Sixth Circuit Tells Ohio AG To Stop Blocking Ballot Initiative Calling For End Of Qualified Immunity

Plenty of people don’t care for all the forms of immunity the government has granted itself. And they don’t care for qualified immunity, which is a thing the Supreme Court cooked up on its own.

These multiple forms of immunity have tended to become get-out-of-lawsuit-free cards for government employees, rather than the general encouragement to do their level best in situations involving discretion. Discretion has been abandoned because there’s been more than enough immunity to go around. Qualified immunity may seem less absolute than absolute immunity, but the Supreme Court that created the doctrine has done all it can over the past few decades to make it nearly as absolute as absolute immunity.

The public wants things to change. That explains why Ohio residents are trying to get a ballot measure added that would eliminate multiple forms of immunity for government officials. Rather than respect the wishes of the people, the Ohio Attorney General’s office has repeatedly refused to certify the proposed amendment, thus preventing the creators of the initiative from collecting the signatures needed to get it placed on the ballot.

And not just once. The AG has shot it down every time it has come up. (h/t Short Circuit)

From the Sixth Circuit Appeals Court decision [PDF]:

Pursuant to Ohio law, Plaintiffs drafted their amendment and summary, collected their one thousand qualified supporting signatures, and filed it with the Ohio Attorney General, David Yost. On at least six occasions, Yost declined to certify Plaintiffs’ summary.

It’s easy to see why the AG wouldn’t like this measure. It would remove the absolute immunity he and prosecutors in his office can currently avail themselves of when sued. And it would remove the qualified immunity law enforcement officers and officials use far more frequently. The AG is the state’s top-level prosecutor. As such, it’s obviously in his best interest to protect cops because being AG is often the equivalent of being the state’s top cop.

The lawsuit was filed in state court but moved to federal court when the state court declined to provide an expedited review of the group’s injunction request. The federal court rejected the injunction request, leading to this appeal.

Now, with the case in the Sixth Circuit Appeals Court, the plaintiffs are hoping at least one federal court might find it in its judicial heart to recognize their (reasonable) First and Fourteenth Amendment claims against the clearly biased and repeated rejections of this specific ballot initiative by the AG David Yost.

The plaintiffs followed all the rules for ballot measures. Since they’ve held up their end of the bargain, the appeals court takes a look at the reasons stated for the AG’s multiple rejections. In every case, the AG’s office used the same excuse, despite the measure and summary being revised each time in hopes of dodging yet another vaguely worded rejection: “unable to certify the submitted summary as a fair and truthful representation of the proposed amendment.”

The appeals court first corrects the lower court’s most significant error: the plaintiffs do have standing to pursue this suit and their “injury” is clearly stated: they are unable to advance a ballot measure because the AG has apparently decided it will never approve this specific sort of proposal. In doing so, the AG’s office is violating the plaintiffs’ rights.

It is undisputed that Plaintiffs suffer an “injury in fact.” Plaintiffs allege that their First and Fourteenth Amendment right to political speech is burdened by Yost’s enforcement of §3519.01 without the availability of timely review. That is, they argue Yost’s certification decision itself unduly burdens their right to political expression when § 3519.01 gave him the authority to make that decision with inadequate means for challenging it. In this context, Plaintiffs are prohibited from advocating for their proposed amendment in the way they wish, thus undermining their freedom of “expression of a desire for political change and” their ability to discuss “the merits of the proposed change.”

The dissent suggests that Plaintiffs do not have an injury in fact because, without a complaint for a writ of mandamus before the Supreme Court of Ohio or a new summary before Yost, Plaintiffs face “no ‘actual present harm.’” Contrary to our dissenting colleague’s conclusion, however, Plaintiffs’ inability to advocate for and speak about the proposed amendment how they wish is a “continuing, present adverse effect[].” Such an allegation of an ongoing injury—a barrier continuously preventing their speech—supports Article III standing.

So, it’s not a clear path to victory, but at least there’s now a path to continue the lawsuit.

