Case: 1:10-cv-01986-DCN Doc #: 1 Filed: 09/03/10 1 of 17. PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ARTHUR LAVIN, M.D. 18502 Lynton Road Shaker Heights, OH 44122
and
JASON CHAO, M.D. 3489 Fairmount Blvd. Cleveland Heights, OH 44118
and
MICHAEL W. DEVEREAUX, M.D. 2886 Litchfield Road Shaker Heights, OH 44120
and
PATRICIA J. KELLNER, M.D. 1951 Laurel Hill Road South Euclid, OH 44121
and
JEROME LIEBMAN, M.D. 567 Parkside Blvd. Cleveland, OH 44143
and
ERIC R. SCHREIBER, M.D. 18101 Shelburne Road Cleveland Heights, OH 44118
and
CONSTANCE D. MAGOULIAS, M.D. 13605 Shaker Blvd., #3A Cleveland, OH 44120

Case No.:
JUDGE:
MAGISTRATE JUDGE:
COMPLAINT FOR DECLARATORY JUDGMENT, PRELIMINARY- AND PERMANENT-INJUNCTIVE RELIEF, AND ATTORNEYS’ FEES AND COSTS

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and
PETER A. DEGOLIA, M.D. 1648 Compton Road Cleveland Heights, OH 44118
and
NATHAN R. BEACHY, M.D. 3685 Gridley Road Shaker Heights, OH 44122
Plaintiffs,
– vs –
JENNIFER BRUNNER, In Her Official Capacity as Ohio Secretary of State 180 East Broad Street, 16th Floor Columbus, Ohio 43215
Defendant.
COMPLAINT FOR DECLARATORY JUDGMENT, PRELIMINARY- AND PERMANENT-INJUNCTIVE RELIEF, AND ATTORNEYS’ FEES AND COSTS

Respectfully submitted,
THE CHANDRA LAW FIRM, LLC
__/s/ Subodh Chandra_____________ Subodh Chandra (0069233) Donald Screen (0044070) 1265 W. 6th St., Suite 400 Cleveland, OH 44113-1326 216.578.1700 office/216.578.1800 fax Subodh.Chandra@StanfordAlumni.org Donald.Screen@gmail.com

BERKMAN, GORDON, MURRAY & DEVAN
__/s/ Raymond V. Vasvari, Jr.______ J. Michael Murray (0019626) Raymond V. Vasvari, Jr. (0055538) 55 Public Square, Suite 2200 Cleveland, Ohio 44113-1949 PH: 216.781.5245 Fx: 216.781.8207 jmmurray@bgmdlaw.com rvasvari@bgmdlaw.com
Attorneys for Plaintiff Arthur Lavin, et al.

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– INTRODUCTION AND NATURE OF ACTION – 1. This action, brought under the Civil Rights Acts of 1871, 42 U.S.C. § 1983, contests on First
and Fourteenth Amendment grounds the constitutionality of a state statute, R.C. 3599.45. That statute prohibits candidates for the office of Ohio Attorney General, and candidates for prosecuting attorney in any Ohio county, from accepting campaign contributions from recipients of Medicaid funding, and those with an ownership interest in such recipients (“Ohio Medicaid providers”). 2. Plaintiffs are Ohio Medicaid providers who wish to contribute to the election campaigns of certain candidates for the offices of Ohio Attorney General and Cuyahoga County Prosecutor. They have been thwarted in their ability to do so by the statute, and in particular by the refusal of a candidate to accept their contributions in light of the statute’s criminal characterization of this benign, constitutionally protected conduct. Plaintiffs seek a declaration that the statute impermissibly violates their right to make campaign contributions, and thus to engage in political expression protected by the First and Fourteenth Amendments. They also seek a preliminary and a permanent injunction that prohibits Defendant from enforcing the statute.
– PARTIES – 3. Plaintiff Arthur Lavin, M.D. (“Dr. Lavin”) is, and at all relevant times was, a physician and
Ohio Medicaid provider licensed to practice medicine in and by the State of Ohio, with his principal place of business in Beachwood, Cuyahoga County, Ohio. Dr. Lavin, a pediatrician, has, and at all relevant times had, an ownership interest in Advanced Pediatrics, an Ohio corporation that provides goods and services under contract with the Ohio
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Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq. 4. Plaintiff Jason Chao, M.D. (“Dr. Chao”), is, and at all relevant times was, a physician licensed to practice medicine in and by the State of Ohio, with his principal place of business in Cleveland, Cuyahoga County, Ohio. Dr. Chao, an attending physician and Director of Quality Assurance at University Hospitals and a professor of Family Medicine at Case Western Reserve University, is, and at all relevant times was, a provider of services and goods under contract with the Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq. 5. Plaintiff Michael W. Devereaux, M.D. (“Dr. Devereaux”), is, and at all relevant times was, a physician licensed to practice medicine in and by the State of Ohio, with his principal place of business in Cleveland, Cuyahoga County, Ohio. Dr. Devereaux, a neurologist at University Hospitals and professor of Neurology at Case Western Reserve University, is, and at all relevant times was, a provider of services and goods under contract with the Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq. 6. Plaintiff Nathan R. Beachy, M.D. (“Dr. Beachy”), is, and at all relevant times was, a physician licensed to practice medicine in and by the State of Ohio, with his principal place of business in Cleveland, Cuyahoga County, Ohio. Dr. Beachy, a family physician at MetroHealth Hospitals and Senior Instructor of Family Medicine at Case Western Reserve University, is, and at all relevant times was, a provider of services and goods under contract with the Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq.
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7. Plaintiff Patricia J. Kellner, M.D. (“Dr. Kellner”), is, and at all relevant times was, a physician and Ohio Medicaid provider licensed to practice medicine in and by the State of Ohio, with her principal place of business in Cleveland, Cuyahoga County, Ohio. Dr. Kellner, is, and at all relevant times was, a provider of services and goods under contract with the Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq; is a family physician affiliated with University Hospitals; and has, and at all relevant times had, an ownership interest in Eastside Family Practice, an Ohio practice that provides goods and services under contract with the Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq.
8. Plaintiff Jerome Liebman, M.D. (“Dr. Liebman”), is, and at all relevant times was, a physician licensed to practice medicine in and by the State of Ohio, with his principal place of business in Cleveland, Cuyahoga County, Ohio. Dr. Liebman, a pediatric cardiologist at University Hospitals, is, and at all relevant times was, a provider of services and goods under contract with the Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq.
9. Plaintiff Eric R. Schreiber, M.D. (“Dr. Schreiber”), is, and at all relevant times was, a physician licensed to practice medicine in and by the State of Ohio, with his principal place of business in Cleveland, Cuyahoga County, Ohio. Dr. Schreiber, a diagnostic radiologist at the Cleveland Clinic, is, and at all relevant times was, a provider of services and goods under contract with the Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq.
10. Plaintiff Constance D. Magoulias, M.D. (“Dr. Magoulias”), is, and at all relevant times was, a Page 5 of 17

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physician and Ohio Medicaid provider licensed to practice medicine in and by the State of Ohio, with her principal place of business in Cleveland, Cuyahoga County, Ohio, and is, and at all relevant times was, a provider of services and goods under contract with the Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq. Dr. Magoulias, a family physician at MetroHealth Hospitals, has, and at all relevant times had, an ownership interest in a private practice that is, and at all relevant times was, a provider of services and goods under contract with the Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq. 11. Plaintiff Peter A. DeGolia, M.D. (“Dr. DeGolia”), is, and at all relevant times was, a physician and Ohio Medicaid provider licensed to practice medicine in and by the State of Ohio, with his principal place of business in Cleveland, Cuyahoga County, Ohio, is, and at all relevant times was, a provider of services and goods under contract with the Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq. Dr. DeGolia, a family physician and geriatric specialist affiliated with University Hospitals, has, and at all relevant times had, an ownership interest in Foley Elder Health Center, an Ohio practice that provides goods and services under contract with the Department of Job and Family Services under the Medicaid program of Title XIX of the Social Security Act, 42 U.S.C. § 301, et seq. 12. Defendant Jennifer Brunner (“the Secretary”) is, and at all relevant times was, the Ohio Secretary of State, and as such is the chief elections officer of the State of Ohio, under R.C. 3501.04, who is both authorized to enforce and charged with the enforcement of the election laws of this state, and who is required by law under R.C. 3501.05(N)(1) to
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investigate and to refer for prosecution violations of those laws. The Secretary is sued here in her official capacity only for purposes of obtaining declaratory and injunctive relief.
– JURISDICTION AND VENUE – 13. This Court has jurisdiction under 28 U.S.C. § 1331, in that this is a civil action arising under
the Constitution and the laws of the United States, and under 28 U.S.C. § 1343(a)(3) and (4), 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. §§ 1983 and 1988, in that this is an action for declaratory judgment and equitable relief authorized by law to redress deprivations under color of law of rights, privileges, and immunities secured by the United States Constitution. 14. Venue in this Court is proper under 28 U.S.C. § 1391(b), in that the Defendant maintains offices in, routinely conducts business in, and performs a substantial portion of her official duties within the Northern District of Ohio.
– FACTS COMMON TO ALL CLAIMS – 15. Article I § 3 of the Ohio Constitution of 1851 created the office of state Attorney General,
and provides that he or she shall be chosen by the electors of the state on the first Tuesday following the first Monday in November. Under R.C. 109.01, the Attorney General serves a four-year term of office. The next quadrennial election in which Ohio voters will be asked to select an Attorney General will take place in November 2010.
– Medicaid Program – 16. In July 1965, Congress amended the Social Security Act of 1935 to add a Title XIX, which
allows federal appropriations to be made to fund lump-sum disbursements to the states for the purpose of providing medical assistance and rehabilitation to the impecunious blind, disabled and aged, as well as their dependent children and families. This is known as the Medicaid program.
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17. Section 1902 of the Medicaid Act, codified at 42 U.S.C. § 1996a(a)(4), requires states that participate in the Medicaid program to have in place fiscal procedures designed to ensure that the plan is administered efficiently and that contractors who provide services funded by the program are subject to certain standards of accountability and oversight.
18. In Ohio, the Medicaid program generally is overseen and managed by the Ohio Department of Job and Family Services (ODJFS). Healthcare providers who provide services to Medicaid-eligible recipients may seek compensation for those services under the aegis of the program. Billings for those services are submitted to, and payments are provided through, the ODJFS under regulations promulgated in the Ohio Administrative Code. – The Contested Statute –
19. In 1978, the Ohio General Assembly adopted Amended Senate Bill 159, which comprised certain statutes regulating the Medicaid program within the state.
20. Among these was Ohio Revised Code section 5101.511, now 5111.03, which prohibits certain Medicaid fraud. The section states in part: (A) No provider of services or goods contracting with the department of job and family services pursuant to the medicaid program shall, by deception, obtain or attempt to obtain payments under this chapter to which the provider is not entitled pursuant to the provider agreement, or the rules of the federal government or the department of job and family services relating to the program. No provider shall willfully receive payments to which the provider is not entitled, or willfully receive payments in a greater amount than that to which the provider is entitled; nor shall any provider falsify any report or document required by state or federal law, rule, or provider agreement relating to medicaid payments. Ohio Rev. Code Ann. 5111.03(A) (West 2010).
21. R.C. 5111.03 further provides penalties for violations, authorizes termination of the provider agreement upon the conviction of or entry of a civil judgment against a provider, and authorizes the Ohio Attorney General to enforce the section. R.C. 5111.03(B), (C), (F).
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22. Amended Senate Bill 159 also enacted R.C. 109.85, which allows both the Ohio Attorney

General and prosecuting attorneys in the several counties to investigate and prosecute

violations of the law involving Medicaid providers. It provides in part as follows:

a. Upon the written request of the governor, the general assembly, the auditor of state, the director of job and family services, the director of health, or the director of budget and management, or upon the attorney general’s becoming aware of criminal or improper activity related to Chapter 3721[] and the medical assistance program established under section 5111.01 of the Revised Code, the attorney general shall investigate any criminal or civil violation of law related to Chapter 3721 of the Revised Code or the medical assistance program.

Ohio Rev. Code Ann. § 109.85(A) (West 2010).

23. R.C. 109.85 further provides, in part:

(B) When it appears to the attorney general, as a result of an investigation under division (A) of this section, that there is cause to prosecute for the commission of a crime or to pursue a civil remedy, the attorney general may refer the evidence to the prosecuting attorney having jurisdiction of the matter, or to a regular grand jury drawn and impaneled pursuant to sections 2939.01 to 2939.24 of the Revised Code, or to a special grand jury drawn and impaneled pursuant to section 2939.17 of the Revised Code, or the attorney general may initiate and prosecute any necessary criminal or civil actions in any court or tribunal of competent jurisdiction in this state. When proceeding under this section, the attorney general, and any assistant or special counsel designated by the attorney general for that purpose, have all rights, privileges, and powers of prosecuting attorneys. The attorney general shall have exclusive supervision and control of all investigations and prosecutions initiated by the attorney general under this section. The forfeiture provisions of Chapter 2981[] of the Revised Code apply in relation to any such criminal action initiated and prosecuted by the attorney general.

Ohio Rev. Code Ann. § 109.85(B) (West 2010).

24. In addition, the power to investigate and prosecute criminal activity in connection with the

Medicaid program is reserved to prosecuting attorneys in the several counties under

R.C. 109.85(c).

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25. This action contests, on First and Fourteenth Amendments grounds, the final statute

adopted as part of Amended Senate Bill 159, that is, R.C. 3599.45, which provides in its

entirety:

3599.45

Contributions from medicaid provider

(A) No candidate for the office of attorney general or county prosecutor or such a candidate’s campaign committee shall knowingly accept any contribution from a provider of services or goods under contract with the department of job and family services pursuant to the medicaid program of Title XIX of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider.

As used in this section “candidate,” “campaign committee,” and “contribution” have the same meaning as in section 3517.01 of the Revised Code.

(B) Whoever violates this section is guilty of a misdemeanor of the first degree.

Ohio Rev. Code Ann. § 3599.45 (West 2010).

– The Ohio Attorney General –

26. In Ohio, the Attorney General maintains and oversees a Health Care Fraud Office, which

investigates and oversees, among other things, compliance by individual contractors with the

requirements of the Medicaid program.

27. In addition to a Health Care Fraud Section, the Office of the Attorney General is divided

into more than two dozen other sections, with individual focuses on the enforcement of a

wide variety of laws, and the litigation of a wide variety of cases, including: antitrust;

appellate litigation; charitable law; civil rights; collections enforcement and revenue recovery;

consumer protection; defense of the State of Ohio in the Court of Claims; criminal justice;

education law; employment law; environmental enforcement; labor relations; public utilities;

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taxation; tobacco enforcement; transportation; and workers compensation. 28. The Ohio Attorney General has extensive duties, and extensive powers, that are both
defined by statute and implied at common law. He or she is the chief law-enforcement officer of the State of Ohio, and may, upon the request of the Governor, prosecute any person indicted for a crime. He or she is, by default, counsel to every state officer, agency, and board, and no state entity may retain or be represented by other counsel without special authorization. 29. The Attorney General may appear in any action in any tribunal in which the state is a party or has an interest, and advises state officers, boards and commissions, as well as the separate houses of the General Assembly, and the prosecutors in the several counties on questions of law. The Attorney General is also authorized to prosecute actions in the names of the state (other than by indictment), in courts of proper jurisdiction. The Attorney General presently oversees several state agencies with a combined staff of over 1,400 persons, and with a combined annual budget exceeding $220,000,000. 30. In short, the Office of Attorney General is an office crucial to the lives of all Ohioans, and no Ohioans should be denied a voice in the selection of the officeholder, much less be faced with the prospect of a criminal taint for doing so.
– Ohio Prosecuting Attorneys – 31. R.C. 309.01 provides for the quadrennial election, in each county in the state, of a
prosecuting attorney, whose principal powers and duties are defined by statute as follows: The prosecuting attorney may inquire into the commission of crimes within the county. The prosecuting attorney shall prosecute, on behalf of the state, all complaints, suits, and controversies in which the state is a party, except for those required to be prosecuted by a special prosecutor pursuant to section 177.03 of the Revised Code or by the attorney general Page 11 of 17

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pursuant to section 109.83 of the Revised Code, and other suits, matters, and controversies that the prosecuting attorney is required to prosecute within or outside the county, in the probate court, court of common pleas, and court of appeals. In conjunction with the attorney general, the prosecuting attorney shall prosecute in the supreme court cases arising in the prosecuting attorney’s county, except for those cases required to be prosecuted by a special prosecutor pursuant to section 177.03 of the Revised Code or by the attorney general pursuant to section 109.83 of the Revised Code. Ohio Rev. Code Ann. § 309.08(A) (West 2010). 32. Toward these ends, the prosecuting attorney is authorized to employ assistant prosecutors, investigators, and clerical staff. By way of example, the Cuyahoga County Prosecutor maintains a staff of over 325 persons and has an annual budget in excess of $27,000,000. 33. In addition to their prosecutorial duties, the prosecuting attorneys in the several counties have a wide range of additional powers and responsibilities. Each acts as the chief legal advisor to the elected commissioners of his or her county, as well as to the county board of elections, the public libraries, and all other county boards, be they elected or appointed. The prosecuting attorney is by default the chief legal advisor to the various townships within each county, and may in addition, with the approval of the county commissioners, serve as counsel to a variety of other agencies and special-purpose districts, such as fire and park districts. 34. In short, the Office of Prosecuting Attorney is an office crucial to the lives of all county residents, and no one should be denied a voice in the selection of the officeholder—much less be faced with the prospect of a criminal taint for doing so. – PLAINTIFFS WISH TO HAVE THEIR VOICES HEARD BY CONTRIBUTING TO CERTAIN ATTORNEY-GENERAL AND PROSECUTING-ATTORNEY CANDIDATES – 35. Plaintiffs are all physicians who have deeply held beliefs about the kinds of candidates that
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they would like to see prevail in contests for the offices of Attorney General and Prosecuting Attorney. For example, as physicians, Plaintiffs have experienced first hand what a broken health-insurance system has wrought on patients who need quality care without interference from insurers. As a consequence, they have well-informed and deeply held beliefs about the need for health-insurance reform, played a significant role in obtaining such reform, and would like to be free to contribute to candidates for these offices who share their beliefs on these and other issues. 36. In July 2010, on his own behalf and on behalf of all Plaintiffs and those similarly inclined and situated, Plaintiff Lavin contacted the Cordray Committee by telephone about making contributions to Attorney General Cordray’s campaign for re-election. A representative of the Cordray Committee refused to accept the contributions, citing R.C. 3599.45. 37. Furthermore, a contribution form for the Cordray Committee located on the website www.CordrayforOhio.com specifically refuses contributions from Ohio Medicaid providers like Plaintiffs: “Please note that The Cordray Committee is not permitted to accept campaign contributions from a provider of services or goods under contract with the department of job and family services pursuant to the Medicaid program of Title XIX of the ‘Social Security Act,’ 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider.” 38. Plaintiffs were shocked to learn that making financial contribution to Attorney General or Prosecuting Attorney campaigns could be viewed as aiding, abetting, participating, and/or conspiring in a criminal act and that such contributions would be refused accordingly. 39. The only conceivable rationale for the statute—that the Attorney General and Prosecuting Attorneys prosecute Medicaid fraud and would allow their prosecutorial decisions to be
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influenced by providers’ campaign contributions—is offensive and odious. To stigmatize Plaintiffs for exercising their First Amendment rights, on the grounds that they could one day be criminal defendants in Medicaid prosecutions, is outrageous. Ohio’s Attorney General prosecutes death-penalty cases as well. Yet no one dare contend that everyone should be barred from contributing to the campaigns of attorney-general and prosecutingattorney candidates because every contributor is a prospective killer. Simply put, Ohio law assumes Plaintiffs are fraudsters whose voices must be silenced. Such a stigma is unwarranted and violates Plaintiffs’ right to free speech.
– COUNT 1: FIRST- AND FOURTEENTH-AMENDMENT DECLARATORY JUDGMENT – 40. Plaintiffs restate the above allegations of this Complaint. 41. Plaintiffs are United States citizens and residents of Cuyahoga County, Ohio, and duly
qualified electors in both those jurisdictions. As such, they have an interest in the qualifications and the public-policy agenda of candidates standing for election to the Office of the Cuyahoga County Prosecuting Attorney and the Office of the Ohio Attorney General. 42. Plaintiffs desire to participate in and to influence the outcome of the next elections in which an Ohio Attorney General and Cuyahoga County Prosecuting Attorney will be chosen. 43. Plaintiffs desire to donate money to the candidates of their choice who are standing for election to those important offices. 44. Plaintiffs cannot do so, however, because they are Ohio Medicaid providers and/or have an ownership interest in Medicaid-provider entities, and candidates for those offices are prohibited from accepting campaign contributions from them. 45. Under R.C. 3599.45, those candidates would be subject to prosecution for a misdemeanor crime if they accepted from Plaintiffs contributions to their campaigns. Plaintiffs themselves
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could be subjected to prosecutions for conspiring and/or aiding and abetting such criminal activity, and/or subjected to public opprobrium. 46. As a result of this, Plaintiffs have been unable to contribute to the political campaigns of the candidates of their choice for those offices. 47. Campaign contributions of this sort are unquestionably a form of political speech and an important means of political association protected by the First and Fourteenth Amendments to the United States Constitution. 48. Plaintiffs have been chilled, and continue to be chilled, in the exercise of their First Amendment rights through R.C. 3599.45’s existence and operation. 49. At all relevant times, R.C. 3599.45 was the official policy, practice, custom, and usage of the State of Ohio relevant to the subject matter that it governs. 50. At all relevant times, Defendant was authorized and required to enforce the provisions of R.C. 3599.45 under color and authority of state law. 51. R.C. 3599.45 violates the First and Fourteenth Amendments on its face for each of the following reasons:
a. the statute unconstitutionally abridges the fundamental freedoms of political expression and association but is neither necessary to, nor the least restrictive means of achieving, a governmental interest, compelling or otherwise;
b. the statute unconstitutionally abridges political speech and association but is not closely drawn to achieve a governmental interest, whether sufficiently important or otherwise;
c. the statute impermissibly imposes a prior restraint on important political expression;
d. the statute is unconstitutionally overbroad on its face; e. the statute imposes unconstitutional conditions upon Plaintiffs as a condition of
their participation in, or affiliation with a participant in, the Medicaid program, in that it makes such participation or affiliation contingent upon their forsaking the
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right to engage in certain political expression; f. the statute is irrational, arbitrary, and capricious and does not further any
legitimate governmental interest; g. the statute operates to chill protected expression; h. the statute does not leave open ample alternative avenues for protected
expression. 52. Plaintiffs are thus entitled to a declaration holding that the R.C. 3599.45 violates the First
and Fourteenth Amendments to the United States Constitution. – COUNT 2: FIRST- AND FOURTEENTH-AMENDMENT INJUNCTION –
53. Plaintiffs restate the above allegations of this Complaint. 54. For the above-described reasons, Plaintiffs desire to exercise their rights to free speech and
free association by contributing to the candidates of their choice in the 2010 races for the offices of Ohio Attorney General and Prosecuting Attorney, but have refrained from doing so because of R.C. 3599.45’s chilling effect. 55. Unless enjoined by this Court from enforcing R.C. 3599.45’s provisions, Defendant will cause Plaintiffs irreparable harm for which no remedy at law is adequate, including, without limitation, the loss of their rights under the First and Fourteenth Amendments and the imposition of a prior restraint against them. 56. Plaintiffs are thus entitled to a preliminary and permanent injunction barring Defendant from enforcing the provisions of the contested statute against those candidates to whom Plaintiffs may choose to make campaign contributions. THUS, Plaintiffs demand judgment as follows: A. Upon Count I of this Complaint, a declaration that the Ohio Revised
Code § 3599.45 and its various subparts, violate the First and Fourteenth Amendments to the United States Constitution; and
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B. Upon Count 2 of this Complaint, after an appropriate hearing, an injunction barring Defendant and those acting on her behalf from enforcing Section 3599.45 against those candidates to whom Plaintiffs may elect to make campaign contributions,; and

C. Upon all counts of this Complaint, attorneys’ fees and costs of suit under 42 U.S.C. § 1988 and Fed. R. Civ. P. 54(b); and

D. All other relief in law or equity to which Plaintiffs are entitled and that the Court deems equitable, just, or proper.

Respectfully submitted, THE CHANDRA LAW FIRM, LLC

BERKMAN, GORDON, MURRAY & DEVAN

_/s/ Subodh Chandra___________ Subodh Chandra (OH Bar No. 0069233) Donald Screen (OH Bar No. 0044070) 1265 W. 6th St., Suite 400 Cleveland, OH 44113-1326 Phone: 216.578.1700 Fax: 216.578.1800 Subodh.Chandra@StanfordAlumni.org Donald.Screen@gmail.com

__/s/ Raymond V. Vasvari, Jr.______ J. Michael Murray (0019626) Raymond V. Vasvari, Jr. (0055538) 55 Public Square, Suite 2200 Cleveland, Ohio 44113-1949 PH: 216.781.5245 Fx: 216.781.8207 jmmurray@bgmdlaw.com rvasvari@bgmdlaw.com
Attorneys for Plaintiffs Arthur Lavin, M.D., et al.

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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Arthur Lavin, et al.,

)

)

Plaintiffs,

)

vs.

)

)

Jennifer Brunner, in her official capacity )

as Ohio Secretary of State,

)

)

Defendant.

)

Case No. 1: 10 CV 1986
JUDGE DONALD C. NUGENT
MEMORANDUM OPINION AND ORDER

This matter is before the Court pursuant to a Report and Recommendation (ECF #17) issued by Magistrate Judge Nancy Vecchiarelli on October 12, 2010, recommending that Plaintiffs’ Motion for Preliminary Injunction against Defendant to prohibit her from enforcing Ohio Rev. Code § 3599.45 (ECF #2) be granted and that a preliminary injunction against enforcement of § 3599.45 be issued. Both Plaintiffs and Defendant filed objections to the Report and Recommendation on October 19, 2010. On October 22, 2010, the parties filed responses to the other parties’ objections. For the reasons that follow, the Report and Recommendation is not adopted and Plaintiffs’ Motion for a Preliminary Injunction (ECF #2) is denied.
Factual and Procedural Background1 Plaintiffs, who are Ohio physicians and Medicaid providers, filed this action on September 3, 2010, seeking a declaratory judgment that Ohio Rev. Code § 3599.45 violates the First and Fourteenth Amendments to the United States Constitution and an injunction barring Defendant, the Secretary of State, from enforcing § 3599.45 against candidates for attorney

1
Magistrate Judge Vecchiarelli provided a cogent and useful summary of the factual background of Senate Bill 159 and of the issues relevant to this action in her report and recommendation.

general or county prosecutor to whom Plaintiffs make campaign contributions.
The Ohio General Assembly adopted Senate Bill 159 in 1978 which barred Medicaid
providers from fraudulently claiming payments for ostensible services and provided for the
investigation and prosecution of Medicaid fraud. Included in Senate Bill 159 was the provision
at issue here which provides in relevant part:
(A) No candidate for the office of attorney general or county prosecutor or such a candidate’s campaign committee shall knowingly accept any contribution from a provider of services or goods under contract with the department of job and family services pursuant to the medicaid program of Title XIX of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider. . . .
(B) Whoever violates this section is guilty of a misdemeanor of the first degree.
Ohio Rev. Code § 3599.45.
Plaintiffs allege that they contacted the campaign office of Ohio Attorney General
Richard Cordray in July 2010 to ask how Plaintiffs might make a donation to his campaign for
re-election. The campaign office told Plaintiffs that it could not accept campaign contributions
from Plaintiffs because they provided services to patients insured by Medicaid. Plaintiffs also
discovered that Cordray’s campaign website also warns potential donors that it is not permitted
to accept campaign contributions from Medicaid providers or from any person having an
ownership interest in the provider. Plaintiffs filed this action two months later, asserting that
their First Amendment rights have been violated and that they will suffer irreparable harm if
Defendant is not enjoined from enforcing § 3599.45 so that they will be permitted donate to Mr.
Cordray’s campaign (or any other candidate running for attorney general or county prosecutor)
before election day in November, 2010.
2

Standard of Review for a Magistrate Judge’s Report and Recommendation The applicable district court standard of review for a magistrate judge’s report and recommendation depends upon whether objections were made to the report. When objections are made to a report and recommendation of a magistrate judge, the district court reviews the case de novo. FED. R. CIV. P. 72(b) provides: The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
Discussion This Court has reviewed the Report and Recommendation of the Magistrate Judge de novo, in conjunction with the written objections and responses of the Parties and finds that the objections and response submitted by Defendant are persuasive. Specifically, the Court disagrees with the Magistrate Judge’s conclusion that Plaintiffs demonstrated a strong likelihood of success on the merits of their claim. Without a finding of likelihood of success on the merits, irreparable injury cannot be presumed and Plaintiffs would not be entitled to a preliminary injunction. Under Buckley v. Valeo, 424 U.S. 1, 25 (1976), and its progeny, § 3599.45 is Constitutional so long as it is closely drawn to match a sufficiently important governmental interest. Magistrate Judge Vecchiarelli correctly determined that the Secretary set forth a sufficiently important state interest behind §3599.45, the prevention of corruption or the appearance of corruption arising from Medicaid providers contributing to the campaigns of
3

candidates for Attorney General or County prosecutor–the offices charged with enforcing the Medicaid fraud provisions against Medicaid providers. This Court disagrees with the finding that §3599.45 was not closely drawn to match the state’s interest in preventing corruption or the appearance of corruption.
A contribution restriction, such as the one at issue here, is closely drawn if it “do[es] not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates or political parties.” Buckley, 424 U.S. at 29. In applying this standard, the Supreme Court instructed that “we have ‘no scalpel to probe’ each possible contribution level. We cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute’s legitimate objectives. In practice, the legislature is better equipped to make such empirical judgments, as legislators have ‘particular expertise’ in matters related to the costs and nature of running for office.” Randall v. Sorrell, 548 U.S. 230, 248 (2006) (citations omitted). As such, courts should ordinarily defer to the legislature’s determination of such matters. Id.
The statute at issue here applies only to Medicaid providers, and their owners, as contributors and the enforcers of the Medicaid statute, as the recipients. It only prohibits direct contributions from Medicaid providers to candidates for offices that prosecute Medicaid fraud. It does not prevent Medicaid providers, or their owners, from contributing to any other candidate for any other state or county office. In addition, the statute does not limit contributions by employees or families of Medicaid providers. While Medicaid providers and their owners are limited in making direct financial contributions to a candidate for attorney general or county prosecutor, they may exercise their rights of free association and speech under the First
4

Amendment by volunteering their time to such candidates and may certainly “enter into robust
and effective discussion of candidates and campaign issues.” Thus, the statute does not prohibit
Plaintiffs from supporting Mr. Cordray’s candidacy or any other candidate for attorney general
or county prosecutor. Accordingly, the contribution ban of § 3599.45 is more properly described
as a “merely marginal speech restriction,” which does not materially limit the robust and
effective discussion of candidates. FEC v. Beaumont, 539 U.S. 146, 161 (2003)(“restrictions on
political contributions have been treated as merely ‘marginal’ speech restrictions...because
contributions lie closer to the edges than to the core of political expression”).
As the First Amendment has not been burdened beyond marginal speech restrictions
related to contributions, this Court will not second guess the legislature as to the precise
restrictions necessary to carry out the state’s sufficiently important government interest. After
careful review, it is clear that the concerns expressed by the Magistrate Judge do not support a
conclusion that § 3599.45 was not closely drawn. Accordingly, the Court finds that Plaintiffs’
have not demonstrated a strong likelihood of success on the merits. The Magistrate Judge’s
finding of irreparable injury was based on her finding of a strong likelihood of success on the
merits. Without that finding that Plaintiffs’ First Amendment rights were impermissibly
impinged, Plaintiffs have not shown that they will be irreparably injured absent the issuance of an injunction.2
2
Defendant raises the issue that the injunction sought by Plaintiffs may not result in the relief they seek. While the Secretary of State may be enjoined from enforcing § 3955.45, as a criminal statute, the duties of prosecuting violations of § 3955.45 falls to the county prosecutors who are not party to this action. Thus, county prosecutors may charge violators of § 3955.45 even if such violations were not discovered or referred to them by the Secretary of State. County prosecutors may act individually. Thus, it is speculative whether any candidate for attorney general or county prosecutor would accept a donation
5

Conclusion For the reasons set forth above, the Report and Recommendation is not adopted. Plaintiffs’ objections are overruled. Plaintiffs’ Motion for a Preliminary Injunction (ECF #2) is denied. IT IS SO ORDERED.

DATED:___October 27, 2010__

/s/ Donald C. Nugent DONALD C. NUGENT UNITED STATES DISTRICT JUDGE

from a Medicaid provider if only the Secretary of State, but not the county prosecutors, are enjoined from enforcing the statute. In any event, Plaintiffs have not shown the elements necessary to obtain a preliminary injunction.
6

Lavin et al v. Brunner, Docket No. 1:10-cv-01986 (N.D. Ohio Sept 03, 2010), Court Docket
General Information

Case Name Docket Number Court Nature of Suit Related Opinion(s)

Lavin et al v. Brunner 1:10-cv-01986 United States District Court for the Northern District of Ohio Civil Rights: Other 2010 BL 253818 803 F. Supp. 2d 756

© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6LDVA15O2?documentName=30.pdf&fmt=pdf

 
 Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 1 of 47. PageID #: 24

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

ARTHUR LAVIN, et al.,
Plaintiffs v. JENNIFER BRUNNER, In Her Official Capacity as Ohio Secretary of State Defendant

CASE NO. 1:10-cv-01986
JUDGE: MAGISTRATE JUDGE:

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs Arthur Lavin, M.D., et al. respectfully move this Court for a preliminary injunction

that enjoins Defendant, pending disposition of this action on its merits, from enforcing Ohio

Revised Code Section 3599.45. A memorandum in support and other supporting materials are

attached.

Respectfully submitted, THE CHANDRA LAW FIRM, LLC

BERKMAN, GORDON, MURRAY & DEVAN

_/s/ Subodh Chandra___________ Subodh Chandra (OH Bar No. 0069233) Donald Screen (OH Bar No. 0044070) 1265 W. 6th St., Suite 400 Cleveland, OH 44113-1326 Phone: 216.578.1700 Fax: 216.578.1800 Subodh.Chandra@StanfordAlumni.org Donald.Screen@gmail.com

__/s/ Raymond V. Vasvari, Jr.______ J. Michael Murray (0019626) Raymond V. Vasvari, Jr. (0055538) 55 Public Square, Suite 2200 Cleveland, Ohio 44113-1949 PH: 216.781.5245 Fx: 216.781.8207 jmmurray@bgmdlaw.com rvasvari@bgmdlaw.com
Attorneys for Plaintiffs Arthur Lavin, M.D., et al.

Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 2 of 47. PageID #: 25
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION TABLE OF CONTENTS

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Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 3 of 47. PageID #: 26

a. The Section unnecessarily imposes an outright ban on

contributions

by

Medicaid

providers…………………………………….……………33

b. Section 3599.45 is Overbroad, and Not Closely Drawn, In

That It Prohibits Contributions from Those With Even a De

Minimus Ownership Interest in a Medicaid

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TABLE OF AUTHORITIES
Cases American Civil Liberties Union of Kentucky v. McCreary County, Kentucky, 354 F.3d 438, 445 (6th Cir. 2003)
................................................................................................................................................... 16 Buckley v. Valeo, 424 U.S. 1 (1976)............................................................................................ passim Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) ......................................................................... 18, 19 Citizens United v. Federal Election Commission, 130 S. Ct. 876, (2010)....................................... 16, 28, 37 Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) ............................................................... 39 Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998),............................................... 16 Dallman v. Ritter, 225 P.3d 610 (Colo. 2010). ....................................................................... 32, 35, 38 Déjà vu of Nashville v. Metro. Gov’t of Nashville, 274 F.3d 377 (6th Cir. 2001)........................................ 39
ii

Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 4 of 47. PageID #: 27
Dia v City of Toledo, 937 F. Supp. 673 (N.D. Ohio 1996).................................................................. 39 Doctor John’s, Inc. v. City of Sioux City, Iowa, 305 F. Supp.2d 1022 (N.D. Iowa 2004).......................... 41 Elrod v. Burns, 427 U.S. 347 (1976); ................................................................................................. 39 Fair Political Practices Comm’n v. Super. Ct, 599 P.2d 46 (Cal. 1979)..................................................... 34 FEC v. Beaumont, 539 U.S. 146 (2003)............................................................................................. 17 Glick v. Sokol, 149 Ohio App.3d 344, 77 N.E.2d 215, 317 (Ohio Ct. App. 2002)............................. 29 Green Party of Conn. v. Garfield, __ F.3d __, Nos. 09-0599 & 09-0609, 2010 WL 2737134 (2d Cir. July
13, 2010) .................................................................................................................. 25, 33, 34, 36 Green Party of Conn. v. Garfield, 590 F. Supp.2d 288, (D.Conn. 2008) ............................................... 28 Green Party of Conn. v. Garfield, 648 F. Supp.2d 298 (D. Conn. 2009) ................................................ 27 In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985) ......................................................... 16 Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) ....................................................................... 15 McConnell v. FEC, 540 U.S. 93 (2003).................................................................................. 17, 20, 34 Meeks v. Papadopulos, 404 N.E.2d 159 (Oh. 1980) ............................................................................ 29 Morscott, Inc. v. City of Cleveland, 781 F. Supp. 500 (N.D. Ohio 1990). ............................................... 39 Newsom v. Norris, 888 F.2d 371 (6th Cir. 1989) ................................................................................. 39 Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000) ........................................................... 19, 21 Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 387 (2000).......................................................... 17 Randall v. Sorrell, 548 U.S. 230 (2006) .................................................................................. 20, 21, 33 Roth v. United States, 354 U.S. 476 (1957) ......................................................................................... 40 Six Clinics Holding Corp., II v. Cafcomp Systems, Inc., 119 F.3d 393, 399 (6th Cir. 1997) ....................... 16 Shafer v. Ohio Turnpike Assoc., 113 N.E.2d 14 (Ohio 1953)………………………………………. 29 Tenn. Scrap Recyclers Ass’n v. Bredesen, 556 F.3d 442, 447 (6th Cir. 2009)............................................ 15 UAW, Local Union 1112 v. Brunner, 911 N.E.2d 327 (Ohio Ct. App. 2009).......................... 13, 22, 36 Virginia v. Hicks, 539 U.S. 113 (2003)…………………………………………………………...…32 Statutes Ohio Admin. Code § 5101:3 et seq............................................................................................... 5, 6 Ohio Rev. Code § 1.49 ................................................................................................................... 29 Ohio Rev. Code § 109.85 ....................................................................................................... 6, 9, 11 Ohio Rev. Code § 221……………………………………………………………………………...6 Ohio Rev. Code § 2939, et seq. ...................................................................................................... 11 Ohio Rev. Code § 309.............................................................................................................. 14, 15 Ohio Rev. Code § 3501.04 ............................................................................................................... 3 Ohio Rev. Code § 3517 ........................................................................................................... passim Ohio Rev. Code § 3599.45 ...................................................................................................... passim Ohio Rev. Code § 5111. .................................................................................................... 5, 6,10, 11
Social Security Amendments of 1965, Pub. L. No. 89-97, 42 U.SC. § 1396 et seq......................... 4, 5 Rules Fed. R. Civ. P. 65 ........................................................................................................................... 41
iii

Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 5 of 47. PageID #: 28

I.

ISSUE PRESENTED

Plaintiffs are entitled to a preliminary injunction that enjoins Defendant from enforcing Ohio Revised Code § 3599.45. That statute flatly bans candidates for Ohio Attorney General or county prosecuting attorney from accepting any campaign contributions whatsoever from Ohio Medicaid providers. Because it advances no sufficiently important governmental interest and is not closely drawn, the ban violates Plaintiffs’ rights to free speech and free association under the First and Fourteenth Amendments of the United States Constitution.

II. INTRODUCTION

At issue in this case is a remarkable statute that makes it a crime for thousands of law

abiding citizens to contribute to candidates for certain public offices. Plaintiffs are physicians, and

number among the more than 64,000 healthcare providers who treat indigent Ohioans under the federal Medicaid program.1

Each Plaintiff is knowledgeable about, and deeply vested in, the public-policy debate

surrounding the delivery of healthcare, in Ohio and nationwide. Each has strong opinions about

providing services to the most disadvantaged of citizens. And in keeping with their beliefs, each has

chosen to support a particular candidate for Ohio Attorney General, Richard Cordray, because his

views reflect their own regarding healthcare reform.

But not one of the Plaintiffs can contribute to the campaign of their chosen candidate for

attorney general—nor, for that matter, to the campaign of any candidate for county prosecuting

attorney—because under Ohio Revised Code § 3599.45, it is a first-degree misdemeanor for

candidates to accept Plaintiffs’ contributions.

