Co. Gen.
Commodities Div., 109 Ohio App. 3d 786, 790, 673 N.E.2d 182 (10th
Dist. 1996) (setting forth the standard for the issuance of a preliminary
N.E.3d 13, ¶ 13 (10th Dist.) (explaining that these factors are “logical
pending appeal). This Court has explained further that these factors are
“not prerequisites that must be met but are interrelated considerations that
9
must be balanced together.” Prince-Paul v. Ohio Bd. of Nursing, 2015-
Ohio-3984 at ¶ 13.
injunction or stay will not cause harm to others. Moreover, the public
Relators are likely to succeed on the merits of their claim for a writ
power, (2) the exercise of that power is unauthorized by law, and (3) that
10
the denial of the writ will result in injury for which no other adequate
remedy exists in the ordinary course of law. See, e.g., State ex rel. Hunter
v. Summit County Human Resource Comm’n, 81 Ohio St.3d 450, 451, 692
N.E.2d 185 (1998). The last requirement is waived, however, “if the lack
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
citing Chesapeake Exploration, L.L.C. v. Oil & Gas Comm'n, 135 Ohio St.
20, 2018 preliminary review and the October 11, 2018 hearing on
11
quasi-judicial power at the full evidentiary hearing on November 1, 2018,
proceeding on two of the original four sets of claims. One set of claims is
election. The other claim is that the County Committee violated R.C.
12
First, the OEC Complaint’s linchpin allegations are not made on personal
jurisdiction by failing to set forth facts that would constitute prima facie
like the filing of facially spurious claims intended to harass parties and/or
13
an individual based on personal knowledge…” (Emphasis added). O.A.C.
Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 95 Ohio
hearsay.” Ocwen Loan Servicing, LLC v. Graf, 10th Dist. Franklin No.
The Ohio Supreme Court has long held that bases other than
¶ 24, the Court held that an affidavit in which the alleged facts were “true
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
and accurate to the best of her knowledge and belief” did not satisfy the
Ohio St.3d 437, 2006-Ohio-5439, ¶ 32, the Court similarly held that an
affidavit in which the alleged facts were “true and correct to the best of
affidavit initially stated that the relator had “personal knowledge of the
matters set forth herein,” the affidavit subsequently stated that the facts
Elected Law Dir. v. City of Bay Village, 115 Ohio St.3d 400, 2007-Ohio-
5380, ¶ 13, the Court rejected an affidavit in which the alleged facts were
15
“true and correct” based on the attorney’s “personal knowledge and
Ohio-3749, ¶ 25, the Court held that ten affidavits in which the alleged
Although the OEC Complaint’s notary block states “that the facts in
explicitly says that this is not the case. The linchpin allegations in the OEC
First, paragraphs 11-18 and 59-61 of the OEC Complaint allege that
not set forth a single fact tying any of the expenditures to the federal race.
Further, paragraph 19 of the OEC Complaint explicitly states that the key
17
connection with a federal election is based on “information and belief”
explicitly state that the key allegation that the expenditure identified in
1
Paragraph 19 of the OEC Complaint states: “On information and belief, the ‘Travel’ expenditures set forth in
paragraphs 11-18 were made to support of Pureval’s efforts in his campaign for Congress, and were not legitimate
and verifiable ordinary, and necessary, or otherwise permissible expenditures for Friends of Aftab Pureval, a campaign
committee purporting to support a putative candidate for re-election as the Hamilton County Clerk of Courts, or the
duties of Clerk of Courts.” (Emphasis added).
2
Paragraph 22 of the Complaint states in relevant part: “In fact, on information and belief, the ‘Media’ for which
Friends of Aftab Pureval paid, was photography services at Pureval’s congressional campaign kickoff events…”
(Emphasis added).
