Ohio AEF amicus 2:13-cv-935
Number of Pages:11
Date Created:March 10, 2014
Date Uploaded to the Library:March 13, 2014
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THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OHIO EASTERN DIVISION ____________________________________ CITIZENS CHARGE, INC., al., Plaintiffs, Case No. 2:13-cv-935-MHW-TPK JON HUSTED, OHIO SECRETARY STATE, Defendant. ____________________________________) AMICUS CURIAE BRIEF JUDICIAL WATCH, INC. AND ALLIED EDUCATIONAL FOUNDATION SUPPORT PLAINTIFFS MOTION FOR PERMANENT INJUNCTION Proposed Amici Judicial Watch, Inc. (Judicial Watch) and the Allied Educational Foundation (AEF) believe that Ohios law banning out-of-state initiative petition circulators represents unlawful intrusion the General Assembly onto rights that have been properly reserved the people. Ohios law infringes not only the rights Plaintiffs, but also the protected rights all citizens the United States, and therefore should overturned. Interests the Proposed Amici Amici are concerned that the decision the Ohio legislature unlawfully limits the right the people make and influence laws, and are concerned about the effect that decision the principles separation powers Ohio and elsewhere. Specifically, Ohios law intrudes separation power not always emphasized citizens right place additional checks the power their elected representatives. Among the harms caused Ohios law are unlawful expansion power state governments over the people, and resulting erosion democratic self-governance. For these and other reasons, amici urge the Court adopt permanent injunction against Ohios law. ARGUMENT Judicial Watch and AEF agree with Plaintiffs arguments and the Courts Preliminary Injunction ruling that Ohios law preventing out-of-state citizens from circulating initiative petitions unlawfully infringes Plaintiffs First Amendment rights under Buckley American Constitutional Law Foundation, 525 U.S. 182 (1999) and Nader Blackwell, 545 F.3d 459 (2008). Amici further agree that Ohios law does not bear substantial relation the states given objectives sufficient justify the curtailment liberties under even moderate scrutiny. Amici file this brief only note that additional constitutional ground exists which the Ohio circulator law unconstitutional, and that the Privileges and Immunities clause the Fourteenth Amendment. Even the Ohio law did not violate the First Amendment rights Plaintiffs, unconstitutional under the Privileges and Immunities clause because Ohios law violates fundamental right citizens the several states fully participate policy advocacy anywhere their country such debates take place.1 similar Privileges and Immunities argument was advanced previously against Oklahoma law prohibiting out-of-state petition circulators; however, the Tenth Circuit decided strike Oklahomas law First Amendment grounds, declining reach the merits the Privileges and Immunities clause issue. Yes Term Limits Savage, 550 F.3d 1023, 1031 (2008). Specifically, the right participate initiative advocacy circulator precisely the kind fundamental right that belongs citizen every state, and which the Privileges and Immunities clause specifically protects. The Privileges and Immunities clause protects basic rights bearing upon the vitality the nation single entity. the Third Circuit observed: state island least the figurative sense and some events which take place individual state may relevant and have impact upon the policies not only the national government but also the states. Accordingly, political advocacy regarding matters national interest interests common between the states play important role furthering vital national economy and vindicating individual rights. Lee Minner, 458 F.3d 194, 199-200 (3d Cir. 2006). The Privileges and Immunities clause was intended fuse into one Nation collection independent, sovereign States. Supreme Court New Hampshire Piper, 470 U.S. 274, 279 (1985), quoting Toomer Witsell, 334 U.S. 385, 395 (1948). Similarly, Baldwin Fish and Game Commission Montana, the Supreme Court held that the Privileges and Immunities clause protects those rights bearing upon the vitality the Nation single entity, the denial which tend hinder the formation, the purpose, the development single Union those States. 