It is beyond question that the act of contributing to a political candidate is a form of political

speech, and a form of political association, protected by the First Amendment. The state is not free

1 See Health Policy Institute of Ohio, Ohio Medicaid Basics 2009, at 2, available at http://www.healthpolicyohio.org/pdf/MedicaidBasics_2009.pdf, last accessed Sept. 3, 2010 (figure includes not only physicians, but wide array of healthcare providers including corporations, which themselves have a First Amendment right to engage in political activity).
1

Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 6 of 47. PageID #: 29
to prohibit such contributions at will. Rather, it must demonstrate that restrictions on campaign spending are closely drawn to advance a sufficiently important state interest that justifies such restrictions. The outright ban at issue cannot meet that test: it is neither closely drawn to advance, nor does it in fact advance, any important governmental interest, and as such, cannot survive its encounter with the First Amendment.
Ohioans will go to the polls to elect an attorney general in eleven weeks. For Plaintiffs to have the benefit of knowing that their campaign contributions helped their candidate at the polls, the contested statute must be enjoined at once. To permit the restrictions at bar to persist even a little longer will be to rob these Plaintiffs, and many concerned and politically engaged physicians like them, of the fundamental right to have a say in their democracy. III. THE PARTIES
Each Plaintiff is a physician licensed to practice medicine in and by the State of Ohio. Each contracts with the Ohio Department of Job and Family Services to provide goods and services to eligible patients under the Medicaid Program. And each, by virtue of his or her own experience in the practice of medicine, has come to form strong opinions regarding the provision of care for the indigent and the urgent need for healthcare reform in America.
Plaintiffs have experienced first-hand the frustrations that a broken health-insurance system have visited on patients who require access to quality medical care without interference from insurers. They object to the efforts of various politicians to undermine and derail the healthcare reforms that Congress and the Obama administration enacted, and particularly object to the efforts of some politicians, including a handful of state attorneys general, to challenge those reforms in the courts.2
2 As of this writing, 21 states have filed suit, contesting the implementation of various aspects of the administration’s healthcare reforms—enacted by Congress as the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010)—Virginia, in an action pending in the Eastern District of Virginia,
2

Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 7 of 47. PageID #: 30
Mike DeWine, who is a candidate for Ohio Attorney General, has promised to add Ohio to the list of states contesting healthcare reform in the courts if he is elected.3 For this reason, the Plaintiffs oppose his candidacy.
Plaintiffs, by contrast, were impressed with the refusal of the incumbent attorney general, Richard Cordray, to join in these suits, and support his position that the recently enacted federal healthcare reforms are not only constitutional, but also represent sound public policy that is vital to our national welfare, and will benefit millions of Ohioans.
For these reasons, Plaintiffs hoped to contribute to the reelection campaign of General Cordray, but they have been thwarted in doing so by the provisions of Section 3599.45, which we will discuss in detail shortly.
The enforcement of that statute—and the state’s election laws generally—falls to the Defendant, Ohio Secretary of State Jennifer Brunner (“the Secretary”).
The Secretary is the chief elections officer of the state under Revised Code § 3501.04, and in that capacity is both authorized to enforce, and charged with enforcing, the state’s election laws. Ohio law requires her to investigate violations of election laws and to refer those violations for prosecution. She is sued here in her official capacity only for purposes of obtaining declaratory and injunctive relief, in particular to bar enforcement of the contested statute. IV. STATEMENT OF FACTS
In July 2010, lead Plaintiff, Arthur Lavin, M.D., contacted the campaign office of General
and twenty other states in an action pending in the Northern District of Florida. See Warren Richey, Attorneys general in 14 states sue to block healthcare reform law, CHRISTIAN SCI. MONITOR, Mar. 23, 2010, available at http://www.csmonitor.com/USA/Justice/2010/0323/Attorneys-general-in-14-states-sue-to-blockhealthcare-reform-law; John Schwartz, Virginia Suit Against Health Care Law Moves Forward, N.Y. TIMES, Aug. 2, 2010, available at http://www.nytimes.com/2010/08/03/us/03virginia.html. 3 Mike DeWine, Should Ohio join attempt to overturn health-care law? Yes., COLUMBUS DISPATCH, Apr. 1, 2010.
3

Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 8 of 47. PageID #: 31
Cordray, to inquire as to how Plaintiffs might donate to support the campaign.4 Plaintiffs were dismayed to learn that their contributions would not be accepted, because they were serve patients insured by the Medicaid program.5 In fact, the Cordray campaign’s website explicitly warns that the campaign will not accept donations from Medicaid providers.6
The reason for the refusal, the website explains, is found in the contested statute: The Cordray Committee is not permitted to accept campaign contributions from a provider of services or goods under contract with the department of job and family services pursuant to the Medicaid program of Title XIX of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider.7
To understand the contribution ban—and why it is improper under the First Amendment— it is necessary to understand a bit about the Medicaid program, its administration in Ohio, and the history surrounding Section 3599.45’s adoption.
A. The Medicaid program In July 1965, Congress amended the Social Security Act of 1935 to add Title XIX, which allows federal appropriations to be made to fund lump-sum disbursements to the states for the purpose of providing medical assistance and rehabilitation to indigent, blind, disabled and aged individuals, their dependent children and their families. This is known as the Medicaid program.8 Section 1902 of the Medicaid Act requires states that participate in the program to have in
4 See Declaration of Arthur Lavin, M.D. at ¶ 7 (attached as Ex. 1). 5 Id. at ¶ 8. 6 See https://donate.cordrayforohio.com/page/contribute/contribute, last accessed Aug. 19, 2010. A printed copy of the page displayed at that URL is attached as Ex. 2. 7 Id. 8 See Social Security Amendments of 1965, Pub. L. No. 89-97, sec. 121(a), Title XIX, 79 Stat. 343, 343-52 (1965) (codified as amended at 42 U.SC. § 1396-1, §§1396a-d) (2010)).
4

Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 9 of 47. PageID #: 32
place fiscal procedures designed to ensure that the program is administered efficiently, and that contractors who provide services funded by the program are subject to certain standards of accountability and oversight.9
In Ohio, the Medicaid program generally is administered by the Ohio Department of Job and Family Services (“ODJFS”).10 Providers become part of the Medicaid program by entering into agreements with ODJFS, subject to certain eligibility requirements.11 ODJFS has authority to set out rules, consistent with state and federal law, establishing the conditions, method, and amount of reimbursement to providers, as well as procedures for enforcing those rules, including procedures for corrective-action plans, or sanctions, for those who violate the rules. 12 It is to ODJFS—not the attorney general or the county prosecuting attorneys—that Medicaid providers submit their claims for reimbursement,13 their cost reports,14 and, where required, their requests for prior authorization.15
9 See id. § 1902, 79 Stat. at 344-48 (codified at 42 U.S.C. § 1396a(a)(4)(2010)). 10 Ohio Rev. Code Ann. § 5111.01 (West 2010). 11 See, e.g., Ohio Admin. Code § 5101:3-1-17; § 5101:3-1-17.2; Ohio Rev. Code Ann. §§ 5111.22; 5111.21 (West 2010). 12 Ohio Rev. Code Ann. § 5111.02; Ohio Admin. Code § 5103:3-1-60 (specifying reimbursement requirements) & Appx. DD (fee schedule for fee-for-service providers); see also Ohio Rev. Code Ann. §§ 5111.021; 5111.221 (providing that ODJFS shall make best efforts to calculate payment rates by set date every year). See generally Ohio Admin. Code § 5101:3 et seq. (setting out rules, including for billing, reimbursement, and eligibility, for various provider services). 13 See, e.g., id. § 5111.021; Ohio Admin. Code §§ 5101:3-1-19 et seq. (claims submissions); 5101:3-3-39.1 (claim submissions for nursing facilities); 5101:3-26-09 (managed-care-plan reimbursements); 5101: 3-9-05 (pharmacy reimbursements); 5101:3-2-04 (certain hospital-provided services). 14 See, e.g., Ohio Admin. Code §§ 5101:3-2-23 (cost reports); 5101:3-3-20 (cost reports of nursing facilities); 5101:3-26-09(6)(a) (cost reports of managed-care plans). 15 See id. § 5101:3-1-31.
5

Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 10 of 47. PageID #: 33
ODJFS has broad authority to recover Medicaid overpayments.16 That includes deducting from payments any amount that the provider owes the state, and conducting final fiscal audits under federal law.17 ODJFS also conducts reviews of the Medicaid program, including site inspections and interviews with providers, to determine any program violations.18 Upon adjudication, ODJFS can refuse to enter into, suspend, or terminate a provider agreement.19 Where judgment entry or fraud conviction based on Ohio Rev. Code § 109.85 has been made, ODJFS may terminate without adjudication.20
Finally, ODJFS is required to have in place its own program to prevent and detect fraud, waste, and abuse.21 When it detects fraud, the Department may subject the provider to audit and review, 22 including putting a provider’s claim payments on “hold and review.”23 ODJFS is also required to prepare an annual report detailing the Department’s efforts to minimize fraud, abuse, and waste in the Medicaid program, to be submitted to the Governor and General Assembly and made available to the public.24
16 See, e.g., Ohio Rev. Code § 5111.061; see also id. § 5111.914 (providing that state agencies contracting with ODJFS may commence action to recover overpayment on the department’s behalf). 17 Id. § 5111.021(C) and (D). 18 See, e.g., id. § 5111.10; see also id. § 5101.37 (general-investigative authority). 19 Id. § 5111.06(B) (citing Chapter 119 on administrative procedures); see also § 5111.52 (rules for terminating agreement with nursing facilities). 20 Id. § 5111.06(D)(4) (citing 5111.03(C) and (F)). 21 Ohio Admin. Code § 5101:3-1-29. 22 Id. 23 Ohio Admin. Code § 5101:3-1-27.1. 24 Ohio Rev. Code Ann. § 5111.092.
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B. The Contested Statute: Ohio Rev. Code § 3599.45

Ohio has a comprehensive scheme for regulating campaign finances, the full breadth of

which it is not necessary to consider here. For our purposes, it is sufficient to note that the

contested statute imposes a unique outright ban on political contributions:

3599.45

Contribution from Medicaid provider

(A) No candidate for the office of attorney general or county prosecutor or such a candidate’s campaign committee shall knowingly accept any contribution from a provider of services or goods under contract with the department of job and family services pursuant to the medicaid program of Title XIX of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider.

As used in this section “candidate,” “campaign committee,” and “contribution” have the same meaning as in section 3517.01 of the Revised Code.

(B) Whoever violates this section is guilty of a misdemeanor of the first degree.25

Like many states, Ohio imposes general restrictions on the amount that can be contributed

to a given political candidate. Individuals over the age of seven may contribute no more than $10,000 to a candidate for a particular statewide office.26 Adjusted for inflation, that limit, as of this writing, is $11,395.56.27 Ohio also bans political contributions from a small number of discrete

groups, including children under the age of seven, foreign nationals, and certain state employees

25 Id. § 3599.45 (West 2010).

26 Id. § 3517.102.

27

Ohio

Rev.

Code

Ann.

§

3517.104(A);

http://www.sos.state.oh.us/sos/upload/candidates/2009limitadjustment.pdf, last accessed on Aug. 13, 2010;

see also http://www.sos.state.oh.us/SOS/Campaign%20Finance/CFGuide/Resources/limchart.aspx, last

accessed on Aug. 13, 2010.

7

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who would be employed by, or in the same state agency or office as, the candidate.28 In addition, as described in further detail below, Ohio has rules regarding the award of contracts to those who have contributed to public officials with responsibility to award such contracts.
But what Ohio does not do—other than in the contested statute—is otherwise prohibit virtually an entire class of professionals (in this case, physicians) from contributing to candidates for an elected office.29 And while every state regulates the conduct of its own elections, and every state participates in the Medicaid program,30 no state—besides Ohio—limits or bans the political contributions that Medicaid providers may make based solely upon their status as Medicaid providers.31
In this light, one might expect the contested statute to have been enacted in response to a pattern of corruption or abuse involving attorneys general and county prosecuting attorneys that caused the General Assembly to create a specific, harsh remedy for a local and significant problem.
It was not. The Ohio General Assembly enacted Section 3599.45 in 1978, as part of a bill that enacted

28 See Ohio Rev. Code Ann. §§ 3517.13(W)(1) (foreign nationals), 3517.102(B)(1)(c) and (C)(1)(a)(I) (children under seven), and 3517.092(B)(2) (state employees). Contributions by foreign nationals to candidates for state office are also prohibited under 2 U.S.C.A. § 441e(b).

29 In 2008, there were about 38,000 physicians practicing in Ohio. See Kaiser State Health Facts,

http://www.statehealthfacts.org/profileind.jsp?cmprgn=1&cat=8&rgn=37&ind=429&sub=100,

last

accessed Sept. 3, 2010. While we have been unable to ascertain with precision what fraction provide services

under Medicaid, in 2008, there were more than 64,000 Medicaid providers of all sorts in Ohio. See

www.healthpolicyohio.org/pdf/MedicaidBasics_2009.pdf, last accessed August 24, 2010.

30

See

National

Conference

of

State

Legislatures,

Medicaid

Update,

http://www.ncsl.org/default.aspx?tabid=14518, last accessed Aug. 20, 2010 (all states participate in

Medicaid).

31 See generally Edward D. Feigenbaum and James A. Palmer, Campaign Finance Law 2002 (Federal Election Commission 2002), available at http://www.fec.gov/pubrec/cfl/cfl02/cfl02.shtml (“Feigenbaum and Palmer, Campaign Finance Law 2002”).

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certain statutes—Ohio Revised Code Sections 5111.03 and 109.85—prohibiting Medicaid fraud. The three statutes together constituted a single act, Amended Senate Bill 159.32
The primary purpose of that bill was to “provide for the recovery of . . . excess payments under the medicaid program.”33 The bill followed on the heels of legislation passed by Congress in October 1977, entitled the Medicare-Medicaid Anti-Fraud and Abuse Amendments (P.L. 95-142) to the Social Security Act (“Amendments”).34
32 1978 Laws of Ohio 434, enacting Am. S. B. 159, 112th Gen. Assemb, 2d. Sess. (Oh 1978), (codified as amended at Ohio Rev. Code Ann. §§ 5111.03, 109.85, 3599.45) (attached as Ex. 3). Section 5111.03 was originally codified as Revised Code Section 5101.511. 33 Ohio Senate Journal, 112th Gen. Assemb., 1st Sess., at 187, 192, 1278 (1977) (all journal minutes attached as Ex. 4); Ohio House Journal, 112th Gen. Assemb., 2d Sess., at 2418, 2556 (1978), Ex. 4. 34 See Legislative Service Commission, Bill Analysis for Am. S.B. 159, 112th Gen. Assemb., at 1 (1978) (“S.B. 159 Bill Analysis”) (attached as Ex. 5). These Amendments and subsequent federal regulations set forth standards for the establishment and operation of State Medicaid Fraud Control Units and provided 90% federal funding for the activities of qualifying state units in combating Medicaid provider fraud. Id.
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Toward that end, Senate Bill 159 proposed to add two new sections to the Revised Code.
The first of these, now codified at Section 5111.03, prohibited Medicaid fraud itself, and provided
sanctions—civil penalties and the termination of provider contracts—for those convicted of such
fraud.35 The substantive restrictions provide as follows:
No provider of services or goods contracting with the department of job and family services pursuant to the medicaid program shall, by deception, obtain or attempt to obtain payments under this chapter to which the provider is not entitled pursuant to the provider agreement, or the rules of the federal government or the department of job and family services relating to the program. No provider shall willfully receive payments to which the provider is not entitled, or willfully receive payments in a greater amount than that to which the provider is entitled; nor shall any provider falsify any report or document required by state or federal law, rule, or provider agreement relating to medicaid payments.36
Senate Bill 159 also enacted Section 109.85, which authorizes the Attorney General to
investigate and prosecute cases involving Medicaid fraud, or to refer them for prosecution to
prosecutors in the county where the alleged violations took place:
(A) Upon the written request of the governor, the general assembly, the auditor of state, the director of job and family services, the director of health, or the director of budget and management, or upon the attorney general's becoming aware of criminal or improper activity related to Chapter 3721. and the medical assistance program established under section 5111.01 of the Revised Code, the attorney general shall investigate any criminal or civil violation of law related to Chapter 3721 of the Revised Code or the medical assistance program.
(B) When it appears to the attorney general, as a result of an investigation under division (A) of this section, that there is cause to prosecute for the commission of a crime or to pursue a civil remedy, the attorney general may refer the
35 See Ohio Rev. Code Ann. § 5111.03(B) and (C) (originally 5101.511(B) and (C)).
36 Ohio Rev. Code Ann. § 5111.03(A) (West 2010).
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evidence to the prosecuting attorney having jurisdiction of the matter, or to a regular grand jury drawn and impaneled pursuant to sections 2939.01 to 2939.24 of the Revised Code, or to a special grand jury drawn and impaneled pursuant to section 2939.17 of the Revised Code, or the attorney general may initiate and prosecute any necessary criminal or civil actions in any court or tribunal of competent jurisdiction in this state. When proceeding under this section, the attorney general, and any assistant or special counsel designated by the attorney general for that purpose, have all rights, privileges, and powers of prosecuting attorneys. The attorney general shall have exclusive supervision and control of all investigations and prosecutions initiated by the attorney general under this section. The forfeiture provisions of Chapter 2981 of the Revised Code apply in relation to any such criminal action initiated and prosecuted by the attorney general.
(C) Nothing in this section shall prevent a county prosecuting attorney from investigating and prosecuting criminal activity related to Chapter 3721 of the Revised Code and the medical assistance program established under section 5111.01 of the Revised Code. The forfeiture provisions of Chapter 2981 of the Revised Code apply in relation to any prosecution of criminal activity related to the medical assistance program undertaken by the prosecuting attorney.37
Together, these provisions create the state-law offense of Medicaid fraud, and give the
Attorney General and county prosecuting attorneys the power to investigate and prosecute those
offenses, just as they have the power to investigate and prosecute a plethora of other crimes under
Ohio law.
These provisions together made up the whole of Senate Bill 159 when it passed the Ohio
Senate.38 The campaign-contributions ban at issue here was added in the Ohio House, where it was
37 Ohio Rev. Code Ann. § 109.85 (West 2010).
38 Am. S.B. 159, 112th Gen. Assemb., 1st Sess. (Oh 1977) (bill as passed by Senate), Ex. 6; see Ohio Senate Journal at 187, 192, 1229-30, 1278-80 (1977), Ex. 4.
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ultimately adopted by a margin of just one vote.39 Nothing in the contested statute’s history suggests that it was adopted in the face of a pattern of corruption in which the attorney general, or prosecuting attorneys, were found or even alleged to have turned blind eyes to campaign contributors’ Medicaid fraud. Quite the opposite.
Ohio Senator Harry Meshel was the principal Senate sponsor of Am. S. B. 159, and recalls no underlying scandal or crisis involving Medicaid fraud going uninvestigated or unpunished by public officials due to corrupt relationships.40
Rather, he recalls the provision being added in its larger context: a game of “oneupsmanship” by both Democrats and Republicans in which they would attempt to “outdo one another” to enact ever-stricter ethics requirements involving public officials.41 According to Meshel, the restrictions adopted in Section 3599.45 were not enacted in response to any particular episode of actual corruption or the appearance of corruption involving attorneys general or county prosecutors and Medicaid providers.42
While the statute’s legislative history does not alter its plain-language contribution ban, it does bear directly—as we shall soon see—upon the question of whether it is closely tailored to the need for which it was ostensibly adopted.
39 Ohio House Journal, 112th Gen. Assemb., 2d Sess., 2558-60 (1978) (attached as Ex. 4); see also Hearing on Am. S.B. 159 Before the H. Comm. on Fin. and Approp., 112th Gen. Assemb., 2d Sess. 4-5 (Oh 1978) (Minutes— Mar. 8, 1978, 9:30am) (attached as Ex. 7). 40 See Declaration of Harry Meshel at ¶¶ 1-10 (attached as Ex. 8). 41 Id. at ¶ 10. 42 See id.
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C. Other Campaign Contribution Limits in Ohio In addition to the general limitations discussed above, Ohio imposes a set of focused limitations on the award of state contracts—but not campaign contributions—to prevent kickbacks and pay-to-play schemes by state contractors. State agencies may not award unbid contracts in excess of $500 to any individual or entity that, during the previous twenty-four months, has contributed over $1,000 to the campaign of any public official responsible for awarding contracts on behalf of that agency.43 In addition, the Ohio General Assembly adopted provisions (not currently in force) limiting certain state contractors’ contributions to such public officials to $1,000 for a year after the award of a contract.44 Violation of any of the above provisions can lead to civil penalties, and to the rescission of state contracts awarded in derogation of these restrictions.45
D. Duties of the Ohio Attorney General and County Prosecuting Attorneys
Both the attorney general and the several county prosecutors are empowered to investigate and prosecute Medicaid fraud. That is unremarkable, of course, and in no way distinguishes Medicaid fraud from literally hundreds of other crimes, the investigation and prosecution of which is
43 Ohio Rev. Code Ann. § 3517.13(I) and (J) (Lexis 2006) (as enrolled by 1990 Laws of Ohio 4928, 49464950, and in effect before H.B. 694 was passed in 2006) (attached as Ex. 9). 44 Am. Sub. H.B. 694, 126th Gen. Assemb., 2d. Sess. (Oh. 2006), invalidated on grounds of procedural infirmity by UAW, Local Union 1112 v. Brunner, 911 N.E.2d 327, 333, 335 (Ohio Ct. App. 2009) (holding that bill was improperly enacted when clerical error caused wrong version to be signed by Governor, and General Assembly’s reenactment of the bill violated Ohio’s single-subject rule). 45 Ohio Rev. Code Ann. § 3517.992(R) (West 2010). Penalties for the bans mentioned above in n. 28 and accompanying text are as follows: Ohio Rev. Code Ann. § 3517.992(AA1), (AA2) (West 2010) (foreign nationals) (three times the amount contributed or $10,000, whichever is more); § 3517.992(I)(1), (J)(1), (I)(6), (J)(5) (minors under age seven) (three times the amount contributed, but no violation occurs if fully refunded within 5 days of receiving or by the tenth business day after receiving notification); § 3517.992(R) (certain state contractors)($1,000 and potential contract rescission); see also Am. Sub. H.B. 694 (three times amount contributed in excess of amount permitted, plus contract-rescission at discretion of elections commission, for violations of $1,000 limitation on contributions made within one year after contract awarded).
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a part—but only a small part—of the vast responsibilities with which these officials are charged. The Ohio Attorney General is the state’s chief law-enforcement officer, and may, upon the
request of the Governor, prosecute any person indicted for a crime.46 And while the office of the Ohio Attorney General maintains a Health Care Fraud Section to discharge its duty to combat Medicaid fraud, it also maintains over two dozen other sections, which focus on the prosecution of innumerable laws and the oversight of a wide variety of official functions. These functions include the following: antitrust; appellate litigation; charitable law; civil rights; collections enforcement and revenue recovery; consumer protection; defense of the State of Ohio in the Court of Claims; criminal justice; education law; employment law; environmental enforcement; labor relations; publicutilities law; taxation; tobacco enforcement; transportation; and workers’ compensation.47
Ohio’s prosecuting attorneys “may inquire into the commission of crimes within the county” and “shall prosecute, on behalf of the state, all complaints, suits, and controversies in which the state is a party,” except for those requiring a special prosecutor or the state attorney general.48
In addition, county prosecuting attorneys have a range of additional powers and responsibilities beyond their prosecutorial duties. Each acts as the chief legal advisor to the elected commissioners of his or her county, as well as to the county board of elections, the public libraries, and all other county boards, be they elected or appointed.49 By default, each is also the chief legal advisor to the various townships within each county, and may serve as counsel to a variety of other
46 Id. § 109.02. 47 Attorney General Cordray lists the various departments and sections he oversees on his official website: www.ohioattorneygeneral.gov/about, last accessed Aug. 13, 2010. 48 Ohio Rev. Code Ann. § 309.08(A) (West 2010). 49 Id. at § 309.09(A).
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Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 19 of 47. PageID #: 42
agencies and special purpose districts as well.50 In short, both the attorney general and the prosecuting attorneys in the various counties
perform a host of duties in addition to the potential prosecution of Medicaid fraud. They are vested with tremendous power, and great responsibility, the proper exercise and discharge of which are of obvious importance to the citizens and electors of this state. V. LAW & ARGUMENT
Like thousands of other Ohioans, Plaintiffs hope to be heard in the race for Attorney General by donating to the campaign of the candidate of their choice. Unlike their fellow citizens, however, they are prohibited from doing so. Unless and until this Court enjoins the enforcement of Section 3599.45, these Plaintiffs—physicians with an informed passion about the need for healthcare reform—will be excluded from participating in the democratic process in a most basic way.
A preliminary injunction is appropriate when the moving party can establish: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary injunctive relief; (3) the issuance of an injunction would not cause substantial harm to others; and (4) a preliminary injunction is in the public interest.51
These four considerations are factors to be weighed, and not independent elements to be met, before an injunction may be granted.52 The existence of a strong showing on one or more of
50 Id. at § 309.09(B), (D), (E), (F), (G), (H). 51 Tenn. Scrap Recyclers Ass’n v. Bredesen, 556 F.3d 442, 447 (6th Cir. 2009). 52 Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000).
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the four factors lessens the requisite showing as to the others.53 In cases involving the abridgment of First Amendment freedoms, a likelihood of success on the merits per se demonstrates the threat of irreparable harm absent an injunction, and thus ordinarily merits injunctive relief.54
A. Plaintiffs are Likely to Succeed on the Merits of their First Amendment claims.
Plaintiffs are likely to succeed on the merits of their First Amendment claims. The contested statute cannot survive the sort of intermediate scrutiny reserved for limits on campaign contributions because: (1) it is neither crafted to advance a sufficiently important state interest, nor (2) closely drawn to advance such an interest.
1. The contested statute encroaches upon Plaintiffs’ First-Amendment rights to speech and association, and as a contribution restriction, is subject to intermediate scrutiny.
Laws that limit the ability to make political campaign contributions unquestionably implicate the First Amendment guarantees of free speech and free association.55 In the seminal campaignfinance case Buckley v. Valeo, the U.S. Supreme Court addressed federal limits on contributions and expenditures, stating that both types of restrictions imposed “direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties.”56
While the Court found contribution limits to impose less of a restraint on speech than do
53 Six Clinics Holding Corp., II v. Cafcomp Systems, Inc., 119 F.3d 393, 399 (6th Cir. 1997) (citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)). 54 American Civil Liberties Union of Kentucky v. McCreary County, Kentucky, 354 F.3d 438, 445 (6th Cir. 2003), reh’g en banc denied, 361 F.3d 928 (2004), and aff’d, 545 U.S. 844 (2005); Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998), cert denied, 526 U.S. 1087 (1999) (probable success on merits is often the “determinative factor” in preliminary-injunction cases involving the First Amendment rights of the movant). 55 Citizens United v. FEC, 130 S. Ct. 876, 900-01 (2010); Buckley v. Valeo, 424 U.S. 1, 18-19 (1976). 56 Buckley, 424 U.S. at 17 (citation omitted).
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expenditure limits, it nonetheless held that a “contribution serves as a general expression of support for the candidate and his views,” a “symbolic expression of support.”57
Even more, such limits restrict the First Amendment’s right to associate, since “[m]aking a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals.58 The freedom to associate “is diluted if it does not include the right to pool money through contributions, for funds are often essential if ‘advocacy’ is to be truly or optimally effective.”59 The prohibition on campaign contributions at issue here accordingly implicates Plaintiffs’ First-Amendment rights in two important ways.
Because contribution restrictions encroach on fundamental rights, the Supreme Court has consistently subjected such limitations to intermediate scrutiny. The state must demonstrate that it has a “sufficiently important interest and [has] employ[ed] means closely drawn to avoid unnecessary abridgment of associational freedoms.”60
2. Evidence is required to show a sufficiently important state interest. In meeting its burden under intermediate scrutiny, the government is not free to posit an interest into being: it must demonstrate that there exists a malady to be cured, and it must do so through the introduction of evidence.61 To understand why Ohio can show no sufficiently
57 Id. at 21. 58 Id. at 20. 59 Id. at 65-66. 60 Id. at 25; Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 387 (2000); FEC v. Beaumont, 539 U.S. 146, 162 (2003). 61 See, e.g., McConnell v. FEC, 540 U.S. 93, 232 (2003) (invalidating, because evidence was too “scant,” a prohibition on contributions by minors), overruled in part on other grounds, Citizens United v. FEC, 130 S. Ct. 876, 913 (2010).
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important interest in the contested statute, it is instructive to review the justifications that the Supreme Court deems sufficient and insufficient.
In Buckley, the Supreme Court first considered the constitutionality of limits on direct campaign contributions. It did so in the context of a challenge to the Federal Election Campaign Act of 1971, which, among other things, capped individual campaign contributions to candidates for federal office at $1,000 per election, and imposed an annual aggregate limit of $25,000 on individual campaign contributions.62
The Court found that Congress had a legitimate interest in preventing both the reality and the appearance of a political process in which large donors were able to secure favorable treatment from incumbent and potential office holders through their donations, and found that interest to be a a “constitutionally sufficient justification” for the limitations that the act imposed.63
In so holding, the Court was careful to note that—in the post-Watergate era in which Buckley was decided—Congress had well documented both the reality and the public perception of widespread political corruption.64 The need to ameliorate the specific harms, the Court noted, justified limiting the amount a given donor could contribute to a given candidate.
The Act’s $1,000 contribution limitation focuses precisely on the problem of large campaign contributions the narrow aspect of political association where the actuality and potential for corruption have been identified while leaving persons free to engage in independent political expression, to associate actively through
62 Buckley, 424 U.S. at 13 (citing 18 U.S.C. § 608(b)(1) and (3) (1970 ed., Supp. IV)). 63 Id. at 26. 64 Id. at 26-27 & n. 28 (citing Buckley v. Valeo, 519 F.2d 821, 839-40, & nn. 36-38 (D.C. Cir. 1975)). The Court of Appeals noted that the congressional record contained numerous specific examples of the favorable treatment given to donors both by the Nixon administration and by Congress, including the award of ambassadorial positions to campaign contributors, as well as lax regulatory oversight of, and favorable legislative treatment for, industries and trade groups with which donors were affiliated.
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volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.65 It was in this light that the Court first sustained what was a quantitative limitation on— rather than (as in this case) a flat prohibition against—the “undifferentiated, symbolic act of giving” to a chosen campaign.66 The Court clarified the permissible scope of limits on campaign contributions in Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 388-90 (2000). Missouri law imposed limits of between $275 and $1,050 on individual contributions to candidate for state office. The plaintiff, a politicalaction committee, contested the limitations on various First-Amendment grounds.67 In sustaining the limits, the Court noted that the dangers addressed by the Missouri statute were parallel to those addressed by the statute in Buckley, and thus were not “novel” or “implausible.”68 The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.69 While the Court rejected the notion that a heightened evidentiary standard had been applied by cases after Buckley, it stated unequivocally: “We have never accepted mere conjecture to carry a First Amendment burden.”70 The Supreme Court has twice invalidated restrictions on political contributions as
65 [sic]. Id. at 28. 66 Id. at 21. 67 Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 381 (2000). 68 Id. at 390. 69 Id. 70 Id. at 392.
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unjustified, at least in part, by the evidentiary record on which they were adopted: in McConnell v. FEC, in which the Court struck down a ban on contributions by minors,71 and in Randall v. Sorrell, in which the Court struck down a Vermont statute severely limiting the amount that citizens and corporations could donate to campaigns for various state offices.72
In McConnell, the Court held that the government failed to make a “convincing case of the claimed evil,” namely, circumvention of contribution limits imposed on parents.73 In Sorrell, the Court found the restrictions, which limited contributions to some statewide races to just $200, unjustified by any specific history of corruption.
[W]e have found nowhere in the record any special justification that might warrant a contribution limit so low or so restrictive as to bring about the serious associational and expressive problems that we have described. Rather, the basic justifications the State has advanced in support of such limits are those present in Buckley. The record contains no indication that, for example, corruption (or its appearance) in Vermont is significantly more serious a matter than elsewhere. Indeed, other things being equal, one might reasonably believe that a contribution of, say, $250 (or $450) to a candidate's campaign was less likely to prove a corruptive force than the far larger contributions at issue in the other campaign finance cases we have considered. 74 While it was a collection of infirmities that, taken together, doomed the Vermont statute to constitutional perdition as not “closely drawn,” the Court characterized the flaw just described as the failure by the state to “point to a legitimate statutory objective that might justify these special
71 McConnell v. FEC, 540 U.S. 93, 232 (2003), overruled in part on other grounds by Citizens United v. FEC, 130 S. Ct. 876, 913 (2010). 72 Randall v. Sorrell, 548 U.S. 230, 261 (2006) (plurality). 73 McConnell, 540 U.S. at 232. 74 Sorrell, 548 U.S. at 261.
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burdens . . . .”75 In striking down the statute, the Court also found that the restrictions at issue were severe enough to prevent candidates from mounting successful campaigns, and that they would stifle state political parties to an extent that would render them ineffective.76
As we shall see next, the failure of a legitimate objective is a problem the legislation at issue here shares. Assessed under the intermediate scrutiny reserved for limitations on campaign contributions, the contested statute fails First Amendment review, both because it was enacted without the sort of evidentiary support needed to sustain restrictions on campaign contributions, and because it is not closely drawn to achieve any legitimate governmental purpose.
3. Section 3599.45 was not enacted to advance a governmental interest sufficiently important to justify its ban on campaign contributions by Medicaid providers.
The contested statute’s campaign-contribution ban cannot be justified by a generic attempt to prevent either the appearance or the reality of political corruption.
As made the cases cited above show, the state may not reflexively invoke Buckley for the proposition that such evil exists, or that limiting campaign contributions will necessarily promote public integrity, or create the appearance of having done so. Rather, the state must be able to substantiate—with evidence—the existence of malady it proposes to cure, if the medicine it prescribed is to pass constitutional muster.
The nature and “quantum” of that evidence varies “with the novelty and plausibility of the justification raised” in support of a contested restriction.77 By this standard, the contested statute
75 Id. at 262. 76 Sorrell, 548 U.S. at 256-60. 77 Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 391 (2000).
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comes to Court facing a comparatively heavy burden: it is altogether novel, and bans contributions in a manner that can be supported only by the most implausible of justifications.
No other state prohibits Medicaid providers, by dint of that status, from contributing to political campaigns. Ohio is unique among states in this regard, and that alone makes the contested statute novel.78 The prohibition is also novel within the context of Ohio campaign-finance law. No other Ohio statute permanently and categorically bars an entire class of service providers from contributing to the electoral campaigns of officials who have nothing to do with awarding them contracts or determining the rate at which they are compensated.79
This distinguishes Section 3599.45 from its nearest statutory kin, Section 3517.13(I), which imposes restrictions on state contractors who contribute to political candidates for state office. The latter provision prohibits state contractors who have contributed more than a fixed amount to certain political campaigns from receiving contracts awarded by the incumbents of the offices contested in those races—or by their subordinates—for 24 months thereafter.80 Other provisions, not currently in force though passed by the General Assembly, would limit contributions from such state contractors to $1,000 for one-year after a contract is awarded.81
The justification for these statutes is obvious. They prevent campaign contributions from
78 See generally Feigenbaum and Palmer, Campaign Finance Law 2002, above n. 31. 79 As mentioned, the only provisions imposing bans are as follows: Ohio Rev. Code Ann. §§ 3517.13(W)(1) (foreign nationals), 3517.102(B)(1)(c) and (C)(1)(a)(I) (children under seven), and 3517.092(B)(2) (state employees—only as to candidates employed by the same office). 80 Ohio Rev. Code Ann. § 3517.13(I) (West 2010), EX. 9. Similar time bars and monetary caps apply to contractors who provide services to the Workers Compensation Bureau who wish to donate to candidates for Governor or Lieutenant Governor. Ohio Rev. Code Ann. § 3517.13(Y) and (Z) (West 2010), EX. 9. 81 Am. Sub. H.B. 694, 126th Gen. Assemb., 2d. Sess. (Oh. 2006), invalidated on grounds of procedural infirmity by UAW, Local Union 1112 v. Brunner, 911 N.E.2d 327, 333, 335 (Ohio Ct. App. 2009) (holding that bill was improperly enacted when clerical error caused wrong version to be signed by Governor, and General Assembly’s reenactment of the bill violated Ohio’s single-subject rule).
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being given in a quid-pro-quo exchange for public contracts. In significant contrast with Section 3599.45, they do so (a) without imposing a total ban on contributions, (b) for limited periods only, and (c) without the threat of criminal sanctions.
Perhaps the most significant contrast, however, is the potential relationships into which these other laws intercede: between campaign contributors, and the public officials with the authority to reward those contributions directly, albeit unlawfully, in the form of government contracts. That such abuses occur is not a novel idea. Imposing restrictions to prohibit them from occurring squares easily with the rationale that the Supreme Court articulated in both Buckley and Nixon, and seeks to prevent an ancient form of political corruption in a plausible way—by preventing, for a fixed period, contributory quid from being rewarded by state-contract quo.
But however plausible those rationales may be in the context of pay-to-play restrictions, they do not support a statute prohibiting Medicaid providers from contributing to candidates running for either attorney general or county prosecuting attorney:
• Neither the attorney general nor the county prosecuting attorney plays any role in approving providers to contract with the state to provide Medicaid services.
• Neither determines how often a provider may be compensated for services under the program (which turns on the number of patients seen).
• Neither determines the rate at which a provider may be compensated (which is set by a fee-for-service schedule over which attorneys general and prosecuting attorneys have no say).
The only connection between the elected officials whose campaigns are affected by the contested statute and the providers of Medicaid services is that the former—theoretically, some day, and in the case of the most egregious conduct by a handful of certain providers—may be called
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upon to investigate and prosecute those particular providers for fraud. Yet this distinguishes Medicaid providers from no one else in the state. The attorney general
and/or county prosecuting attorneys have the authority to investigate and prosecute anyone in the state for various crimes. Their relationship to Medicaid providers—and their susceptibility to the perceived (and perhaps imagined) corrupting influence of campaign contributions by Medicaid providers—is no different from what it is to any other citizen. Saying that the state has a sufficiently important government interest in banning Medicaid-provider contributions because particular Medicaid providers might one day commit fraud is like saying that all individual contributions from everyone should be banned because all contributions could one day be murderers subject to criminal prosecution.
All of which brings us back to the plausibility of the restriction now at bar, and the degree to which the need for that restriction is or is not supported by the evidence.
The only conceivable rationale for the restriction at issue is a contention that prosecutorial authorities who have received contributions from Medicaid providers might look the other way when the evidence suggests that those providers might be engaged in program-related fraud. So implausible a rationale for such a novel restriction faces a high evidentiary bar.82
And yet, as shown below, there is no evidence to suggest that candidates for attorney general, or for county prosecuting attorney—or incumbents in either of those offices—have ever been embroiled in a scandal involving Medicaid fraud or the failure to investigate and prosecute it.
Here it bears emphasis that the state is not free to fall back upon general concerns about the corrupting role of money in politics in justifying the contribution ban at issue: it must, rather, point
82 See Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 391 (2000) (“[T]he quantum of empirical evidence needed . . . will vary up or down with the novelty and plausibility of the justification raised.”).
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to evidence that supports the existence of the problem that the contested law, closely drawn, endeavors to cure.
Nowhere is this better illustrated than in a very recent Second Circuit decision that upheld certain campaign-finance restrictions based upon a record of public corruption, while invalidating others that imposed the same limitation without a firm evidentiary foundation.
Green Party of Connecticut v. Garfield, __ F.3d ___, Nos. 09-0599 & 09-0609, 2010 WL 2737134 (2d Cir. July 13, 2010), considered the Connecticut Campaign Finance Reform Act, which banned both contractors who had done business with the state, and prospective contractors who sought to do so, from contributing to the campaigns of candidates for state office.83 The ban was “branch specific” and prohibited contributions to the executive branch or legislative branch only if the contractor had done business with that branch of government.84
In addition, the act banned campaign contributions by “communications lobbyists,” which it defined as persons who received $2,000 or more in annual compensation “‘to communicate with an official or his staff in the legislative or executive branch of government or in a quasi-public agency for the purpose of influencing legislative or administrative action.’” 85
Imposing the “closely drawn” analysis announced in Buckley, and approved by the Supreme Court as recently as Randall v. Sorrell, 548 U.S. 230, 261 (2006) (plurality), the Second Circuit sustained the contractor ban based on a widespread, entrenched, and pervasive pattern of political
83 Green Party of Conn. v. Garfield, __ F.3d __, Nos. 09-0599 & 09-0609, 2010 WL 2737134, *2 (2d Cir. July 13, 2010) (citing Conn. Gen. Stat. § 9-612(G) et seq.) (attached as Ex. 10). 84 Id. at *2-3. 85 Id. at *3 (quoting Conn. Gen. Stat. § 1-91(V)).
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kickbacks that for years had undermined honest government in Connecticut.
In doing so, the appeals court stressed that the inquiry into whether a statute meets that test
begins with a probe into precisely the sort of contributions it proscribes, and the underlying reason
advanced to justify the proscription:
We will, therefore, evaluate the contribution bans imposed by the CFRA under the closely drawn standard. We will uphold the statutory bans against plaintiffs’ First Amendment challenge only if they are closely drawn to achieve a “sufficiently important” government interest.
* * *
[W]e are required to examine how the CFRA applies to the different groups of individuals it regulates and determine, in each case, whether the law is closely drawn to the state’s interest in combating corruption and the appearance of corruption. 86
The court found ample justification for the ban on contractors’ contributions by contractors,
their principals, and their relatives, based on Connecticut’s pervasive and sordid history of graft:
The most widely publicized of the scandals involved Connecticut's former governor, John Rowland. In 2004, Rowland was accused of accepting over $100,000 worth of gifts and services from state contractors, including vacations, flights on a private jet, and renovations to his lake cottage. Rowland accepted the gifts, it was alleged, in exchange for assisting the contractors in securing lucrative state contracts. Rowland resigned amidst the allegations, and in 2005 pleaded guilty – along with two aides and several contractors – to federal charges in connection with the scandal. Rowland was fined and sentenced to a year and a day in federal prison.
Sadly, the ignominy of public corruption was not limited to Rowland. As the District Court discussed in detail, the “Rowland scandal was but one of the many corruption scandals involving elected officials in state and local government that helped earn the state the nickname ‘Corrupticut.’”
86 Id. at *5, *8.
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** *
The record before us, moreover, shows that the General Assembly had good reason to be concerned about both the “actuality” and the “appearance” of corruption involving contractors. Connecticut's recent corruption scandals showed that contributions by contractors could lead to corruption. And it took no great leap of reasoning to infer that those scandals created a strong appearance of impropriety in the transfer of any money between contractors and state officialswhether or not the transfer involved an illegal quid pro quo. The scandals reached the highest state offices, leading to the resignation and eventual criminal conviction and imprisonment of the state's governor. They were, as a result, covered extensively by local media and garnered the attention of national media outlets as well.87
The court found a significant state interest in banning contributions from the relatives and
corporate principals of state contractors as well, based on fears that—in a climate of pervasive
corruption—those intent on giving bribes would find a way to do so despite restrictions on their
own political giving.88
Turning its attention to the ban on political contributions by lobbyists, the court found a
“markedly different” situation, compelling a different result:
The CFRA’s ban on contributions by lobbyists presents markedly different considerations than the CFRA’s ban on contributions by contractors. The distinction centers on the fact that the recent corruption scandals in Connecticut in no way involved lobbyists.
* * *
The situation is different with lobbyists. The recent corruption scandals had nothing to do with lobbyists . . . and thus there is insufficient evidence to infer that all contributions made by state lobbyists give rise to an appearance of corruption. Plaintiffs have submitted some evidence suggesting that many members of the public generally distrust lobbyists and the “special attention” they are
87 Id. at *1, *7 (citing Green Party of Conn. v. Garfield, 648 F. Supp.2d 298, 307-09 & n. 9 (D. Conn. 2009)).
88 Id. at *10-11.
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believed to receive from elected officials. * * *
But as the Supreme Court has recently clarified, the anticorruption interest recognized by Buckley and other cases is “limited to quid pro quo corruption” and does not encompass efforts to limit “[f]avoritism and influence” or the “appearance of influence or access.” 89 Absent such evidence, the Second Circuit found that Connecticut had failed to justify its ban on lobbyist contributions: “[T]here is insufficient evidence to demonstrate that all lobbyist contributions give rise to an appearance of corruption . . . .”90 Similarly, here, there is insufficient evidence of any reality or appearance of corruption. As already noted, the structure of the Medicaid program makes quid pro quo corruption—of the sort that motivated the statutes upheld in Buckley, Nixon, and in part in Green Party—simply impossible. Attorneys general and county prosecuting attorneys do not award Medicaid contracts, do not set the rate of compensation for the services provided, and do not decide who may be a service provider. There will be no quid, because there can be no quo. Moreover, there is absolutely nothing in the history of the contested act to support the claim that Ohio banned contributions from Medicaid providers in response to a history or pattern of pervasive corruption, or a public perception that such corruption plagued the Medicaid program. The legislative history, for example, documents no instances of improper dealings between Medicaid providers like Plaintiffs and attorneys general or county prosecuting attorneys, or anything else that would raise the inference of impropriety. Although Ohio lacks an official legislative history, and its
89 Id., at *13-14 (citing Green Party of Conn. v. Garfield, 590 F. Supp.2d 288, 321 (D.Conn. 2008), and quoting Citizens United v. FEC, 130 S. Ct. 876, 909-10 (2010) (some quotation marks omitted by the Second Circuit, and record citations omitted by counsel here)). 90 Id., at * 13.
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courts afford limited value to a legislative sponsor’s testimony supporting a bill, about what the bill means,91 courts have given weight to the state house and senate journals.92 Bill analyses, likewise, have been referred to when deemed helpful for a better understanding, even if they are not controlling.93 By statute, Ohio law authorizes courts to consider the “circumstances under which [a] statute was enacted,” as well as the legislative history, when the statute is ambiguous.94
As the attached Declaration of Harry Meshel, former state senator, shows, nothing in the history of the contested legislation suggests that it was enacted in response to a pattern or perception of pervasive corruption involving attorneys general or county prosecutors.
Over the course of his career, Senator Meshel served as President of the Ohio Senate, and as Minority Leader. He served as a senator during the 112th General Assembly, during which Section 3599.45 was adopted.95 He was also the chief Senate sponsor of Am. S.B. 159, the legislative vehicle through which the contested statute was enacted.96
While the contested statute’s ostensible purpose was combatting Medicaid fraud, there was no perception at the time that the attorney general was subject to undue influence by Medicaid
91 Glick v. Sokol, 149 Ohio App.3d 344, 346, 77 N.E.2d 215, 317 (Ohio Ct. App. 2002). 92 See, e.g., Shafer v. Ohio Turnpike Comm’n, 113 N.E.2d 14, 18 (Ohio 1953); see also Ohio Legislative History (Supreme Court of Ohio Law Library Information Series), available at http://www.supremecourt.ohio.gov/Publications/lib_series/Brochure_4.pdf.; David M. Gold, “A Guide to Legislative History in Ohio,” Members Only Brief (prepared for members of the Ohio General Assembly), Vol. 128, Issue 10 (Jan. 26, 2010), at 7 & n.21 (citing cases), available at http://www.lsc.state.oh.us/membersonly/128legislativehistory.pdf. 93 Meeks v. Papadopulos, 404 N.E.2d 159, 162 (Ohio 1980); see also Ohio Legislative History, above n. 92, at 2. 94 Ohio Rev. Code Ann. § 1.49 (B) and (C). 95 See Meshel Decl. at ¶¶ 2-3, above n. 40, Ex. 8. 96 Id. at ¶ 4.
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providers. Indeed, there could not have been, because in 1978, prosecutions for Medicaid fraud were the sole province of county prosecuting attorneys—not the Ohio attorney general.97 Senator Meshel specifically recalls that the ban was not motivated by a pattern of corruption involving Medicaid providers and either the attorney general, or prosecutors:
It was unclear at the time what the motivation behind the provision was. There were not, to my recollection, any circumstances of actual corruption or appearance of corruption caused by any campaign contributions by Medicaid providers. I do recall that that was an era of one-upmanship in which Democrats and Republicans were trying to outdo one another regarding ethics-related proposals. 98 However laudable such internecine, partisan, competitive, ethical instincts may have been, they fall short of advancing the sort of significant governmental interest that the First Amendment requires before the rights of free expression and free association inherent in making a campaign contribution may be trammeled. Indeed, the evidence instead shows that Section 3599.45’s prohibition on contributions by providers was marginal in the scheme of the General Assembly’s legislation. The statute was passed in 1978 as part of Senate Bill 159 (“S.B. 159”), which was a package of statutes following on the heels of congressional legislation that enabled states to set up anti-fraud Medicaid control units.99 The overarching purpose of S.B. 159 was not to combat political corruption, but rather to authorize the Attorney General to combat Medicaid fraud.100
97 Id. at ¶¶ 4-5. 98 Id. at ¶ 10. 99 See generally S.B. 159 Bill Analysis, above n. 34, Ex. 5. 100 See S.B. 159 Bill Analysis, above n. 34, at 1, Ex. 5; see also Ohio Senate Journal, 112th Gen. Assemb., 1st Sess. At 187, 192, 1278 (1977), Ex. 4 (describing the purpose of the bill as “provid[ing] for the recovery of . . . excess payments under the medicaid program”); House Panel Approves Medicaid Fraud Bill, COLUMBUS
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From the legislative history that is available, it is clear that the campaign-finance portion of the bill was not a central concern of the sponsors. The provision was not a part of the bill as originally drafted and passed by the Senate.101 It was, instead, introduced as an amendment on the last day of House committee hearings.102 Compared to other aspects of the bill, particularly the role of the attorney general versus the county prosecutor in combating fraud, section 3599.45 was barely discussed.103 When it was put to a vote, the House rejected the provision before passing it with only a 1-vote margin.104 A bill analysis compiled by the Legislative Service Commission, a nonpartisan agency that serves the House and Senate, makes no mention of section 3599.45.105
As shown by the legislative history, then, the ban on providers’ campaign contributions was ancillary to the main concerns of S.B. 159—a tag-along based on nothing more than speculation that a Medicaid provider might at some point engage in fraud and, having done so, might attempt to unduly influence a prosecutor, or that a prosecutor might allow a campaign contribution to influence his judgment in prosecuting such fraud. Mere conjecture such as this is not and never has been
DISPATCH, Mar. 9, 1978, at B-7, (attached as Ex. 11); New Law Empowers State to Probe Medicaid Fraud, THE PLAIN DEALER, Apr. 25, 1978, at A-5, (attached as Ex. 12). 101 S.B. 159, 112th Gen. Assemb., 1st Sess. (Oh 1977) (bill as it passed Senate), above n. 38, Ex. 6); Ohio Senate Journal, 112th Gen. Assemb., 1st Sess., 187, 192, 1229-30, 1278-80 (1977), Ex. 4 (minutes documenting amendments in Senate). 102 See House Comm. Hearing Minutes (Mar. 8, 1978, 9:30am), above n. 39, Ex. 7. 103 See id. Compare House Comm. Hearing Minutes (Feb. 15, 1978, 1:30pm) (attached as Ex. 13); House Comm. Hearing Minutes (Feb. 15, 1978, 9:30am), (attached as Ex. 14); House Comm. Hearing Minutes (Jan. 11, 1978) (attached as Ex. 15). See also 2 Youngstown Democrats clash on bill to halt Medicaid fraud, THE PLAIN DEALER, Feb. 16, 1978, at 4-E (attached as Ex. 16) (describing the controversy over attorney general versus county prosecutor role). 104 See House Comm. Hearing Minutes (Mar. 8, 1978, 9:30am), above n. 39, Ex. 7; Ohio House Journal, 112th Gen. Ass., 2d Sess., 2558-2560 (1978), Ex. 4 (showing that the House first rejected the amendment, then adopted it by a 1-vote margin). 105 See generally S.B. 159 Bill Analysis, above n. 34, Ex. 5.
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sufficient to justify a First Amendment burden, especially an outright ban of the kind at issue here.106 In the absence of evidence of undue influence, there simply is no justification for treating contributions by Medicaid providers as suspect, much less ban-worthy.
4. The Outright Ban on Contributions that the Contested Statute Imposes Is Not Closely Drawn to Further Any Governmental Interest, Substantial or Otherwise.
Contribution limits pass First Amendment muster only if they are “closely drawn” to prevent actual or perceived corruption.107 The government must demonstrate that its restrictions are proportional to the harm they ostensibly seek to remedy.108 Restrictions that unreasonably stifle speech or association, or that are disproportionate to their stated ends, are unconstitutional, even when enacted to advance an otherwise sufficiently important governmental interest.109 Courts have a duty to “review the record independently and carefully” where there are “danger signs” that a statute is doing more harm to electoral fairness than good.110
As described below, Section 3599.45 is overbroad, arbitrary, and disproportionately severe, and for these reasons, too, cannot survive its encounter with the First Amendment.
106 See Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 392 (2000) (“We have never accepted mere conjecture as adequate to carry a First Amendment burden.”); McConnell v. FEC, 540 U.S. 93, 232 (2003) (finding evidence of the “claimed evil” too “scant” to support a ban on contributions from minors); see also Green Party of Conn. v. Garfield, __ F.3d __, Nos. 09-0599 & 09-0609, 2010 WL 2737134, at *14 (2d Cir. July 13, 2010) (finding insufficient evidence to sustain a ban on lobbyist contributions). 107 Nixon, 528 U.S. at 387-88. 108 Randall v. Sorrell, 548 U.S. 230, 249 (2006); McConnell, 540 U.S. at 232. 109 See Sorrell, 548 U.S. at 237; McConnell, 540 U.S. at 231-32; Dallman v. Ritter, 225 P.3d 610, 624, 625-26 (Colo. 2010) (citing Virginia v. Hicks, 539 U.S. 113, 118-19 (2003)). 110 Sorrell, 548 U.S. at 249.
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a. The Section unnecessarily imposes an outright ban on contributions by Medicaid providers.
The fact that Section 3599.45 imposes an outright ban, and not merely a limitation, on
campaign contributions, is perhaps the most important consideration in determining whether it is
“closely drawn” to advance an important governmental interest.
The proper analytical stage at which to consider the propriety of a ban is in deciding whether
a given proscription is closely drawn:111
[A]n outright ban on contributions is a drastic measure that substantially infringes “one aspect of the contributor's freedom of political association.” As opposed to a contribution limit, which merely restricts those First Amendment freedoms . . . a contribution ban utterly eliminates an individual's right to express his or her support for a candidate by contributing money to the candidate’s cause. Indeed, a contribution ban cuts off even the “symbolic expression of support evidenced by” a small contribution. Thus, if the state’s interests in this case can be achieved by means of a limit on lobbyist contributions, rather than a ban, the ban should be struck down for failing “to avoid unnecessary abridgment of associational freedoms . . . .”112
In this light, it is not surprising that the courts have not hesitated to invalidate contribution bans
where less onerous proscriptions might remedy the ills those bans ostensibly addressed.
In McConnell, for example, the plurality invalidated a ban on contributions by minor children,
noting that many state election laws had found less restrictive ways to prevent adults from
circumventing campaign-finance laws by channeling their contributions through their children:
Even assuming, arguendo, the Government advances an important interest, the provision is overinclusive. The States have adopted a variety of more tailored approaches—e.g., counting contributions by
111 FEC v. Beaumont, 539 U.S. 146, 162 (2003).
112 Green Party of Conn. v. Garfield, __ F.3d __, Nos. 09-0599 & 09-0609, 2010 WL 2737134, at *13 (2d Cir. July 13, 2010) (quoting Sorrell, 548 U.S. at 246, 247 (in turn quoting Buckley, 424 U.S. at 21, 24-25)). See also Dallman, 225 P.3d at 623 (“An absolute ban is a serious impairment of protected First Amendment rights.”).
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minors against the total permitted for a parent or family unit, imposing a lower cap on contributions by minors, and prohibiting contributions by very young children. Without deciding whether any of these alternatives is sufficiently tailored, we hold that the provision here sweeps too broadly. We therefore affirm the District Court's decision striking down § 318 as unconstitutional.113
The Second Circuit, in Green Party, invalidated the ban on contributions by lobbyists
discussed earlier, while noting that the state could have justified a limitation on contributions, but not an outright ban.114
At least two state supreme courts have come to similar conclusions in invalidating bans on
political contributions under the First Amendment.
The California Supreme Court invoked Buckley three decades ago to invalidate a portion of a
state campaign finance law that barred lobbyists from contributing more than $10 per month to any candidate for state office.115
The claimed state interest is to rid the political system of both apparent and actual corruption and improper influence. Under Buckley such a purpose justifies closely drawn restrictions. However, it does not appear that total prohibition of all contributions by any lobbyist is a closely drawn restriction.
* * *
While either apparent or actual political corruption might warrant some restriction of lobbyist associational freedom, it does not warrant total prohibition of all contributions by all lobbyists to all candidates.116
Much more recently, in Dallman, the Colorado Supreme Court reached a similar conclusion,
striking down an amendment to the state constitution that banned contributions from holders of
113 McConnell, 540 U.S. at 232.
114 Green Party, 2010 WL 2737134, at *13.
115 Fair Political Practices Comm’n v. Super. Ct, 599 P.2d 46, 51-52 (Cal. 1979).
116 Id. at 52-53.
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sole-source government contracts, because its prohibitions were not closely drawn.117 In that case, as in ours, the law prohibited contributions from contractors to politicians with
absolutely no control over the contracts in question: “state legislators, school board members, county commissioners, and board members for water districts are prohibited from accepting contributions from sole source government contractors regardless of their ability to influence contract awards or their relation to the contractor….” Nothing that “the government’s interest in eliminating the appearance of impropriety is not without bounds,” the court held that “we cannot sacrifice First Amendment freedoms to an implausible perception of impropriety that links every contribution to an illicit arrangement extending to all levels of state government.” For this reason, the statute was held to be “over-inclusive in light of its plainly legitimate sweep. The Amendment fails to tailor its prohibitions towards those who have some control over awarding no-bid contracts, which would be directly correlated to its purpose of preventing the appearance of impropriety.118
The court went on to find the law overbroad in several other respects as well, including in its expansive definition of the contractors to whom it applied, the harsh nature of sanctions imposed for violations, and its prohibition on contributions by family members and labor unions.119
These cases highlight what ought to otherwise be obvious: a ban on political contributions is a blunt instrument, and the blanket bludgeoning with that instrument where contributions are only notionally or abstractly linked to actual or perceived public corruption is not closely drawing a remedy to advance an important governmental interest.
As shown above, Ohio cannot demonstrate any nexus between donations to candidates for attorney general and county prosecuting attorney, and Medicaid fraud, in any event. But even if it
117 Dallman v. Ritter, 225 P.3d 610, 616-18 (Colo. 2010). 118 Id. at 627. 119 Id. at 627-32.
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could, there plainly exist regulatory alternatives to a wholesale ban on contributions that could address such a problem without resorting to so draconian and free-speech-and-association squelching an option. Contribution limits of the sort the Second Circuit signaled it was willing to accept in Green Party are an obvious alternative.120 In addition, Ohio perhaps might impose lesser penalties for the violation of Section 3599.45, bringing it in line with other laws limiting political contributions in the state.121
In the end, the state bears the burden of demonstrating that its sufficiently important interests cannot be served other than by an outright ban. Because a ban prohibits even the symbolic act of making de minimus contributions, this is a burden the state cannot carry.
Far from being “closely drawn” to serve an important governmental interest, Section 3599.45 unnecessarily imposes a disproportionately severe restriction (a ban) and penalties (criminal sanctions), and arbitrarily singles out Medicaid providers for its prohibitions, despite there being no conceivable link between them and their candidates-of-choice on the one hand, and political patronage corruption on the other. The statute is not closely drawn for these reasons alone.
120 See Green Party of Conn. v. Garfield, __ F.3d __, Nos. 09-0599 & 09-0609, 2010 WL 2737134, at *13 (2d Cir. July 13, 2010). 121 See, e.g., Ohio Rev. Code Ann. § 3517.992(AA1), (AA2) (West 2010) (foreign nationals) (three times the amount contributed or $10,000, whichever is more); Ohio Rev. Code Ann. § 3517.992(I)(1), (J)(1), (I)(6), (J)(5) (minors under age seven) (three times the amount contributed but no violation occurs if fully refunded within 5 days of receiving or by the tenth business day after receiving notification); R.C. 3517.992(R) (certain state contractors)($1,000 and potential contract rescission); see also Am. Sub. H.B. 694, 126th Gen. Assemb., 2d Sess. (Oh 2006) (three times amount contributed in excess of amount permitted, plus contract-rescission at discretion of elections commission, for violations of $1,000 limitation on contributions made within one year after contract awarded)., invalidated on procedural grounds by UAW v. Brunner, 911 N.E.2d 327 (Ohio Ct. App. 2009).
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b. Section 3599.45 is Overbroad, and Not Closely Drawn, In That It Prohibits Contributions from Those With Even a De Minimus Ownership Interest in a Medicaid Provider.
Section 3599.45 prohibits accepting contributions from any provider of goods and services under the Medicaid program, or any person having “an ownership interest” in such a provider. That expansive term is nowhere defined in the contested statute, or even in Title XXXV of the Ohio Revised Code, despite the fact that several terms of art are defined in Section 3599.45 itself, and numerous terms used in regulating Ohio elections are defined in Revised Code § 3517.01.
While the law is in flux, and the Supreme Court in Citizens United recently affirmed the rights of corporations to make independent expenditures on behalf of candidates for public office, the right of business entities to make direct contributions to candidates has not been established.122 To the extent that the contested statute prohibits corporate contributions, then, it does not offend the First Amendment.
But plainly, and on its face, the contested statute prohibits much more than corporate donations:
• Candidates must refuse not only donations from business entities that provide Medicaid services, but from anyone with any, even infinitesimal, “ownership interest” in those corporations.
• No limitation is imposed on the sorts of interest that might serve to disqualify a potential donor. General partners, limited partners, and common-stock shareholders are treated equally.
• No reasonable threshold below which that interest might be too diluted is offered. A one-percent partner, or the owner of a single share of common stock in a
122 Citizens United v. FEC, 130 S. Ct. 876, 900 (2010).
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corporation, a branch of which provides durable medical equipment under Medicaid, are, on the face of the statute, forbidden contributors. • Persons with absolutely no control over the policy or business practices of a corporate Medicaid provider are banned all-the-same from contributing to certain political campaigns. This is more onerous a law even than the Colorado law recently invalidated in Dallman, for example, which put the threshold beyond which corporate owners were barred from making contributions at ten percent.123 It is more onerous than the contractor provisions sustained in Green Party, which imposed a 5% ownership threshold on prohibited donors. And it contrasts with a number of provisions in the Ohio Revised Code that set pay-to-play limits on individuals with a 20% ownership interest in certain contracting entities.124 This sweeping restriction provides an independent reason to invalidate the contested statute: in addition to not being closely drawn to advance a significant state interest, it is overbroad and proscribes far more speech than is necessary to achieve any significant governmental purpose.125 Of course, prohibiting contributions from those with no authority to shape the conduct of a corporate provider serves no purpose whatsoever. For this reason too, the law is overbroad, and thus, by definition, is not closely drawn to serve a significant governmental interest.
123 Dallman, v. Ritter, 225 P.3d 610, 617-18 (Colo. 2010). 124 See, e.g., Ohio Rev. Code Ann. § 3517.13(J), EX. 9 (20% threshold for prohibition applied to shareholders in corporations with contracts with public agencies the heads of which are putative recipients of campaign contributions); § 3517.13(Z), Ex. 9 (similar threshold in workers’ compensation-contribution prohibition). 125 See Green Party of Conn. v. Garfield, __ F.3d __, Nos. 09-0599 & 09-0609, 2010 WL 2737134, at *10 (2d Cir. July 13, 2010).
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Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 43 of 47. PageID #: 66
B. Plaintiffs Will Suffer Immediate and Irreparable Harm Absent a Preliminary Injunction—being Deprived of their Right to Free Speech and Association in this Election.
Plaintiffs seek to exercise an expressive and associational freedom vouchsafed to them under the First Amendment: the right to contribute to the campaign of a candidate for public office. The contested statute makes it a crime for the candidate of their choice to accept such a contribution, and thus frustrates their desire to do so. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”126
The next Ohio Attorney General will be elected on November 2, 2010. Unless the Court enjoins enforcement of the contested statute, Plaintiffs will forever and irrevocably lose the opportunity to support the candidate of their choice in that election through the protected expressive and associational act of making a contribution to his campaign. There is and can be no adequate remedy at law for such a loss. Injunctive relief is the only option.
C. Others Will Suffer No Harm if an Injunction Is Granted. Where there is a substantial likelihood that the law is unconstitutional, no substantial harm to others can be said to inhere in its injunction.127 Moreover, given the impossibility of a quid pro quo exchange between Medicaid providers and the Attorney General, or between Medicaid providers and a county prosecuting attorney, there is no reason to fear that allowing Plaintiffs to express themselves by contributing to the Cordray campaign will result in some form of constitutionally cognizable harm to the state.
126 Elrod v. Burns, 427 U.S. 347 (1976); see also Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998), cert. denied, 119 S.Ct. 1496 (1999); Newsom v. Norris, 888 F.2d 371, 378 (6th Cir. 1989); Dia v City of Toledo, 937 F. Supp. 673 (N.D. Ohio 1996); Morscott, Inc. v. City of Cleveland, 781 F. Supp. 500, 506 (N.D. Ohio 1990). 127 Déjà vu of Nashville v. Metro. Gov’t of Nashville, 274 F.3d 377, 400 (6th Cir. 2001).
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Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 44 of 47. PageID #: 67
D. An Injunction Will Serve the Public Interest Because Preventing Constitutional Violations is Always in the Public Interest.
As the Sixth Circuit has stated in granting a preliminary injunction: “ [I]t is always in the public interest to prevent violation of a party’s constitutional rights.”128 And as the Supreme Court observed in Buckley: “The First Amendment affords the broadest protection to . . . political expression [such as debate on the qualifications of candidates] in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” 129 It is precisely because Plaintiffs feel so strongly about “political and social changes desired by the people,” such as was recently achieved with the arrival of health-insurance reform, that they want to show their support for Attorney General candidate Richard Cordray. The public can only benefit from the “unfettered interchange” of ideas that will result from including Plaintiffs’ voices among the many others that will be heard this fall and beyond.
E. The Court Should Set Minimal Bond, Or Dispense with Bond In This Case Altogether Because No State Money Is At Stake—Just Constitutional Rights.
Bond is inappropriate in this case. This is not a commercial dispute in which one party is being enjoined from engaging in profitable or revenue-generating activity. Rather, the government, if enjoined, will simply be required to forebear enforcing a campaign-finance law until the constitutionality of that law be finally determined. In such a case, bond is not appropriate.
The U.S. District Court for the Northern District of Iowa came to precisely that conclusion in another First Amendment case, in which plaintiffs sought to enjoin the enforcement of a local
128 Id. (citation omitted). See also Morscott, Inc., 781 F. Supp. at 507 (“It is beyond cavil that it is in the public interest to uphold a constitutionally protected right.”). 129 Buckley v. Valeo, 424 U.S. 1, 14 (1976) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).
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Case: 1:10-cv-01986-DCN Doc #: 2 Filed: 09/04/10 45 of 47. PageID #: 68 adult-use ordinance.130 The district court considered the propriety of setting bond under Fed. R. Civ. P. 65(c). Applying Eighth Circuit precedent, it concluded bond should be waived. It was “not clear to the court what, if any, monetary damages would be incurred by the City as the result of an improvident injunction. . . .” The court further noted that “requiring a bond to issue before enjoining potentially unconstitutional conduct by a governmental entity simply seems inappropriate, because the rights potentially impinged by the governmental entity’s actions are of such gravity that protection of those rights should not be contingent upon an ability to pay.” Thus, the court waived the bond requirement.131
The same is true in this case, and the Court should waive bond. Should the Court determine that bond cannot be waived, the Court should set it at a minimal amount since, again, nothing monetary is at stake, only priceless constitutional rights.
130 Doctor John’s, Inc. v. City of Sioux City, Iowa, 305 F. Supp.2d 1022 (N.D. Iowa 2004). 131 Dr. John’s, 305 F. Supp.2d at 1043-44.
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VI. CONCLUSION For the foregoing reasons, as well as those set forth in the Complaint, the Court should
enjoin enforcement of Section 3599.45 pending the final resolution of this case on the merits.