Paragraph 29 of the Complaint states: “On information and belief, the ‘Media’ expenditures set forth in paragraphs
20-22 were made to support of Pureval’s efforts in his campaign for Congress, and were not necessary, legitimate,
reasonable, or otherwise permissible expenditures for Friends of Aftab Pureval, a campaign committee purporting to
support a putative candidate for re-election as the Hamilton County Clerk of Courts, or the duties of the Clerk of
Courts.” (Emphasis added).
18
violation of R.C. 3517.13(D). The Complaint lists the expenditure as
contained on the County Committee’s report but does not set forth a single
Complaint explicitly states that the key allegation that the expenditure was
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
contained on the County Committee’s reports but does not set forth a
single fact tying any of the expenditures to the federal race. Further,
Paragraphs 54-55 explicitly state that the key allegation that the
3
Paragraph 34 of the Complaint states: “On information and belief, the payment to GBA Strategies was for polling
and other services related to Pureval’s campaign for Congress, and are not [sic] a legitimate and verifiable ordinary,
and necessary, or otherwise permissible expenditure connected to Pureval’s putative campaign for re-election as the
Hamilton County Clerk of Courts, or the duties of the Clerk of Courts.” (Emphasis added).
4
Paragraph 54 of the Complaint states: “On information and belief, the expenditures referred to in paragraphs 45
and 52 were not a legitimate and verifiable ordinary, and necessary, or otherwise permissible expenditure related to
19
Thus, every one of the allegations on which the Commission is now
jurisdiction.
made for a federal election for the additional reason that such allegations
Aftab Pureval’s purported race for re-election as the Hamilton County Clerk of Courts or the duties as the Hamilton
County Clerk of Courts.”
Paragraph 55 of the Complaint states: “On information and belief, the expenditures listed in paragraphs 45 through
52 were related to Aftab Pureval’s testing of the waters for a run for Congress from either Ohio’s First or Second
Congressional District.”
20
Congress, Respondent Commission must decide if the expenditures were
prima facie lawful conduct under Ohio law, finding a violation on these
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
Federal law clearly reserves for the FEC the power to adjudicate
amended, states that the Act shall “supersede and preempt any provision
30143(a); see also 11 C.F.R. § 108.7. Specifically, federal law has such
effect with respect to any state law that purports to regulate the
history shows that Congress intended “to make certain that the Federal
elections will be regulated.” H.R. Rep. No. 93-1239, 93rd Cong., 2d Sess.
10 (1974). And, the Act establishes that—with one lone exception not
initiate civil actions . . . shall be the exclusive civil remedy for the
prevent litigants from making an end run around the federal process. See,
e.g., Bunning v. Com. of Ky., 42 F.3d 1008, 1011–13 (6th Cir. 1994)
activity”); Stockman v. Fed. Election Comm’n, 138 F.3d 144, 154 (5th
5
That exception applies only when the U.S. District Court for the District of Columbia declares that the FEC has
unlawfully failed to act on a complaint, when the FEC fails to conform with the court’s declaration, and when the
court authorizes the complainant to bring a private right of action against the respondent. See 52 U.S.C. § 30109(a)(8).
See also, e.g., Citizens for Responsibility and Ethics in Washington v. FEC, Civ. No. 16-259 (BAH) (D.D.C. Aug. 3,
2018). The narrowness of this lone exception from the FEC’s exclusive civil jurisdiction, and the rarity with which it
has been deployed, shows how seriously Congress and the FEC have treated the exclusiveness of the FEC’s
jurisdiction. It shows also the OEC Complainant’s audacity in leap-frogging the federal process and going to a state
administrative agency to get a hearing five days before an election.