436 U.S. 371, 383 (1978). States may not adopt laws discriminating against out-of-state citizens unless the different treatment bears substantial relation the states objectives. Supreme Court Va. Friedman, 487 U.S. 59, (1988). explained herein, Ohios law infringes precisely the kind right the Privileges and Immunities clause has historically been held protect. The Privileges and Immunities Clause Protects all Americans Right Circulate Initiative Petition Order Protect Unpopular Viewpoints The decision Supreme Court New Hampshire Piper highly relevant the present case. Piper concerned New Hampshires law prohibiting citizens residing outside the state from admittance the bar practice law, activity directly analogous Ohios ban out-of-state petition circulators. 470 U.S. 274. The Piper court recognized that practicing law had important noncommercial purpose, and prohibiting participation that activity citizens other states frustrated the primary purpose the Privileges and Immunities clause: believe that the legal profession has noncommercial role and duty that reinforce the view that the practice law falls within the ambit the Privileges and Immunities Clause. Out-of-state lawyers may and often represent persons who raise unpopular federal claims. some cases, representation nonresident counsel may the only means available for the vindication federal rights. The lawyer who champions unpopular causes surely important the maintenance well-being the Union. Id. 281 (internal citations omitted) (italics added). other words, the court recognized that sometimes only nonresidents will challenge unpopular policy decisions activities state governments, and therefore out-of-state law practice served sufficiently important national interest. Ohios law will limit participation matters public policy precisely those issues which most need the help out-of-state advocates. their very nature, initiatives and referendums often advocate for positions that are unpopular with state government officials, they frequently involve measures which elected representatives are unwilling adopt themselves. Ohios citizens may support these initiatives, but may hesitate become involved too prominently for fear retribution government that opposes them. Equally importantly, the Supreme Court Piper was careful note that the activity question need not commercial considered fundamental right explaining that has has never held that the Privileges and Immunities Clause protects only economic interests. Piper, 470 U.S. 281. therefore immaterial whether Ohios law prevents paid out-of-state petition circulators, volunteers who circulate petitions out devotion particular cause. Similarly, the Piper court never held that practicing law neighboring state was First Amendment right, nor did rule that such finding would necessary before holding that New Hampshires law violated the Privileges and Immunities clause. Rather, was sufficient that the court viewed practicing law fundamental right privilege the kind contemplated the clause. Id. 280-281. Accordingly, the Court can rule favor Plaintiffs Privileges and Immunities grounds even finds against Plaintiffs First Amendment arguments. II. The Right Participate Initiatives Circulators the Several States Fundamental Right All Citizens Which Bears Upon the Entire Nation Generally, fundamental rights citizens under the Privileges and Immunities clause are those that bear upon the vitality the Nation single entity, and vice versa. United Bldg. Constr. Trades Council City Camden, 465 U.S. 208, 218 (1984). However, this case, Ohios law violates the Privileges and Immunities clause whether one views the harm one individual out-of-state citizens the nation whole. Ohios Law Violates the Peoples Fundamental Right Check the Power Elected Representatives The right initiative and referendum fundamental one for all citizens interest self-governance. Strauss Horton, Cal. 4th 364, 420 (2009) (The initiative was viewed one means restoring the peoples rightful control over their government). The political processes initiative and referendum were originally introduced into the states give the people greater control over their governments.2 These direct democracy measures were adopted many states during the progressive era the early 1900s reign legislatures that had become unresponsive citizen concerns.3 These laws enable the people reserve larger share legislative power for themselves republican government. Kadderly Portland, Thomas Cronin, Direct Democracy: The Politics Initiative, Referendum, and Recall, (Harvard University Press 1999) (initiative processes were designed reduce corruption the legislatures and make legislators more attentive public opinion). See Jack Benoit Gohn, Interaction and Interpretation the Budget and Referendum Amendments the Maryland Constitution Bayne Secretary State, Md. Rev. 558, 572 (1980) (The period during which the [Maryland] referendum amendment was being formulated and ratified, 1914 1915, was the heyday the Progressive movement. One