Respectfully submitted, THE CHANDRA LAW FIRM, LLC

BERKMAN, GORDON, MURRAY & DEVAN

_/s/ Subodh Chandra___________ Subodh Chandra (OH Bar No. 0069233) Donald Screen (OH Bar No. 0044070) 1265 W. 6th St., Suite 400 Cleveland, OH 44113-1326 Phone: 216.578.1700 Fax: 216.578.1800 Subodh.Chandra@StanfordAlumni.org Donald.Screen@gmail.com

__/s/ Raymond V. Vasvari, Jr.______ J. Michael Murray (0019626) Raymond V. Vasvari, Jr. (0055538) 55 Public Square, Suite 2200 Cleveland, Ohio 44113-1949 PH: 216.781.5245 Fx: 216.781.8207 jmmurray@bgmdlaw.com rvasvari@bgmdlaw.com
Attorneys for Plaintiffs Arthur Lavin, M.D., et al.

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CERTIFICATE OF SERVICE I certify that on September 4, 2010 my office served, via ordinary U.S. mail, the foregoing PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION on the following: Defendant Jennifer Brunner, in her official capacity Secretary of State of the State of Ohio 180 E. Broad Street, 16th Floor Columbus, OH 43215 and by certified U.S. mail to the following: Richard Cordray Ohio Attorney General 30 E. Broad Street, 17th Floor Columbus, OH 43215 /s/ Subodh Chandra____________ One of the attorneys for Plaintiff Class Members
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 Case: 1:10-cv-01986-DCN Doc #: 17 Filed: 10/12/10 1 of 31. PageID #: 282

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ARTHUR LAVIN, et al., Plaintiffs, v.
JENNIFER BRUNNER, in her official capacity as Ohio Secretary of State,
Defendant.

) ) CASE NO. 1:10-CV-1986 ) ) ) MAGISTRATE JUDGE VECCHIARELLI ) )
) REPORT AND RECOMMENDATION ) DOC. NO. 2 )

This case is before the magistrate judge on referral. Before the court is the

motion of plaintiffs (“Motion”), Arthus Lavin (“Lavin”), Jason Chao, Michael W.

Devereaux, Patricia J. Kellner, Jerome Liebman, Eric R. Schreiber, Constance D.

Magoulias, Peter A. DeGolia, and Nathan R. Beachy, for a preliminary injunction against

defendant, Jennifer Brunner, in her official capacity as Ohio Secretary of State, to

prohibit her from enforcing Ohio Rev. Code § 3599.45 (“Motion”). Doc. No. 2.

Defendant opposes plaintiffs’ motion (“Opposition”). Doc. No. 10. For the reasons

given below, plaintiffs’ motion should be granted and a preliminary injunction against

enforcement of Ohio Rev. Code § 3599.45 should issue.

I.

Plaintiffs assert federal jurisdiction pursuant to 28 U.S.C. §§ 1331; 1343(a)(3),

(4); 2201; and 2202; and 42 U.S.C. §§ 1983 and 1988. Plaintiffs are Ohio physicians

who are also Medicaid providers. Defendant Jennifer Brunner (the “Secretary”), is the

Case: 1:10-cv-01986-DCN Doc #: 17 Filed: 10/12/10 2 of 31. PageID #: 283
chief elections officer of Ohio and is charged with enforcing the state?s election laws. The parties do not dispute the following facts.
Medicaid is a federal program initiated by Title XIX of the Social Security Act in 1965. Pursuant to Title XIX, the federal government distributes lump-sum payments to participating states to provide medical assistance and rehabilitation to the poor, disabled, and aged and their dependents. The states participating in the program must ensure that the plan is efficiently administered. In Ohio, the Ohio Department of Job and Family Service (“ODJFS”) administers Medicaid. Providers submit billings for medical services pursuant to Medicaid to the ODJFS.
Medicaid constitutes about 26% of Ohio’s budget. Medicaid fraud is a national problem and a problem in Ohio. The Ohio Medicaid Fraud Control Unit (“MFCU”) consists of 59 full-time employees. In the year between July 1, 2008 and June 30, 2009, the MFCU received 377 complaints of Medicaid fraud, of which 316 resulted in investigations and 76 convictions. Eleven of those investigations involved doctors. There is no evidence in the record that Medicaid fraud is or ever has been more or less of a problem in Ohio than it is nationwide.
In 1978, the Ohio General Assembly adopted Senate Bill 159. This bill included provisions barring Medicaid providers from fraudulently claiming payments for ostensible services. The bill also contained the following provisions:
(A) Upon the written request of the governor, the general assembly, the auditor of state, the director of job and family services, the director of health, or the director of budget and management, or upon the attorney general's becoming aware of criminal or improper activity related to Chapter 3721and the medical assistance program established under section 5111.01 of the Revised Code, the attorney general shall investigate any criminal or civil violation of law related to Chapter 3721of the Revised Code or the medical assistance program.
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(B) When it appears to the attorney general, as a result of an investigation under division (A) of this section, that there is cause to prosecute for the commission of a crime or to pursue a civil remedy, the attorney general may refer the evidence to the prosecuting attorney having jurisdiction of the matter, or to a regular grand jury drawn and impaneled pursuant to sections 2939.01 to 2939.24 of the Revised Code, or to a special grand jury drawn and impaneled pursuant to section 2939.17 of the Revised Code, or the attorney general may initiate and prosecute any necessary criminal or civil actions in any court or tribunal of competent jurisdiction in this state. When proceeding under this section, the attorney general, and any assistant or special counsel designated by the attorney general for that purpose, have all rights, privileges, and powers of prosecuting attorneys. The attorney general shall have exclusive supervision and control of all investigations and prosecutions initiated by the attorney general under this section. The forfeiture provisions of Chapter 2981of the Revised Code apply in relation to any such criminal action initiated and prosecuted by the attorney general.
(C) Nothing in this section shall prevent a county prosecuting attorney from investigating and prosecuting criminal activity related to Chapter 3721of the Revised Code and the medical assistance program established under section 5111.01 of the Revised Code. The forfeiture provisions of Chapter 2981of the Revised Code apply in relation to any prosecution of criminal activity related to the medical assistance program undertaken by the prosecuting attorney.
Ohio Rev. Code. § 109.85(A). The Attorney General and the county prosecutors have a
great deal of discretion in determining what they shall prosecute as medicaid fraud.
Senate Bill 159 also contained the following provision, in relevant part:
(A) No candidate for the office of attorney general or county prosecutor or such a candidate's campaign committee shall knowingly accept any contribution from a provider of services or goods under contract with the department of job and family services pursuant to the medicaid program of Title XIX of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider. . . .
(B) Whoever violates this section is guilty of a misdemeanor of the first degree.
Ohio Rev. Code § 3599.45 (“§ 3599.45"). The state senator who sponsored SB 159,
Senator Harry Meshel, was unable to recall any circumstances of actual corruption or
the appearance of corruption by Medicaid providers that prompted the band on their
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Case: 1:10-cv-01986-DCN Doc #: 17 Filed: 10/12/10 4 of 31. PageID #: 285
contributions to the campaigns of those prosecuting Medicaid fraud.1 Medicaid providers include hospitals, long-term-care facilities, physicians,
providers of dental services, providers of vision-care services, providers of podiatric services, providers of physical therapy, providers of occupational therapy, providers of psychology services, providers of pharmacy services, providers of medical supplies, providers of durable-medical equipment, providers of orthoses, providers of prostheses, independent laboratories, providers of x-ray services, Ohio home-care providers, providers of home-health-care services including nurses, health aides, speech-andlanguage-pathology services, ambulatory health-care-clinic services, providers of earlyand-periodic-screening diagnoses, medical-transportation-service providers, ruralhealth-service providers (including clinical social workers, physician assistants, nurse practitioners, and nurse midwives, clinical psychologists, preconception-careservice providers, ambulatory-surgery-center eligible providers, providers of alcohol-and-drugaddiction services, and outpatient health-facility-service providers). Ohio Admin. Code §§ 5101:3-2 through 5101:3-16; 5101:3-22; 5101:3-29 through 5101:3-30. A provider can also be the operator of an entity that provides Medicaid services, the “person or government entity responsible for the daily operating and management decisions for a
1 See Declaration of Harry Meshel, Motion , Exh. 8. Ohio does not preserve legislative history. In a s imilar case in Missouri, a stat e which also does not preserve legislative history, the Supreme Court considered in reaching its decision the inclusion of an affidavit from Missouri statesenator Wayne Goode, the co-chari of the state legislature's Interim Joint Committee on Campaign Finance Re form at the time Missouri enacted its contribution limits, to establish the motives behind limiting campaign contributions. Nixon, 528 U.S. at 393-94. However , as more than thirty years have passed between the legislation enacting Ohio’s campaign limits and Senator Meshel’s declaration, the court assigns little or no probative value to that declaration.
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Case: 1:10-cv-01986-DCN Doc #: 17 Filed: 10/12/10 5 of 31. PageID #: 286
nursing facility or intermediate care facility for the mentally retarded.” Ohio Rev. Code § 5111.20(Q), (V). Section 3599.45 bars contributions to the campaigns of any person running for Attorney General or county prosecutor by any person having an ownership interest in such a provider, without limitation on the size of the ownership interest.
Ohio is the only state that prohibits, limits, or criminalizes campaign donations by Medicaid providers. Ohio also bans political contributions from children under the age of seven, foreign nationals, and certain state employees who would be employed by, or in the same state agency or office as, the candidate. See Ohio Rev. Code §§ 3517.13(W)(1); 3517.102(B)(1)(c), (C)(1)(a)(I); and 3517.092(B)(2); see also 2 U.S.C.A. § 441e(b), prohibiting political donations by foreign nationals. The penalties for violating these bans are civil penalties. See Ohio Rev. Code §§ 3517.992(AA1), (AA2); 3517.992(I)(1), (J)(1), (I)(6), (J)(5); 3517.992(M)(2). In addition, Ohio state agencies may not award unbid contracts in excess of $500 to any entity that, during the previous two years, has contributed over $1,000 to the campaign of any agency official responsible for awarding contracts. Also, certain state contractors may not contribute more than $1,000 to the campaigns of officials awarding contracts for a year after the award of a contract.2 Contractors who violate these rules face civil penalties and the cancellation of their contracts.
Plaintiffs assert that the Secretary is charged with enforcing Ohio’s election laws. Defendants reply that the Secretary is not charged with prosecuting violations of § 3599.45. Responsibility for prosecuting violations of that statute falls to the Attorney
2 This latter provision is not currently in effect. 5

Case: 1:10-cv-01986-DCN Doc #: 17 Filed: 10/12/10 6 of 31. PageID #: 287
General and county prosecutors. In addition to prosecuting health care fraud, the Ohio Attorney General prosecutes violations of antitrust law, charitable law, civil rights, consumer law, criminal law, education law, employment law, environmental enforcement, labor relations, public-utilities law, tax law, tobacco law, transportation law, and workers’ compensation law. The Attorney General also engages in appellate litigation, collections enforcement and revenue recovery, and the defense of the state of Ohio in the Court of Claims.
In July 2010, Lavin contacted the campaign office of Ohio Attorney General Richard Cordray (“Cordray”) to ask how plaintiffs might make a donation for his campaign for re-election. The campaign office told Lavin that it could not accept campaign contributions from plaintiffs because they served patients insured by Medicaid. Plaintiffs also discovered that Cordray’s website warns potential donors, “Please note that [the Cordray re-election committee] is not permitted to accept campaign contributions from a provider of services or goods under contract with the department of job and family services pursuant to the Medicaid program . . . or from any person having an ownership interest in the provider.” Keep Attorney General Cordray, @ donate.cordrayforohio.com/page/ contribute/contribute, Motion, Exh. 2.
Upon learning that they would not be able to contribute to Cordray’s campaign, plaintiffs filed this suit in federal court. Plaintiffs’ complaint seeks a declaratory judgment that § 3599.45 violates the First and Fourteenth Amendments to the United States Constitution and an injunction barring the Secretary and those acting on her behalf from enforcing § 3599.45 against those candidates to whom plaintiffs make campaign contributions. Plaintiffs now move for a preliminary injunction barring Brunner
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Case: 1:10-cv-01986-DCN Doc #: 17 Filed: 10/12/10 7 of 31. PageID #: 288
from enforcing § 3599.45. II.
A "preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curium) (citation omitted) (emphasis in original). Generally, a district court must consider four factors when deciding whether to issue a preliminary injunction:
(1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether granting the stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2010) (quoting Northeast Ohio Coalition for the Homeless and Serv. Employees International Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006)). See also Miller v. City of Cincinnati, ___ F.3d ___, ___, 2010 WL 3719904, at *5 (6th Cir. Sept. 24, 2010). These four factors are “factors to be balanced, not prerequisites that must be met . . . .” Six Clinics Holding Corp., II v. Cafcomp Systems, 119 F.3d 393, 400 (6th Cir. 1997). In order to establish a strong likelihood of success on the merits of a claim, “a plaintiff must show more than a mere possibility of success.” Id. at 402. “However, it is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Id. “When a party seeks a preliminary injunction on the basis of a potential violation of the First Amendment, the likelihood of success on the merits often will be the
7