22
litigation to thwart federal complaint); Republican Party of New Mexico
v. King, 850 F. Supp. 2d 1206, 1215–16 (D.N.M. 2012), aff’d, 741 F.3d
1089 (10th Cir. 2013) (finding that plaintiff was likely to succeed on claim
that federal law preempted state law limit on solicitation and receipt of
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
complaint has been filed over the issues before the Commission in Case
interests because the factual and legal questions necessary to resolving the
required to be made by the FEC. The fact that the OEC Complainant filed
his complaint with the OEC instead of the FEC given his factual premise
that the contributions and expenditures were for a federal election, itself
23
exclusive jurisdiction provisions were designed to thwart.6 As other courts
federal campaign and to prevent the OEC Complainant’s end run around
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
expenditure claims for the additional reason that the OEC Complaint
forth facts that would constitute a prima facie violation of any Ohio
6
OEC Complainant might well have known that, had he gone to the FEC as he was supposed to, he would not have
prevailed. See, e.g., Statement of Reasons of Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter
and Donald F, McGahn, MUR 6225 (Dec. 1, 2010), at 4 (refusing to open an investigation over claims that a newly
re-elected nonfederal officeholder impermissibly used state PAC funds to pay for a poll in connection with a potential
U.S. Senate race, on the grounds that “Commission regulations clearly allow committees to evenly split the costs
associated with a poll …”).
24
sections 3517.08 to 3517.13, 3517.17, 3517.18, 3517.20 to 3517.22,
to constitute a prima facie violation of Ohio election law over which the
requires complaints filed with the Commission to “[c]learly set forth each
and every separate alleged violation of Ohio election law over which the
Even if presuming that the expenditures were made for the benefit of the
expenditures. Here, the OEC Complaint does not contend that the County
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
Committee did not actually make the six expenditures, nor that the payees,
ependitures.
For these reasons, the OEC Complaint, with respect to the six
26
2. Respondent Commission is Patently and Unambiguously
Without Jurisdiction to Adjudicate the Set of Claims that
Relators Violated R.C. 3517.10(D)(4).
sufficient facts that would constitute a prima facie violation of this statute.
required by law.
stating the purpose of the expenditure, that shall be filed with the
27
(3) An account statement, from the committee's
financial institution, which contains the name of
the payee, amount, date, and check number.
For the ten expenditures referred to in paragraphs 12, 14, 16, 18, 21,
28
summaries or copies of cancelled checks to verify the expenditures. Under
follows:
29
Paragraph 21 of the OEC Complaint alleges that Friends of Aftab
Pureval provided “only a bank account summary showing that a
debit card payment in the amount of $360.50 was made using
VENMO” in reference to the $360.50 expense identified in
Paragraph 20. (Emphasis added).
provided bank account summaries showing the payee, the amount, and
12, 14, 16, 18, 21, 32, 37, and 53, the OEC Complaint does not set forth
30
comply with R.C. 3517.153(A) and O.A.C. 3517-1-02(A)(1)(f)-(g),
jurisdiction, complaints filed by individuals must set forth facts that would
52, the OEC Complaint’s allegations that the County Committee failed to
7
Relator Pureval did not become a federal candidate until 2018.
31
$595.99 expenditure on August 14, 2017 to Ellis Hotel for lodging (OEC
December 5, 2017 to White Star for a meeting expense (Id. ¶ 51); and a
Annual Report are bank statements for August 2017 through December
32
Because the OEC Complaint’s allegation that the County
Complaint does not set forth facts that the County Committee violated
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
33
order and, under R.C. 119.12, only the Commission’s final orders are
enjoined or stayed pending the resolution of the instant action for three
just five days before the federal election at which Relator Pureval is a
34
media glare, will offer purported evidence and argument that he violated
election, and the damage could not be undone after the election.
See, Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First
entitled to a free and fair election, in which a state agency does not exceed
its lawful jurisdiction in a way that can only politically benefit their
results of a federal election for one candidate in the federal election while
CONCLUSION
36
action, thereby preserving the status quo and aiding the Court in its
original jurisdiction.