the principal programs the Progressives was so-called direct legislation, lawmaking the electorate. The theory and indeed the reality those times was that laws passed legislatures were likely reflect the will political bosses rather than that the electorate. The vehicles direct legislation, the initiative and the referendum, were designed wrest control the processes legislation from the distrusted legislatures. .). Ore. 118, 145 (1903). invoking their right direct democracy, the people function third house the legislature with the power pass reject legislation themselves.4 State rel. Marcolin Smith, 105 Ohio St. 570, 581-582 (1922) (describing the adoption direct democracy Ohio: [T]he people became the third house, and declared and safeguarded the constitution their right referendum upon [the Ohio General Assemblys] laws). Many courts have recognized the fundamental importance initiatives and referendums citizens and their representative democracies. James Valtierra, 402 U.S. 137, 141 (1971) (Californias entire history demonstrates the repeated use referendums give citizens voice questions public policy.); Lemons Bradbury, 538 F.3d 1098, 1101 (9th Cir. 2008) ([S]tate regulations the initiative and referendum process implicate the fundamental right vote); State rel. LetOhioVote.org Brunner, 123 Ohio St. 322, 328 (2009) (internal citations omitted) (The constitutional right citizens referendum paramount importance. The referendum means for direct political participation, allowing the people the final decision, amounting veto power, over enactments representative bodies.); Fairness Accountability Ins. Reform Greene, 180 Ariz. 582, 584 (1994) (Initiative and referendum procedures are fundamental part Arizona's scheme government.); Margolis District Court County Arapahoe, 638 P.2d 297, 302 (Colo. Sup. Ct. 1981) ([W]e view recall, well initiative and referendum, fundamental rights republican form government which the people have reserved unto themselves...) (internal quotations omitted); United Labor Committee Kirkpatrick, 572 S.W.2d 449, 454 (Missouri Sup. Ct. 1978) (Previous decisions this court have discussed the importance the initiative and referendum, emphasizing that procedures designed effectuate these democratic concepts should liberally construed avail the voters with every opportunity exercise these rights. The ability the voters get before their fellow voters issues they deem significant should not thwarted preference for technical formalities.); Fire Prot. Dist. City Moses Lake, 145 Wn.2d 702, 733 (Wash. Sup. Ct. 2002) (Washington has long recognized the importance the right people petition the government. [N]o government has ever remained free unless the right petition has been kept inviolate.) (internal quotations omitted).5 See also Maimon Schwarzschild, Voter Initiatives and American Federalism: Putting Direct Democracy its Place, Public Law and Legal Theory Research Paper Series, University San Diego School Law, pp. 2-3 (Fall 2003) (Support for direct democracy draws the idea that popular self-rule important part what means for society free... Direct democracy also associated with the hope expectation that voters will more active, informed, and responsible citizens and people when important decisions are their hands.). The peoples right direct democracy the ultimate check upon one th[e] branches government: the peoples constitutional right legitimately strike down legislation with which they might strongly disagree. State rel. Riffe Brown, Ohio St.2d 149, 168 (1977) (Herbert, J., dissenting). The act circulating petition for public law act which involves the type interactive communication concerning political change properly viewed fundamental right all Americans. Meyer Grant, 486 U.S. 414, 421-422 (1988). Ohios Law Diminishes the Vitality the Union discriminating against out-of-state citizens, Ohios law weakens direct democracy the state, issue which bears upon the vitality the nation single entity. The right direct democracy essential the preservation vibrant democracies the many states. The ability states function laboratories democracy paramount the health and vitality the nation and its federal system. Smith Howerton, 509 Fed. Appx. 476, 482 (6th Cir. 2012); New State Ice Co. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, dissenting). practice, direct democracy initiatives often seek implement reject laws that are unpopular with certain government officials, since they essentially take certain amount legislative power away from elected officials.6 The derogation that right the Ohio General Assembly, not remedied this Court, could mark the beginning the demise constitutional government Ohio. Id. (Brown, dissenting).7 use the language Piper, initiative petition circulator who champions unpopular causes surely important the maintenance well-being the Union circulator who advocates for popular causes. 