Case: 1:10-cv-01986-DCN Doc #: 17 Filed: 10/12/10 8 of 31. PageID #: 289
determinative factor.” Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009) (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); see also Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000) (“In a First Amendment case, ‘the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success on the merits. “) (citations omitted), overruled on other grounds by 729, Inc. v. Kenton County Fiscal Ct., 515 F.3d 485 (6th Cir. 2008); Clarkins Drive, Inc. v. Poole, 2010 WL 2587946, at *3 (6th Cir. June 28, 2010). “Because harm could be suffered by either party, and the public interest [lies] in the correct application of First Amendment principles, the court's decision turn[s] on the likelihood of success on the merits.” Jones, 569 F.3d at 266 (citing Congregation Lubavitch v. City of Cincinnati, 923 F.2d 458, 460 (6th Cir. 1991)). Moreover, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (citation omitted). To the extent that a plaintiff demonstrates a substantial likelihood of success on the merits, therefore, plaintiff also establishes the likelihood of irreparable harm as a result of a loss of First Amendment rights. Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995). For these reasons, the court shall begin with and devote the bulk of its analysis to the issue of whether plaintiffs have a strong likelihood of success on the merits in their case. That is, the court shall examine whether plaintiffs have “raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.”
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Case: 1:10-cv-01986-DCN Doc #: 17 Filed: 10/12/10 9 of 31. PageID #: 290
III.
Plaintiffs argue that § 3599.45 violates the First Amendment of the United States
Constitution, as applied to the states by the Fourteenth Amendment, because (1)
barring them from contributing to the election campaigns of public officials violates their
rights of association and free speech, in derogation of Buckley v. Valeo, 424 U.S. 1
(1976), and its progeny; and (2) § 3599.45 is unconstitutionally overbroad, violating the
rights of free association and free speech of a substantial number of persons whose
prohibited conduct bears no rational relation to the purpose of the statute.
A. Whether § 3599.45 unconstitutionally infringes on plaintiffs’ rights of association and speech
In Buckley, the Supreme Court held that contributing to political campaigns is an
activity protected by First Amendment’s guarantees of free association and free speech.
Buckley, 424 U.S. at 14-19. The Court reached several conclusions about limits on
campaign contributions and the rights of association and speech that are relevant here:
[A] limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues.
Id. at 20-21. The court also found that limits on campaign contributions are
constitutional as long as they do not prevent candidates from "amassing the resources
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necessary for effective advocacy." Id. at 21. Finally, the Court found that the main concern implicated by limits on campaign contributions was whether those limits interfered with the contributor's right of association. Id. at 24-25. According to the Court, "[m]aking a contribution, like joining a political party, serves to affiliate a person with a candidate." Id. at 22. While the court noted that restrictions on the rights to association and speech are subject to the closest scrutiny, it also held that these rights were not absolute and that even significant abridgments of those rights could be sustained under certain circumstances. Id. at 25.
In the wake of Buckley, the Supreme Court has upheld certain limits on campaign contributions. See McConnell v. FEC, 540 U.S. 93 (2003), overruled in part by Citizens United v. Federal Election Com'n, ___ U.S. ___, 130 S. Ct. 876 (2010); FEC v. Beaumont, 539 U.S. 146 (2003); Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377 (2000); California Medical Ass’n v. Federal Election Comm’n, 453 U.S. 182 (1981). The Court has also struck down limits on campaign contributions when it has found that those limits contravened First Amendment rights. See Davis v. Federal Election Comm’n, __ U.S. ___, 128 S.Ct. 2759 (2008); Randall v. Sorrell, 548 U.S. 230 (2006); and Citizens against Rent Control v. City of Berkeley, 454 U.S. 290 (1981). In the course of the Court’s rulings on the subject, an intermediate standard of scrutiny has emerged as the appropriate standard for determining whether a restriction on campaign contributions passes political muster. That standard has certain characteristics that distinguish it from the strict scrutiny normally accorded violations of First Amendment rights.
First, “there is no place for a strong presumption against constitutionality, of the 10

Case: 1:10-cv-01986-DCN Doc #: 17 Filed: 10/12/10 11 of 31. PageID #: 292
sort often thought to accompany the words ‘strict scrutiny.’” Nixon, 528 U.S. at 400-01. This is because limits on campaign spending may protect the integrity of the electoral system, thus encouraging greater participation in the process. McConnell, 540 U.S. at 136-37. Such restrictions may guard against both ”actual corruption and the appearance of corruption,” either of which may threaten electoral integrity. Id. at 136.
Second, a contribution limit will be found constitutional if it is “closely drawn” to effect a “sufficiently important” governmental interest, rather than narrowly tailored to serve a compelling governmental interest.3 Buckley, 424 U.S. at 25. As the court has acknowledged, “[p]recision about the relative rigor of the standard to review contribution limits was not a pretense of the Buckley per curiam opinion.” Nixon, 528 U.S. at 386. Nevertheless, the Court has generally found that the more restrictive the limits placed by a legislature on campaign contributions, the more important the government interest must be to justify those restrictive limits. For example, in striking down Vermont’s unusually low limits on campaign contributions, the Court observed:
[W]e have found nowhere in the record any special justification that might warrant a contribution limit so low or so restrictive as to bring about the serious associational and expressive problems that we have described. Rather, the basic justifications the State has advanced in support of such limits are those present in Buckley. The record contains no indication that, for example, corruption (or its appearance) in Vermont is significantly more serious a matter than elsewhere.
3 That the limits on campaigncontributions in the instantcase constitute an outright ban on certain contributions does not affect t he level of scrutiny to be applied. As the Supreme Court has asserted, “It is not that the difference between a ban and a limit is to be ignored; it is just that t he time to consider it is when applying scrutiny at the level selected, not in selecting the standard of review itself.” Beaumont, 539 U.S. at 162.
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Case: 1:10-cv-01986-DCN Doc #: 17 Filed: 10/12/10 12 of 31. PageID #: 293
Randall v. Sorrell, 548 U.S. at 261.4
The Supreme Court places the evidentiary burden for establishing a sufficiently
important interest on the state, and has observed, “The quantum of empirical evidence
needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or
down with the novelty and plausibility of the justification raised.” Nixon, 528 U.S. at 391.
In determining whether the contribution limits at issue are closely drawn to serve the
government interest asserted, district courts must be cautious:
[W]e have "no scalpel to probe" each possible contribution level. We cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute's legitimate objectives. In practice, the legislature is better equipped to make such empirical judgments, as legislators have "particular expertise" in matters related to the costs and nature of running for office. Thus ordinarily we have deferred to the legislature's determination of such matters.
Randall, 548 U.S. at 248 (citations omitted).
1. Whether the Secretary has asserted a state interest sufficiently important to justify limiting campaign contributions
The Secretary asserts that Ohio’s limits on campaign contributions by Medicaid
providers are justified by the state’s interest in preventing corruption and avoiding the
appearance of corruption. The Supreme Court ruled in Buckley and in several cases
4 The unusually low limits on campaign dona tions by the Vermont statute struck down by the Supreme Court are not relevant to the instant case. Thos e limits were imposed on all donors, not merelyon a small class of donors as isthe case here. Because the limits were imposed on all donors and seve rely constrained donations, the Supreme Court found that the limits prevented candidates, particularly candidates challenging incumbents, from raising sufficient money toconduct effective campaigns. Thus, the limits constrained the speech rights of candidates, nomt erely the speech and associational rights of donors. This is primarily why the limits in the Vermont staut te were struck down. As only a limited class of donors is barred from making campaign contributions in the instant case, the speech of the candidates is not constrained in the same way that it was in Vermont. Consequently, the ultimate holding in Randall is not relevant to the instant case.
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thereafter that such an interest is sufficiently important to justify limits on campaign contributions. See Buckley, 424 U.S. at 26-29; see also Randall, 548 U.S. at 247-49; McConnell, 540 U.S. at 143-45; Nixon, 528 U.S. at 388-95; California Medical Assn., 453 U.S. at 194-195; Citizens Against Rent Control, 454 U.S. at 296-297.
The Secretary presents evidence to demonstrate that Medicaid fraud is an ongoing problem in Ohio. The Secretary has not demonstrated that Medicaid fraud in Ohio is any more or less of a problem than it is in the nation as a whole. The Secretary offers no evidence that corruption or the appearance of corruption between Medicaid providers and county prosecutors was a particular problem at any time before, during, or after passage of SB 159. While the Supreme Court has “never accepted mere conjecture as adequate to carry a First Amendment burden,” Nixon, 528 U.S. at 392, the Court has also noted that corruption and the appearance of corruption are problems endemic in the American political system. Buckley, 424 U.S. at 26-29; Nixon, 528 U.S. at 388-89. Given the lack of novelty and high plausibility of the government interest asserted by the Secretary to justify Ohio’s campaign limits, the quantum of evidence necessary to satisfy heightened judicial scrutiny in this case is extremely small. Consequently, given the evidence presented by the Secretary regarding Medicaid fraud in Ohio, the court finds that the Secretary has carried her burden of demonstrating a sufficiently important government interest to justify limiting campaign contributions.
2. Whether Ohio’s limits on campaign contributions are closely drawn to serve the asserted government interests
Ohio prohibits the state Attorney General and the prosecuting attorney of any of Ohio’s 88 counties from accepting a campaign contribution in any amount from a
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Medicaid provider under contract with the ODJFS. This effectively prevents Ohio Medicaid providers from contributing to these campaigns. These limits are unique in a number of respects.
First, improperly accepting a campaign contribution from a Medicaid provider, without more and without any defined mens rea, results in a criminal penalty.5 In addition, Ohio does not impose criminal penalties on other violations of Ohio’s limits on campaign contributions. Civil penalties are imposed on contractors who improperly contribute excessive amounts of money to the campaigns of persons awarding agency contracts.
Second, Ohio is the only state that imposes special limits on the campaign donations of Medicaid providers not imposed on the general population. Ohio’s justification for singling out of Medicaid providers is that Medicaid is the largest single item in the Ohio budget and that Medicaid fraud is an ongoing problem in Ohio. As has already been noted, there is no evidence in the record that the problem of Medicaid fraud in Ohio is greater or smaller than the problem with Medicaid fraud nationwide. In addition, the Secretary provides no evidence of the existence of a particular problem with corrupt practices or a perception of corrupt practices between Medicaid providers and either the Attorney General or prosecuting attorneys.
Third, Ohio does not merely bar Medicaid providers from contributing to the campaign of candidates for Attorney General or from contributing to the campaigns of
5 California law requires a “knowing and willful” violation of its campaign laws by lobbyists a misdemeanor punishable by a four-month ban on lobbying activity. See Cal. Gov't Code §§ 91000, 91002.
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persons running for prosecuting attorney in the provider’s county of residence or county of practice. Ohio bars Medicaid providers from contributing to the campaigns of any person running for prosecuting attorney in any of Ohio’s 88 counties. That is, Ohio’s Medicaid providers are barred from contributing to the campaigns of persons running for an entire class of public offices statewide. There is no apparent reason why a doctor living in Ashtabula County and practicing in Cuyahoga County should be barred from contributing to the campaign of an individual running for prosecuting attorney in Hamilton County, nor does the Secretary offer such a reason.
Fourth, the campaign contribution limitation at issue is an absolute ban. Federal courts have upheld a complete ban on campaign on very few occasions, and in each case special circumstances justified the ban. Supreme Court holdings, for example, bar corporations from contributing directly to political campaigns. The Court justifies this ban because “the special characteristics of the corporate structure require particularly careful regulation.” FEC v. National Right to WorkComm., 459 U.S. 197, 209-10 (1982). In particular, the Court has found that such corporate economic advantages as “limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets” give corporations special power “to attract capital and to deploy . . . resources.” Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658-59 (1990), overruled on other grounds by Citizens United, ___ U.S. ___, 130 S. Ct. 876. The Court has found that these special economic advantages enjoyed by corporations justify completely prohibiting them from directly contributing to political campaigns.6
6 The recent case of Citizens United is not to the contrary. That overturned legislation prohibiting corporations from engaging in political speech and electioneering
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Three federal courts have upheld other bans on campaign contributions. In North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir.1999), the Fourth Circuit upheld a ban that prohibited lobbyists from contributing to the campaigns of persons running for the North Carolina General Assembly or Council of State while the General Assembly was in session. In upholding the ban, the court found the ban to be narrowly tailored because (1) the ban was limited to “lobbyists and the political committees that employ them--the two most ubiquitous and powerful players in the political arena” and (2) the ban was “temporally limited: they last only during the legislative session, which typically, though not invariably, has covered just a few months in an election year. In short, the restrictions cover only that period during which the risk of an actual quid pro quo or the appearance of one runs highest.” North Carolina Right to Life, 168 F.3d at 716.
Institute of Governmental Advocates v. Fair Political Practices Com'n, 164 F. Supp. 2d 1183 (E.D. Calif. 2001), is also instructive. California first instituted a ban against lobbyists contributing to campaigns for state office in 1974 as part of a statewide ballot proposition approved by California voters. In 1979, the California Supreme Court struck down this provision on the ground that a total ban of all contributions by any lobbyist is not a “closely drawn” restriction. Fair Political Pratices Comm'n v. Sup.Ct., 25 Cal. 3d 33, 45, 157 Cal. Rptr. 855, 599 P.2d 46 (1979). A similar ban passed in 1996 was enjoined by the United States District Court for the Eastern District of California and affirmed by the Ninth Circuit. California Prolife Council PAC v. Scully, 989 F. Supp.
independent of the c ampaigns of persons r unning for office. The ban on corporate donations to political campaigns was not at issue in that case.
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1282 (E.D. Cal. 1998), aff'd, 164 F.3d 1189 (9th Cir. 1999). While the ban was still enjoined, California passed a law modifying the ban on contributions from lobbyists. In Institute of Governmental Advocates, the district court approved the ban as modified. The court observed:
[The ban] does not prohibit contributions by all lobbyists to all candidates. Rather, by its express terms, [the statute] only prohibits contributions by lobbyists, if the lobbyist is registered to lobby the office for which the candidate seeks election; that is, to those persons the lobbyist will be paid to lobby. . . . Next, . . . the definition of a lobbyist has significantly changed . . . [because] the regulations interpreting that definition have changed. Specifically, the current version . . . is much narrower, omitting from its scope certain activities and individuals covered by the previous definition. As a result, certain individuals are no longer required to register as lobbyists. Institute of Governmental Advocates, 164 F. Supp. 2d at 1190. The court also noted that although the ban was not temporally limited as was the ban in North Carolina Right to Life, such temporal limitation would have been impossible because the California legislature is in session year round. Id. at 1191-92. Ohio’s ban on campaign contributions by Medicaid providers suffers from both of the defects that had been found in the first two versions of the California ban. First, the ban prohibits contributions to persons running for offices that have no potential connection to the contributor. Medicaid providers are not merely prohibited from contributing to the campaigns of persons running for prosecutor in the providers’ counties of residence and operation; they are prohibited from contributing to the campaigns of persons running for prosecutor in all 88 Ohio counties. Second, the definitions of “Medicaid provider” and “ownership interest” in a Medicaid provider are without limitation: Contracts for Medicaid services and ownership interests that are de minimis are swept within the prohibition, as were individuals with little significant
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connection to lobbying in earlier versions of the California ban.
Finally, the Second Circuit, in Green Party of Connecticut v. Garfield, --- F.3d ----,
2010 WL 2737134 (2d Cir. 2010), upheld “a broad-ranging and complex statute . . .
[that] prohibit[s] state contractors and certain lobbyists from (1) making campaign
contributions to candidates for state office and (2) soliciting campaign contributions on
behalf of candidates for state office.” Green Party, 2010 WL 2737134 at *2. In
upholding this ban with regard to current and prospective state contractors and their
principals, the court wrote as follows:
The record before us . . . shows that the General Assembly had good reason to be concerned about both the “actuality” and the “appearance” of corruption involving contractors. Connecticut's recent corruption scandals showed that contributions by contractors could lead to corruption. And it took no great leap of reasoning to infer that those scandals created a strong appearance of impropriety in the transfer of any money between contractors and state officials-whether or not the transfer involved an illegal quid pro quo. The scandals reached the highest state offices, leading to the resignation and eventual criminal conviction and imprisonment of the state's governor. They were, as a result, covered extensively by local media and garnered the attention of national media outlets as well. . . . Thus, corruption spurred by state contractors became a salient political issue in Connecticut, and there arose an appearance of impropriety with respect to all contractor contributions. . . . There is sufficient evidence in the record of actual corruption stemming from contractor contributions, and in light of the widespread media coverage of Connecticut's recent corruption scandals, the General Assembly also faced a manifest need to curtail the appearance of corruption created by contractor contributions.
Green Party, 2010 WL 2737134 at *7 (citations omitted). The court continued:
It is undisputed that nearly all of the corruption scandals that gave rise to the [statute]--including the scandal involving Governor Rowland--involved both current and prospective state contractors offering bribes in exchange for assistance in winning new state contracts. Contributions by current and prospective state contractors, therefore, lie at the heart of the corruption problem in Connecticut.
Id. at *9.
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The Second Circuit was well aware that a ban differed from a limit on
contributions and considered whether a ban was overreaching in the case before it:
[A] ban is a drastic measure. A limit on contributions causes some constitutional damage, as it “restrict[s] ‘one aspect of the contributor's freedom of political association.’” Randall, 548 U.S. at 246 (quoting Buckley, 424 U.S. at 24-25) (emphasis added). But a ban on contributions causes considerably more constitutional damage, as it wholly extinguishes that “aspect of the contributor's freedom of political association.” A limit, moreover, leaves intact the contributor's right to make “the symbolic expression of support evidenced by a contribution.” Id. at 247 (quoting Buckley, 424 U.S. at 21). But a ban infringes that constitutional right, as it precludes the “symbolic expression” that comes with a small contribution.
There are, therefore, undoubtedly many situations in which a strict contribution limit--as opposed to an outright contribution ban--will adequately achieve the government's objectives. In those situations it will be difficult for the government to establish that a contribution ban is “closely drawn” to its asserted interests. Instead, such a ban risks being struck down as unconstitutionally overbroad.
Here, for example, a limit--as opposed to a ban--would likely be sufficient to address the General Assembly's interest in addressing actual corruption. If, for example, the [statute] were to allow contractors to make small contributions (say, $50 per election) to state officials, it is unlikely that a contractor could exert any influence over an official with the promise of such a modest sum. Yet such a limit would not wholly extinguish a contractor's associational rights, and it would allow the contractor to make “the symbolic expression of support evidenced by a contribution.” Id. at 247 (quoting Buckley, 424 U.S. at 21, 96 S.Ct. 612). Thus, if the state's only interest in this case were combating actual corruption, the [statute’s] outright ban on contractor contributions would likely be held overbroad.
Combating actual corruption, however, is not the state's only interest here; the [statute] is also meant to address the appearance of corruption caused by contractor contributions. . . . Connecticut's recent corruption scandals were widely publicized, and corruption involving state contractors became a major political issue in Connecticut in recent years. A limit on contractor contributions would have partially addressed the perception of corruption created by those incidents, but such a limit still would have allowed some money to flow from contractors to state officials. Even if small contractor contributions would have been unlikely to influence state officials, those contributions could have still given rise to the appearance that contractors are able to exert improper influence on state officials.
The [statute’s] ban on contractor contributions, by contrast, unequivocally
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addresses the perception of corruption brought about by Connecticut's recent scandals. By totally shutting off the flow of money from contractors to state officials, it eliminates any notion that contractors can influence state officials by donating to their campaigns. Thus, although the [statute’s] ban on contractor contributions is a drastic measure, it is an appropriate response to a specific series of incidents that have created a strong appearance of corruption with respect to all contractor contributions.
Id. at *12. The Second Circuit held, therefore, that “in light of Connecticut's recent
experience with corruption scandals involving state contractors,” the statute’s ban on
contributions by contractors, prospective contractors, and their principals was closely
drawn given the state's special interest in combating the appearance of corruption. Id.
at *13.
Significantly, the Second Circuit struck down a similar ban against contributions
by lobbyists because the state failed to cite an exigence sufficiently serious to justify
such a ban:
[T]here is insufficient evidence to demonstrate that all lobbyist contributions give rise to an appearance of corruption, and the evidence demonstrating that lobbyist contributions give rise to an appearance of “influence” . . . has no bearing on whether the [statute’s] ban on lobbyist contributions is closely drawn to the state's anticorruption interest. We conclude, as a result, that on this record, a limit on lobbyist contributions would adequately address the state's interest in combating corruption and the appearance of corruption on the part of lobbyists. The [statute’s] ban on lobbyist contributions, therefore, is not closely drawn to achieve the state's anticorruption interest. Thus, we hold that the [statutue’s] ban on lobbyist contributions . . . violates the First Amendment.
Id. at *14 (citations and footnotes omitted).
In the instant case, the Secretary points to no evidence of any actual corruption
or perception of corruption between Medicare providers and the Attorney General or the
county prosecutors, much less a scandal of the magnitude of Connecticut’s, that would
justify a ban on campaign contributions. As the Supreme Court noted in striking down
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Vermont’s campaign limits, “[T]he basic justifications the State has advanced in support of [its] limits are those present in Buckley. The record contains no indication that, for example, corruption (or its appearance) in Vermont is significantly more serious a matter than elsewhere.” Randall , 548 U.S. at 261.7 The same could be said of Ohio’s justifications for its ban on contribution by Medicaid providers. The ban “wholly extinguishes” the method of political association afforded by campaign contributions and precludes the “symbolic expression” permitted by a small contribution. The Secretary does not present any exigence that would justify such a drastic measure. Moreover, there is no evidence in the record that Ohio considered any lesser method of avoiding corruption or the appearance of corruption, such as a low limit on campaign contributions by Medicaid providers or requiring the Attorney General or county prosecutors to recuse themselves from cases and allowing subordinate attorneys to prosecute when the case involved a campaign donor. Under these circumstances, it cannot be argued that Ohio’s ban on contributions by Medicaid providers to the campaigns of the Attorney General and county prosecutors is “closely drawn” to the government interest of preventing corruption and the appearance of corruption.
In sum, Ohio’s ban on contributions by Medicaid providers to the campaigns of persons running for Attorney General or county prosecutor is unique and without precedent. The ban criminalizes conduct that most states punish with civil penalties. It
7 The court is well aware thatthe campaign limits struck down inRandall were held invalid because they imposed serious expressive limits on the candidates. The court has already noted that this consideration is not relevant in this case. Randall is cited here only for the proposition that more serious constraints on campaign contributions require more exigent justifications.
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bans contributions by Medicaid providers without evidence of a particular problem with corrupt practices or a perception of corrupt practices between Medicaid providers and either the Attorney General or prosecuting attorneys. It prohibits contributions to all persons running for county prosecutor, including prosecutorial offices that have no potential connection to the contributor. It broadly defines “Medicaid provider” and “ownership interest” in a Medicaid provider so as to sweep contracts for Medicaid services and ownership interests that are de minimis within the prohibition. Finally, the statute imposes a ban without referencing any serious exigence that would justify such an extreme measure and without evidence that the legislature considered any sanction less than a ban. Ohio’s contribution ban imposed on Medicaid providers cannot be considered “closely drawn.”
Given these characteristics of § 3599.45, it must be said that plaintiffs have “raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Six Clinics, 119 F.3d at 400. For these reasons, plaintiffs have demonstrated a likelihood of success on the merits going forward in the case as a whole. B. Whether § 3599.45 is unconstitutionally overbroad
Plaintiffs argue that § 3599.45 is unconstitutionally overbroad because it violates the rights of free association and free speech of a substantial number of persons whose prohibited conduct bears no rational relation to the purpose of the statute. The Secretary denies that the statute is unconstitutionally overbroad.
Generally litigants only have standing to vindicate their own constitutional rights. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984); Warth
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v. Seldin, 422 U.S. 490, 499 (1975) (noting that a party must "assert his own legal rights and interests, and cannot rest his claim . . . on the legal rights or interests of third parties."). But when a statute may have a deterrent effect on free expression, a party whose conduct is not protected may challenge a statute which is facially overbroad. Id. at 798; Secretary of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 957 (1984). The relevant question when a statute is challenged on grounds of overbreadth is whether "the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
This exception to individual standing is a narrow one. The overbreadth doctrine is "strong medicine" and should be employed "only as a last resort." Id. at 613. Consequently, a statute should be construed to avoid constitutional problems if the statute is subject to such a limiting construction or, if the statute is not subject to a narrowing construction, only the unconstitutional portion of the statute should be invalidated if it is severable from the rest of the statute. New York v. Ferber, 458 U.S. 747, 769 n.24 (1982). If the statute cannot be construed to avoid constitutional problems or if the impermissible portion of the statute is not severable, then the overbreadth must be substantial before a statute will be invalidated on its face. Id. at 770-73.
Plaintiffs assert that § 3599.45 is overbroad because it includes within its ban on contributions persons who are not involved in the day-to-day operation of a Medicaid provider, such as limited partners, and persons with only a small ownership interest in a Medicaid provider. As plaintiffs argue:
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No reasonable threshold below which that interest might be too diluted is offered. A one-percent partner, or an individual who owns a single share of common stock in a publicly traded corporation, a branch of which provides durable medical equipment under Medicaid, or a single share in a large pharmacy chain that is a Medicaid provider, or a single share in even department store with a pharmacy that services Medicaid patients, are forbidden individual contributors. Persons with absolutely no control over the policy or business practices of a corporate Medicaid provider are banned all-the-same from contributing. Plaintiffs’ Proposed Findings of Fact and Conclusions of Law, Exh. 13, p. 11. The Secretary responds in three ways. First, she observes that a statute may only be invalidated pursuant to overbreadth if the statute "punishes a 'substantial' amount of protected free speech, 'judged in relation to the statute's plainly legitimate sweep.''' Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). The Secretary proposes that § 3599.45 has a plainly legitimate sweep, but she draws no conclusion from this regarding the amount of protected free speech punished by the statute. The court construes the Secretary’s argument as asserting that in comparison to the legitimate sweep of § 3599.45, the amount of protected free speech punished by the statute is not substantial. However, § 3599.45 apparently has no legitimate application to the plaintiffs before the court. Nevertheless, the Secretary does indicate a flaw in plaintiffs’ case: Plaintiffs have made no effort to demonstrate the extent of the alleged overbreadth in § 3699.45. That is, plaintiffs have not attempted to demonstrate the number of limited partners or minor shareholders of corporations who are subject to the reach of § 3599.45. Indeed, plaintiffs have not demonstrated that any Ohio Medicaid provider is a limited partnership or a publicly-held corporation. Second, the Secretary asserts that § 3599.45 does not punish a substantial amount of free speech because, although it bans persons with a minimal ownership
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interest in a Medicaid provider, the appearance of corruption would arise from a donation by a person with an ownership interest in a Medicaid provider regardless of the size of the donor’s ownership share in the provider. The Secretary’s argument on this point is not entirely clear.
Finally, the Secretary argues that the legislature properly tailored the statute, as evidenced by the persons who are not included within its ambit, such as employees, family members, and other persons affiliated with Medicaid providers. Moreover, the Secretary argues, this careful crafting expressed the legislature’s best judgment as to the proper methods of avoiding circumvention of the contribution ban. As this legislation reflects the legislature’s best judgment on a matter calling for considered precision, it is inappropriate for the court to second-guess legislative intent in this matter.
Whether the legislature’s acts are “carefully considered” is irrelevant to determining whether legislation should be struck as overbroad. In making such a determination, only three considerations are relevant: (1) whether § 3599.45 can be construed to avoid overbreadth; (2) if the statute may not be so construed, whether the unconstitutional portion may be severed from the rest of the statute; and (3) if the statute may not be constitutionally construed or the unconstitutional portion severed, whether the overbreadth is substantial.
Despite these problems with the Secretary’s objections, plaintiffs have not, at this point in the proceedings, demonstrated that § 3599.45 is unconstitutionally overbroad. Even if we assume, without deciding, that the limitations on campaign contributions in § 3599.45 bear no rational relation to persons not connected with the day-to-day operation of a Medicaid provider or to persons with a de minimis ownership interest in a
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Medicaid provider, plaintiffs’ arguments, as discussed below, pass only two of the three tests that must be applied in determining whether a statute is unconstitutionally overbroad.
Section 3599.45(A) cannot be construed so as to avoid overbreadth. The terms of the statute are unequivocal: “No candidate for the office of attorney general or county prosecutor or such a candidate's campaign committee shall knowingly accept any contribution from a provider of services or goods under contract with the department of job and family services . . . or from any person having an ownership interest in the provider” (emphasis added). There is no way of construing these words so as to both (1) avoid suppressing the speech of persons who are not involved in the day-to-day operation of a Medicaid provider and persons with only a small ownership interest in a Medicaid provider and (2) without lifting the ban on individuals with a substantial ownership interest in the provider and whose campaign contributions might properly be limited by the legislature. Furthermore, the Secretary has offered no such saving construction.
Nor is it possible to sever the unconstitutional portion of the statute. The court is ill-suited to determine the amount of an individual’s interest in a Medicaid provider that would justify a limitation on the individual’s campaign contributions. Such judgments based on independent findings of fact are properly the business of the legislative branch. Thus, the court cannot say that the legislature may properly limit contributions of persons who own a particular percentage of a Medicaid provider or who earn a specific amount of income from their ownership interest. Absent a clear legal dividing line between what is a significant ownership share and what is de minimis, the court
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cannot sever the unconstitutional portion of the statute. As already noted, however, plaintiffs fail to demonstrate that the overbreadth
implicated by the statute is substantial. The record before the court is silent as to how many Medicaid providers are limited partnerships or publicly held corporations. This much, at least, is essential before the court can even begin to estimate whether the number of de minimis owners of Medicaid providers is “substantial.” Consequently, plaintiffs’ arguments do not pass the third prong of the test for overbreadth.
For these reasons, plaintiffs have failed to demonstrate that the reach of § 3599.45 is unconstitutionally overbroad.
IV. For the reasons given above, § 3599.45 (1) is not closely drawn to further a government interest sufficiently important to justify its restrictions of speech and association but (2) has not be proven to be overbroad. As § 3599.45 fails the appropriate test of its constitutionality, it must be declared unconstitutional on its face. Plaintiffs’ arguments meet three of the four prongs of the test used to determine whether a preliminary injunction should issue. First, the unconstitutionality of the statute means that plaintiffs demonstrate that they have a strong likelihood of success on the merits. Second, plaintiffs demonstrate that they would suffer irreparable injury absent a stay, since “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373 (citation omitted); see also Connection Distributing, 154 F.3d at 288 (finding that to the extent that a plaintiff demonstrates a substantial likelihood of success on the merits, plaintiff also establishes the likelihood of irreparable harm as a result of a loss of First Amendment
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rights). Third, there is no evidence on the record that Ohio would suffer substantial harm if the court grants the requested stay. Although the Secretary asserts that Ohio would suffer corruption and the perception of corruption if prohibited from enforcing the statute, she offers no elaboration, explanation, or evidentiary basis for this conclusion. Absent more, the court cannot say that “substantial harm” would follow from a prohibition on enforcing the statute. Fourth, the public interest would be served by granting the request for an injunction. Because “the public interest [lies] in the correct application of First Amendment principles, the court's decision turn[s] on the likelihood of success on the merits.” Jones, 569 F.3d at 266. Consequently, the public’s interest in this case lies in prohibiting the enforcement of an unconstitutional statute. In sum, application of the four part test to determine whether a preliminary injunction should issue leads to the overwhelming conclusion that the injunction should, indeed, issue.
It is not possible to sever all the unconstitutional portions of § 3599.45 while preserving the constitutional portions. Some unconstitutional portions of the statute, indeed might be severed. For example, the ban on contributing to the campaigns of all country prosecutor’s might be reduced to a ban on contributing to the campaigns of those county prosecutors in the Medicaid provider’s home county and any county in which the provider does business. There is no way, however, to sever the unconstitutional ban on contributions from the rest of the statute. Given the Supreme Court’s jurisprudence on the matter, limitations on campaign contributions, even serious limitations on those contributions, are appropriate to avoid corruption or the appearance of corruption, even when there is no evidence of particular, serious, or imminent corruption before the legislature. However, it is not appropriate for the court to
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determine specific campaign contribution limits, given the situation in Ohio and the perceptions of its citizens. Such matters are properly within the province of the Ohio legislature, with the proviso that the legislature must stay within constitutional limits in addressing this issue. As the Supreme Court has observed:
[W]e have "no scalpel to probe" each possible contribution level. We cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute's legitimate objectives. In practice, the legislature is better equipped to make such empirical judgments, as legislators have "particular expertise" in matters related to the costs and nature of running for office. Randall, 548 U.S. at 248 (citations omitted). As all unconstitutional portions of § 3599.45 cannot be severed from the constitutional portions in an attempt to preserve the constitutional portions of the statute, any injunction must prohibit enforcement of all portions of the statute.
V. The court is concerned by an issue raised by the Secretary for the first time in oral argument and not further developed then or since. The Secretary argues that a motion for an injunction prohibiting her from enforcing § 3599.45 is inappropriate because she is not charged with enforcing that statute. At least with respect to the criminal penalties attached to the statute, the Secretary asserts, the Attorney General and the 88 county prosecutors are charged with prosecuting violations of the statute. The Secretary’s duties with regard to enforcing that statute or any election statute have not been clarified by either party. The Secretary does not argue that she is an improper party to this suit. She does argue, however, that, as a practical matter, plaintiffs have not joined all parties necessary for them to obtain complete relief, viz. the Attorney General and Ohio’s 88
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county prosecutors. The Secretary seems to be arguing, therefore, not that an injunction is an inappropriate remedy but that enjoining the Secretary is, at best, an inadequate or incomplete remedy.
Complicating the problem is the structure of § 3599.45. The statute criminalizes accepting campaign contributions, not giving them. Whether the Attorney General or a county prosecutor will be willing to accept plaintiffs’ proffered donations upon issuance of a preliminary injunction prohibiting the Secretary from enforcing § 3599.45 is purely speculative. That, nevertheless, is the remedy for which plaintiffs have prayed in their complaint and which is the subject of this motion.
Unfortunately, the Secretary has neither developed her argument nor properly placed this argument within the legal framework the court must consider in determining whether to grant a motion for a preliminary injunction. During oral argument and in her Proposed Findings of Fact and Conclusions of Law, the Secretary treats the issue as related to determining whether plaintiffs will suffer irreparable harm if the motion is not granted. Proposed Findings of Fact and Conclusions of Law, Doc. No. 14, pp. 18-19. Plaintiffs will be harmed if the court does not issue the injunction because there is no possibility that their donations will be accepted. Despite the foregoing, plaintiffs have not shown that they will receive meaningful relief from the requested injunction. On the other hand, the Secretary has not shown that an the injunction would be entirely futile. Absent such a demonstration that an injunction would be entirely futile, and given the analysis in the preceding sections of this Report and Recommendation, the court concludes that the requested injunction should issue because of the significant First Amendment rights involved.
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VI. Section 3599.45 is unconstitutional on its face, and it is not possible to sever the unconstitutional portions of § 3599.45 in an attempt to preserve the constitutional portions. Application of the appropriate test for determining whether a preliminary injunction should issue overwhelmingly leads to the conclusion that the court should issue an injunction prohibiting enforcement of the statute. Consequently, plaintiffs’ motion for a preliminary injunction prohibiting the Secretary from enforcing § 3599.45 statute should be granted and the injunction should issue.

Date: October 12, 2010

/s/ Nancy A. Vecchiarelli United States Magistrate Judge

OBJECTIONS

By stipulation of the parties, any objections to this Report and Recommendation must be filed with the Clerk of Courts within seven (7) days after the party objecting has been served with a copy of this Report and Recommendation, and Responses must be filed within three (3) days thereafter. See Stipulation Regarding Objections and Responses, Doc. No. 15. Failure to file objections within the specified time may waive the right to appeal the District Court’s order. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111.

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 Case: 1:10-cv-01986-DCN Doc #: 20 Filed: 10/19/10 1 of 25. PageID #: 337
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

ARTHUR LAVIN, et al.,

CASE NO. 1:10-cv-01986

Plaintiffs

JUDGE: DONALD C. NUGENT

v.
JENNIFER BRUNNER, In Her Official Capacity as Ohio Secretary of State

MAGISTRATE JUDGE: NANCY A. VECCHIARELLI

Defendant

PLAINTIFFS’ OBJECTIONS TO MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Under 28 U.S.C. § 636(b)(1)(C) and Rule 72.3(b) of the Rules of this Court, Plaintiffs respectfully submit the following objections to certain of the Magistrate Judge’s Report and Recommendation, issued on October 12, 2010. Plaintiffs do not object to the Report and Recommendation overall or its conclusion that Plaintiffs’ Motion for a Preliminary Injunction prohibiting the Secretary from enforcing Ohio Rev. Code § 3599.45 should be granted.