Respectfully submitted,
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
37
/s/ Donald J. McTigue____________
Donald J. McTigue (0022849)**
**Counsel of Record
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com
Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice
pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
38
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Motion and
Memorandum in Support were served via email on October 15, 2018 upon
the following:
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789
Philip Richter
Executive Director and Staff Attorney
Ohio Elections Commission
77 South High Street, Suite 1850
Columbus, Ohio 43215
Phone: 614-466-3205
philip.richter@elc.state.oh.us
Damian Sikora
Assistant Attorney General
Office of the Ohio Attorney General
30 E. Broad Street, 17th Floor
Columbus, Ohio 43215
Phone: 614-466-4320
damian.sikora@ohioattorneygeneral.gov
39
Exhibit D
IN THE TENTH DISTRICT COURT OF APPEALS
:
Ohio Elections Commission, :
:
Respondent. :
2
Relators admit in their Complaint that the Ohio Elections
Commission has subject matter jurisdiction to adjudicate alleged
violations of State campaign finance law (Complaint, ¶ 8). That is exactly
what the Commission is trying to do—adjudicate alleged violations of
State campaign finance laws. Relators were sanguine with the
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789
3
Relators argue that the underlying complaint is deficient in form and
substance, but a complaint’s failure to state a cause of action or
insufficiency of evidence is procedural in nature, not jurisdictional. In
other words, such alleged failings, even if true, do not deprive the
Commission of jurisdiction.
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789
4
MEMORANDUM IN SUPPORT
I. RELEVANT FACTS 1
The essential facts of this case are not disputed. On August 10, 2018,
Exhibit A, at ¶¶ 57-67).
1
For purposes of this Motion to Dismiss, Respondents presume all factual
allegations in the Complaint as true; however, statements of law and legal
conclusions need not be accepted as true. Morrow v. Reminger and
Reminger Co., LPA, 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d
696, ¶ 7. By narrowing the issues for the Court in this Motion, the
Commission does not intend to waive any other defenses that could later
be stated in an Answer.
5
§ 3517.10(D)(4) (Requiring every expenditure greater than $25.00 to be
vouched for by a receipt stating the purpose of the expenditure which shall
anything of value from the fund for personal use). (Complaint, ¶¶ 13-14,
exhibits. (Complaint, ¶ 43, Exhibit A). The affidavit was signed and
notarized and states “that the facts in the foregoing Complaint are based
use the phrase “information and belief.” (Complaint ¶ 45, Exhibit A).
6
has the authority to find facts, make adjudications of violations, and
review before the full Commission on September 20, 2018. (Id. at ¶ 15).
At the preliminary review, the Commission voted to proceed with the case
and set the matter for a hearing. (Complaint, ¶ 18). A motion hearing was
scheduled for October 11, 2018 and a full evidentiary hearing was
in the OEC Complaint but voted to move forward with claims regarding
7
151 Ohio St.3d 531, 2017-Ohio-8722, 90 N.E.3d 918, at ¶ 7, citing State
ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 2001 Ohio 15, 740 N.E.2d
265 (2001). Relators are entitled to the writ only upon a showing that (1)
the Commission is about to exercise judicial power, (2) its exercise of that
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789
power is unauthorized by law, and (3) denying the writ would result in
injury for which no other adequate remedy exists in the ordinary course
of the law. Id., citing State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114,
2012-Ohio-54, 961 N.E.2d 181, ¶ 18. Prohibition will not lie unless it
clearly appears that the Commission has no jurisdiction over the cause
at ¶ 7, citing State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d
571 (1941), paragraph three of the syllabus. “The writ will not issue to
8
The dispositive issue in this case is whether the Commission has
Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 34. Stated
another way, subject matter jurisdiction relates to the proper forum for an
entire class of cases, not the particular facts of an individual case. Subject
forum." Avco Fin. Servs. Loan Inc. v. Hale, 36 Ohio App.3d 65, 67, 520
9
In this case, the OEC Complaint presents the “type of case” that the
10
B. RELATOR’S ARGUMENTS OPPOSING
JURISDICTION FAIL AS A MATTER OF LAW
(2) the OEC Complaint is preempted by federal law and (3) the OEC
Relators’ first and third arguments can be easily disposed of. These
arguments allege that the OEC Complaint fails to state a claim. Whether
Ohio St.3d 545, 548, 605 N.E.2d 378 (1992) (holding that Rule 12 motion
In addition, the Ohio Supreme Court has held that the complete
11
St.3d 408, 2016-Ohio-1192, 49 N.E.3d 1296, a mandamus complainant
Id. at ¶ 3. The complainant later amended the complaint and included the
affidavit. Id. at ¶ 4. The Court held that “the statute’s requirement that the
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789
exercised its legal authority to dismiss certain parts of the OEC Complaint
2
The Rules of Civil Procedure, including Rule 12 apply to the
Commission’s proceedings. See e.g. O.A.C. §§ 3517-1-07(A), 3517-1-
08(B), and 3517-1-09 (C).