AG Yost argued the federal court had no business hearing this case in the first place. The correct venue would be the state court because the federal government isn’t allowed to directly control the inner workings of state governments. According to Yost, the only court with power to make a call on an injunction or the ballot measure approval process is the state’s top court.

The Sixth Circuit disagrees, pointing out that the AG is failing (deliberately or not) to understand the nature of the relief being sought by the plaintiffs.

Yost’s redressability argument, however, misconstrues the relief that Plaintiffs seek. Yost construes Plaintiffs’ request for injunctive relief as a backwards looking attempt to alter his March 2024 certification decision. In contrast to that construction, Plaintiffs seek injunctive relief preventing Yost from enforcing § 3519.01 against them—enjoining Yost’s authority to certify, or fail to certify, their summary generally.

It’s not about overturning a past decision by Yost, which might have to be restricted to state courts. It’s about future enforcement, which means the federal court system can handle this lawsuit without overstepping its bounds.

Furthermore, it is AG Yost — not the state Supreme Court — that makes initiative calls and enforces this statute. That means Yost can be sued in this venue and, if needed, hit with a federal injunction preventing him from engaging in further constitutional violations.

Tellingly, the AG’s office invoked sovereign immunity as another option to escape this lawsuit and the proposed injunction. Sovereign immunity is one of several immunities the ballot measure hopes to eradicate. If the AG detected any irony when raising this immunity, it certainly didn’t stop him from invoking it.

The decision heads into the statutory weeds for awhile before emerging with this conclusion: the statute and the way it’s enforced is likely unconstitutional. With zero options available to challenge AG decisions and time being of the essence during an election year, there’s a good chance the plaintiffs will prevail in court. As the statute stands now, the AG can reject any measure it doesn’t care for every single time they’re presented. And that is definitely a rights violation.

Yost’s unreviewable discretion in this instance puts Plaintiffs in the position of altering their petition summary, which “involves both the expression of a desire for political change and a discussion of the merits of the proposed change.” This constitutes a severe burden on Plaintiffs’ ability to advocate for their initiative because it restricts one-on-one communication between Plaintiffs and potential voters.

Likewise, the second concern from Grant—that Plaintiffs will be less able to garner the necessary signatures to be placed on the ballot “thus limiting their ability to make the matter the focus of statewide discussion,” 486 U.S. at 423—is also present here. Without timely review, § 3519.01 allows the Attorney General to reject a summary in perpetuity such that the petitioners are never able to begin collecting signatures in support, much less garner the number of signatories required. Thus, the time that Plaintiffs will have to speak with potential signatories about the proposed amendment as well as how widely they can convey the message has been meaningfully diminished, if not altogether eliminated. Accordingly, § 3519.01 imposes a severe burden on Plaintiffs’ “core political speech” because it is less likely that Plaintiffs will be able to garner the necessary signatures to be placed on the ballot “thus limiting their ability to make the matter the focus of statewide discussion.”

The state court limitations AG Yost raised are even worse. It creates a catch-22 that means ballot measures not favored by the AG will never be able to meet the requirements to engage in a judicial review by the state Supreme Court.

Yost’s argument turns Ohio’s law on its head. Rather than provide limited discretion to the Attorney General, in this case Yost has issued multiple denials—six based on the fair and-truthful determination—without any review by an administrative body or court. And, although Yost is correct that § 3519.01(C) provides for original jurisdiction in the Supreme Court of Ohio, it does not require that court to review the case within a reasonable time, in light of the election deadlines. Instead, because Plaintiffs must submit their approximately 400,000 signatures 125 days before the election and the Supreme Court of Ohio’s mandatory-expedited review applies only to cases filed within ninety days of the election, the mandatory-expedited review will never apply.

And that’s how you get hit with an injunction, ladies and gentlemen. You craft a statute that makes any challenge of a rejection impossible and ensure the only political speech allowed to make it onto a ballot is speech the government likes. The case heads back down to the lower court for more examination with an injunction attached, which means the plaintiffs can not only consider seeking to have this statute blocked permanently, but can go back to trying to eliminate multiple forms of government immunity.