Case: 1:10-cv-01986-DCN Doc #: 20 Filed: 10/19/10 2 of 25. PageID #: 338
Objections to Magistrate Judge’s Report and Recommendation (“R&R”) of October 12, 2010
Under 28 U.S.C. § 636(b)(1)(C), as well as Rule 72.3(b) of the Rules of this Court, any party may serve and file objections to the proposed findings and recommendations of the Magistrate Judge.1 Local Rule 72.3(b) in particular states that failure to file timely objections “shall constitute a waiver of subsequent review,” absent a showing of good cause.2 The Rule further states that the objecting party “shall specifically identify the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objections.”3 Under both § 636(b)(1)(C) and the Local Rule, this Court must make a de novo determination of those portions of the report to which objection is made.4 Plaintiffs thus submit these detailed objections to preserve matters for this Court’s review as well and for subsequent review.
As explained below, Plaintiffs’ respectfully object to the following: (1) certain factual findings and omissions, (2) the R&R’s conclusion and reasoning that the Ohio Revised Code § 3599.45 is
not overbroad, and (3) the R&R’s conclusion that Defendant has demonstrated a sufficiently important
government interest in a statute prohibiting contributions from Medicaid providers to the Attorney General and prosecutor candidates.
1 28 U.S.C. § 636(b)(1)(C); Local Rule 72.3(b) (N.D. Ohio). 2 Local Rule 72.3(b). 3 Id. 4 § 636(b)(1)(C); Local Rule 72.3(b) (N.D. Ohio).
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Plaintiffs certainly do not object to the R&R overall, its rigorous engagement with the issues, or its conclusion that a preliminary injunction should issue.
I. The Plaintiffs object to certain factual findings and omissions in the R&R as follows: 1. There were over 64,000 total Medicaid providers in Ohio in state fiscal year 2008 (July 1, 2007-June 30, 2008).5 This figure is undisputed, and in fact is included in Defendant’s own exhibit.6 In response to the Magistrate Judge’s concern, expressed at the hearing, that the source for this figure—the Health Policy Institute of Ohio—is not a state source, Plaintiffs respectfully direct the Court’s attention to the Ohio Department of Job and Family Services’ (“ODJFS”’s) 2009 Annual Report, which reports that the total number of providers between July 1, 2008 and June 30, 2009, was 99,000.7 Defendant’s Exhibit E, also issued by ODJFS, states that over 93,000 active providers were enrolled in the system in July 2009.8 2. Defendant has produced no evidence of the portion of work or resources the Attorney General or county prosecutors devote to Medicaid fraud
5See Health Policy Institute of Ohio, Medicaid Basics 2009, at 2, available at http://a5e8c023c8899218225edfa4b02e4d9734e01a28.gripelements.com/pdf/publications/medicaid basics_2009.pdf, last accessed October 15, 2010 (the Health Policy Institute of Ohio is a nonpartisan, nonprofit organization that communicates current research to policymakers, state agencies, and other decision-makers). 6 See id. (submitted as Def.’s Ex. B. at Prelim. Injunc. Hrng). 7 Ohio Department of Job and Family Services, 2009 Annual Report, at 13, available at http://www.odjfs.state.oh.us/forms/results1.asp?stype=FORM_NUM&searchPar=JFS%2008017, Pls.’ Supp. Ex. 1. 8 Ohio Department of Job and Family Services, Medicaid Program Integrity Report for 2009, at 3, available at http://jfs.ohio.gov/ohp/reports/documents/Medicaid%20Program%20Integrity%20Report%20CY %202009.pdf (submitted by Defendant at Prelim. Injunc. Hrng. as Ex. E).
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compared to other areas of prosecution.9 This is a relevant fact and should be included in the findings of Medicaid fraud facts, at R&R page 2. 3. Defendant has produced no evidence that the AG or county prosecutors have more discretion to prosecute Medicaid fraud than they do any other offense occurring within their respective jurisdictions. This is a relevant fact and should be included at R&R page 3. 4. Neither the Attorney General nor the county prosecuting attorney plays any role in approving providers to contract with the state to provide Medicaid services, or determining the rate or method of compensation—that function being fulfilled by the ODJFS.10 This is a relevant fact and simply augments the R&R at page 2. 5. As indicated in Plaintiffs’ Proposed Finding of Fact No. 35,11 the ODJFS contracts with managed-care organizations, including health-insuring corporations.12 Such organizations enter into provider agreements with ODJFS,13 under which they are “authorized to provide, or arrange for the provision of health care services to medical assistance recipients.”14 The
9 See Pls.’ Prop. Findings of Fact and Concl. of Law (Doc. 13), at pp. 8, 17 (Prop. Findings of Facts Nos. 31, 69). 10 Pls.’ Prop. Findings of Fact and Concl. of Law (Doc. 13), at pp. 4-5, 18-19 (Prop. Findings of Fact Nos. 14-17, 76-78). 11 Id. at p. 9 (Prop. Finding of Fact No. 35). 12 Ohio Rev. Code § 5111.17(A). 13 Ohio Admin. Code § 5101:3-26-01. 14 Ohio Rev. Code § 5111.17(A).
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ODJFS lists “health maintenance organizations” in a spreadsheet of Medicaid providers.15 6. In addition to the declaration of State Senator Harry Meshel, the chief Senate sponsor of the bill enacting the statute at issue here, R&R page 3-4 & n.1, Plaintiffs adduced historical evidence, including state senate and house journal minutes, committee-hearing minutes, a Legislative Service Commission bill analysis, and newspaper articles.16 This evidence, which has not been refuted by Defendant, shows that the General Assembly lacked any evidence before it of corruption or the appearance of corruption. The evidence is probative and should be included at R&R pages 3-4. 7. Plaintiffs also object to the following statement, R&R, page 4 n.1: “[A]s more than thirty years have passed between the legislation enacting Ohio’s campaign limits and Senator Meshel’s declaration, the court assigns little or no probative value to that declaration.” Defendant presented no evidence that would call into question Senator Meshel’s memory, as chief sponsor of the bill. Defendant did not even attempt to contest Senator Meshel’s memory. Plaintiffs therefore respectfully suggest that the R&R should not discount Senator Meshel’s recollection that there was no basis for the law when it was adopted. 8. Plaintiffs also object to the R&R’s statement, at page 29: “The Secretary’s duties with regard to enforcing [Ohio Rev. Code § 3599.45] . . . or any
15 ODJFS, Medicaid Management Information System, Provider Update Control Report, at 4, Pls.’ Supp. Ex. 2. 16 See Pls.’ Prop. Findings of Fact and Concl. of Law (Doc. 13), at pp. 13-16 (Prop. Findings of Fact Nos. 53-66).
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election statute have not been clarified by either party.” In their Proposed Finding of Fact No. 11, Plaintiffs specifically quote from the statute under which the Secretary must “investigate the administration of election laws, frauds, and irregularities in elections in any county, and report violations of election laws to the attorney general or prosecuting attorney, or both, for prosecution.”17 9. The R&R states: “State agencies may not award unbid contracts in excess of $500 to any entity that, during the previous two years, has contributed over $1,000 to the campaign of any agency official responsible for awarding contracts.”18 This finding is based on Plaintiffs’ Proposed Finding of Fact No. 46, which states: “State agencies may not award unbid contracts in excess of $500 to any individual or entity that, during the previous twentyfour months, has contributed over $1,000 to the campaign of any public official responsible for awarding contracts on behalf of that agency.” Plaintiffs have discovered an error in this statement in their Proposed Findings, however, that is also reflected in their opening brief. Instead of applying to “any entity,” as to corporations and business trusts, the restriction applies only where an owner with greater than 20% ownership interest has made a contribution.19 Accordingly, the Proposed Finding should read: “State agencies may not award unbid contracts in excess of
17 Ohio Rev. Code 3501.05(N)(1), quoted in Pls.’ Prop. Findings of Fact and Concl. of Law (Doc. 13), at pp. 3-4 (Prop. Finding of Fact No. 11). 18 R&R, at 5. 19 Ohio Rev. Code Ann. § 3517.13 (J) (Lexis 2006) (as enrolled by 1990 Laws of Ohio 4928, 49464950, and in effect before H.B. 694 was passed in 2006) (Pls.’ Mot. Prelim. Inj., Ex. 9).
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$500 to certain individuals and entities that, during the previous twenty-four months, have contributed over $1,000 to the campaign of any public official responsible for awarding contracts on behalf of that agency. Corporations and business trusts are subject to the restriction only where an owner with over 20% interest, or the owner’s spouse, has made such a contribution.” This should be stated correctly as a part of the Court’s findings of fact and conclusions of law. II. Plaintiffs, at this stage of the proceedings, have demonstrated that Ohio Rev. Code § 3599.45 is unconstitutionally overbroad (page 27). In articulating the “overbreadth” standard—that the overbreadth must be “substantial” “judged in relation to the statute’s plainly legitimate sweep”20—the R&R correctly notes that the Defendant has not met her burden to show that the statute has any “legitimate application to the plaintiffs before the court.”21 Nonetheless, applying the standard, the R&R concludes that Plaintiffs have not shown that Ohio Rev. Code § 3599.45 precludes a “substantial” amount of protected speech, because Plaintiffs have not yet shown how many providers are publicly held corporations or limited partnerships. The R&R states as follows: “This much, at least is essential before the court can even begin to estimate whether the number of de minimis owners of Medicaid providers is ‘substantial.’”22 Plaintiffs object to the R&R’s conclusion that overbreadth has not yet been shown, because (1) they have provided facts and inferences sufficient to show that the statute covers
20 Virginia v. Hicks, 539 U.S. 113, 118-19 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)); New York v. Ferber, 458 U.S. 747, 770 (1982). 21 R&R, at 24. 22 R&R, at 27.
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owners with such small, non-controlling interests that they would not be subject to

prosecution or penalties for Medicaid fraud; in addition, Plaintiffs here respectfully

submit documentation supporting such inferences to address the Magistrate Judge’s

concerns raised at oral argument about specific evidence of publicly held providers;

and

(2) the statute precludes a substantial amount of protected speech even apart from

owners who may have minimal interests.

1.

It is beyond reasonable dispute that there are Medicaid providers that are either

publicly held or that have owners with limited interests such that they would not be

prosecuted for fraud.

Under Ohio Revised Code § 3599.45, an attorney-general or county-prosecutor

candidate is prohibited from accepting any contribution from:

a provider of services or goods under contract with the
department of job and family services pursuant to the
medicaid program of Title XIX of the “Social Security Act,”
49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider.23

As indicated by Plaintiffs’ Proposed Finding of Fact No. 36, providers of pharmacy

services and providers of durable-medical equipment are included within the ambit of the

statute.24 This proposed finding was intended to answer the Magistrate Judge’s question,

raised at oral argument in this matter, whether an entity such as CVS was considered a

provider. Plaintiffs submit that it is beyond reasonable dispute that CVS is a pharmacy, and

that CVS is publicly held, and therefore that the Court may take judicial notice of these facts

23 Ohio Rev. Code § 3599.45(A) (West 2010). 24 Pls.’ Prop. Findings of Fact and Concl. of Law, dated Oct. 8, 2010 (Doc. 13), at p. 10 (Prop. Finding No. 36).
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in determining that there are Medicaid providers with small, non-controlling interests.25 Nonetheless, Plaintiffs also here submit supplemental documentation to show the existence of such providers.
According to the ODJFS, Ohio has 1,643 providers of durable-medical equipment, and 3,188 providers of pharmacy services.26 While Plaintiffs have not yet obtained a comprehensive list of all such providers, an online Medicaid Managed Care provider directory provided in partnership with ODJFS shows that one provider of durable-medical equipment is CVS. 27 As mentioned, it is beyond reasonable dispute, and Plaintiffs also here submit documentation to show, that CVS (officially, “CVS Caremark”) is a publicly held corporation.28 The directory does not separately list providers of pharmacy services— instead indicating that a consumer under the Managed Care program can use “any pharmacy that accepts Ohio Medicaid.”29 A $36.7 million Medicaid-fraud settlement agreement between CVS Caremark and the United States and other states, including Ohio, however
25 See Fed. R. Civ. P. 201 (“A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”). 26 ODJFS, Medicaid Management Information System, Provider Update Control Report, at 3, 4, Pls.’ Supp. Ex. 2. 27 See, e.g., Ohio Medicaid Managed Care Enrollment Center, Online Provider Directory, Search Results for “CVS,” Pls.’ Supp. Ex. 3. 28 See, e.g., CVS Caremark Corporation, Form 10-K (filed for the FY ending Dec. 31, 2009), available at http://www.sec.gov/Archives/edgar/data/64803/000119312510043086/d10k.htm (indicating par value of common stock) (indicating listing on New York Stock Exchange), Pls.’ Supp. Ex. 4. 29 See Ohio Medicaid Managed Care Enrollment Center, Online Provider Directory, search results for “pharmacy,” Pls.’ Supp. Ex. 5.
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shows that the company has sought Medicaid reimbursements through its pharmacies located in Ohio.30 Thus, CVS falls under the category of Medicaid pharmacy-providers.
In addition to providers of pharmacy service and durable-equipment suppliers, managed-care organizations are also included within the ambit of Ohio Revised Code § 3599.45. Such organizations enter into provider agreements with ODJFS,31 under which they are “authorized to provide, or arrange for the provision of health care services to medical assistance recipients.”32 There are seven managed-healthcare plans,33 included within the 56 health-maintenance organizations that ODJFS lists as providers.34
Two examples of managed-care organizations contracting with Ohio to provide Medicaid services are Molina Health Care of Ohio, Inc., and WellCare.35 Molina Health Care of Ohio, Inc. operates as a wholly owned subsidiary of Molina Health Care, Inc.36 Molina

30 See United States ex. Rel. Bernard Lisitza v. CVS Caremark Corp., No. 03 C. 742 (N.D. Ill. 2008) (settlement agreement), at 2, available at http://www.justice.gov/usao/iln/pr/chicago/2008/pr0318_01b.pdf, last accessed October 19, 2010, Pls.’ Supp. Ex. 6; see also United States Dept. of Justice Press Release Regarding Settlement Agreement, Mar. 18, 2008, available at http://www.justice.gov/usao/iln/pr/chicago/2008/pr0318_01.pdf, last accessed October 19, 2010, Pls.’ Supp. Ex. 7.

31 Ohio Admin. Code § 5101:3-26-01.

32 Ohio Rev. Code § 5111.17(A).
33 See, e.g., Medicaid Managed Care Enrollment Center, “Contact Us” Page, available at https://www.ohiomcec.com/ContactUs.aspx, last visited October 18, 2010, Pls.’ Supp. Ex. 8.

34 ODJFS, Medicaid Management Information System, Provider Update Control Report, at 4, Pls.’ Supp. Ex. 2.

35 See, e.g., Medicaid MCEC, “Contact Us” Page, Pls.’ Supp. Ex. 8.

36 See Molina Health Care, Inc. 2009 Annual Report, at 1, 35, 66, available at http://phx.corporate-

ir.net/External.File?item=UGFyZW50SUQ9Mzc3MjN8Q2hpbGRJRD0tMXxUeXBlPTM=&t=1,

last accessed October 18, 2010, Pls.’ Supp. Ex. 9.

See also

http://www.molinahealthcare.com/medicaid/members/oh/Pages/home.aspx (Molina Healthcare of

Ohio members page), last accessed October 18, 2010, Pls. Supp. Ex. 10.

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Health Care, Inc., is a publicly held corporation.37 WellCare Health Plans, Inc., also a publicly held corporation,38 operates in Ohio through its wholly owned subsidiary, WellCare of Ohio, Inc.39
As the statute plainly prohibits anyone with an “ownership interest” in a Medicaid provider from donating, shareholders with very small ownership interests in CVS or Molina Health Care, or WellCare, on the statute’s face would be prohibited, even though those shareholders have no control over the company’s decisions and would never be involved in prosecution for Medicaid fraud based on their ownership status.40
Indeed, the civil Medicaid fraud statute, Ohio Rev. Code § 5111.03, only penalizes providers with termination of the agreement upon the conviction of or judgment against an owner, where the owner has at least a 5% ownership interest in the provider.41 Thus, whether or not an entity is publicly held, Section 3599.45 would prohibit contributions from individuals with small interests even when the fraud statute itself does not contemplate any penalty of agreement-termination against such an individual. In addition, as Plaintiffs point out in their opening brief, Section 3599.45’s restriction of anyone with an ownership interest—however small—is more
37 See, e.g., Molina Health Care, Inc. 2009 Annual Report at pp. 1, 25, Pls.’ Supp. Ex. 9. 38 WellCare Annual Report 2009, at 21, available at http://phx.corporateir.net/External.File?item=UGFyZW50SUQ9MzY5NzA1fENoaWxkSUQ9Mzc5OTEyfFR5cGU9M Q==&t=1, last accessed October 18, 2010, Pls. Supp. Ex. 11 (cited pages only). 39 See, e.g., id. at 3; id. at F-7; id. at Ex. 21.1 (listing WellCare of Ohio, Inc., in list of subsidiaries), Pls.’ Supp. Ex. 11. 40 Cf. Ohio Rev. Code § 2901.23 (assigning criminal liability to corporation where officer, agent, or employee were involved, or, in certain cases, board of directors, trustees, or partners); State v. CECOS Int’l, Inc., 526 N.E.2d 807, 811 (Ohio 1988) (“[A] business entity may be found guilty of a criminal offense only if the criminal act or omission was approved, recommended, or implemented by high managerial personnel with actual or implied authority to approve, recommend or implement same. High managerial personnel are those who make basic corporate policies.”). 41 Ohio Rev. Code § 5111.03.
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onerous than campaign-finance provisions addressed in other cases. It also contrasts with Ohio’s own pay-to-pay rules, which set limits on individuals with a 20% ownership interest in certain contracting entities.42

2.

Ohio Revised Code § 3599.45 prohibits a substantial amount of protected speech

even apart from those with an ownership interest in a publicly held provider.

A statute prohibits a “substantial” amount of protected speech in relation to any

“plainly legitimate sweep,” when, for example, it applies to circumstances or contributions

with little or no connection to the harm the statute intends to combat.43

The R&R observed, under the second prong of the intermediate-scrutiny analysis,

that Ohio Revised Code § 3599.45 prohibits a provider’s contributions to each of the 88

county prosecutors even if the provider does not operate or reside in that county.44 The

R&R correctly concluded, in part based on that observation, that the statute is not “closely

drawn” to further its purported interest.45 The R&R, accordingly, concluded that the statute

has no “legitimate application” to the Plaintiffs here.46

Even if such a legitimate application could be demonstrated, however—and it has

not been—the sweep of the statute to prohibit contributions in dozens of races outside a

42 Pls.’ Mot. for Prelim. Injunc. (Doc. 2), at 38, nn. 123-24 and accompanying text.
43 See, e.g., Dallman v. Ritter, 225 P.3d 610, 626-27 (Colo. 2010) (holding contribution restriction on certain contractors overbroad because, while the law intended to encourage competitive bidding, it applied even to those state contracts where competitive bidding was either not feasible or not appropriate). See also New York v. Ferber, 458 U.S. 747, 766 (1982) (characterizing the overbreadth claim in that case as forbidding the distribution of material that did not threaten the harm sought to be combated by the state).
44 See R&R, at 15, 17.
45 R&R, at 22 (“Ohio’s contribution ban imposed on Medicaid providers cannot be considered ‘closely drawn.’”).
46 R&R, at 24.
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contributor’s home county would, by the R&R’s own salient reasoning, be overbroad by comparison. As the R&R points out, an individual running for prosecuting attorney in Hamilton County, for example, has “no potential connection to” a provider residing in, for example, Ashtabula County, and providing services in Cuyahoga County.47 Thus, for the same reasons that the R&R correctly found the ban’s reach to each of 88 prosecutors not “closely drawn,” the statute also prohibits a substantial amount of protected speech and thus is overbroad.48
In addition, as discussed below, the Defendant’s own exhibits indicate that Medicaid providers in Ohio number over 64,000, yet there were only 377 fraud-related complaints lodged against providers in 2008, and out of those, only 316 investigations.49 That figure is less than 1% of the total number of Medicaid providers. The statute is thus overbroad because it reaches a substantial number of providers—99%—who will never have occasion to even appear on the radar of the Attorney General or county prosecutor.
47 Id. 48 See Dallman v. Ritter, 225 P.3d 610, 627 (Colo. 2010) (holding unconstitutional a provision prohibiting candidates from accepting contributions from sole source contractors regardless of their ability to influence contract awards or their relation to the contractor) (“[W]e cannot sacrifice First Amendment freedoms to an implausible perception of impropriety that links every contribution to an illicit arrangement . . . The [provision] fails to tailor its prohibitions towards those who have some control over awarding no-bid contracts, which would be directly correlated to its purpose of preventing the appearance of impropriety.”). 49 Compare Health Policy Institute of Ohio, Medicaid Basics 2009, at 1, 8, available at http://a5e8c023c8899218225edfa4b02e4d9734e01a28.gripelements.com/pdf/publications/medicaid basics_2009.pdf, last accessed October 15, 2010 (submitted by Defendant at Prelim. Injunc. Hrng. As Ex. B), with Ohio Medicaid Fraud Control Unit FY 2009 Annual Report, at 3, available at: http://www.ohioattorneygeneral.gov/getattachment/38ff2c4c-fce7-42f3-85c4-d2581907e462/2009Health-Care-Fraud-Annual-Report.aspx, last accessed on Oct. 7, 2010 (submitted by Defendant at Prelim. Injunc. Hrng. as Ex. C).
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III. The Defendant has not met her burden to demonstrate a sufficiently important interest to justify limiting campaign contributions (page 13). The magistrate judge’s report and recommendation provides as follows: Given the lack of novelty and high plausibility of the government interest asserted by the Secretary to justify Ohio’s campaign limits, the quantum of evidence necessary to satisfy heightened judicial scrutiny in this case is extremely small. Consequently, given the evidence presented by the Secretary regarding Medicaid fraud in Ohio, the court finds that the Secretary has carried her burden of demonstrating a sufficiently important government interest to justify limiting campaign contributions.50 The R&R’s conclusion on the first prong of the intermediate-scrutiny analysis is
contrary to Supreme Court case law. First, the R&R incorrectly concludes that the Defendant’s justification for Ohio Rev. Code § 3599.45 is not novel or implausible and therefore that the evidence required is “extremely small.” The R&R comes to this conclusion despite repeatedly finding that Ohio is the only state that has such a statute.51 Second, the R&R incorrectly concludes that the Defendant’s evidence regarding Medicaid fraud in Ohio is sufficient to impinge on the First Amendment rights at issue here.
1. The quantum of evidence required in this case is high. In Nixon v. Shrink Missouri Gov’t PAC, the Supreme Court stated: “The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.”52 While the Court drew no clear lines, its own analysis is instructive as to what might be novel or implausible. Nixon, because it addressed the same general contribution limits at issue in Buckley, had no need to look at anything more specific than Buckley’s own justification:
50 R&R, at 13. 51 R&R, at 5, 14; see also id. at 21 (calling the ban “unique and without precedent”). 52 Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 391 (2000).
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“Buckley demonstrates that the dangers of large, corrupt, contributions and the suspicion that large contributions are corrupt are neither novel nor implausible.”53
Here, the proposed justification for Ohio Rev. Code § 3599.45 is not the general “danger of large, corrupt contributions.” It is the danger of any contribution specifically by a Medicaid provider to a candidate for Attorney General or county prosecutor. It is this more groupspecific justification that must be considered for its novelty or plausibility,54 particularly given that the First Amendment disfavors identity-specific restrictions on political speech.55 In Green Party of Conn. v. Garfield, for example, the Second Circuit assessed whether a ban on contractor-contributions furthered a sufficiently important government interest.56 The Court did not rely, as the R&R does, on a general justification that “corruption and the appearance of corruption are problems endemic in the American political system.”57 Rather, in coming to the conclusion that the restriction was justified, the Court analyzed the record specifically as to contractors, finding that the “General Assembly had good reason to be concerned about both the ‘actuality’ and the ‘appearance’’ of corruption involving contractors. Connecticut’s recent corruption scandals showed that contributions by contractors could lead
53 Id. at 391. 54 See, e.g., Casino Ass’n of Louisiana v. State, 820 So.2d 494, 508, 2002-0265 (La. 6/21/02) (“Given the history of the gaming industry and its connection to public corruption and the appearance of public corruption, it is completely plausible, and not at all novel, for the Louisiana legislature to have concluded that it was necessary to distance gaming interests from the ability to contribute to candidates and political committees which support candidates.”) (emphasis added). 55 See Citizens United v. FEC, 130 S. Ct. 876, 905 (2010) (“The First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”); id. at 899 (“We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.”); id. at 899 (“[T]he Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”). 56 Green Party of Conn. v. Garfield, __ F.3d __, Nos. 09-0599 & 09-0609, 2010 WL 2737134, at *7 (2d Cir. July 13, 2010) (emphasis added). 57 R&R, at 13.
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to corruption.”58 Similarly, in the portion of McConnell v. FEC addressing restrictions on soft party contributions to national party committees (separate from the portion of the opinion striking down the ban on minors, discussed below), the Supreme Court analyzed the restriction’s justification specifically: “The question for present purposes is whether softmoney contributions to national party committees have a corrupting influence or give rise to the appearance of corruption.”59 This more salient question arises from the statute’s actual subject matter, which is not corruption generally. Rather, the subject matter specifically targets the relationship between prosecutors and Medicaid providers.
When considered at the appropriate level of specificity, the justification contemplated by Ohio Rev. Code § 3599.45 is utterly novel and implausible. As the R&R points out and as Defendant does not dispute, no other state in the country has seen the need to impose such a restriction on Medicaid providers.60 The prohibition, in addition, is the only one of its kind in Ohio—no other group in Ohio is prohibited from contributing to candidates for Attorney General or county prosecutor.61
What the R&R fails to appreciate is the rationale’s implausibility. Although Defendant makes much of the fact that 26% of Ohio’s budget goes to Medicaid funding, she has not shown what portion of that is allocated to the Attorney General or county
58 Green Party, 2010 WL 2737134, at *7 (emphasis added). 59 McConnell v. FEC, 540 U.S. 93, 145 (2003) (emphasis in original); see also id. at 144 (“The idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible.”) (emphasis added). 60 R&R, at 5, 14. See also Pls.’ Prop. Findings of Fact and Concl. of Law (Doc. 13), at p. 13 (Prop. Finding of Fact No. 51). 61 See R&R, at 5. See also Pls.’ Prop. Findings of Fact and Conclusions of Law (Doc. 13), at pp. 11-13 (Prop. Findings of Fact Nos. 43-51).
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prosecutors to combat Medicaid fraud.62 Nor has she shown that the Attorney General or
county prosecutors spend more resources combating Medicaid fraud than any other type of problem that comes before them.63 Finally, as the Defendant’s own evidence shows, although there were over 64,000 Ohio Medicaid providers in 2008,64 the Attorney General’s
Medicaid Fraud Control Unit (“MFCU”) received only 377 fraud-related complaints in 200809.65 That figure is less than 1% of all Ohio Medicaid providers. Thus the notion that
campaign contributions by Medicaid providers present a particular danger to the Attorney
General’s or county prosecutors’ prosecutorial decision-making is extremely implausible.
The Court should distinguish between Medicaid providers and the targeted groups
where courts have upheld contribution bans. For example, bans on contributions by
employees of the gambling industry have been upheld because of the history of corruption in the gambling industry.66 Restrictions on contributions by lobbyists are upheld given the
62 See Pls.’ Prop. Findings of Fact and Conclusions of Law (Doc. 13), at p. 8, 17 (Prop. Findings of Fact Nos. 31, 69).
63 Id. at 8 (Prop. Finding of Fact No. 31).
64 See Health Policy Institute of Ohio, Medicaid Basics 2009, at 1, 8, available at http://a5e8c023c8899218225edfa4b02e4d9734e01a28.gripelements.com/pdf/publications/medicaid basics_2009.pdf, last accessed October 15, 2010 (submitted by Defendant at Prelim. Injunc. Hearing as Ex. B) (over 64,000 Medicaid providers).
65 Ohio Medicaid Fraud Control Unit FY 2009 Annual Report, at 3, available at http://www.ohioattorneygeneral.gov/getattachment/38ff2c4c-fce7-42f3-85c4-d2581907e462/2009Health-Care-Fraud-Annual-Report.aspx (reporting attorney general’s fraud-investigation-andprosecution statistics) (submitted by Defendant at Prelim. Injunc. Hearing as Ex. C).
66 See, e.g., Casino Ass’n of Louisiana v. State, 820 So.2d 494, 504, 2002-0265 (La. 6/21/02) (“[G]ambling has been recognized as a vice activity which poses a threat to public health and public morals.”) (“Given the history of the gaming industry and its connection to political corruption and the appearance of public corruption, it is completely plausible and not at all novel, for the Louisiana legislature to have concluded that it was necessary to distance gaming interests from the ability to contribute to candidates and political committees which support candidates.”); State v. Soto, 565 A.2d 1088, 1097, 1098 (N.J. 1989) (upholding ban on contributions by casino employees, citing the “acknowledged vulnerability of the casino industry to organized crime” and the “mischief” wrought by gambling on “public welfare and morality”).
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close professional contact between lobbyists and legislators who are influenced by them.67
The Courts in each of these cases focused on the specific industries in a way that the R&R did not in accepting a more sweeping “corruption” rationale. Medicaid providers, as shown
above, as a group have very little contact with prosecutors. In addition, providing health services to poor individuals can in no way be compared to the “vice” activity of gambling.
Any justification for prohibiting Medicaid provider contributions to prosecutor candidates is novel and implausible. Accordingly, a high “quantum of empirical evidence” is required.
In addition, as the Supreme Court in Nixon stated, “more extensive evidentiary documentation” may be required where Plaintiffs have made a “showing of their own to cast doubt on the apparent implications of Buckley’s evidence and the record here.”68 Here, Plaintiffs have made such a showing. Plaintiffs presented the following evidence, which the
R&R incorrectly disregarded: senate journal minutes and a bill draft showing that fraud was the primary concern of the bill, and that the contribution ban was not even part of the bill as contemplated by and passed by the state senate;69 house journal minutes and committee hearing minutes documenting no rationale for the ban;70 a bill analysis by the Legislative
67 See, e.g., State v. Alaska Civ. Lib. Union, 978 P.2d 597, 619 (Alaska 1999) (“Lobbyists are, by definition, paid to influence administrative or legislative action. Their professional purpose, coupled with their proximity to legislators during the legislative session, makes them particularly susceptible to the perception that that they are buying access when they make contributions.”); North Carolina Right to Life v. Bartlett, 168 F.3d 705 (4th Cir. 1999) (“[L]obbyists are paid to effectuate particular political outcomes. The pressure on them to perform mounts as legislation winds its way through the system. If lobbyists are free to contribute to legislators while pet projects sit before them, the temptation to exchange “dollars for political favors” can be powerful.”). 68 Nixon, 528 U.S. at 394. 69 Ohio Senate Journal, 112th Gen. Assemb., 1st Sess., 187, 192, 1229-30, 1278-80 (1977) (Pls.’ Mot. Prelim. Injunc., Ex. 4) (minutes documenting amendments in Senate); Am. S.B. 159, 112th Gen. Assemb., 1st Sess. (Oh 1977) (bill as it passed Senate) (Pls.’ Mot. Prelim. Injunc., Ex. 6); see also Ohio House Journal, 112th Gen. Assemb., 2d Sess., at 2418, 2556 (1978) (Pls.’ Mot. Prelim. Injunc., Ex. 4). 70 See House Comm. Hearing Minutes (Mar. 8, 1978, 9:30am) (Pls.’ Mot. Prelim. Injunc., Ex. 7); Ohio House Journal, 112th Gen. Ass., 2d Sess., 2558-2560 (1978) (Pls.’ Mot. Prelim. Injunc., Ex. 4).
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Service Commission making no mention of Ohio Rev. Code § 3599.45;71 newspaper articles barely mentioning the provision, let alone documenting any instances of corruption to which it was responding;72 and, finally, a declaration by the principal senate sponsor of the bill enacting the provision, stating: “There were not, to my recollection, any circumstances of actual corruption or appearance of corruption caused by any campaign contributions by Medicaid providers. I do recall that that was an era of one-upmanship in which Democrats and Republicans were trying to outdo one another regarding ethics-related proposals.”73
As Plaintiffs detailed in their Proposed Findings of Fact and Conclusions of Law, the above evidence is probative notwithstanding that Ohio lacks an official legislative history.74 The R&R itself acknowledges that in Nixon, even though Missouri like Ohio did not keep a legislative history, the Supreme Court considered an affidavit from a legislator who was involved in campaign-finance reform at the time the contribution limits at issue were adopted.75
Through their evidence, Plaintiffs have called into question the justification proposed to support Ohio Rev. Code § 3599.45—that there is a danger of any, even minimal, campaign contributions made by Medicaid providers corrupting Attorney General and
71 See Legislative Service Commission, Bill Analysis for Am. S.B. 159, 112th Gen. Assemb., at 1 (1978) (Pls.’ Mot. Prelim. Injunc., Ex. 5). 72 See, e.g., 2 Youngstown Democrats clash on bill to halt Medicaid fraud, THE PLAIN DEALER, Feb. 16, 1978, at 4-E (Pls.’ Mot. Prelim. Injunc., Ex. 16) (describing the controversy over attorney general versus county prosecutor role); New Law Empowers State to Probe Medicaid Fraud, THE PLAIN DEALER, Apr. 25, 1978, at A-5, (Pls.’ Mot. Prelim. Injunc., Ex. 12); House Panel Approves Medicaid Fraud Bill, COLUMBUS DISPATCH, Mar. 9, 1978, at B-7 (Pls.’ Mot. Prelim. Injunc., Ex. 11). 73 Declaration of Harry Meshel, at ¶ 10 (Pls.’ Mot. Prelim. Injunc., Ex. 8). 74 See Pls. Prop. Findings of Fact and Concl. of Law (Doc. 13), at pp. 26-27 (Prop. Findings of Fact Nos. 30-34). 75 Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 393 (2000); R&R, at 4 n.1.
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county prosecutors’ prosecutorial decisions. Because Plaintiffs have made such a showing, and because of the novelty and implausibility of the justification, the quantum of evidence required for Defendant to satisfy heightened judicial scrutiny is not “extremely small,” but, instead, large.
2. Generalized evidence of fraud does not suffice to support a justification for Ohio Rev. Code § 3599.45.
Even if the R&R correctly concluded that the amount of evidence required in this case is small, it incorrectly found that Defendant’s evidence of fraud in Ohio suffices to justify restrictions on contributions by Medicaid providers. As shown by Nixon and McConnell v. FEC, there has to be some evidence to substantiate the concern of actual or perceived corruption, in this case, regarding prosecutorial decisions about Medicaid fraud.
Even in Nixon, where Missouri had enacted the same type of plain-vanilla general– contribution limits at issue in Buckley, the Court analyzed the evidence proffered by the state, finding the following evidence “enough to show that the substantiation of the congressional concerns reflected in Buckley has its counterpart supporting the Missouri law”76: (as here) an affidavit from a state legislator involved in campaign-finance reform at the time contribution limits were enacted, stating the danger of large contributions; newspaper accounts of large contributions supporting inferences of impropriety; reports of scandals; and a statewide initiative showing the public’s perception of the need to combat corruption.77 In other cases that have upheld restrictions on contributions by particular groups, states have submitted comparable evidence.78
76 Nixon, 528 U.S. at 393. 77 Id. at 393-94. 78 Casino Ass’n of Louisiana, Casino Ass’n of Louisiana v. State, 820 So.2d 494, 504, 2002-0265 (La. 6/21/02) (“affidavits outlining the public perception that gaming is associated with political
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Here, the Defendant has not presented a shred of evidence, let alone anything nearing that in Nixon or Buckley, to support a justification of corruption or its appearance in the exercise of prosecutorial discretion related to Medicaid providers. The R&R itself notes as much.79
Importantly, while the R&R cites to the portion of McConnell v. FEC80 that upheld restrictions on soft–money contributions to national parties,81 it did not mention the portion of the Supreme Court’s opinion that struck down a ban on contributions by minors because of insufficient evidence. In McConnell, the Government proposed that the ban protected against “corruption by conduit[,]that is, donations by parents through their minor children to circumvent contribution limits applicable to the parents.”82 The Court found that the Government had offered “scant evidence of this form of evasion,” and that “[a]bsent a more convincing case of the claimed evil, this interest is simply too attenuated . . . to withstand heightened scrutiny.”83
corruption, information that nine states (including Louisiana) have prosecuted governmental officials in gaming cases, and statistics showing the staggering sum of money collected by those within the gaming industry”); State v. Soto, 565 A.2d 1088, 1097, 1098 (N.J. 1989) (state commission of investigation report to the governor and legislature noted that contributions from the gambling industry gave the appearance of buying influence, and therefore recommended the restriction); State v. Alaska Civ. Lib. Union, 978 P.2d 597, 619 (Alaska 1999) (state submitted newspaper articles, affidavits, and a survey commissioned by the state senate to show the perception of lobbyists’ role in political fundraising). See also Pls.’ Prop. Findings of Fact and Concl. of Law (Doc. 13), at pp. 23-24 (Prop. Concl. of Law Nos. 21-22 & n. 97). 79 R&R, at 13 (“Secretary offers no evidence that corruption or the appearance of corruption between Medicaid providers and county prosecutors was a particular problem at any time before, during, or after passage of SB 159.”). 80 McConnell v. FEC, 540 U.S. 93, 143-45 (2003). 81 R&R, at 13. 82 McConnell, 540 U.S. at 232. 83 Id.
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Here, the Defendant does not even have “scant” evidence of the “claimed evil.” The claimed evil here is not fraud. Fraud is already addressed by the provisions that outlaw fraud and provide civil and criminal penalties for engaging in such fraud.84 Rather, the claimed evil is actual or perceived corruption in prosecutorial decisions regarding Medicaid fraud. As mentioned, the R&R acknowledged that the “Secretary offers no evidence that corruption or the appearance of corruption between Medicaid providers and county prosecutors was a particular problem at any time before, during, or after passage of SB 159.”85 Indeed, as mentioned, although there were undisputedly over 64,000 total Medicaid providers in Ohio in 2008,86 the Attorney General’s Medicaid Fraud Control Unit received only 377 fraud-related complaints in 2008-09.87 That means that in 2008, the Attorney General’s office had occasion to come into contact with less than 1% of all Medicaid providers. This figure belies any concern of the kind of real or perceived corruption that might justify restricting providers’ campaign contributions. Accordingly, the R&R incorrectly concludes that “given the evidence presented by the Secretary regarding Medicaid fraud in Ohio, . . . the Secretary has carried her burden of demonstrating a sufficiently important government interest to justify limiting campaign contributions.”88
84 See Ohio Rev. Code §§ 5111.03; 2913.40. 85 R&R at 13. 86 See Health Policy Institute of Ohio, Medicaid Basics 2009, at 1, 8, available at http://a5e8c023c8899218225edfa4b02e4d9734e01a28.gripelements.com/pdf/publications/medicaid basics_2009.pdf, last accessed October 15, 2010 (submitted by Defendant at Prelim. Injunc. Hrng. as Ex. B). 87 Ohio Medicaid Fraud Control Unit FY 2009, at p. 3, available at: http://www.ohioattorneygeneral.gov/getattachment/38ff2c4c-fce7-42f3-85c4-d2581907e462/2009Health-Care-Fraud-Annual-Report.aspx, last accessed on Oct. 7, 2010 (submitted by Defendants at Prelim. Injunc. Hrng. as Ex. C). 88 R&R, at 13.
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Indeed, were evidence of fraud sufficient to carry the burden of showing a “sufficiently important government interest” here, Ohio could prohibit the Attorney General and county prosecutors from accepting campaign contributions from anyone in Ohio—as anyone can be prosecuted for murder—based on no more than an assertion that violent crime is a problem in Ohio. More is required before First Amendment freedoms can be restricted in the manner that Ohio Rev. Code § 3599.45 does.
The R&R correctly concludes, under the second prong of the intermediate-scrutiny analysis, that “Ohio’s ban on contributions by Medicaid providers to the campaigns of persons running for Attorney General or county prosecutor is unique and without precedent,”89 and that “the statute imposes a ban without referencing any serious exigence that would justify such an extreme measure and without evidence that the legislature considered any sanction less than a ban.”90 Plaintiffs agree that these frailties and others compel a conclusion that a ban on contributions is not “closely drawn.”
For very similar reasons, however, Plaintiffs respectfully submit that Defendant failed to demonstrate a sufficient justification to burden the rights of Medicaid providers at all. That is the basis for Plaintiffs’ objection here. IV. Conclusion
For reasons outlined above, and as required by 28 U.S.C. § 636(b)(1)(C) and Rule 72.3(b) of the Rules of this Court, Plaintiffs object to certain portions and aspects of the Magistrate Judge’s Report & Recommendation. Plaintiffs obviously do not object to the R&R overall, or its recommended conclusion that Plaintiffs’ Motion for a Preliminary Injunction should
89 R&R, at 21. 90 R&R, at 22.
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be granted. Plaintiffs will submit a proposed order along with their response to Defendant’s objection to the R&R.

Respectfully submitted,
THE CHANDRA LAW FIRM, LLC
_/s/ Subodh Chandra___________ Subodh Chandra (OH Bar No. 0069233) Donald Screen (OH Bar No. 0044070) 1265 W. 6th St., Suite 400 Cleveland, OH 44113-1326 Phone: 216.578.1700 Fax: 216.578.1800 Subodh.Chandra@StanfordAlumni.org Donald.Screen@gmail.com

BERKMAN, GORDON, MURRAY & DEVAN
__/s/ Raymond V. Vasvari, Jr.______ J. Michael Murray (0019626) Raymond V. Vasvari, Jr. (0055538) 55 Public Square, Suite 2200 Cleveland, Ohio 44113-1949 PH: 216.781.5245 Fx: 216.781.8207 jmmurray@bgmdlaw.com rvasvari@bgmdlaw.com
Attorneys for Plaintiffs Arthur Lavin, M.D., et al.

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CERTIFICATE OF SERVICE I certify that on October 19, 2010 my office served, via the Court’s ECF system, the foregoing PLAINTIFFS’ OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION on the following: KARL H. SCHNEIDER MARK R. METERKO 250 Civic Drive, Ste. 500 Columbus, OH 43215 khschneider@ms-lawfirm.com mmeterko@ms-lawfirm.com
Attorneys for Defendant /s/ Subodh Chandra____________ One of the attorneys for Plaintiffs
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 Case: 1:10-cv-01986-DCN Doc #: 52 Filed: 03/16/11 1 of 35. PageID #: 1016

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

ARTHUR LAVIN, M.D., et al.,

CASE NO. 1:10-cv-01986

Plaintiffs

JUDGE DONALD C. NUGENT

v.
JON HUSTED, In his official capacity as Ohio Secretary of State

MAGISTRATE JUDGE NANCY A. VECCHIARELLI

Defendant

Plaintiffs’ Motion for Summary Judgment and Permanent Injunction
Plaintiffs Arthur Lavin, M.D., et al. respectfully move for summary judgment, and seek a permanent injunction that enjoins Defendant from enforcing Ohio Revised Code § 3599.45. A memorandum in support follows. Exhibits and Table of Authorities will be filed separately.