470 U.S. 281. See e.g. Marta Mossburg, OMalleys thuggish side: Governor wants the world see kind and inclusive Maryland but don't you dare disagree with him, Baltimore Sun, Jan. 2013 (...Governor OMalley told WBAL that a little too easy petition law referendum Weve been best served our state over the 200 more years our history representative democracy, rather than plebiscites, said. How clever him use the language democracy undermine it.), available http://www.baltimoresun.com/news/opinion/oped/bs-ed-mossburg-omalley-20130102,0,2173154.column. should noted that took years grassroots effort obtain the right direct democracy Ohio. The peoples right popular initiative Ohio was not granted the legislature the first place rather, the legislature initially succeeded defeating the measure. See Dane Waters, The Initiative and Referendum Almanac, 381 (Carolina Academic Press 2003). Ultimately Ohios initiative law was adopted its constitutional convention 1912, which submitted the initiative and referendum amendment popular vote for approval. Id. The Ohio legislatures efforts restrict initiatives and referendums now should viewed suspect, since was not the Ohio legislature that granted citizens this right the first place. The freedom fully support and advocate for unpopular measures becomes especially important when one considers that initiatives and referendums any single state can have substantial influence other state policies, well the nation whole. provide just one example, Californias 1978 tax limitation initiative was quickly replicated throughout the country, demonstrating that the full exercise direct democracy one state can easily impact the entire nation.8 fact, citizen use initiatives the state level have contributed some the most significant changes U.S. politics over the past century, including granting women the right vote, creating the eight hour work day, and ending the use racial preferences government. This trend has continued through the present, initiatives marijuana legalization and same-sex marriage frequently shape and dominate the national policy debate. Stephen Moore, Proposition Then, Now and Forever, (July 30, 1998) (Proposition was political earthquake whose jolt was felt not just Sacramento but all across the nation, including Washington, D.C. Jarviss initiative cut Californias notoriously high property taxes percent and then cap the rate increase the future was the prelude the Reagan income tax cuts 1981. also incited nationwide tax revolt the state and local levels. Within five years Proposition 13s passage, nearly half the states strapped similar straitjacket politicians tax-raising capabilities. Almost all those tax limitation measures remain the law the land today.), available http://www.cato.org/publications/commentary/proposition-13-then-now-forever. Initiative and Referendum Institute the University Southern California, Brief History the Initiative and Referendum Process the United States, available http://www.iandrinstitute.org/New%20IRI%20Website%20Info/Drop%20Down%20Boxes/Quick%20Facts/History%20of%20IR.pdf. Ohios initiatives and referendums not exist island. The direct democracy decisions Ohio citizens contributes the national dialogue issues critical importance all Americans. For Ohio try prevent citizens other states from contributing these debates putting initiatives the ballot critically denies them participation event which can and often will affect them directly. Americans every state are entitled, Americans, circulate petitions urging their fellow Americans reject approve policies matter the time nor place. Conclusion For all the foregoing reasons, amici respectfully urge the court grant Plaintiffs motion and permanently enjoin Ohios law. Dated: March 10, 2014 Respectfully submitted, Chris Fedeli Robert Popper Chris Fedeli Admissions Pro Hac Vice Pending JUDICIAL WATCH, INC. 425 Third Street, SW, Ste. 800 Washington, 20024 202-646-5172 office 202-646-5199 facsimile firstname.lastname@example.org Attorneys for Proposed Amici Judicial Watch and Allied Educational Foundation CERTIFICATE SERVICE hereby certify that this 10th day March, 2014, electronically filed the foregoing document with the Clerk the Court using the CM/ECF system. Notice this filing will sent counsel record operation the Courts electronic filing system. Parties may access this filing through the Courts system. Thomas Kidd, Jr. Thomas Kidd, Jr.