12
jurisdictional defect. The essence of Relators’ argument is that the
Commission erred when it did not dismiss the entire OEC Complaint.
prohibition will not issue to prevent an error of law. State ex rel. Bell v.
Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181; State ex rel.
Winnefeld v. Court of Common Pleas of Butler Cty., 159 Ohio St. 225,
Munroe Falls Sch. Dist. Levy Cmte. V. Ohio Elections Comm’n, (Sept. 27,
2013), Franklin Cty. Common Pleas Case No. 11CVF-13362, 2013 Ohio
Misc. LEXIS 3134, the Court ruled that administrative agencies are not
bound by the strict rules of evidence applied in court. Id. at *16. The Court
13
Cty. Court of Common Pleas, Case No. 08CVF07-10699. In other words,
the rigors of the personal knowledge requirement are not as onerous in the
respectively. In Escaro, the affiant did not even attempt to state that the
the case here. In this case, the OEC Complaint was supported by an
affidavit was signed and notarized and states “that the facts in the
While six of the sixty-seven paragraphs use the phrase “information and
belief (Complaint ¶ 45, Exhibit A), that does not vitiate the entire affidavit
14
and its exhibits and, even if it did, it is not a jurisdictional issue, but, rather
a procedural one.
preempted by federal law also fails. As an initial matter, the Ohio Supreme
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789
111 Ohio St.3d 246, 2006-Ohio-5202, 855 N.E.2d 1188, at ¶ 15. “The
134 Ohio St. 3d 421, 2012-Ohio-5697, ¶16, 983 N.E.2d 302 (a court with
15
general subject-matter jurisdiction may determine its own jurisdiction);
State ex rel. Canfield v. Civil Service Comm., (April 26, 1991), 7th Dist.
No. 91 C.A. 3, 1991 Ohio App. LEXIS 1896 at *5, 1991 WL 66198
a “federal office and a state or county office” at the same election). Even
though Relator Pureval is not a candidate for state office, he still has a
16
campaign for Hamilton County Clerk of Courts. (Complaint, ¶ 6, Exhibit
in this situation is allowed under Ohio law, but only one campaign
funds “for personal use” and (2) the provision of campaign funds to a
or any other person's personal use. See R.C. § 3517.13(O). In this case,
the OEC Complainant alleges that Relators made expenditures from the
Complaint, ¶¶ 11-12, 15-16, 36-37, 45-52, 65, 67). More specifically, the
OEC Complaint alleges that the state campaign expenditures were made
Ohio campaign funds can only be used to support a candidate other than
17
the beneficiary (other than Pureval)). The question to the Commission is
this: was the state committee’s money used for a permissible purpose, or
not?
To hold for Relator here is to hold that the Commission can look at
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789
some impermissible purposes listed in the statute, but not others. Relator
argues unpersuasively that “to find that the expenditures were actually
Commission must decide if the expenditures were made for the purpose
reserved to the FEC. (Complaint, ¶¶64-65). This is not true. Whether the
expenditures may also be a violation of federal law, but that does not
as well.