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TABLE OF CONTENTS

TABLE OF CONTENTS ………………………………………………………... i

I. STATEMENT OF THE ISSUES ………………………………………… 1

II. SUMMARY OF ARGUMENT …………………………………………... 1

III. STATEMENT OF UNDISPUTED FACTS ……………………………... 3

A. Section 3599.45……………………………………………………. 4

B. Ohio’s Campaign-Finance Scheme………………………………… 6

C. History of Section 3599.45………………………………………… 7

D. ODJFS, Ohio Attorney General, and Prosecuting Attorneys ……… 10

1. ODJFS. …………………………………………………… 10

2. Ohio Attorney General’s Medicaid Fraud Control Unit. …... 11

3. County Prosecuting Attorneys. …………………………… 12

IV. LAW AND ARGUMENT ………………………………………………. 13

A. Summary-Judgment Standard and Elements of Permanent

Injunction …………………………………………………………. 13

B. Section 3599.45 Violates Plaintiffs’ First-Amendment Rights ……... 14

1. Campaign-contribution restrictions impinge on first

14

amendment rights and are subject to intermediate scrutiny. .. 15

2. The State must support any contribution restriction with a

justification backed by adequate evidence. ………………… 15

3. Ohio can show no sufficiently important interest in Section

3599.45’s ban on contributions by Medicaid providers. …… 19

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Case: 1:10-cv-01986-DCN Doc #: 52 Filed: 03/16/11 3 of 35. PageID #: 1018 4. Section 3599.45’s ban on contributions by Medicaid providers is not closely drawn to further any governmental interest. …………………………………………………… 24 5. Section 3599.45 is overbroad in that it prohibits contributions from those with even a de minimus ownership interest in a Medicaid Provider. …………………………… 28
C. A Permanent Injunction Is Warranted. …………………………… 29 V. CONCLUSION …………………………………………………………... 30 COMBINED CERTIFICATIONS ……………………………………………….. 32
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I. Statement of the Issues Plaintiffs are entitled to summary judgment and to a permanent injunction that enjoins Defendant from enforcing Ohio Revised Code § 3599.45. That statute flatly bans Ohio attorney-general or county-prosecuting-attorney candidates from accepting campaign contributions from Ohio Medicaid providers and persons with “an ownership interest” (no matter how insignificant) in such providers. Because § 3599.45 advances no sufficiently important governmental interest, is not closely drawn, and is overbroad, the ban violates Plaintiffs’ rights to free speech and free association under the First and Fourteenth Amendments.
II. Summary of the Argument Section 3599.45 makes it a crime for candidates for state attorney general or county
prosecuting attorney in any of Ohio’s 88 counties to accept campaign contributions from thousands of law-abiding citizens—viz., Medicaid providers and anyone with “an ownership interest in” a Medicaid provider. No other state prohibits Medicaid providers (or those with ownership interests in them, such as shareholders) from making such contributions; and Ohio imposes no such restriction on any other group that could be subject to prosecution.
Contribution restrictions such as the one here impinge on free-speech and freeassociation rights protected by the First Amendment. As such, they are subject to intermediate scrutiny: the state must demonstrate that the statute furthers a sufficiently important government interest and that it is closely drawn to avoid unnecessary abridgment of individuals’ freedoms. The statute at issue here fails on both counts.
The state cannot demonstrate that the statute promotes a sufficiently important governmental interest. Where courts have upheld contribution restrictions, they have done so based on an evidentiary record showing a history of pervasive corruption or the appearance of corruption. No such evidence exists here. The chief Senate sponsor of the bill testifies, and the statute’s history demonstrates, that the prohibition was not enacted in
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response to any actual or perceived corruption, and Defendant is not expected to produce any evidence to the contrary. Nor, as this case pends 30 years later, is there evidence to show a current concern about actual or perceived corruption.
Even if the state could demonstrate a sufficiently important governmental interest in restricting Medicaid-provider and owner contributions, it cannot show that the statute is “closely drawn” to serve that interest. The statute unnecessarily imposes a total ban, rather than simply a limit, and thus prohibits even “symbolic expression[s] of support” evidenced by small contributions.1 Worse, it imposes a criminal penalty while other contribution bans in Ohio impose only civil penalties. And it unnecessarily prohibits contributions to prosecuting-attorney candidates in each of Ohio’s 88 counties, even though a county prosecuting attorney lacks jurisdiction to prosecute a non-resident provider or shareholder.
Finally, the contested statute is overbroad in that it bans contributions from anyone with “an ownership interest,” however small, in a Medicaid provider. Many publicly held corporations provide Medicaid services in Ohio. These entities’ shareholders have an ownership interest in Medicaid providers, and thus are subject to the statute’s ban, even though very few have any control over the providers’ practices. The statute thus tramples on the constitutional rights, not only of 64,000 Medicaid providers, but also of hundreds of thousands of individuals who have nothing to do with providing Medicaid services and will never conceivably be prosecuted for Medicaid fraud.
Defendant has produced no evidence that creates a genuine issue of material fact. Plaintiffs are therefore entitled to summary judgment, and to a permanent injunction to prevent the ongoing violation of their constitutional rights.
1 Buckley v. Valeo, 424 U.S. 1, 21 (1976). 2

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III. STATEMENT OF UNDISPUTED2 FACTS
Plaintiffs are physicians, and number among the more than 64,000 providers3 who
contract with the Ohio Department of Job and Family Services (ODJFS) to provide services
to indigent patients under the Medicaid program established by Congress in 1965.4 Only Dr.
Lavin has a known “ownership interest” in his medical practice.5 Other Plaintiffs are unsure
whether they have ownership interests in publicly traded Medicaid providers through mutual
funds or other investments.6 Because at least most of the Plaintiffs are on fixed salaries,
moreover, they lack any conceivable financial incentive to commit Medicaid fraud.7
In July 2010, Plaintiff Lavin contacted then Ohio Attorney General Richard
Cordray’s campaign office, to inquire on Plaintiffs’ behalf about donating to the campaign.8
Plaintiffs were dismayed when the Cordray campaign refused the donations because of
Plaintiffs’ Medicaid–provider status.9 Quoting the contested statute, the campaign’s website
2 In a (30)(b)(6) deposition, Defendant’s designated representative admitted that Defendant can offer no affirmative evidence contradicting the facts set forth here. See generally Curt Mayhew Depo. Tr. at 8-64 (Mar. 14, 2011) (attached as Ex. 1). 3 See Health Policy Institute of Ohio, Medicaid Basics 2009, at 1, 8, available at http://a5e8c023c8899218225edfa4b02e4d9734e01a28.gripelements.com/pdf/publications/medicaid basics_2009.pdf, last accessed October 15, 2010 (submitted by Defendant at Prelim. Injunc. Hearing as Ex. B) (over 64,000 Medicaid providers). As of December 2010, the figure was nearly 89,000. See ODJFS, Provider Update Control Report, at 4 (Jan. 2011) (attached as Ex. 2). 4 See Declaration of Arthur Lavin, M.D. at ¶¶ 1-2 (“Lavin Decl.”) (attached as Ex. 3); Social Security Amendments of 1965, Pub. L. No. 89-97, sec. 121(a), Title XIX, 79 Stat. 343, 343-52 (1965) (codified as amended at 42 U.S.C. § 1396-1, §§1396a-d) (2010)) (allowing federal appropriations to be made to fund lump-sum disbursements to the states for the purpose of providing medical assistance and rehabilitation to indigent, blind, disabled and aged individuals, their dependent children, and their families). 5 Lavin Decl. at ¶ 1; Arthur Lavin, M.D.’s Response to Def.’s First Set of Interrog. ¶ 1 (“Lavin Interrog. Resp.”) (attached as Ex. 4). 6 See Declaration of Eric Schreiber, M.D., at ¶ 4 (“Schreiber Decl.”) (attached as Ex. 5); see also Jason Chao, M.D.’s Am. Resp. to Def.’s First Set of Interrog. ¶¶ 1-2; Constance D. Magoulias, M.D.’s Am. Resp. to Def.’s First Set of Interrog. ¶¶ 1-2 (both forthcoming and to be filed with Court when received). 7 See Schreiber Decl. at ¶ 4; see also Second Declaration of Arthur Lavin, at ¶¶ 5-6 (Drs. Beachy, Chao, Devereux, Degolia, and Magoulias also have no such incentive) (attached as Ex. 6). 8 See, e.g., Lavin Decl. at ¶ 7; Lavin Interrog. Resp. at ¶¶ 1-2. 9 Lavin Decl. at ¶ 7-8; see also Lavin Interrog. Resp. at ¶ 2.
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also warned that the campaign would not accept donations from Medicaid providers:10

The Cordray Committee is not permitted to accept campaign contributions from a provider of services or goods under contract with the department of job and family services pursuant to the Medicaid program of Title XIX of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider.11

Having been denied their right to free speech and association in the 2010 election, Plaintiffs

wish to be able to contribute to candidates of their choice in the future.

A. Section 3599.45

The challenged statute provides in its entirety as follows:

3599.45

Contribution from Medicaid provider

(A) No candidate for the office of attorney general or county prosecutor or such a candidate’s campaign committee shall knowingly accept any contribution from a provider of services or goods under contract with the department of job and family services pursuant to the medicaid program of Title XIX of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider.

As used in this section “candidate,” “campaign committee,” and “contribution” have the same meaning as in section 3517.01 of the Revised Code.

(B) Whoever violates this section is guilty of a misdemeanor of the first degree.12

Although § 3599.45 does not define “a provider of services or goods,” Ohio

Administrative Code §§ 5101:3 et seq. provide lengthy lists of provider categories. The lists

include, among multifarious other categories, individual physicians like Plaintiffs and their

10 See https://donate.cordrayforohio.com/page/contribute/contribute, last accessed Aug. 19, 2010. A printed copy of the page displayed at that URL is attached as Ex. 7. 11 Id. 12 Ohio Rev. Code § 3599.45 (West 2010).
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practices.13 Numerous quasi-medical professionals, such as providers of pharmacy goods and
services, medical-equipment suppliers, and medical-transportation services, are also included.
ODJFS also contracts with managed-care organizations, including health-insurance organizations.14
Notably, Medicaid providers include many publicly held corporations, such as those
that provide pharmacy services. Corporations such as Wal-Mart Stores, Inc., Target
Corporation, and Walgreen Co., for example, are all publicly held entities that directly provide Ohio Medicaid services.15 A shareholder of any of these public entities thus has an ownership interest in an Ohio Medicaid provider.16 Wal-mart’s individual shareholders alone number approximately 293,000.17 In addition, other corporations such as CVS/Caremark
Corp. and Rite Aid Corp. operate in Ohio through wholly owned subsidiaries that provide Medicaid services.18 Their shareholders have an indirect ownership interest in Ohio Medicaid
providers. Thus, hundreds of thousands of individuals or more who have “an ownership
interest” in publicly held corporate providers fall within the ban’s broad reach (not to
mention the millions of Americans who have indirect ownership interests in such Medicaid
providers through mutual funds, exchange-traded funds, or other investments.)
13 Ohio Admin. Code § 5101:3-4. See generally id. §§ 5101:3-2 through 5101:3-16; 5101:3-22; 5101:3-29 through 5101:3-30. 14 Ohio Rev. Code § 5111.17(A). 15 Declaration of Mary Kendall ¶¶ 2-3 (Wal-Mart Stores, Inc.) (attached as Ex. 8); Declaration of William Thom ¶¶ 2-3 (Target Corporation) (attached as Ex. 9); Declaration of Judy Rohan ¶¶ 2-3 (Walgreen Co.) (attached as Ex. 10); see also Wal-Mart Stores, Inc., Form 10-Q; Target Corp., Form 10-Q; Walgreen Co. 10-Q (attached as Exs. 11, 12, 13). 16 See, e.g., Kendall Decl. at ¶ 4 (Ex. 8). 17 Kendall Decl. at ¶ 2 (Ex. 8). 18 Declaration of Thomas Moffat ¶¶ 2-3 (CVS Pharmacy, Inc.) (“Moffat Decl.”) (attached as Ex. 14); Declaration of James Comitale ¶¶ 2-4 (Rite Aid Corp.) (“Comitale Decl.”) (attached as Ex. 15). For others, see Sears Holdings Corp., Form 10-Q, Kroger Co. Form 10-Q and Winn Dixie Stores, Inc., Form 10-Q (attached as Ex.16, 17, 18). See generally ODJFS Pharm. & Med. Supplier Provider Listing (sorted excerpts attached as Ex. 19) (complete document available from Plaintiffs’ counsel upon request).
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B. Ohio’s Campaign-Finance Scheme Section 3599.45’s ban on political contributions by Medicaid providers and those with an ownership in them is unique within Ohio’s comprehensive campaign-finance scheme. Like many states, Ohio imposes general restrictions on the amount that can be contributed to a political candidate. Individuals over the age of seven may contribute no more than $10,000 to a candidate for a particular statewide office19—adjusted for inflation, now $11,543.70.20 Ohio also bans political contributions from a small number of discrete groups, including children under the age of seven, foreign nationals, corporations, members and employees of the Ohio Elections Commission, and certain state employees who would be employed by, or in the same state agency or office as, the candidate.21 In addition, Ohio imposes a set of focused limitations on the award of state contracts to prevent kickbacks and “pay-to-play” schemes by state contractors. State agencies may not award unbid contracts in excess of $500 to certain individuals or entities that, during the previous 24 months, have contributed more than $1,000 to the campaign of any public official responsible for awarding contracts on behalf of that agency.22 Also, the Ohio General Assembly previously adopted provisions (not currently in force) limiting certain state contractors’ contributions to such public officials to $1,000 for a year after the

19 Id. § 3517.102.

20

Ohio

Rev.

Code

Ann.

§

3517.104(A);

http://www.sos.state.oh.us/SOS/Upload/news/2011/CF2011-2013LimitChartReport.pdf, last

accessed

on

Mar.

11,

2011;

see

also

http://www.sos.state.oh.us/SOS/Campaign%20Finance/CFGuide/Resources/limchart.aspx, last

accessed on Mar. 11, 2011.

21 See Ohio Rev. Code Ann. §§ 3517.13(W)(1) (foreign nationals), 3517.102(B)(1)(c) and (C)(1)(a)(I)

(children under seven), 3599.03(A)(1)(corporations), 3517.152(F)(2) (OEC members), and

3517.092(B)(2) (state employees). Contributions by foreign nationals to candidates for state office are

also prohibited under 2 U.S.C.A. § 441e(b).

22 Ohio Rev. Code Ann. § 3517.13(I) and (J) (Lexis 2006) (as enrolled by 1990 Laws of Ohio 4928,

4946-4950, and in effect before H.B. 694 was passed in 2006) (attached as Ex. 20).

6

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award of a contract.23 Violation of any of the above provisions can lead to civil penalties, and
to the rescission of state contracts awarded in derogation of these restrictions.24
But what Ohio does not do—other than in the contested statute—is otherwise
prohibit virtually an entire class of professionals (in this case, physicians), and even small-
time investors, from contributing to candidates for an elected office.25 And while every state
both regulates the conduct of its own elections and participates in the Medicaid program,26
no state besides Ohio limits or bans Medicaid providers, let alone persons who own even a
single share in one, from expressing themselves through political contributions.27
In this light, one might expect the contested statute to have been enacted in response
to a pattern of corruption or abuse involving attorneys general and prosecuting attorneys.
But it was not.
C. History of Section 3599.45
The General Assembly enacted section 3599.45 in 1978, as part of a bill that
comprised certain statutes prohibiting Medicaid fraud, Ohio Revised Code §§ 5111.03 and
109.85. The three statutes together constituted a single act, Amended Senate Bill 159 (“S.B.
23 Am. Sub. H.B. 694, 126th Gen. Assemb., 2d. Sess. (Oh. 2006), invalidated on grounds of procedural infirmity by UAW, Local Union 1112 v. Brunner, 911 N.E.2d 327, 333, 335 (Ohio Ct. App. 2009) (holding that bill was improperly enacted when clerical error caused wrong version to be signed by Governor, and General Assembly’s reenactment of the bill violated Ohio’s single-subject rule). 24 Ohio Rev. Code Ann. § 3517.992(R) (West 2010). Penalties for the bans mentioned above are set forth at Ohio Rev. Code Ann. § 3517.992(AA1), (AA2) (West 2010) (foreign nationals); § 3517.992(I)(1), (J)(1), (I)(6), (J)(5) (minors under age seven); § 3517.992(R) (certain state contractors); see also Am. Sub. H.B. 694 (additional state contractor provisions); § 3599.03 (corporations). 25 In 2008, there were about 38,000 physicians practicing in Ohio. See Kaiser State Health Facts, http://www.statehealthfacts.org/profileind.jsp?cmprgn=1&cat=8&rgn=37&ind=429&sub=100, last accessed Sept. 3, 2010. While we have been unable to ascertain with precision what fraction provide services under Medicaid, in 2008, there were more than 64,000 Medicaid providers of all sorts in Ohio. See www.healthpolicyohio.org/pdf/MedicaidBasics_2009.pdf, last accessed August 24, 2010. 26 See National Conference of State Legislatures, Medicaid Update, http://www.ncsl.org/default.aspx?tabid=14518, last accessed Aug. 20, 2010 (all states participate in Medicaid). 27 See generally Edward D. Feigenbaum and James A. Palmer, Campaign Finance Law 2002 (Federal Election Commission 2002), available at http://www.fec.gov/pubrec/cfl/cfl02/cfl02.shtml (“Feigenbaum and Palmer, Campaign Finance Law 2002”).
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159”).28 Following on the heels of congressional anti-fraud legislation in October 1977,29 the
bill had as its primary purpose “the recovery of . . . excess payments under the medicaid
program.”30
Toward that end, S.B. 159 proposed to add two new sections to the Revised Code.
The first of these, now codified at Section 5111.03, prohibited Medicaid fraud itself, and
provided sanctions—civil penalties and the termination of provider contracts—for those
convicted of such fraud.31 The substantive restrictions provide as follows:
No provider of services or goods contracting with the department of job and family services pursuant to the medicaid program shall, by deception, obtain or attempt to obtain payments under this chapter to which the provider is not entitled pursuant to the provider agreement, or the rules of the federal government or the department of job and family services relating to the program. No provider shall willfully receive payments to which the provider is not entitled, or willfully receive payments in a greater amount than that to which the provider is entitled; nor shall any provider falsify any report or document required by state or federal law, rule, or provider agreement relating to medicaid payments.32
S.B. 159 also enacted section 109.85, the statute’s enforcement mechanism. It
authorizes the attorney general to investigate any criminal or civil violation of law related to
the Medicaid program and, if prosecution or civil remedy is warranted, either refer the
evidence to the appropriate county prosecutor or grand jury or initiate and prosecute the
action.33 The provision gives the attorney general exclusive supervision and control over
28 1978 Laws of Ohio 434, enacting Am. S. B. 159, 112th Gen. Assemb, 2d. Sess. (Oh 1978), (codified as amended at Ohio Rev. Code Ann. §§ 5111.03, 109.85, 3599.45) (attached as Ex. 21). Section 5111.03 was originally codified as Revised Code Section 5101.511. 29 See Legis. Serv. Comm’n, Bill Analysis for Am. S.B. 159, 112th Gen. Assemb., at 1 (1978) (“S.B. 159 Bill Analysis”) (attached as Ex. 22). 30 Ohio Senate Journal, 112th Gen. Assemb., 1st Sess., at 187, 192, 1278 (1977) (all journal minutes attached as Ex. 23); Ohio House Journal, 112th Gen. Assemb., 2d Sess., at 2418, 2556 (1978), Ex. 23. 31 See Ohio Rev. Code Ann. § 5111.03(B) and (C) (originally 5101.511(B) and (C)). 32 Ohio Rev. Code Ann. § 5111.03(A) (West 2010). 33 R.C. 109.85(A), (B).
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investigations and prosecutions initiated by the office.34 It also authorizes county prosecuting
attorneys to investigate and prosecute Medicaid fraud in their respective counties.35
These provisions together made up the whole of S.B. 159 when it passed the Ohio
Senate.36 The campaign-contributions ban at issue here was not a part of that bill. It was,
instead, introduced as an amendment on the last day of House committee hearings.37
Compared with other features of the bill, particularly the respective roles of the attorney
general and county prosecutor in combating fraud, section 3599.45 was barely discussed.38
When it was put to a vote, the House initially rejected the provision before passing it by only
a one-vote margin.39 A bill analysis compiled by the Legislative Service Commission, a
nonpartisan agency that serves the House and Senate, makes no mention of section
3599.45.40 Newspaper articles, similarly, barely mentioned the provision, let alone
documented any instances of corruption to which it was responding.41
Importantly, nothing in the contested statute’s history suggests that it was adopted in
response to a pattern of corruption in which the attorney general, or prosecuting attorneys,
were found or even alleged to have turned blind eyes to campaign contributors’ Medicaid
34 R.C. 109.85(B). 35 R.C. 109.85(C). 36 Am. S.B. 159, 112th Gen. Assemb., 1st Sess. (Oh 1977) (bill as passed by Senate), Ex. 24; see Ohio Senate Journal at 187, 192, 1229-30, 1278-80 (1977), Ex. 23. 37 See House Comm. Hearing Minutes (Mar. 8, 1978, 9:30am), Ex. 25. 38 See id. Compare House Comm. Hearing Minutes (Feb. 15, 1978, 1:30pm) (attached as Ex. 39); House Comm. Hearing Minutes (Feb. 15, 1978, 9:30am), (attached as Ex. 40); House Comm. Hearing Minutes (Jan. 11, 1978) (attached as Ex. 41). See also 2 Youngstown Democrats clash on bill to halt Medicaid fraud, THE PLAIN DEALER, Feb. 16, 1978, at 4-E (attached as Ex. 26) (describing the controversy over attorney general versus county prosecutor role). 39 Ohio House Journal, 112th Gen. Assemb., 2d Sess., 2558-60 (1978) (attached as Ex. 23); see also Hearing on Am. S.B. 159 Before the H. Comm. on Fin. and Approp., 112th Gen. Assemb., 2d Sess. 4-5 (Oh 1978) (Minutes—Mar. 8, 1978, 9:30am) (attached as Ex. 25). 40 See generally S.B. 159 Bill Analysis, Ex. 22. 41 See, e.g., 2 Youngstown Democrats clash on bill to halt Medicaid fraud, THE PLAIN DEALER, Feb. 16, 1978, at 4-E (Ex. 26); New Law Empowers State to Probe Medicaid Fraud, THE PLAIN DEALER, Apr. 25, 1978, at A-5, (Ex. 27); House Panel Approves Medicaid Fraud Bill, COLUMBUS DISPATCH, Mar. 9, 1978, at B-7 (Ex. 28).
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fraud. Ohio Senator Harry Meshel, the principal Senate sponsor of S.B. 159, recalls no
underlying scandal or crisis in which corrupt relationships caused Medicaid fraud to go
uninvestigated or unpunished by public officials.42 Rather, he recalls that the provision was
added in the context of a game of “one-upmanship,” in which both Democrats and
Republicans attempted to “outdo one another” to enact ever-stricter ethics requirements
involving public officials:43
It was unclear at the time what the motivation behind the provision was. There were not, to my recollection, any circumstances of actual corruption or appearance of corruption caused by any campaign contributions by Medicaid providers. I do recall that that was an era of one-upmanship in which Democrats and Republicans were trying to outdo one another regarding ethics-related proposals. 44
D. ODJFS, Ohio Attorney General, and Prosecuting Attorneys
1. ODJFS
ODJFS administers Ohio’s Medicaid program.45 As such, ODJFS has authority to
establish rules setting forth the conditions, method, reimbursement amounts to providers,
and the procedures for enforcing rules.46 It is to ODJFS—not the attorney general or
prosecuting attorneys—that Medicaid providers submit their claims for reimbursement, cost
reports, and requests for prior authorization.47 In addition, ODJFS has broad authority to
42 See Declaration of Harry Meshel at ¶¶ 1-10 (attached as Ex. 29). 43 Id. at ¶ 10. 44 Id. at ¶ 10. 45 Ohio Rev. Code Ann. § 5111.01 (West 2010); see also Ohio Admin. Code § 5101:3-1-17; § 5101:3-117.2; Ohio Rev. Code Ann. §§ 5111.22; 5111.21 (West 2010). 46 Ohio Rev. Code Ann. § 5111.02; Ohio Admin. Code § 5103:3-1-60 (specifying reimbursement requirements) & Appx. DD (fee schedule for fee-for-service providers). See generally Ohio Admin. Code § 5101:3 et seq. (setting out rules, including for billing, reimbursement, and eligibility, for various provider services). 47 See, e.g., Ohio Rev. Code § 5111.021; Ohio Admin. Code §§ 5101:3-1-19 et seq. (claims submissions); 5101:3-3-39.1 (claim submissions for nursing facilities); 5101:3-26-09 (managed-careplan reimbursements); 5101: 3-9-05 (pharmacy reimbursements); 5101:3-2-04 (certain hospitalprovided services).; 5101:3-2-23 (cost reports); 5101:3-3-20 (cost reports of nursing facilities); 5101:326-09(6)(a) (cost reports of managed-care plans); 5101:3-1-31 (prior authorization).
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determine program violations48 and recover Medicaid overpayments.49 It is also required to have in place its own program to prevent and detect fraud, waste, and abuse.50 Where a Medicaid provider or owner has been convicted of fraud under Ohio Rev. Code § 109.85, ODJFS may terminate a provider agreement without adjudication.51 For purposes of termination, the civil fraud statute defines “owner” as any individual with a 5% ownership interest in the Medicaid provider.52
2. The Ohio attorney general’s Medicaid Fraud Control Unit The Ohio Attorney General is the state’s chief law-enforcement officer, and may, upon the request of the Governor, prosecute any person indicted for a crime.53 The attorney general’s office maintains a Medicaid Fraud Control Unit (“MFCU”) to discharge its duty to combat Medicaid fraud. It also maintains over two-dozen other sections, which focus on the prosecution of innumerable laws and the oversight of a wide variety of official functions. In 2010, MFCU’s expenditures constituted approximately 2.25% of the total expenditures in the Attorney General’s Office ($4.54 million out of a total of $201 million).54 Although Defendant has previously pointed to the size of the state’s Medicaid budget ($14.7 billiion) as indicating the plausibility of corruption,55 no part of that budget goes to the attorney
48 See, e.g., Ohio Rev. Code § 5111.10; see also id. § 5101.37 (general-investigative authority). 49 See, e.g., id. § 5111.061; see also id. § 5111.914 (providing that state agencies contracting with ODJFS may commence action to recover overpayment on the department’s behalf); id. § 5111.021(C) and (D) (deducting amounts provider owes state and conducting fiscal audits). 50 Ohio Admin. Code § 5101:3-1-29. 51 Ohio Rev. Code § 5111.06(D)(4) (citing 5111.03(C) and (F)). 52 Id. § 5111.03(C). 53 Id. § 109.02. 54 See OAG Comprehensive Expenditures FY2010 (attached as Ex.30) (subtotals added by Plaintiffs’ counsel through Excel function at suggestion of OAG representative). To decipher this exhibit, the Court will need to refer to OAG’s Chart of Dep’t Accounts FY2010 (attached as Ex. 30) and apply AGO443100, the 2010 code for Medicaid fraud. 55 Def. Prop. Findings of Fact and Concl. Of Law, at 3 (Doc. 4).
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general’s efforts to combat Medicaid fraud.56 Several former state attorneys general have testified that the MFCU’s was one small aspect of their work, and that they viewed it as no more or less important than any other aspect.57 The attorney general, moreover, is not typically involved in most of the decision-making of the Medicaid Fraud section, which tends to operate autonomously.58
3. County prosecuting attorneys Ohio’s 88 prosecuting attorneys “may inquire into the commission of crimes within the county” and “shall prosecute, on behalf of the state, all complaints, suits, and controversies in which the state is a party,” except for those requiring a special prosecutor or the state attorney general.59 In addition, county prosecuting attorneys have a range of additional powers and responsibilities beyond their prosecutorial duties. Each acts as the chief legal advisor to the elected commissioners of his or her county, as well as to the county board of elections, the public libraries, and all other county boards.60 By default, each is also the chief legal advisor to the various townships within each county, and may serve as counsel to a variety of other agencies and special purpose districts as well.61 In short, both the attorney general and the prosecuting attorneys in the various counties perform a host of duties in addition to prosecuting Medicaid fraud. They are vested with broad powers, the proper exercise and discharge of which are of obvious importance to
56 See Declaration of Justin Nahvi ¶ 4 (attached as Ex. 32); 2010 Section Budget Report, MFCU, at 4 (attached as Ex. 33). 57 Declaration of Jim Petro ¶ 3 (attached as Ex. 34); Declaration of Lee Fisher ¶ 3 (attached as Ex. 35); Declaration of Marc Dann ¶ 4 (attached as Ex. 36). 58 Petro Decl. ¶ 3; Dann Decl. ¶ 4; see also MFCU Handbook—Complaint Review and Case Intake, at 4 (section chief responsible for signing off on fraud investigations) (attached as Ex. 37). 59 Ohio Rev. Code Ann. § 309.08(A) (West 2010). 60 Id. at § 309.09(A). 61 Id. at § 309.09(B), (D), (E), (F), (G), (H).
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the state’s citizens and electors.62 IV. Law and Argument
A. Summary-Judgment Standard and Elements of Permanent Injunction A moving party is entitled to summary judgment where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”63 The moving party’s burden to show that no genuine issue of material fact exists “may be discharged by ‘showing-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party’s case.’”64 Once the moving party has satisfied his or her burden, “[t]he respondent must ‘do more than simply show that there is some metaphysical doubt as to the material facts.’”65 “[T]he party opposing the motion ... may not ‘rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact’ but must make an affirmative showing with proper evidence … to defeat the motion.”66 As shown below, Defendant can make no such “affirmative showing with proper evidence.” A party is entitled to a permanent injunction “if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law.”67
62 See, e.g., Ohio Rev. Code Chapter 309 (prosecuting attorneys); Ohio Rev. Code Title 29 (crimes). 63 Fed. R. Civ. P. 56(a). 64 Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir. 2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (internal quotation marks omitted)). 65 Street v. J.C. Bradford & Co., 886 F.2d 1472, 1480 (6th Cir.1989) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). 66 Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir.2009) (quoting Street, 886 F.2d at 1479). 67 ACLU of Kentucky v. McCreary Co., 607 F.3d 439, 445 (6th Cir. 2010) (citations and internal quotations omitted).
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B. Section 3599.45 violates Plaintiffs’ First-Amendment rights. In this case, there are no material facts in dispute. While Defendant, in its earlier briefing, has offered a theoretical rationale for the statute, it has produced no evidence, and has furnished no other grounds, that would allow this Court to conclude that the statute either promotes a sufficiently important governmental interest or is closely drawn to accomplish that purpose. The statute’s demonstrable First Amendment infringement therefore warrants entry of judgment for Plaintiffs as a matter of law.
1. Campaign-contribution restrictions impinge on First Amendment rights and are subject to intermediate scrutiny.
The First Amendment, which applies to the states through the Fourteenth Amendment, prohibits the government from ‘abridging the freedom of speech.’68 In its seminal campaign-finance case, Buckley v. Valeo, the United States Supreme Court held unequivocally that laws restricting campaign contributions and expenditures impinge upon the First Amendment’s guarantees of free speech and free association.69
While the Court found that contribution limits impose less of a restraint on speech than do expenditure limits, it nonetheless held that “a contribution serves as a general expression of support for the candidate and his views,” a “symbolic expression of support.”70 More importantly, contribution limits restrict an individual’s right to associate: “[T]he primary First Amendment problem raised by the Act’s contribution limitations is their restriction of one aspect of the contributor’s freedom of political association.”71 As the Court stated: “Making a contribution, like joining a political party, serves to affiliate a person
68 U.S. Const. amend. I. 69 Buckley v. Valeo, 424 U.S. 1, 18-19 (1976); see id. at 17 (contribution limitations impose “direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties.”); Citizens United v. FEC, 130 S. Ct. 876, 900-01 (2010). 70 Buckley, 424 U.S. at 21. 71 Id. at 24.
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with a candidate. In addition, it enables like-minded persons to pool their resources in
furtherance of common political goals.”72 The freedom to associate “is diluted if it does not
include the right to pool money through contributions, for funds are often essential if
‘advocacy’ is to be truly or optimally effective.”73 The prohibition on campaign contributions
imposed by section 3599.45 thus implicates Plaintiffs’ First Amendment rights in at least two
important ways.74
To justify a contribution restriction, the state must demonstrate that it has a
“sufficiently important interest and [has] employ[ed] means closely drawn to avoid
unnecessary abridgment of associational freedoms.”75 Since Buckley, the Supreme Court has
referred to this standard as “intermediate scrutiny,” and applied it to contribution
restrictions.76 The state cannot satisfy this standard.
2. The state must support any contribution restriction with a justification backed by adequate evidence.
In meeting its burden under intermediate scrutiny, the government is not free to
posit an interest into being; it must demonstrate that there exists a malady to be cured, and it
must do so through the introduction of evidence.77 While the Supreme Court has provided
no clear line, it has articulated the following principle while applying intermediate scrutiny in
a campaign-contribution case: “The quantum of empirical evidence needed to satisfy
72 Id. at 22. 73 Id. at 65-66. 74 Cf. Virginia v. Hicks, 539 U.S. 113, 119 (2003) (stating that when individuals abstain from protected speech, they “harm[ ] not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas”). 75 Buckley, 424 U.S. at 25. 76 See, e.g., FEC v. Beaumont, 539 U.S. 146, 162 (2003); Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 387 (2000); Randall v. Sorrell, 548 U.S. 230, 247 (2006). 77 See, e.g., McConnell v. FEC, 540 U.S. 93, 232 (2003) (invalidating a prohibition on contributions by minors, because evidence of the “claimed evil” was too “scant”), overruled in part on other grounds, Citizens United v. FEC, 130 S. Ct. 876, 913 (2010); see also Century Comms. Corp. v. FCC, 835 F.2d 292, 304 (D.C. Cir. 1987) (“[W]hen trenching on first amendment interests, even incidentally, the government must be able to adduce either empirical support or at least sound reasoning on behalf of its measures.”).
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heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.”78
To understand why Ohio can show no important interest served by the contested statute, it is instructive first to review the justifications and evidence that courts, particularly the Supreme Court, have deemed sufficient and insufficient.
In Buckley, the Supreme Court considered the constitutionality of $1,000contribution limits imposed by the Federal Election Campaign Act of 1971. The Supreme Court upheld the contribution limits, finding that Congress had a legitimate interest in preventing both the reality and the appearance of a political process in which large donors were able to secure favorable treatment from incumbent and potential office holders through their donations. The Court held that that interest was a “constitutionally sufficient justification” for the Act’s limitations.79
In so holding, the Court was careful to note that—in the post-Watergate era in which Buckley was decided—Congress had well documented both the reality and the public perception of widespread political corruption.80 As discussed by the Buckley Court of Appeals, “The record before Congress was replete with specific examples of improper attempts to obtain governmental favor in return for large campaign contributions.”81 In addition, Congress considered public-opinion polls and found that public confidence in the electoral system was badly shaken by reports of corruption in the 1972 election.82 The need to ameliorate the specific harms, the Court held, justified limiting the amount a given donor
78 Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 381 (2000). 79 Buckley, 424 U.S. at 26. 80 Id. at 26-27 & n. 28 (citing Buckley v. Valeo, 519 F.2d 821, 839-40 & nn.36-38 (D.C. Cir. 1975)). 81 Id. at 840 n.37. 82 Id. at 839-40 & nn. 35-38.
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could contribute to a given candidate.83 In Nixon v. Shrink Missouri Gov’t PAC, the Supreme Court again addressed a $1,000
general contribution limit, this time imposed by the state of Missouri on contributions made to statewide campaigns. Clarifying the evidentiary requirement for such limits, the Court noted that the dangers addressed by the Missouri statute were parallel to those the statute in Buckley addressed—the “dangers of large, corrupt contributions and the suspicion that large contributions are corrupt are neither novel nor implausible.”84
The Court then adjudged the following evidence sufficient to justify enactment of the general contribution limit: an affidavit from a legislator pointing out the danger of large contributions, newspaper accounts of large contributions supporting inferences of impropriety, reports of scandals discussed in judicial opinions, and a statewide initiative showing the public’s perception of the need to combat corruption.85 And while the Court denied that a new evidentiary standard had been applied by cases after Buckley, it stated unequivocally: “We have never accepted mere conjecture to carry a First Amendment burden.”86
The Supreme Court has on two occasions struck down restrictions on individual campaign contributions, at least in part because they were unsupported by sufficient evidence. In McConnell v. FEC, the Court found that evidence of the government’s interest in imposing a ban on contributions from minors—namely, circumvention of contributions imposed on parents—was too “scant” to justify the burden on speech.87
83 424 U.S. at 28. 84 Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 378-79 (2000). 85 Id. at 393-94. 86 Id. at 392. 87 McConnell v. FEC, 540 U.S. 93, 232 (2003), overruled in part on other grounds by Citizens United v. FEC, 130 S. Ct. 876, 913 (2010).
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In Randall v. Sorrell, the Court struck down Vermont’s general contribution limits as
too low ($200 for various state offices),88 in part because of a lack of any “special
justification”:
We have found nowhere in the record any special justification that might warrant a contribution limit so low or so restrictive as to bring about the serious associational and expressive problems that we have described. Rather, the basic justifications the State has advanced in support of such limits are those present in Buckley. The record contains no indication that, for example, corruption (or its appearance) in Vermont is significantly more serious a matter than elsewhere.
While the Court invalidated the restrictions as not “closely drawn” because of a
collection of infirmities, the Court characterized the flaw just described as the failure by the
state to “point to a legitimate statutory objective that might justify these special burdens . . .”
A 2010 Second Circuit case, Green Party of Connecticut v. Garfield,89 well illustrates a
state’s obligation to produce evidence of the problem its statute endeavors to cure. Green
Party upheld certain campaign-finance restrictions on state contractors based upon a record
of entrenched, pervasive public corruption, and invalidated a ban against lobbyist-
contributions because it lacked a firm evidentiary foundation. The record before the court
show[ed] that the General Assembly had good reason to be concerned about both the ‘actuality’ and the ‘appearance’ of corruption involving contractors. . . . The scandals reached the highest state offices, leading to the resignation and eventual criminal conviction and imprisonment of the state’s governor. They were, as a result, covered extensively by local media and garnered the attention of national media outlets as well.90
The ban on lobbyist contributions, however, was not similarly supported: “The recent
corruption scandals had nothing to do with lobbyists . . . and thus there is insufficient
88 Randall v. Sorrell, 548 U.S. 230, 261 (2006). 89 Green Party of Conn. v. Garfield, 616 F.3d 189 (2d Cir. 2010). 90 Id. at 200 (citing Green Party of Conn. v. Garfield, 648 F.Supp.2d 298, 307-09 & n.9 (D. Conn. 2009).
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evidence to infer that all contributions made by state lobbyists give rise to an appearance of corruption.”91 The court accordingly invalidated the restriction on lobbyist contributions.
3. Ohio can show no sufficiently important interest in section 3599.45’s ban on contributions by Medicaid providers.
Summary judgment is warranted here because, as with the bans invalidated in McConnell and Green Party and the restriction struck down in Randall, no evidence has been or can be produced in support of section 3599.45. The only plausible justification for prohibiting contributions from Medicaid providers or their owners is that prosecutors receiving such contributions might “look the other way” in the event a contributor were implicated in program-related fraud. Such a justification, however, lacks substance and is the sort of “mere conjecture” that Nixon decried.
To begin with, under Nixon, the evidence required to support a contribution prohibition varies “with the novelty and plausibility of the justification raised.”92 By this standard, the justification here faces a comparatively heavy burden: it is altogether novel and implausible.
No other state prohibits Medicaid providers, by dint of that status, from contributing to political campaigns. This alone makes the contested statute novel.93 The prohibition is also novel within the context of Ohio campaign-finance law. No other Ohio statute permanently and categorically bars an entire class of service providers from contributing to the electoral campaigns of officials who have nothing to do with awarding them contracts or determining the rate at which they are compensated.94 Indeed, no other group potentially
91 Id. at 206 (citing Green Party of Conn. v. Garfield, 590 F. Supp.2d 288, 321 (D. Conn. 2008)). 92 Nixon, 528 U.S. at 391. 93 See generally Feigenbaum and Palmer, Campaign Finance Law 2002 (Federal Election Commission 2002), available at http://www.fec.gov/pubrec/cfl/cfl02/cfl02.shtml. 94 As mentioned, the only provisions imposing bans are as follows: Ohio Rev. Code §§ 3517.13(W)(1) (foreign nationals), 3517.102(B)(1)(c) and (C)(1)(a)(I) (children under seven), 3599.03 (corporations),
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subject to prosecution is banned from contributing to attorney-general or prosecutingattorney candidates. And no other Ohio statute eliminates the free-speech and freeassociation rights of anyone based merely on his or her ownership interest, however infinitesimal and non-controlling and non-influential, in a specific type of entity. The justification for the prohibition is thus “novel” on any number of levels.
The ban is, in addition, “implausible.” Unlike “pay-to-play” restrictions, which seek to prevent the very real prospect that a contractor contributing to a public official (quid) will be rewarded by a state contract (quo),95 Medicaid providers have no direct connection to the attorney general or prosecuting attorneys: neither the attorney general nor county prosecuting attorney plays any role in approving Medicaid providers or in establishing their rates of compensation.
Nor is the potential widespread effect of Medicaid-provider or owner contributions on prosecutorial decisions a plausible concern. As Defendant’s own previously presented evidence shows, although there were over 64,000 Medicaid providers in 2008,96 the attorney general’s Medicaid Fraud Control Unit (“MFCU”) received only 377 fraud-related complaints in 2008-09.97 That figure is well less than 1% of all Ohio Medicaid providers, meaning that more than 99% of Medicaid providers had no contact with the attorney general’s office during that time period. This fact alone shows that any perception of pervasive corruption is an illusory one.
3517.152(F)(2) (Ohio Elections Commission members), and 3517.092(B)(2) (state employees—only as to candidates employed by the same office). 95 See, e.g., 3517.13(I) (prohibiting state contractors who have contributed more than a fixed amount to certain political campaigns from receiving contracts awarded by the incumbents of the offices contested in those races—or by their subordinates—for 24 months thereafter). 96 See Health Policy Institute of Ohio, Medicaid Basics 2009, at 1, 8 (over 64,000 Medicaid providers). 97 Ohio Medicaid Fraud Control Unit FY 2009 Annual Report, at 3, available at http://www.ohioattorneygeneral.gov/getattachment/38ff2c4c-fce7-42f3-85c4-d2581907e462/2009Health-Care-Fraud-Annual-Report.aspx (submitted by Def. at Prelim. Injunc. Hearing as Ex. C).
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Moreover, the attorney general does not regularly “sign off on” investigation and charging decisions regarding Medicaid fraud.98 And as former Attorneys General Petro, Fisher, and Dann attest, under their watch the attorney general’s office on many occasions took action against individuals who had legally contributed to their campaigns.99 Petro’s office took action against Best Buy Co., Inc., for example, even though Petro himself is a Best Buy shareholder.100 No evidence shows that a prosecutor’s actions would be any different toward Medicaid providers.101
Defendant has previously relied on the size of Ohio’s Medicaid budget to support its contention that corruption between Medicaid providers and prosecuting authorities is plausible. The argument is completely irrelevant. No part of the Medicaid budget goes to the attorney general’s efforts to combat Medicaid fraud. (In fact, the MFCU is funded from an allocation within Ohio’s budget entirely separate from any funds provided for the administration of Medicaid.102)
Indeed, the MFCU’s modest expenditure ($4.5 million in 2010103) is itself immaterial. That expenditure is no greater than that of many, and considerably less than that of some, sections within the attorney general’s jurisdiction,104 including sections presumably at least as susceptible to the allegedly corrupting influence of campaign contributions. For example, the Consumer Protection Section, which investigates and prosecutes consumer fraud, expended $7 million in 2010. Yet no Ohio statute criminalizes an attorney general candidate’s
98 See Petro Decl. ¶ 3; Dann Decl. ¶ 4; see also MFCU Handbook—Complaint Review and Case Intake, at 4 (section chief responsible for signing off on fraud investigations) (Ex. 37). 99 Petro Decl.¶ 5 (Ex. 34); Fisher Decl.¶ 5 (Ex. 35); Dann Decl. ¶ 7 (Ex. 36). 100 Petro Decl. ¶ 5. 101 See id. 102 See Declaration of Justin Nahvi ¶4 (attached as Ex. 32); see also Legislative Service Commission Redbook, Attorney General (2010), at 20 (attached as Ex. 38). 103 See OAG Comprehensive Expenditures FY2010 and OAG Chart of Accounts, above note 54. 104 OAG Comp. Expend. FY2010.
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acceptance of contributions from “sellers” or other persons subject to prosecution by the section. And with good reason: without a demonstrable nexus between the group singled out by a contribution ban and a heightened risk of corruption, no important government interest can be articulated.
In short, there is no plausible justification for prohibiting Medicaid-provider and shareholder contributions on the basis of some theoretical conflict-of-interest. Such a theoretical conflict-of-interest could be ascribed with equal plausibility to anyone subject to prosecution for anything; yet no comparable prohibition exists for anyone besides Medicaid providers and those who have ownership interests, however small, in them.
Given the statute’s novelty and implausibility, then, under Nixon the statute’s justification warrants a high evidentiary burden. Yet no evidence at all has been produced. The history of the contested statute is instructive. Ohio courts have given weight to house and senate journals, as well as bill analyses,105 and by statute Ohio law authorizes courts to consider the “circumstances under which [a] statute was enacted,” as well as the legislative history, when the statute is ambiguous.106 Here, there is no evidence that the Ohio General Assembly was concerned about any untoward relationship between prosecutors and Medicaid providers or their shareholders. Nor are there any documented instances of improper dealings between the two groups, or anything else that would suggest impropriety.
Defendant, moreover, has produced nothing to contradict Plaintiffs’ demonstration that the contested statute was not passed in response to any evidence of corruption. Standing

105 See, e.g., Shafer v. Ohio Turnpike Comm’n, 113 N.E.2d 14, 18 (Ohio 1953); Meeks v. Papadopulos, 404

N.E.2d 159, 162 (Ohio 1980); see also Ohio Legislative history (Supreme Court of Ohio Law Library

Information

Series),

available

at

http://www.supremecourt.ohio.gov/Publications/lib_series/Brochure_4.pdf.