18
For the foregoing reasons, the Commissions’ actions were not
Respectfully submitted,
19
CERTIFICATE OF SERVICE
was filed electronically. Notice of this filing will be sent to all parties by
operation of the Court’s electronic filing system. Parties may access this
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789
dmctigue@electionlawgroup.com,
dclinger@electionlawgroup.com
poshea@katzteller.com
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
4839-9654-2841.1
20
Exhibit E
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
: PROHIBITION
-v- :
:
OHIO ELECTIONS :
COMMISSION :
:
Respondent. :
Brian G. Svoboda*
David Lazarus*
*Admitted pro hac vice
Perkins Coie
700 Thirteenth Street, N.W.,
Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
Response tries to draw the Court’s attention away from the proper inquiry:
that is not what Relators’ action is about. Rather, the issue is that the OEC
1
Complaint fails to comply with a mandatory statutory prerequisite for the
LEGAL ARGUMENT
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789
power nor does the Commission dispute that Relators lack an adequate
2
determining the likelihood that Relators will succeed on the merits of their
at 3, 8-10). But this is not at issue. Instead, the issue is whether the
3
tribunal could have subject matter jurisdiction and still act without
396, in which the Court explained that “even if a common pleas court has
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789
general jurisdiction over a case, a writ of prohibition will issue when the
court seeks to take an action or provide a remedy that exceeds its statutory
authority.” Id. at ¶ 69 citing State ex rel. Mason v. Griffin, 104 Ohio St.3d
St.3d 231, 2006-Ohio-4705, 855 N.E.2d 1174, ¶ 50, State ex rel. Adams
This means that when a tribunal lacks the judicial power to take a
Ohio Supreme Court explained that the case was “not about the
the Civil Rules, and the Hamilton County Local Rules to consolidate
cases. Id. at ¶ 21-26. Finding that that the judge did not have the authority
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789
under the procedural rules, the Durrani Court issued a writ of prohibition.
Id.
include a scenario where a complaint does not present an issue within the
presents the latter issue. The OEC Complaint failed to meet the
5
jurisdiction as it did not adhere to statutory requirements for filing
requirements for mandamus actions, which are provided for in the Ohio
mandamus actions may facilitate but not restrict the constitutional right to
perfected only in the mode prescribed by statute. The exercise of the right
With the above principles in mind, this Court and the Ohio Supreme
Court have regularly held that individuals, agencies, and courts must
that is conferred solely by statute. For instance, courts have held that the
1302, ¶ 15, 17 (10th Dist.) Courts have also held that a notice of
State ex rel. DeMatteo v. State Teachers Ret. Sys., 10th Dist. Franklin No.
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789
in a writ prohibition action that the filing of a transfer deed within ten days
that it has the power to adjudicate any complaint that simply alleges a
campaign finance law)). Getting even further away from the requirements
10
set forth by R.C. 3517.153(A), Respondent Commission absurdly
contends that “even if the OEC Complainant in this case completely failed
App.3d at ¶ 15.
courts cannot do (see, Beau Brummel Ties, Inc. v. Lindley, 56 Ohio St.2d
310, 311-12, 383 N.E.2d 907 (1978) (explaining that, in interpreting legal
also represent a sea change in Ohio campaign finance law. It would allow
primary defect is that its linchpin allegations that expenditures were made
Instead, they are, by their own words, based on “information and belief,”
which the Ohio Supreme Court has explained does not constitute personal
knowledge. See, Rel. Motion at 14-16. Thus, these allegations are not
“inapposite.” The cases cited all stand for the simple proposition that if an
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affidavit affirmatively states that any number of allegations contained
this.
The Commission also cites two decisions from the Franklin County
v. Ohio Elections Comm’n. (Aug. 23, 2011), Franklin Cty. Case No. 08-
Elections Comm’n (Sept. 27, 2013), Franklin Cty. Case No. 11CVF-10-
13362). However, these decisions stand only for the proposition that
13
wrongdoing without having personally observed it.1 They do not stand for
knowledge.” If they did, they would be in direct conflict with the Ohio
In sum, because the key allegations in the OEC Complaint are based
1
See, Athens Cty. at *9 (“In the case at bar, Appellants would mandate
that Ms. Morris be personally in attendance at the 2000 City Council vote
and be personally in attendance when Appellants created and/or
authorized the advertisement before she could file a complaint, which
cannot be the standard.”); Stow Munroe at *15-16 (“imposing a
requirement in this appeal that the affiant personally observe the alleged
wrongdoing under R.C. 3517.10(A) would be unreasonably onerous”).
14
individuals to set forth facts that constitute a prima facie violation of Ohio
campaign finance law. See, Rel. Motion at 24-25 citing R.C. 3517.153(A),
appeals to set forth the specific grounds of the party’s appeal, which courts
appeal. See, e.g., Foreman, 189 Ohio App.3d 678, ¶ 15, 17. In other
(Response at 12-13). And as set forth more fully in Relators’ Motion (Rel.
Motion at 24-33), the OEC Complaint failed to set forth facts that would
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State campaign finance laws.” (Response at 3.) Second, Respondent
points out that the Ohio Supreme Court has broadly interpreted the
that “[w]hether the expenditures were made for the purpose of influencing
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789
suggesting that the Complaint does not involve federal law. (Response at
18).2
trying to enforce the state campaign finance laws is beside the point.
2
Respondent also confusingly argues that Relator Pureval’s status as a
federal candidate prevents him from spending funds from his state
campaign committee at the same time. (Response at 16-17.) However, as
Relators noted previously, state guidance says otherwise: “This single
committee restriction does not prevent a local or statewide candidate from
also having a federal political committee in concurrent operation for the
purpose of seeking election to a federal office.” See Ohio Campaign
Finance Manual at 2-11 (March 2013),
https://www.sos.state.oh.us/globalassets/candidates/cfguide/chapters/cha
pter2.pdf.
16
State law with respect to election to Federal office”). Thus, for example,
the Sixth Circuit kept the Kentucky Registry of Election Finance from
“test the waters” for state office. Bunning v. Kentucky, 42 F.3d 1008,
1012 (6th Cir. 1994). Even though Georgia law regulates lawmakers’
conduct to avoid corruption, the Eleventh Circuit kept that state from
See Teper v. Miller, 82 F.3d 989 (11th Cir. 1996). In each case, the state
or interferes with federal law, state law must give way.” Teper, 82 F.3d at
17
993. To decide whether Relators spent funds in connection with a federal
adopted specific, detailed rules on how to pay for such polls. See 11 C.F.R.
§ 106.4 (2018). Yet while a federal complaint is pending over this same
poll, Respondent would hasten to decide whether Relators paid for the
poll correctly.
The only reason Complainant thinks them suspect is that Relator Pureval
“related to Aftab Pureval’s testing of the waters for a run for Congress
…” Id. at 10. There is simply no way for the Commission to decide these
connection with a federal election. Here, again, the potential for conflict
enforce state law, will decide a question of federal law, thus setting up a
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789
potential conflict with the FEC, which is the only administrative agency
CONCLUSION
For the foregoing reasons, there ample grounds upon which the
decide the instant action without having the Commission proceed full
steam ahead to adjudicate the matter just days before a federal election.
Respectfully submitted,
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/s/ Donald J. McTigue____________
Donald J. McTigue (0022849)**
**Counsel of Record
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com
Brian G. Svoboda*
David Lazarus*
*Admitted pro hac vice
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
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CERTIFICATE OF SERVICE
was filed electronically. Notice of this filing will be sent to all parties by
operation of the Court’s electronic filing system. Parties may access this
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789
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