106 Ohio Rev. Code Ann. § 1.49 (B) and (C); cf. Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 393

(2000) (considering an affidavit from a legislator who was involved in campaign-finance reform at the

time the contribution limits at issue were adopted, despite the fact that Missouri [like Ohio] did not

keep a legislative history).

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unrebutted, for example, is the declaration of Senator Harry Meshel, a former President of the Ohio Senate and the chief sponsor of the bill containing the contested statute,107 who specifically recalls that the ban was prompted not by any concern about corruption but rather by a game of political “one-upmanship.”108
Indeed, the evidence shows that Section 3599.45’s prohibition on contributions by providers was marginal in the scheme of the General Assembly’s 1978 legislation, Senate Bill 159 (“S.B. 159”).109 The bill followed on the heels of congressional legislation enabling states to set up anti-fraud Medicaid control units.110 Its overarching purpose was not to combat political corruption, but rather to authorize the Attorney General to combat Medicaid fraud.111 Newspaper articles, moreover, barely mentioned the provision, let alone documented any instances of corruption.112
As shown by the statute’s history, then, the ban on providers’ campaign contributions was a mere tag-along, ancillary to the main concerns of S.B. 159. Only now— 33 years after its enactment and after being challenged—is the statute receiving its first proffered rationalization. The state’s post hoc effort to prop up the statute, however, is based on nothing but speculation that a Medicaid provider or owner might at some point engage in fraud and, having done so, might attempt to unduly influence a prosecutor, or that a prosecutor might allow a campaign contribution to influence his judgment in prosecuting such fraud. Mere conjecture such as this is not and never has been sufficient to justify a First
107 Declaration of Harry Meshel, at ¶ 4 (attached as Ex. 29). 108 Id. at ¶ 10. 109 See above notes 36-41 and accompanying text. 110 See generally S.B. 159 Bill Analysis, Ex.22. 111 See S.B. 159 Bill Analysis, at 1, Ex. 22; see also Ohio Senate Journal, 112th Gen. Assemb., 1st Sess. At 187, 192, 1278 (1977), Ex. 23 (describing the purpose of the bill as “provid[ing] for the recovery of . . . excess payments under the medicaid program”); House Panel Approves Medicaid Fraud Bill, COLUMBUS DISPATCH, Mar. 9, 1978, at B-7, (attached as Ex. 28); New Law Empowers State to Probe Medicaid Fraud, THE PLAIN DEALER, Apr. 25, 1978, at A-5, (attached as Ex. 27). 112 See above note 41 and accompanying text.
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Amendment burden, especially an outright ban of the kind at issue here.113 In the absence of evidence of undue influence, there simply is no justification for treating contributions by Medicaid providers or their owners as suspect, much less ban-worthy.
4. Section 3599.45’s ban on contributions by Medicaid providers is not closely drawn to further any governmental interest.
Even where a sufficiently important governmental interest has been demonstrated, contribution limits pass First Amendment muster only if they are “closely drawn” to prevent actual or perceived corruption.114 By this standard, the government must demonstrate that its restrictions are proportional to the harm they ostensibly seek to remedy.115 Restrictions that unreasonably stifle speech or association, or that are disproportionate to their stated ends, are unconstitutional, even when enacted to advance an otherwise sufficiently important governmental interest.116 Courts have a duty to “review the record independently and carefully” where there are “danger signs” that a statute is doing more harm to electoral fairness than good.117 As described below, section 3599.45 is arbitrary and disproportionately severe, and for these reasons too cannot survive intermediate scrutiny.
The fact that Section 3599.45 imposes an outright ban, and not merely a limitation, on campaign contributions, is perhaps the most important consideration in determining whether it is “closely drawn” to advance an important governmental interest. As the Court in Green Party explained:
113 See Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 392 (2000) (“We have never accepted mere conjecture as adequate to carry a First Amendment burden.”); McConnell v. FEC, 540 U.S. 93, 232 (2003) (finding evidence of the “claimed evil” too “scant” to support a ban on contributions from minors); see also Green Party of Conn. v. Garfield, 616 F.3d 189, 207 (2d Cir. 2010) (finding insufficient evidence to sustain a ban on lobbyist contributions). 114 Nixon, 528 U.S. at 387-88. 115 Randall v. Sorrell, 548 U.S. 230, 249 (2006); McConnell, 540 U.S. at 232. 116 See Sorrell, 548 U.S. at 237; McConnell, 540 U.S. at 231-32; Dallman v. Ritter, 225 P.3d 610, 624, 62526 (Colo. 2010) (citing Virginia v. Hicks, 539 U.S. 113, 118-19 (2003)). 117 Sorrell, 548 U.S. at 249.
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[A]n outright ban on contributions is a drastic measure that substantially infringes “one aspect of the contributor's freedom of political association.” As opposed to a contribution limit, which merely restricts those First Amendment freedoms . . . a contribution ban utterly eliminates an individual's right to express his or her support for a candidate by contributing money to the candidate’s cause. Indeed, a contribution ban cuts off even the “symbolic expression of support evidenced by” a small contribution. Thus, if the state’s interests in this case can be achieved by means of a limit . . . rather than a ban, the ban should be struck down for failing “to avoid unnecessary abridgment of associational freedoms . . . .”118
In this light, it is not surprising that courts have invalidated contribution bans where less
onerous proscriptions will suffice.
In McConnell, for example, the Supreme Court invalidated a ban on contributions by
minor children, finding that the provision was “overinclusive” and “swe[pt] too broadly,”
especially given that many state-election laws had adopted less restrictive ways to prevent
adults from circumventing campaign-finance laws through their children’s contributions.119
And the Second Circuit in Green Party invalidated Connecticut’s ban on lobbyist
contributions discussed earlier while noting that a limitation might have passed muster.120
State supreme courts have come to similar conclusions in invalidating bans on
political contributions. In Dallman v. Ritter, for example, the Colorado Supreme Court
recently invalidated a constitutional amendment banning contributions from holders of sole-
source government contracts.121 The prohibitions were not closely drawn and lacked a
118 Green Party of Conn. v. Garfield, 616 F.3d 189, 206 (2d Cir. 2010) (quoting Sorrell, 548 U.S. at 246, 247 (in turn quoting Buckley, 424 U.S. at 21, 24-25)). See also Dallman, 225 P.3d at 623 (“An absolute ban is a serious impairment of protected First Amendment rights.”). 119 McConnell, 540 U.S. at 232. 120 Green Party, 616 F.3d at 207; see also Fair Political Practices Comm’n v. Superior Court, 599 P.2d 46, 5152 (Cal. 1979) (“[w]hile either apparent or actual political corruption might warrant some restriction of lobbyist associational freedom, it does not warrant total prohibition of all contributions by all lobbyists to all candidates”). 121 Dallman 225 P.3d at 616-18.
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plausible connection between contributors and recipients: “[t]he Amendment fails to tailor its prohibitions towards those who have some control over awarding no-bid contracts, which would be directly correlated to its purpose of preventing the appearance of impropriety.”122 Noting that “the government’s interest in eliminating the appearance of impropriety is not without bounds,” the court held that “we cannot sacrifice First Amendment freedoms to an implausible perception of impropriety that links every contribution to an illicit arrangement extending to all levels of state government.”123
As in the cases above, section 3599.45’s ban—a blunt instrument in any case— “sweeps too broadly,”124 condemning contributions both “large and small.”125 Even if Ohio could demonstrate a nexus between Medicaid-provider or shareholder donations and prosecution of Medicaid fraud—which, as shown above, it has not—there is nothing to suggest that a ban, as opposed to some less restrictive alternative such as a limit, is necessary to combat any hypothetical corruption. It is particularly telling that, when Ohio enacted campaign-finance rules (“pay-to-play”) rules applicable to other state contractors, it enacted only time-restricted limitations.
The statute’s criminal penalty, finally, is out of all proportion to the purported offense. Even where Ohio has prohibited candidates from accepting contributions from certain state employees, foreign nationals, and minors under the age of seven, it has imposed far less stringent penalties.126 It is disproportionately severe, and offensive to First-
122 Id. at 627. 123 Id. 124 McConnell, 540 U.S. at 232. 125 Fair Political Practices Comm’n v. Super. Ct, 599 P.2d 46, 51-52 (Cal. 1979). 126 See, e.g., Ohio Rev. Code §§ 3517.992(AA1), (AA2) (West 2010) (foreign nationals) (three times the amount contributed or $10,000, whichever is more); § 3517.992(I)(1), (J)(1), (I)(6), (J)(5) (minors under age seven) (three times the amount contributed but no violation occurs if fully refunded within 5 days of receiving or by the tenth business day after receiving notification); § 3517.992(R) (certain state contractors)($1,000 and potential contract rescission).
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Amendment principles, to subject Medicaid providers’ and their shareholders’ exercise of political speech to a significantly harsher penalty than any of these other groups.
The statute’s ban also reaches too broadly in that, as Magistrate Judge Vecchiarelli found compelling,127 it prohibits candidates for prosecuting attorney in each of Ohio’s 88 counties from accepting contributions from all Medicaid providers—regardless of which county those providers reside or operate in. Accordingly, a Medicaid provider or shareholder is banned from contributing to a county prosecuting-attorney candidate even when that candidate, if elected, would have no jurisdiction to investigate or prosecute any fraud in which such a Medicaid provider could be implicated. Plaintiffs here, for example, operate in only one county—Cuyahoga County—and yet are prohibited from donating to at least 86 county prosecuting-attorney candidates who would lack jurisdiction to prosecute them.
As in Dallman, then, the statute “fails to tailor its prohibitions towards those who have some control over” the allegedly offending activity. And less restrictive alternatives are available: the statute could easily have been tailored to restrict contributions from those Medicaid providers and shareholders residing or operating within the prosecutor’s jurisdiction. Or it could have applied temporal limits, restricting contributions for a certain period of time before or after an election. Or it could have restricted contributions from those Medicaid providers and shareholders against whom complaints had been brought or investigations begun. Defendant’s own designated representative admitted in deposition admitted that less restrictive alternatives to a ban exist.128 For this reason, too, the statute is not closely drawn.
127 Report & Recommendation regarding preliminary injunction (Doc. No. 17), at 22. 128 Curt Mayhew Depo. Tr. at 58-64, Ex. 1.
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5. Section 3599.45 is Overbroad In That It Prohibits Contributions from Those With Even a De Minimus Ownership Interest in a Medicaid Provider.
Even were the above reasons insufficient to show that § 3599.45 is not closely drawn
to meet any governmental interest, the statute’s prohibition on contributions from anyone
with “an ownership interest” in a Medicaid provider is constitutionally overbroad. The
overbreadth doctrine permits litigants “to challenge a statute not because their own rights of
free expression are violated, but because . . . the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”129
By its plain language, “an ownership interest” means any ownership interest,
however infinitesimal. As discussed above, many publicly held corporate entities, including Wal-Mart Stores, Inc., Target Corporation, and Walgreen Co,130 provide Medicaid services in
Ohio. Individual shareholders of these corporate Medicaid providers have “an ownership
interest” in a Medicaid provider and are, accordingly, banned from making contributions
under section 3599.45. Wal-Mart individual shareholders alone number approximately 293,000.131
The contested statute thus reaches hundreds of thousands of individual shareholders
who have nothing to do with the provision of Medicaid services, who have no control over
the policy and business practices of a corporate Medicaid provider, and who would never be
prosecuted for Medicaid fraud. It is more onerous a law even than the Colorado law
129 Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). 130 See Declaration of Mary Kendall ¶ 3(Wal-mart Stores, Inc.); Declaration of William Thom ¶ 3 (Target Corporation); Declaration of Judy Rohan ¶ 3 (Walgreen Co.); see also ODJFS, Pharm. & Med. Supplier Provider Listing (sorted excerpts). 131 Kendall Decl. at ¶ 2. Other publicly held corporate entities, such as CVS/Caremark Corporation, whose individual common-stock owners number approximately 55,000, and Rite Aid Corporation, which has tens of thousands of registered investors, provide Medicaid services through subsidiaries. See Moffat Decl. at ¶ 2; Comitale Decl. at ¶ 2. Their shareholders thus have an indirect ownership interest in a Medicaid provider, but “an ownership interest” nonetheless.
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invalidated in Dallman, which set at ten percent the threshold beyond which corporate owners were barred from making contributions.132 And it is more onerous than the contractor provisions sustained in Green Party, which imposed a 5% ownership threshold on prohibited donors. And it contrasts with a number of provisions in the Ohio Revised Code that set pay-to-play limits on individuals with a 20% ownership interest in certain contracting entities.133 Indeed, the civil Medicaid fraud statute, Ohio Rev. Code § 5111.03, imposes the penalty of contract termination upon conviction of an “owner” having at least a 5% interest in the provider.134 Thus the General Assembly has shown itself capable of closely drawing ownership interests that trigger restrictions, yet chose not to with the contested statute.
In addition to not being closely drawn to advance a significant state interest, then, the contested statute is overbroad and proscribes far more speech than is necessary to achieve any important governmental purpose. Of course, prohibiting contributions from those with no authority to shape the conduct of a corporate provider serves no purpose whatsoever. For this reason too, Plaintiffs are entitled to summary judgment.
C. A permanent injunction is warranted. A party is entitled to a permanent injunction “if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law.”135 As demonstrated above, Plaintiffs have suffered a constitutional violation. Moreover, the Supreme Court has held that “[t]he loss of First Amendment
132 Dallman, v. Ritter, 225 P.3d 610, 617-18 (Colo. 2010). 133 See, e.g., Ohio Rev. Code Ann. § 3517.13(J), EX. 20 (20% threshold for prohibition applied to shareholders in corporations with contracts with public agencies the heads of which are putative recipients of campaign contributions); § 3517.13(Z) (similar threshold in workers’ compensationcontribution prohibition). 134 Id. § 5111.03(C). 135 ACLU of Kentucky v. McCreary Co., 607 F.3d 439, 445 (6th Cir. 2010) (citations and internal quotations omitted).
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freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”136 Plaintiffs have already been irreparably harmed by their inability to contribute in the 2010 attorney-general election. Without injunctive relief, their rights continue to be violated. V. Conclusion
Although the Court was unpersuaded during the preliminary-injunction phase of this case that Plaintiffs were likely to prevail on the merits, Plaintiffs respectfully request the Court to re-examine the sweeping and devastating breadth of the statute. To uphold this statute, the Court must sanction a ban on contributions from Plaintiff Eric Schreiber, M.D., who has no financial incentive to commit fraud because he is on a fixed salary as a Cleveland Clinic employee. Indeed, the Court must sanction banning a single shareholder in Walmart—who has no control over Wal-mart’s pharmacies—from contributing to a prosecuting attorney’s race in a county where the shareholder does not even reside. In short, the Court must sanction nonsense.
It will not escape the Court’s notice that Plaintiff’s are asking it to reconsider its previous analysis of these issues. To the extent it concluded that Defendant had articulated a “rational basis” for the contested statute, Plaintiffs urge the Court instead to apply the “intermediate scrutiny” standard the Supreme Court has said must be applied to statutes that abridge individuals’ free-speech and free-association rights. As shown above, this ill-drawn statute fails intermediate scrutiny. (Given the above-described absurdities, indeed, its rational basis can be questioned as well.) While Plaintiffs will never recover the free-speech and freeassociational rights that were lost in the 2010 election, this Court can still restore Plaintiffs’ rights on an injunctive basis and prevent further irreparable harm.
136 Elrod v. Burns, 427 U.S. 347, 373 (1976). 30

Case: 1:10-cv-01986-DCN Doc #: 52 Filed: 03/16/11 34 of 35. PageID #: 1049

Respectfully submitted,
THE CHANDRA LAW FIRM, LLC
_/s/ Subodh Chandra___________ Subodh Chandra (OH Bar No. 0069233) Donald Screen (OH Bar No. 0044070) Sandhya Gupta (OH Bar No. 0086052) 1265 W. 6th St., Suite 400 Cleveland, OH 44113-1326 Phone: 216.578.1700 Fax: 216.578.1800 Subodh.Chandra@gmail.com Donald.Screen@gmail.com Ms.Sandhya.Gupta@gmail.com

BERKMAN, GORDON, MURRAY & DEVAN
__/s/ Raymond V. Vasvari, Jr.______ J. Michael Murray (0019626) Raymond V. Vasvari, Jr. (0055538) 55 Public Square, Suite 2200 Cleveland, Ohio 44113-1949 PH: 216.781.5245 Fx: 216.781.8207 jmmurray@bgmdlaw.com rvasvari@bgmdlaw.com
Attorneys for Plaintiffs Arthur Lavin, M.D., et al.

31

Case: 1:10-cv-01986-DCN Doc #: 52 Filed: 03/16/11 35 of 35. PageID #: 1050
COMBINED CERTIFICATIONS PAGE LENGTH
I certify that this case has been assigned to the standard tract and that the foregoing document complies with the page length limitations contained in this court’s order of March 10, 2011 modifying the allowable page length to 30 pages.
SERVICE UPON PARTIES I certify that on March 16, 2011, my office served, via the Court’s ECF system, the
foregoing on the following:
KARL H. SCHNEIDER MARK R. METERKO 250 Civic Drive, Ste. 500 Columbus, OH 43215 khschneider@ms-lawfirm.com mmeterko@ms-lawfirm.com
Attorneys for Defendant
/s/ Sandhya Gupta______________________________ One of the attorneys for Plaintiffs Arthur Lavin, M.D., et al.
32

 
 Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 1 of 25. PageID #: 710

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Arthur Lavin, et. al.,

Case No.: 1:10-cv-01986

Plaintiff,

JUDGE: Nugent

v.
Jon Husted, in his Official Capacity as Ohio Secretary of State,

MAGISTRATE JUDGE: Vecchiarelli

Defendant.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendant, Jon Husted, in his official capacity as the Ohio Secretary of State, respectfully moves this Court for an Order entering summary judgment in his favor as to all claims within ~laintiffs' Complaint because there is no genuine issue of material· fact that R.C. 3599.45 does not violate the United States Constitution as a matter of law.

Respectfully submitted,
MAGUIRE & SCHNEIDER, LLP
Is/ Karl H. Schneider
Karl H. Schneider (0012881) Mark R. Meterko (0080992) 250 Civic Center Drive, Suite 500 Columbus, Ohio 43215 Telephone: (614) 224-1222 Facsimile: (614) 224-1236 khschneider@ms-lawfirm.com mmeterko@ms-lawfirm.com
Special Counsel to Ohio Attorney General Attorneys for Defendant Jon Husted, in his official capacity as Ohio Secretary ofState

Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 2 of 25. PageID #: 711

TABLE OF CONTENTS

I.

STATEMENT OF ISSUES PRESENTED................................................... 1

II.

SUMMARY OF ARGUMENT................................................................1

III. STATEMENT OF FACTS ............................................................................................ 1

IV. LAW ANDARGUMENT .............................................................................................7

A. Standard of Review ..................................................................................................7

B. R.C. 3599.45 is a constitutional limitation on campaign contributions ...................8

1. R.C. 3599.45 furthers a sufficiently important state interest because it prevents corruption and/or the appearance of corruption................................................. 8

2. R.C. 3599.45 is closely drawn to advance the sufficiently important state interests of preventing corruption and the appearance of corruption ................................. 12

V. CONCLUSION ............................................................................................................20

Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 3 of 25. PageID #: 712
TABLE OF AUTHORITIES
CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242,251-52 (1986) ..................................................7, 8 Bordenkircher v. Hayes, 434 U.S. 357 (1978) ............................................................................... 11 Broadrick v. Oklahoma, 413 U.S. 601, 6I 0 (1973) ...................................................................... I 8 Buckley v. Valeo, 424 U.S. 1 (1976) ...................................................................................... passim Casino Ass 'n ofLouisiana v. Louisiana, 820 So. 2d 494 (La. 2002), cert. denied, 53 7 U.S. 1226 (2003) ...................................................................................................................... I2, I 6 Celotex Corp. v. Catrett, 477U.S. 3I7, 322 (1986) .......................................................................7 FEC v. Beaumont, 539 U.S. I46 (2003) ............................................................................ 14, I5, 16 FEC v. National Right to Work Comm., 459 U.S. 197 (1982) ............................................9, I3, I5 Institute ofGovernmental Advocates v. Fair Political Practices Comm. (Cal. 200I), I64 F. Supp. 2d 1183 ................................................................................................................................ 17 McConnell v. Fed. Elections Commission, 540 U.S. 93 (2003) ................................................9, 13 New Yorkv. Ferber, 458 U.S. 747,767 (1982) .......................................·..................................... I8 Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377 (2000) ....................................9, 12, 13, 16, I7 North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999)................................. 17 Randall v. Sorrell, 548 U.S. 230 (2006) .................................................................................. 13, 16 State v. Alaska Civil Liberties Union, 978 P.2d 597 (Ak. I 999), cert. denied, 528 U.S. 1153 (2000) ............................................................................................................................ 17 U.S. v. Batchelder, 442 U.S. I 14 (I979)........................................................................................ I I U.S. v. Oldfield, 859 F.2d 392 (6th Cir. 1988)............................................................................... 11 U.S. v. Raines, 362 U.S. I 7, 21 (1960) ......................................................................................... 18
11

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STATUTES Ohio Admin. Code§ 5101:3-1-29 (B)(1) ........................................................................................7 Ohio Admin. Code§ 5101:3-1-29 (B)(2) ........................................................................................7 Ohio Revised Code Ann. §109.85 ................................:..................................................................5 Ohio Revised Code §109.85(A) .......................................................................................................6 Ohio Revised Code Ann. §109.85(B) ..............................................................................................6 Ohio Revised Code Ann. §109.85(C) ..............................................................................................6 Ohio Revised Code §2913 .40 ..........................................................................................................5 Ohio Revised Code §2939.01 ..........................................................................................................6 Ohio Revised Code §2939.17 ..........................................................................................................6 Ohio Revised Code §2939.24 ..........................................................................................................6 Ohio Revised Code §3501.04 ..........................................................................................................2 Ohio Revised Code §3517.01 ..........................................................................................................2 Ohio Revised Code §3599.45 ................................................................................................ passim Ohio Revised Code §5111.01 ..........................................................................................................6 Ohio Revised Code §5111.03 ..........................................................................................................5 Ohio Revised Code §5111.03(A).....................................................................................................5 Ohio Revised Code §5111.03(F) .....................................................................................................5 Title XIX of the Social Security Act, 42 U.S.C. §301 .....................................................................2 Title XIX of the Social Security Act, 49 Stat. 620 (1935), 42 U.S.C. §301 ....................................2
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MEMORANDUM IN SUPPORT
I. STATEMENT OF ISSUES PRESENTED
1. Whether there is no genuine issue of material fact that R.C. 3599.45 advances the sufficiently important state interest of preventing corruption or the appearance of corruption as a matter of law?
2. Whether there is no genuine issue of material fact that R.C. 3599.45 is closely drawn to prevent corruption or the appearance of corruption as a matter of law?
II. SUMMARY OF ARGUMENT Plaintiffs have filed a Complaint seeking a declaration that R.C. 3599.45, which bans
candidates for Ohio Attorney General or County Prosecutor from knowingly accepting any campaign contributions from Medicaid providers or anyone with an ownership interest in Medicaid providers, violates the United States Constitution.
The well established law is that R.C. 3599.45 must be deemed Constitutional so long as it is closely drawn to match a sufficiently important governmental interest. R.C. 3599.45 advances a sufficiently important state interest because it prevents corruption or the appearance of corruption, and it is closely drawn to advance those interests. Accordingly, there is no genuine issue of material fact that R.C. 3599.45 does not violate the United States Constitution as a matter of law. III. STATEMENT OF FACTS
Plaintiffs Arthur Lavin, M.D., Jason Chao, M.D., Michael Devereaux, M.D., Patricia J. Kellner, M.D., Jerone Liebman, M.D., Eric R. Schreiber, M.D., Constance D. Magoulias, M.D., Peter A. Degolia, M.D. and Nathan R. Beachy, M.D. ("Plaintiffs") claim to be Ohio Medicaid providers who serve Medicaid patients, as authorized by the Ohio Department of Job and Family Services ("ODJFS"). 1 Out of the nine Plaintiffs, only Dr. Lavin owns an ownership interest in a
1 Compl. at~~ 3-11.
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Medicaid provider? Dr. Lavin owns Advanced Pediatrics, which is purportedly a Medicaid
provider, in which his ownership interest is 100%.3 Defendant Jon Husted (the "Secretary"), in
his official capacity as the Ohio Secretary of State is the chief elections officer of Ohio, and is
charged with enforcing the state's election laws.4
Plaintiffs have filed a complaint against the Secretary seeking a declaration that R.C.
3599.45 violates the First and Fourteenth Amendments of the United States Constitution. R.C.
3599.45 states, in its entirety:
(A) No candidate for the office of attorney general or county prosecutor or such a candidate's campaign committee shall knowingly accept any contribution from a provider of services or goods under contract with the department of job and family services pursuant to the medicaid program of Title XIX of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider.
As used in this section "candidate," "campaign committee," and "contribution" have the same meaning as in section 3517.01 of the Revised Code.
(B) Whoever violates this section is guilty of a misdemeanor of the first degree. 5
In 1965, the United States Congress created Medicaid as Title XIX of the Social Security
Act. Pursuant to Title XIX, the federal government distributes lump-sum payments to the states
2 See Plaintiffs' responses to interrogatories, Exhibits 1-9. On March 13, 20 11, Plaintiffs' counsel notified the Secretary, via e-mail, that the interrogatory responses of Dr. Lavin, Dr. Chao and Dr. Magoulias would need to be supplemented to indicate that they did "not know whether they have indirect ownership interests in Medicaid-providing publicly traded corporations through mutual funds or other investments." As of the date of the filing of this motion for summary judgment, the Secretary has not received supplemental responses. Out of an abundance of caution and respect for this Court, the Secretary has attached a copy ofthat e-mail to this motion as Exhibit 10. 3 Dr. Lavin response to Interrogatory No. 1, Exh. 1. 4 Ohio Rev. Code Ann.§ 3501.04. 5 Ohio Rev. Code Ann. § 3599.45.
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for the purpose of providing medical assistance and rehabilitation to indigent, blind, disabled and aged individuals, their dependent children and their families. 6
In Ohio, the Medicaid program is administered by the ODJFS. Medicaid represents a massive government investment by the State of Ohio.7 The state budget for the Ohio Medicaid program for fiscal year 2009 was approximately $14.3 Billion.8 Medicaid constitutes about 26% of Ohio's budget.9 Medicaid is not only Ohio's largest government program, but it is growing faster than most other state programs. 10 According to the Health Policy Institute of Ohio, the total annual Medicaid spending for all Ohio agencies in 2010 was over $15.3 billion.11 In July of
2009, there were over 93,000 active Medicaid providers in Ohio. (ODJFS integrity report). The parties agree that Medicaid fraud is a problem. 12 Indeed, between July 1, 2008 and
June 30, 2009, the Office of the Ohio Attorney General alone, through its Medicaid Fraud
Control Unit ("MFCU"), received five hundred eighty-nine (589) complaints of Medicaid fraud
and patient abuse or neglect, and opened four hundred ninety-four (494) of the complaints for
6 42 U.S.C. 1396a-d. 7 See Ohio Department of Job and Family Services, Medicaid Program Integrity Report for Calendar Year 2009, Exh. 11 p. 1. 8 !d. 9 Report and Recommendation, Doc. No. 17; See also Medicaid Growth Burning Budget, Columbus Dispatch,August 8, 2010, available at: http://www.dispatch.com/live/content/local_news/stories/20 10/08/08/medicaid-growth-bumingbudget.html?sid=101, Exh. 12. 10 See Health Policy Institute of Ohio, Ohio Medicaid Basics 2009, p. 2, Exh. 13, available at: http://a5e8c023c8899218225edfa4b02e4d9734e01a28.gripelements.com/pdf/publications/medicaidbasics _2009.pdf 11 See Health Policy Institute of Ohio, Executive Summary, Ohio Medicaid Basics 2011, Exh. 14, p. 2. 12 Plaintiffs conceded this fact at the Preliminary Injunction hearing held October 7, 2010, See Exh. 15, transcript p. 20 (Plaintiffs' attorney stated that "Medicaid fraud was a problem in 1978. It's why the statute was adopted. It remains a problem today. We'll stipulate to that...."); p. 22 (...there's no argument there is Medicaid fraud ..."); p. 74 ("I'll stipulate to the fact that Medicaid fraud is a problem... ").
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active investigation, completing four hundred and forty-one investigations (441 ). 13 During the
same period, the MFCU obtained ninety-seven (97) indictments, bills of information, or
complaints, and obtained eighty-seven (87) convictions. The MFCU also completed twenty-one (21) civil settlements with restitution orders totaling $68,593,864.73. 14
In federal fiscal year 2008, MFCU ranked first in the nation, when jointly comparing convictions-per-professional staff and recoveries-per-grant-dollar. 15 In addition, the MFCU
ranked fourth in terms of gross numbers of convictions and fifth in terms of gross dollar recoveries. 16 Continuing into 2009, the MFCU achieved eighty-two (82) indictments, onehundred-fourteen (114) convictions and $87.9 million in recoveries. 17
During July 1, 2009, to June 30, 2010, the MFCU received seven hundred (700)
complaints of Medicaid fraud and patient abuse or neglect, with four hundred ninety-nine (499) related to allegations of Medicaid fraud. 18 During the same period, the MFCU opened three
hundred eighty-six (386) complaints for active investigation related to Medicaid fraud and
obtained one hundred-twelve indictments, bills of information or complaints related to Medicaid fraud. 19 The MFCU obtained ninety (90) convictions related to Medicaid fraud and completed twenty-six (26) civil settlements.20 The total value of criminal restitution orders and civil settlements was $58,689,502.45?1
13 Ohio Medicaid Fraud Control Unit FY 2009, Office of Ohio Attorney General, Annual Report, Exh. 16, p. 3. 14 Id. 15See Ohio Department of Job and Family Services, Medicaid Program Integrity Report for Calendar Year 2009, Exh. 11, p. 11. 16 Id. 11 Id. 18 Ohio Medicaid Fraud Control Unit FY 2010, Office of Ohio Attorney General, Annual Report, Exh. 17, p. 3. 19 Id. 20 ld. 21 Jd.
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Revised Code section 5111.03 prohibits and defines Medicaid fraud in Ohio. The section
provides for civil penalties, the termination of provider agreements, and the exclusion of
individuals, providers, or entities for a violation of division (A) of the statute, which states in
part:
No provider of services or goods contracting with the department of job and family services pursuant to the medicaid program shall, by deception, obtain or attempt to obtain payments under this chapter to which the provider is not entitled pursuant to the provider agreement, or the rules of the federal government or the department of job and family services relating to the program. No provider shall willfully receive payments to which the provider is not entitled, or willfully receive payments in a greater amount than that to which the provider is entitled; nor shall any provider falsify any report or document required by state or federal law, rule, or provider agreement relating to medicaid payments.22
Revised Code section 2913.40 criminalizes Medicaid fraud and prohibits providers from,
among other things, making false or misleading statements in order to receive payment for goods ·
or services that were not rendered or provided as claimed, or which were greater than the amount
of reimbursement to which they are entitled.
The Attorney General, within his discretion, may enforce the civil penalties and sanctions
contained in section 5111.03. "The attorney general on behalf of the state may commence proceedings to enforce this section in any court of competent jurisdiction."23
The Attorney General is given even broader discretion and exclusive control over
Medicaid investigations by Revised Code section 109.85. The Attorney General investigates any
criminal or civil violation of the medical assistance program or violation of Chapter 3721
(nursing homes and residential care facilities) upon the written request of the governor, the
general assembly, the auditor of the state, the director of job and family services, the director of
22 Ohio Rev. Code Ann. § 5111.03(A). 23 Ohio Rev. Code Ann.§ 5111.03(F) (emphasis added).
5

Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 10 of 25. PageID #: 719
health, or the director of budget and management, or upon the attorney general's becoming
aware of criminal or improper activity.24
After conducting the initial investigation, the Attorney General has broad and unfettered
discretion in determining whether to prosecute the matter, whether to refer the matter to a county
prosecuting attorney, and whether to pursue a civil remedy against the Medicaid provider:
When it appears to the attorney general, as a result of an investigation under division (A) of this section, that there is cause to prosecute for the commission of a crime or to pursue a civil remedy, the attorney general may refer the evidence to the prosecuting attorney having jurisdiction of the matter, or to a regular grand jury drawn and impaneled pursuant to sections 2939.01 to 2939.24 of the Revised Code, or to a special grand jury drawn and impaneled pursuant to section 2939.17 of the Revised Code, or the attorney general may initiate and prosecute any necessary criminal or civil actions in any court or tribunal of competent jurisdiction in this state. When proceeding under this section, the attorney general, and any assistant or special counsel designated by the attorney general for that purpose, have all rights, privileges, and powers of prosecuting attorneys. The attorney general shall have exclusive supervision and control of all investigations and rrosecutions initiated by the attorney general under this section. 2
While the Attorney General has unfettered discretion over investigations and
prosecutions initiated by the office of the Attorney General, "nothing in this section shall prevent
a county prosecuting attorney from investigating and prosecuting criminal activity related to
Chapter 3721 [nursing homes and residential care facilities] of the Revised Code and the medical
assistance program established under section 5111.01 of the Revised Code."26 Therefore, a
County Prosecutor is given the same broad prosecutorial discretion as the attorney general for
Medicaid fraud cases that are initiated by the county prosecutor's office.
24 See Ohio Rev. Code Ann.§ 109.85(A). 25 Ohio Rev. Code Ann.§ 109.85(B) (emphasis added). 26 Ohio Rev. Code Ann.§ 109.85(C).
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Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 11 of 25. PageID #: 720
Another layer of discretion entrusted to the Attorney General or County Prosecutor is the determination of what constitutes fraud as opposed to waste and abuse within the Medicaid program. The Ohio Administrative Code defines Medicaid "fraud" as: "[A]n intentional deception, false statement or misrepresentation made by a person with the knowledge that the deception could result in some unauthorized benefit to oneself or another person. It includes any act that constitutes fraud under applicable federal or state law."27 On the other hand, Medicaid "waste and abuse," is defined as, practices that are inconsistent with professional standards of care; medical necessity; or sound fiscal, business, or medical practices; and that constitute an overutilization of Medicaid covered services and result in an unnecessary cost to the Medicaid program. "28 IV. LAW AND ARGUMENT
A. Standard of review "The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury" when all facts and inferences drawn therefrom are viewed in the light most favorable to the non-moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986), and enter summary judgment against a party who fails to make a showing sufficient to establish the existence of an essential element of that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). While the moving party bears the initial burden of specifying the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine
27 Ohio Admin. Code§ 5101:3-1-29 (B)(l). 28 Ohio Admin. Code § 5101 :3-1-29 (B)(2).
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Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 12 of 25. PageID #: 721
Issue of material fact, once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson, supra at 247-48.
B. R.C. 3599.45 is a constitutional limitation on campaign contributions In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court drew a distinction between campaign contribution limitations and expenditure limitations, stating that, "expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions." Buckley,· 424 U.S. at 23. Recognizing this fundamental difference, the Buckley Court set forth the following standard for reviewing contribution limitations: "[e]ven a 'significant interference with protected rights of political association' may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms." Jd at 25 (citations omitted). R.C. 3599.45 operates as a campaign contribution limitation. Accordingly, R.C. 3599.45 must be deemed Constitutional so long as it is closely drawn to match a sufficiently important governmental interest. Buckley v. Valeo, 424 U.S. 1, 25 (1976). R.C. 3599.45 is a constitutional limitation on campaign contributions as set forth by Buckley v. Valeo29 and its progeny. R.C. 3599.45 promotes sufficiently important state interests, and it is closely drawn to advance those interests.
1. R.C. 3599.45 furthers a sufficiently important state interest because it prevents corruption and/or the appearance of corruption
The Buckley Court held that limiting the "actuality and appearance of corruption" are sufficiently important state interests for justifying a campaign contribution limitation. Buckley,
29 424 U.S. 1 (1976).
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424 U.S. at 26. The Court was specifically concerned with the danger of actual quid pro quo arrangements, as well as the impact of ·the appearance of corruption stemming from public awareness of opportunities for abuse. !d. at 27. The line of cases that arose after Buckley have reaffirmed that preventing corruption or the appearance of corruption are sufficiently important government interests. See McConnell v. Fed. Elections Commission, 540 U.S. 93, 143 (2003) ("Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits").
The Supreme Court has never set forth a specific evidentiary burden that is required of a state in order to demonstrate the sufficiently important state interest of preventing corruption or the appearance of corrilption, stating only that: "[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised." Nixon v. Shrink Missouri Gov 't PAC, 528 U.S. 377, 391 (2000). Courts, however, should be careful not to "second guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared." FEC v. National Right to Work Comm., 459 U.S. 197, 210 (1982). Further, the Supreme Court has noted that corruption and the appearance of corruption are problems endemic in the American political system. Buckley, 424 U.S. at 26-29; Nixon, 528 U.S. at 388-89.
R.C. 3599.45 prevents the enforcers of the Medicaid fraud statute (i.e. the Attorney General and County Prosecutor) from accepting contributions from those subject to prosecution under the Medicaid fraud statute (i.e. Medicaid providers, such as Plaintiffs). It is certainly plausible that candidates for Attorney General or County Prosecutor could refrain from investigating or prosecuting Medicaid providers in exchange for campaign contributions from those Medicaid providers or the owners of the Medicaid providers. In the alternative, the
9

Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 14 of 25. PageID #: 723
Attorney General or County Prosecutor could decide to investigate or even prosecute a Medicaid provider because it, or its owners, did not contribute to his or her campaign. At the very least, R.C. 3599.45 prevents the appearance that the Attorney General or County Prosecutor investigated, prosecuted, or refrained from investigating or prosecuting a Medicaid provider based upon whether the Medicaid provider made a campaign contribution.
This standing alone is enough for this Court to conclude as a matter of law that R.C. 3599.45 promotes a sufficiently important state interest because it prevents the actuality and appearance of corruption that would arise as a result of Medicaid providers contributing to the campaigns of candidates for Attorney General or County Prosecutor.
Moreover, Medicaid represents a massive investment administered by the State of Ohio through ODJFS. In fact, it accounts for over a quarter of Ohio's budget. Medicaid fraud is an on-going probfem in the nation, including Ohio, and it has received robust attention from law enforcement. The Ohio General Assembly must be allowed to protect this massive taxpayer investment from corruption or its appearance. Given the taxpayers' large investment in Medicaid and the problem of Medicaid fraud in Ohio, it is completely plausible, and not at all · novel, to conclude that contributions from Medicaid providers to the enforcers of the Medicaid fraud statute prevents those enforcers from refraining to investigate or prosecute Medicaid providers, or at the least, prevents the appearance that this is occurring.
This is particularly true in light of the discretion trusted to the Attorney General and the County Prosecutors in investigating and prosecuting Medicaid fraud. Prosecutors in general have broad discretion when making decisions relating to their official duties. "[T]he decision
10

Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 15 of 25. PageID #: 724
'whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion. "'30
In addition to the general grant of prosecutorial discretion, the Attorney General has explicit statutory jurisdiction and broad discretion over civil and criminal prosecutions of Medicaid fraud in Ohio. The Attorney General maintains the discretion to determine who to investigate, whether an act is a criminal violation, or merely civil, and whether to prosecute the matter. County prosecutors, of course, have similar discretion in whether to investigate and prosecute.
Preventing the Attorney General and County Prosecutors from accepting campaign contributions from Medicaid providers avoids the inevitable appearance of corruption over whether a Medicaid provider was investigated, charged civilly or criminally, prosecuted or given a favorable plea deal based on whether it, or its owners, made a campaign contribution to the Attorney General or County Prosecutor when he or she was a candidate.
Despite the above, the Secretary expects Plaintiffs to argue that there is not a sufficiently important government interest because there is no evidence of actually corrupt practices involving Medicaid providers and the Attorney General or county prosecutors. In support of their motion for preliminary injunction, Plaintiffs ins~sted that without a scandal there could never be a sufficient government interest in preventing corruption or the appearance of corruption. This argument is simply wrong, and has been rejected by the Supreme Court.
30 US. v. Oldfield, 859 F.2d 392, 398 (6th Cir. 1988) (Quoting US. v. Batchelder, 442 U.S. 114, 124 (1979)); See also Bordenkircher v. Hayes (1978), 434 U.S. 357, 364 (holding that, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion").
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Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 16 of 25. PageID #: 725
In Nixon, the respondents made a similar argument that Missouri failed to justify the invocation of the state's interests with empirical evidence of actually corrupt practices or of a perception among Missouri voters that contributions had a covertly corrosive influence. Nixon, 528 U.S. at 391. The Nixon Court explicitly rejected this argument stating that, "respondents [were] wrong in arguing that this Court has 'supplemented' its Buckley holding with a new requirement that governments enacting contribution limits must 'demonstrate that the recited harms are real, not merely conjectural."' !d. at 391-92. Invoking Nixon, the Supreme Court of Louisiana also rejected the argument that the government failed to show the perceived harms were real in concluding that the government had a sufficient statute banning campaign contributions by riverboat and casino industries to all state candidates. Casino Ass 'n of Louisiana v. Louisiana, 820 So. 2d 494, 506 (La. 2002), cert. denied, 537 U.S. 1226 (2003).
R.C. 3599.45 promotes a sufficiently important state interest because it prevents the actuality and appearance of corruption that would arise as a result of Medicaid providers contributing to the campaigns of candidates for Attorney General or County Prosecutor. This is a sufficiently important state interest under Buckley and its progeny. Consequently, this Court must conclude as a matter of law that R.C. 3599.45 furthers a sufficiently important state interest.
2. R.C. 3599.45 is closely drawn to advance the sufficiently important state interests of preventing corruption and the appearance of corruption
A contribution restriction need not be perfect to be closely drawn. Rather, a contribution restriction, such as the one at issue here, is closely drawn if it "do[es] not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates or political parties." Buckley, 424 U.S. at 29.
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In applying this standard, the Supreme Court has admonished that "'there is no scalpel to probe"' each possible contribution level. Randall v. Sorrell, 548 U.S. 230, 248 (2006). To that end, courts should not "second guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared." Nixon v. Shrink Missouri Gov 't PAC, 528 U.S. 377, 391 (2000) citing FEC v. National Right to Work Comm., 459 U.S. 197, 210 (1982). Courts should ordinarily defer to the "legislature's determination of such matters" because they "cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute's legitimate objectives." Randall, 548 U.S. 248. In practice, the legislature is better equipped to make su~h empirical judgments, as legislators have particular expertise in matters related to the costs and nature of running for office. Jd at 247-48. The legislature must be given "room to anticipate and respond to concerns about circumvention of regulations designed to protect the integrity of the political process." McConnell, 540 U.S. at 137.
R.C. 3599.45, only applies to Medicaid providers, and their owners, as contributors, and the enforcers of the Medicaid statute, as the recipients. It only prohibits contributions to candidates for offices that would prosecute Medicaid fraud. It does not prevent Medicaid providers, or their owners, from contributing to any other candidate for any other state or county office. It did not exclude employees of Medicaid providers, family members of owners of Medicaid providers or any other person who may otherwise be affiliated with a Medicaid provider.
R.C. 3599.45 does not infringe upon Medicaid providers' ability to make symbolic expressions of support, and it does not prevent Medicaid providers from participating in any other First Amendment activity in support of a candidate for Attorney General or County Prosecutor. For example, the statute does not prevent Medicaid providers from spending
13

Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 18 of 25. PageID #: 727
Wllimited amoWlts of their own money, independent of the campaign, on behalf of any candidate for Attorney General or CoWlty Prosecutor. Medicaid providers may solicit others to make contributions in support of any candidate for Attorney General or CoWlty Prosecutor; they can express support, in any way, for or against any candidate for Attorney General or CoWlty Prosecutor; they can volWlteer their time in support of any candidate for Attorney General or CoWlty Prosecutor; and they can make contributions to a political action committee, which supports any candidate for Attorney General or CoWlty Prosecutor.
The direct and symbolic expressions of support available to a Medicaid provider, outside of direct campaign contributions to candidates for Attorney General or CoWlty Prosecutor, are limitless. As correctly observed by this Court:
While Medicaid providers and their owners are limited in making direct financial contributions to a candidate for attorney general or coWlty prosecutor, they may exercise their rights of free association and speech Wlder the First Amendment by volWlteering their time to such candidates and may certainly 'enter into robust and effective discussion of candidates and campaign issues.' Thus, the statute does not prohibit Plaintiffs from supporting... [any] ... candidate for attorney general or coWlty prosecutor.31 The contribution ban of R.C. 3599.45 is merely a "merely marginal speech restriction," which does not materially limit the robust and effective discussion of candidates. FEC v. Beaumont, 539 U.S. 146, 162 (2003) ("restrictions on political contributions have been treated as merely 'marginal' speech restrictions ... because contributions lie closer to the edges than to the core of political expression"). Where, as here, the First Amendment is not burdened, beyond the marginal speech restrictions related to contribution limits, a court should not second guess the legislature as to the precise restrictions necessary to carry out the state's sufficiently important government interest.
31 Memorandum Opinion and Order, Doc. No. 24. 14

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Consequently, this Court must conclude that R.C. 3599.45 is closely drawn to advance the sufficiently important state interest of preventing corruption or an appearance of corruption.
Despite the above, Plaintiffs have previously argued that R.C. 3599.45 is not closely drawn because it acts as an outright ban on contributions and because it prohibits candidates from accepting contributions from so called de minimis owners of Medicaid providers. Each of these arguments fail.
Plaintiffs are incorrect in claiming R.C. 3599.45 is an "outright ban" because it does not prohibit Medicaid providers from contributing to the campaigns of a candidate for Attorney General or County Prosecutor through a Political Action Committee ("PAC"). In Beaumont, the Supreme Court upheld a federal campaign finance statute that banned corporations from contributing to federal elections?2 In determining that the statute was "closely drawn," the Court emphasized that the statutes challengers were "simply wrong in characterizing § 441 b as a complete ban." Beaumont, 539 U.S. at 162. The statute did not operate as a complete ban because, ''the section 'permits some participation of unions and corporations in the federal electoral process by allowing them to establish and pay the administrative expenses of [PACs] .. . The PAC option allows corporate political participation without the temptation to use corporate funds for political influence"' Id at 162-63 (quoting FEC v. National Right to Work Comm., 459
u.s. 197, 201 (1982)).
Applying this precedent, Plaintiffs are "simply wrong" in stating that the contribution limitation on Medicaid providers contained in R.C. 3599.45 operates as a complete ban.
32 2 U.S.C. § 441b(a) ("It is unlawful ... for any corporation whatever ... to make a contribution or expenditure in connection with [certain federal elections]) (statute held unconstitutional as applied to expenditures by Citizens Unitedv. FEC(2010), 130 S. Ct. 876).
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Plaintiffs are free to contribute to a candidate for Attorney General or County Prosecutor through a PAC.
Assuming arguendo that the contribution limitation contained in R.C. 3599.45 is found to be an outright contribution ban on Plaintiffs, an outright ban does not prevent a contribution limitation from being closely drawn to a sufficiently important state interest. While Buckley recognized the existence of "some lower bound" for contribution limitations,33 Buckley dealt with contribution limitations for the entire electorate, not with a finite group of individuals that create a heightened risk of corruption. In addition, the Supreme Court has upheld a federal "ban on direct corporate contributions." Beaumont, 539 U.S. at 154. This demonstrates that laws banning contributions by specific groups may be closely drawn to a sufficiently important state interest. Moreover, several courts have held that a complete ban on contributions can be closely drawn to advance a sufficiently important government interest.
Invoking Buckley, the Supreme Court of Louisiana upheld a state statute which prohibited campaign contributions by the riverboat and casino industries to all candidates. Casino Ass 'n ofLouisiana, 820 So. 2d at 509. Distinguishing the statute from ''the across-theboard restrictions involved in Buckley and Nixon," the Court held that the contribution limit, although a complete bar as to the casino industry, did not fall below the outer limits of contribution regulation because it would "have a very minimal effect on the candidates' ability to amass the resources necessary for effective advocacy." 34 !d. at 503. The Court also emphasized
33 See Randall, 548 U.S. at 248. 34Plaintiffs have not alleged or set forth any evidence indicating that candidates for Attorney General or County Prosecutors' offices cannot amass the resources necessary to run for office. Moreover, candidates have successfully run for those offices since R.C. 3599.45 became effective in 1978. As such, R.C. 3599.45 does not prevent candidates from amassing the resources necessary for effective advocacy. See Nixon, 528 U.S. at 395-96 (finding contribution limits closely drawn because there was no evidence they "would have any dramatically adverse effect on the funding of campaigns and political associations and
16

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that the persons affected by the statute were free to engage in independent political expression
and make independent expenditures, just as the Plaintiffs are in this case.35
In another case, the Supreme Court of California upheld a complete ban on contributions
from lobbyists to candidates seeking office for which the lobbyist was registered to lobby:
Section 85702 is not unconstitutional simply because it bans, rather than limits, contributions by certain lobbyists. In other words, contrary to plaintiffs' assertions, a ban on contributions is not per se illegal. First, as set forth by the United States Supreme Court in Nixon the test for determining the validity of the amount of a limitation (here a complete ban) is whether the limit is 'so low as to impede the ability of candidates to amass the resources necessary for effective advocacy.' Plaintiffs have not argued here, nor is there any evidence to suggest, that candidates will be unable to seek office without personal contributions by registered lobbyists.36
The Supreme Court of Alaska has also upheld a contribution ban on lobbyists making
campaign contributions to legislative candidates outside the district in which the lobbyists were
eligible to vote. Alaska Civil Liberties Union, 978 P.2d at 619. The Court stated that the statute
was closely drawn because the restraint did not foreclose lobbyists from engaging in political
speech. "For example, [they] may also participate in and contribute to groups - including
political parties- which may contribute to any legislative candidate."37
The Fourth Circuit Court of Appeals has also rejected the notion that contribution bans
are unconstitutional per se, stating, "[c]ourts simply are not in the position to second-guess a
legislative determination as to the need for prophylactic measures where corruption is the evil
feared." North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999).
that the limitations prevented the candidates...from amassing the resources necessary for effective advocacy."). 35 !d. at 509. 36 Institute of Governmental Advocates v. Fair Political Practices Comm. (Cal. 2001), 164 F. Supp. 2d 1183, 1191 (quoting Nixon, 528 U.S. at 397) (citations omitted). 37 Alaska Civil Liberties Union, 978 P.2d at 619.
17

Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 22 of 25. PageID #: 731
Plaintiffs have previously argued that R.C. 3599.45 is not closely drawn because it prohibits candidates from accepting donations from anyone with even a "de minimis" ownership interest in a Medicaid provider. This argument not only fails, but Plaintiffs should be barred from making it.
The traditional rule is that, "a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." New York v. Ferber, 458 U.S. 747, 767 (1982) (citing Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973)); See also United States v. Raines, 362 U.S. 17, 21 (1960) (holding that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional").
There is no evidence that any of the Plaintiffs even have an ownership interest in a Medicaid provider, with the exception of Dr. Lavin. Dr. Lavin's ownership interest in Advanced Pediatrics is 100%. Plaintiffs clearly are not the hypothetical de minimis owners that they claim may exist. As a result, Plaintiffs cannot argue that R.C. 3599.45 is not closely drawn on the ground that it may apply to de minimis owners of Medicaid provider, and this Court should not consider any such arguments in relation to whether the statute is closely drawn.
Even if the Court does consider Plaintiffs' arguments related to so called de minimis owners of Medicaid providers, it would not change the conclusion that R.C. 3599.45 is closely drawn. Every owner of a Medicaid provider would have some financial interest in preventing the Medicaid provider from being investigated or prosecuted. If the Attorney General or a county prosecutor was deciding whether to investigate or prosecute an owner of a Medicaid
18

Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 23 of 25. PageID #: 732
provider, who contributed to their campaigns, an appearance of corruption would arise regardless of the person's ownership level in the Medicaid provider. Further, several minority stakeholders in a Medicaid provider, rather than the majority owner, could contribute to the campaign of an Attorney General or county prosecutor, and the same appearance of corruption would still arise if the Attorney General, or county prosecutor, acted favorably toward the majority owner.
Most importantly, this Court must not second guess the legislature as to the precise restrictions necessary to carry out the state's sufficiently important government interest. As eloquently stated by Magistrate Judge Vecchiarelli:
The court is ill-suited to determine the amount of an individual's interest in a Medicaid provider that would justify a limitation on the individual's campaign contributions. Such judgments based on independent findings of fact are properly the business of the legislative branch. Thus, the court cannot say that the legislature may properly limit contributions of persons who own a particular percentage of a Medicaid provider who earn a specific amount of income from their ownership interest.38 R.C. 3599.45 advances the state interest of avoiding corruption or its appearance arising from Medicaid providers, or their owners, contributing to the campaigns of candidates for Attorney General or County Prosecutor without preventing to any material degree the discussion of candidates and issues. It is limited to those with a financial stake in avoiding the prosecution of the Medicaid provider (the provider itself or its owners) for Medicaid fraud, and the enforcers of the Medicaid Fraud statute. Under the circumstances, this Court must not second guess the legislature as to the precise restrictions necessary to carry out the state's sufficiently important government interest. Consequently, this Court must conclude that R.C. 3599.45 is closely drawn to advance the sufficiently important state interest of preventing corruption or an appearance of corruption.
38 Report and Recommendation, Doc. No. 17. 19

Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 24 of 25. PageID #: 733
III. CONCLUSION For the reasons set forth above, the Secretary respectfully requests that this Court grant
his motion for summary judgment in his favor as to all claims within Plaintiffs' Complaint because there is no genuine issue of material fact that R.C. 3599.45 does not violate the United States Constitution as a matter of law.
Respectfully submitted, MAGUIRE & SCHNEIDER, LLP
Is/ Karl H. Schneider
Karl H. Schneider (0012881) Mark R. Meterko (0080992) 250 Civic Center Drive, Suite 500 Columbus, Ohio 43215 Telephone: (614) 224-1222 Facsimile: (614) 224-1236 khschneider@ms-lawfirm.com mmeterko@ms-lawfirm.com Special Counsel to Ohio Attorney General Attorneys for Defendant Jon Husted, in his official capacity as Ohio Secretary ofState
CERTIFICATION PURSUANT TO LOCAL RULE 7.1(0 Pursuant to Local Rule 7.1 (f), undersigned counsel certifies that the case has been assigned to the standard track. Undersigned counsel further certifies that the Court has granted an extension of the page limit to thirty pages. This Memorandum adheres to the page limitations set by the Court.
Is/ Karl H. Schneider
Karl H. Schneider (0012881) Mark R. Meterko (0080992)
20

Case: 1:10-cv-01986-DCN Doc #: 51 Filed: 03/16/11 25 of 25. PageID #: 734
CERTIFICATE OF SERVICE I hereby certify that, on March 16, 2011 the foregoing Motion for Summary Judgment was filed with the Clerk of Courts using the CMIECF system, which will send notification of such filing to the following:
Subdoh Chandra, Esq. Donald Screen, Esq. The Chandra Law Firm 1265 W. 6th Street Suite 400 Cleveland, Ohio 44113 J. Michael Murray, Esq. Raymond V. Vasvari, Jr., Esq. Berkman, Gordon, Murray & Devan 55 Publi~ Square Suite 2200 Cleveland, Ohio 44113
Is/ Mark R. Meterko Mark R. Meterko (0080992)
21

 
 Case: 1:10-cv-01986-DCN Doc #: 72 Filed: 05/17/11 1 of 2. PageID #: 3025

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Arthur Lavin, M.D., et al., Plaintiffs, v.
Jon Husted, in his official capacity as Ohio Secretary of State,
Defendant.

)

CASE NO. 1:10 CV 1986

)

)

JUDGE DONALD C. NUGENT

)

)

)

ORDER

)

)

)

)

)

This matter is before the Court on the Motion of Non-Parties Richard Michael DeWine, J.B. Hadden, and Custodian for Records for Mike DeWine For Ohio to Quash Subpoenas. (ECF #70). The subpoenas at issue were served on or about May 2, 2011 and ordered the recipients to appear at a summary judgment hearing scheduled in the captioned case on May 18, 2011 with a laundry list of documents. However, the limited discovery that was requested and approved in this action was to be completed by March 31, 2011. That deadline was extended at the request of both parties in a Joint Motion to extend Discovery for the limited purpose of taking Fed. R. Civ. P. 30(b)(6) depositions. Discovery is now closed.
Moreover, as both parties have moved for summary judgment, they assert that there are no genuine issues of material fact. Rule 56 does not contemplate an evidentiary hearing in support or opposition of summary judgment. Rather, parties are to support their factual positions by:
citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits

Case: 1:10-cv-01986-DCN Doc #: 72 Filed: 05/17/11 2 of 2. PageID #: 3026

or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials... Fed. R. Civ. P. 56(c)(1)(A). Accordingly, no evidence will be taken or received at the oral argument on Wednesday, May 18, 2011. Rather, counsel for each side will be limited to 30 minutes to present their arguments in support of their motions for summary judgment. For these reasons, as well as the reasons cited by the Non-Parties in their Motion, the Motion of Non-Parties Richard Michael DeWine, J.B. Hadden, and Custodian for Records for Mike DeWine For Ohio to Quash Subpoenas (ECF #70) is granted. IT IS SO ORDERED.

DATED:_May 16, 2011______

__/s/Donald C. Nugent____________ DONALD C. NUGENT UNITED STATES DISTRICT JUDGE

2

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Arthur Lavin, et al.,
Plaintiffs, vs.
Jon Husted, in his official capacity as Ohio Secretary of State,
Defendant.

)

Case No. 1: 10 CV 1986

)

)

JUDGE DONALD C. NUGENT

)

)

)

MEMORANDUM OPINION

)

)

)

This matter is before the Court on the Parties’ Cross Motions for Summary Judgment.
(ECF #51-Defendant’s Motion; ECF #52- Plaintiffs’ Motion). The motions are now fully
briefed and the Court has heard oral argument from counsel on the pending motions. For the
reasons that follow, Plaintiffs’ Motion for Summary Judgment (ECF #52) is denied and
Defendant’s Motion for Summary Judgment (ECF #51) is granted.
Factual and Procedural Background1
Plaintiffs, who are Ohio physicians and Medicaid providers2, filed this action on
1
The statements of facts in the Court’s Memorandum Opinion on Plaintiffs’ Motion for A Preliminary Injunction and the Magistrate Judge’s Report and Recommendation on the same Motion issued earlier in these proceedings are incorporated herein by reference.
2
The names of the Plaintiffs are Arthur Lavin, M.D., Jason Chao, M.D., Michael Devereaux, M.D., Patricia J. Kellner, M.D., Jerone Liebman, M.D., Eric R. Schreiber, M.D., Constance D. Magoulias, M.D., Peter A. Degolia, M.D., and Nathan R. Beachy, M.D. All of the Plaintiffs claim to be Ohio Medicaid providers who serve Medicaid patients, as authorized by the Ohio Department of Job and Family Services. (Compl. at ¶¶3-11) From Plaintiffs’ declarations, it appears that only Dr. Lavin has an ownership interest in a Medicaid provider. Specifically, Dr. Lavin is the 100% owner of Advanced Pediatrics, which is a Medicaid provider. (2nd Lavin Dec.

September 3, 2010, seeking a declaratory judgment that Ohio Rev. Code § 3599.45 violates the
First and Fourteenth Amendments to the United States Constitution and an injunction barring
Defendant3, the Secretary of State, from enforcing § 3599.45 against candidates for attorney
general or county prosecutor to whom Plaintiffs wish to make campaign contributions.
The Ohio General Assembly adopted Senate Bill 159 in 1978 which barred Medicaid
providers from fraudulently claiming payments for ostensible services and provided for the
investigation and prosecution of Medicaid fraud. Included in Senate Bill 159 was the provision
at issue here which provides in relevant part:
(A) No candidate for the office of attorney general or county prosecutor or such a candidate’s campaign committee shall knowingly accept any contribution from a provider of services or goods under contract with the department of job and family services pursuant to the medicaid program of Title XIX of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, or from any person having an ownership interest in the provider. . . .
(B) Whoever violates this section is guilty of a misdemeanor of the first degree.
Ohio Rev. Code § 3599.45.
Plaintiffs allege that they contacted the campaign office of Ohio Attorney General
Richard Cordray in July 2010 to ask how Plaintiffs might make a donation to his campaign for
re-election. The campaign office told Plaintiffs that it could not accept campaign contributions
from Plaintiffs because they provided services to patients insured by Medicaid. Plaintiffs also
at ¶2)
3
The current Secretary of State Jon Husted, was substituted for Jennifer Brunner, who held the office of Secretary of State when this action was filed. The Secretary has been sued in his official capacity, as the Ohio Secretary of State, who is the chief elections officer of Ohio and is charged with enforcing the State’s election laws. Ohio Rev. Code § 3501.04.
2

discovered that Cordray’s campaign website also warns potential donors that it is not permitted to accept campaign contributions from Medicaid providers or from any person having an ownership interest in the provider. Plaintiffs filed this action two months later, asserting that their First Amendment rights have been violated and that they will suffer irreparable harm if Defendant is not enjoined from enforcing § 3599.45 so that they will be permitted donate to Mr. Cordray’s campaign (or any other candidate running for attorney general or county prosecutor) before election day in November, 2010.
This Court denied Plaintiffs’ Motion for a Preliminary Injunction finding that Plaintiffs failed to demonstrate a strong likelihood of success on the merits of their claim, and, without a finding of likelihood of success on the merits, irreparable injury could not be presumed. (See ECF #24) Specifically, the Court found that under the standard applicable in this instance announced in Buckley v. Valeo, 424 U.S. 1, 25 (1976) and its progeny, § 3599.45 is Constitutional so long as it is closely drawn to match a sufficiently important governmental interest. Based upon the evidence before the Court at that time, it was determined that the Secretary set forth a sufficiently important state interest behind §3599.45, the prevention of corruption or the appearance of corruption arising from Medicaid providers contributing to the campaigns of candidates for Attorney General or County prosecutor–the offices charged with enforcing the Medicaid fraud provisions against Medicaid providers. Further, the Court found that §3599.45 was closely drawn to match the state’s interest in preventing corruption or the appearance of corruption.
In making these findings, the Court noted: A contribution restriction, such as the one at issue here, is closely
drawn if it “do[es] not undermine to any material degree the potential for
3

robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates or political parties.” Buckley, 424 U.S. at 29. In applying this standard, the Supreme Court instructed that “we have ‘no scalpel to probe’ each possible contribution level. We cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute’s legitimate objectives. In practice, the legislature is better equipped to make such empirical judgments, as legislators have ‘particular expertise’ in matters related to the costs and nature of running for office.” Randall v. Sorrell, 548 U.S. 230, 248 (2006) (citations omitted). As such, courts should ordinarily defer to the legislature’s determination of such matters. Id.
The statute at issue here applies only to Medicaid providers, and their owners, as contributors and the enforcers of the Medicaid statute, as the recipients. It only prohibits direct contributions from Medicaid providers to candidates for offices that prosecute Medicaid fraud. It does not prevent Medicaid providers, or their owners, from contributing to any other candidate for any other state or county office. In addition, the statute does not limit contributions by employees or families of Medicaid providers. While candidates for attorney general or county prosecutor are prohibited by the statute from accepting direct financial donations from Medicaid providers and their owners, the Medicaid providers and owners may exercise their rights of free association and speech under the First Amendment by volunteering their time to such candidates and may certainly “enter into robust and effective discussion of candidates and campaign issues.” Thus, the statute does not prohibit Plaintiffs from supporting a candidate for attorney general or county prosecutor. Accordingly, the contribution ban of § 3599.45 is more properly described as a “merely marginal speech restriction,” which does not materially limit the robust and effective discussion of candidates. FEC v. Beaumont, 539 U.S. 146, 161 (2003)(“restrictions on political contributions have been treated as merely ‘marginal’ speech restrictions...because contributions lie closer to the edges than to the core of political expression”).
As the First Amendment has not been burdened beyond marginal speech restrictions related to contributions, this Court will not second guess the legislature as to the precise restrictions necessary to carry out the state’s sufficiently important government interest
ECF #24.
4

STANDARD OF REVIEW Summary judgment is appropriate when the court is satisfied “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The burden of showing the absence of any such “genuine issue” rests with the moving party: [A] party seeking sum mary judgment always bears the initial responsibili ty of informing the district court of the bassi for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and adm issions on file, together with affidavits, if any,’ which it believes dem onstrates the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56(c)). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence presented is “merely colorable” and not “significantly probative,” the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most
5

civil cases involving summary judgment, the court must decide “whether reasonable jurors could
find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id.
at 252. However, if the non-moving party faces a heightened burden of proof, such as clear and
convincing evidence, it must show that it can produce evidence which, if believed, will meet the higher standard. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmover. The nonmoving party may not simply rely on its pleadings, but must “produce
evidence that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995). FED. R. CIV. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as
an automatic grant of summary judgment, where otherwise appropriate. Id.
Though parties must produce evidence in support of and in opposition to a motion for
summary judgment, not all types of evidence are permissible. The Sixth Circuit has concurred
with the Ninth Circuit that “‘it is well settled that only admissible evidence may be considered
by the trial court in ruling on a motion for summary judgment.’” Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Fed. R. Civ. P. 56(e) also has certain, more specific requirements:
[Rule 56(e)] requires that affidavits used for summary judgment purposes be made on the basis of personal knowledge, set forth admissible evidence, and show that the affiant is competent to testify. Rule 56(e) further requires the party to attach sworn or certified copies to all documents referred to in the affidavit.
6

Furthermore, hearsay evidence cannot be considered on a motion for summary judgment. Wiley, 20 F.3d at 225-26 (citations omitted). However, evidence not meeting this standard may be considered by the district court unless the opposing party affirmatively raises the issue of the defect. If a party fails to object before the district court to the affidavits or evidentiary materials submitted by the other party in support of its position on summary judgment, any objections to the district court’s consideration of such materials are deemed to have been waived, and [the Sixth Circuit] will review such objections only to avoid a gross miscarriage of justice. Id. at 226 (citations omitted). As a general matter, the district judge considering a motion for summary judgment is to examine “[o]nly disputes over facts that might affect the outcome of the suit under governing law.” Anderson, 477 U.S. at 248. The court will not consider non-material facts, nor will it weigh material evidence to determine the truth of the matter. Id. at 249. The judge’s sole function is to determine whether there is a genuine factual issue for trial; this does not exist unless “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. In sum, proper summary judgment analysis entails “the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250.
Discussion The issues before this Court remain the same as the issues that were presented in
7

connection with Plaintiffs’ Motion for a Preliminary Injunction. Defendant asserts that § 3599.45 furthers a sufficiently important state interest because it prevents corruption and/or the appearance of corruption. Plaintiffs assert that Defendant has failed to produce adequate evidence of any corruption sufficient to support § 3599.45's ban on contributions by Medicaid providers.
Defendant also contends that § 3599.45 is closely drawn to advance the sufficiently important state interests of preventing corruption and the appearance of corruption. Plaintiffs argue that § 3599.45 is not closely drawn to further a sufficiently important governmental interest.
Finally, Plaintiffs argue that § 3599.45 is overbroad in that it prohibits contributions from those with even a de minimus ownership interest in a Medicaid provider. Defendant contends that the Court should not entertain Plaintiffs’ overbreadth claim because it is unwarranted in this situation.
The standard that courts apply to determine whether laws restricting campaign contributions and expenditures unconstitutionally impinge on a plaintiff’s rights of association and speech was established by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976) and its progeny. In Buckley, the Supreme Court held that contributing to political campaigns is an activity protected by the First Amendment’s guarantees of free association and free speech. Id. at 14-19. The Court noted that a contribution restriction impacts a plaintiff’s associational rights because “[m]aking a contribution, like joining a political party, serves to affiliate a person with a candidate.” Id. at 22. However, the Court also noted that “[a] limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal
8

restriction upon the contributor’s ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” Id. at 20-21. Thus, the Court held that a contribution limit, such as § 3599.45, will be found constitutional so long as it is “closely drawn” to match a “sufficiently important” governmental interest. Id. at 25.
Moving first to the issue of whether the Secretary has asserted a state interest sufficiently important to justify limiting campaign contributions, the Supreme Court has placed the evidentiary burden on the state to establish a sufficiently important interest. With respect to the amount of evidence required, the Court stated: “The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 391 (2000).
The Secretary asserts that Ohio’s limits on campaign contributions by Medicaid providers are justified by the State’s interest in preventing corruption and avoiding the appearance of corruption. The Supreme Court ruled in Buckley and in several cases thereafter that such an interest is sufficiently important to justify limits on campaign contributions. See Buckley, 424 U.S. at 26-29; see also Randall v. Sorrell, 548 U.S. 230, 247-49 (2006); McConnell v. FEC, 540 U.S. 93, 143-45 (2003) overruled in part by Citizens United v. FEC, 130 S.Ct. 876 (2010); Nixon, 528 U.S. at 388-95; California Medical Ass’n v. FEC, 453 U.S. 182, 194-95; Citizens against Rent Control v. City of Berkeley, 454 U.S. 290, 296-97 (1981). The Secretary has presented evidence to demonstrate that Medicaid fraud is an ongoing problem in Ohio. The Secretary has not demonstrated that Medicaid fraud in Ohio is any more or less a problem than it
9

is in the nation as a whole, although both sides agree that no other state has enacted a contribution limit similar to § 3599.45. The Secretary offers no evidence that corruption or the appearance of corruption between Medicaid providers and county prosecutors or the Ohio Attorney General was a particular problem at any time before, during, or after passage of SB 159. While the Supreme Court has “never accepted mere conjecture as adequate to carry a First Amendment burden,” Nixon, 528 U.S. at 392, the Court has also noted that corruption and the appearance of corruption are problems endemic in the American political system. Buckley, 424 U.S. at 26-29; Nixon, 528 U.S. at 388-89. Given the lack of novelty and high plausibility of the government interest asserted by the Secretary to justify Ohio’s campaign limits, the quantum of evidence necessary to satisfy the heightened judicial scrutiny in this case is relatively small. The Court finds that the Secretary has presented sufficient evidence regarding Medicaid fraud in Ohio and the roles of county prosecutors and the Attorney General in combating that fraud to carry his burden of demonstrating a sufficiently important governmental interest to justify limiting campaign contributions.
A closer question is whether § 3599.45 is closely drawn to advance the sufficiently important state interests of preventing corruption and the appearance of corruption. A contribution limitation need not be the most limited restriction possible in order to comply with the “closely drawn” requirement. A contribution restriction is closely drawn if it “do[es] not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates or political parties.” Buckley, 424 U.S. at 29. The Supreme Court has routinely admonished courts that
10

we have ‘no scalpel to probe’ each possible contribution level. We cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute’s legitimate objectives. In practice, the legislature is better equipped to make such empirical judgments, as legislators have ‘particular expertise’ in matters related to the costs and nature of running for office. Randall, 548 U.S. at 248 (citations omitted). As such, courts should ordinarily defer to the legislature’s determination of such matters. Id. See also, Nixon, 528 U.S. at 391 (A court should not “second guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared”). Plaintiffs assert that § 3955.45 is not closely drawn because it is a complete ban on contributions by Medicaid providers and owners to candidates for county prosecutor and attorney general and because it prevents a Medicaid provider from contributing to the campaign of a candidate for county prosecutor in all 88 Ohio counties rather than the county or counties where the Medicaid provider lives and works. While § 3599.45 places a ban rather than a limit on direct campaign contributions by Medicaid providers and their owners to candidates for county prosecutor and attorney general, it does not prevent Medicaid providers and their owners from making contributions to a Political Action Committee or political party that supports a candidate for county prosecutor or attorney general. Further, § 3599.45 does not place any limit on a family member or employee of a Medicaid provider or owner from contributing to a candidate for county prosecutor or attorney general and Medicaid providers and owners may solicit funds on behalf of candidates for county prosecutor or attorney general. Moreover, § 3599.45 does not infringe upon a Medicaid provider’s ability to make symbolic expressions of support or prevent any provider or owner from participating in any other First Amendment activity in support of a candidate for attorney
11

general or county prosecutor. As such, this Court determined that the contribution ban of § 3599.45 is more properly described as “merely [a] marginal speech restriction,” which does not materially limit the robust and effective discussion of candidates. FEC v. Beaumont, 539 U.S. 146, 161 (2003)(“restrictions on political contributions have been treated as merely ‘marginal’ speech restrictions...because contributions lie closer to the edges than to the core of political expression”). That finding remains the same. As the First Amendment has not been burdened beyond marginal speech restrictions related to contributions, this Court will not second guess the legislature as to the precise restrictions necessary to carry out the state’s sufficiently important government interest. Accordingly, the Court finds that § 3599.45 is closely drawn to advance the sufficiently important state interests of preventing corruption and the appearance of corruption.
Finally, Plaintiffs argue that even if the Court should find that § 3599.45 is closely drawn to advance a sufficiently important state interest, the statute’s prohibition on contributions from anyone with an ownership interest in a Medicaid provider is constitutionally overbroad. Specifically, Plaintiffs argue that by the plain language of the statute, “an ownership interest” means any ownership interest however infinitesimal. As such, Plaintiffs posit that a person who owns one share of a publicly held Medicaid provider such as Walmart or Target has an ownership interest in a Medicaid provider which would prevent them from being able to donate to the campaign of a candidate for county prosecutor or attorney general.
None of the Plaintiffs currently before the Court is a de minimus shareholder of a publicly held Medicaid provider and the Court has determined that application of § 3599.45 is constitutional as applied to them. Therefore, Plaintiffs would not traditionally have standing
12

under established prudential principles or Article III to challenge § 3599.45 on the ground that §
3599.45 is unconstitutional as applied to a de minimus shareholder of a publicly held Medicaid
provider. See New York v. Ferber, 458 U.S. 747, 767 (1982) ; Broadrick v. Oklahoma, 413 U.S.
601, 610 (1960) (The traditional rule is that a person to whom a statute may constitutionally be
applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.)4 As such, Plaintiffs ask the Court
to apply the overbreadth doctrine.
The First Amendment overbreadth doctrine is one of the few exceptions to the traditional
rule and must be justified by “weighty countervailing policies.” Ferber, 458 U.S. at 768 citing
United States v. Raines, 362 U.S. 17, 22-23 (1960). The overbreadth doctrine permits litigants
“to challenge a statute not because their own rights of free expression are violated, but
because . . . the statute’s very existence may cause others not before the court to refrain from
constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612. The Supreme
4
The Supreme Court noted that the traditional rule reflects two cardinal principles of our constitutional order: the personal nature of constitutional rights, McGowan v. Maryland, 366 U.S. 420, 429, 81 S.Ct. 1101, 1106, 6 L.Ed.2d 393 (1961), and prudential limitations on constitutional adjudication. In addition to prudential restraints, the traditional rule is grounded in Art. III limits on the jurisdiction of federal courts to actual cases and controversies. Federal courts have “no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ Ferber, 458 U.S. at 768 and n.20. (Citations omitted)
13

Court has cautioned courts to apply the overbreadth doctrine with great care and only in the most
egregious situations:
The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is “strong medicine” and have employed it with hesitation, and then “only as a last resort.” Broadrick, 413 U.S., at 613, 93 S.Ct., at 2916. We have, in consequence, insisted that the overbreadth involved be “substantial” before the statute involved will be invalidated on its face.
Ferber, 458 U.S. at 768- 769. The Court emphasized that “particularly where conduct and not
merely speech is involved, we believe that the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly legitimate sweep.” Broadrick, 413
U.S. at 615.
This case does not involve “pure speech.” It includes conduct that touches on free
speech and association. The Court has found that § 3599.45 is closely drawn to further a
sufficiently important government interest and is not unconstitutional as applied to these
Plaintiffs. Further, the Court has determined that § 3599.45 is at most a marginal speech
restriction and did not prevent Plaintiffs from exercising their rights of free association and
speech under the First Amendment or from entering into robust and effective discussion of
candidates and campaign issues. Accordingly, the alleged overbreadth of § 3599.45 is not
substantial enough to justify invalidating it based upon the overbreadth doctrine.
Conclusion
For the reasons set forth above, Plaintiffs’ Motion for Summary Judgment and Permanent
14

Injunction (ECF 52) is DENIED and Defendant’s Motion for Summary Judgment (ECF #51) is granted. This action is terminated.
IT IS SO ORDERED.

DATED:__July 22, 2011____

_Donald C. Nugent____ DONALD C. NUGENT UNITED STATES DISTRICT JUDGE

15

 
 CasCea: s1e:1: 01-1c-v3-90018986-DDoCcNumDeonct: #0:096111F1i3le9d9:47058/14F/1il2ed1: 0o8f /21.3/P2a0g1e2ID #P:a3g3e2:91
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0245p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ARTHUR LAVIN; JASON CHAO; MICHAEL W.
DEVEREAUX; PATRICIA J. KELLNER; JEROME LIEBMAN ERIC R. SCHREII3ER; CONSTANCE D. MAGOULTAS; PETER A. DEG0LIA; NATHAN
A. BEACHY,
Plaintiffs-Appellants,

No. 11-3908

V.
JON RUSTED, in his Official Capacity as Ohio Secretary of State,
Defendant-Appellee,
RICHARD MICHAEL DEWIM ; J.B. HADDEN;
MIKE DEWrNE FOR OHIO,
Intervenors,

1:10cv1986

THE OHIO STATE MEDICAL ASSOCIATION; OHIO OSTEOPATHIC ASSOCIATION; THE
ACADEMY OF MEDICiNE OF CLEVELAND &
NORTHERN OHIO,
Amici Curiae.
Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:10-cv-1986—Donald C. Nugent, District Judge.
Argued: July 25, 2012
Decided and Filed: August 3, 2012
Before: DAUGHTREY, KETHLEDGE, and DONALD, Circuit Judges.

COUNSEL
ARGUED: Subodh Chandra, THE CHANDRA LAW FIRM, LLC, Cleveland, Ohio, for Appellants. Richard N. Coglianese, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Subodh Chandra, Donald P. Screen, Sandhya Gupta, THE CHANDRA LAW FIRM, LLC, Cleveland, Ohio, for Appellants.
?-.YMpAQf V. V4SV4rI,Jr E1CftikW, ONj.i1iRy
‘ PVfl4, e1.ve1an4, o1o,

CasCea: s1e:1: 01-1c-v3-90018986-DDoCcNumDeonct: #0:096111F1i3le9d9:47058/14F/1il2ed2: 0o8f /21.3/P2a0g1e2ID #P:a3g3e3:02

No. 11-3908

Lavin, etal. V Husted

Page 5

for the State to demonstrate how its ban on contributions from contractors would help bring such scandals to an end. See id.
We have nothing of that sort here. When pressed to explain how § 3599.45
furthers the State’s interest in preventing corruption, the Secretary says that prosecutors have considerable discretion about whom to prosecute, that Medicaid fraud is a problem in Ohio (as it is elsewhere), and that, if prosecutors are permitted to accept contributions from Medicaid providers, they might choose not to prosecute contributor-providers that commit fraud. But the Secretary concedes that he has no evidence that prosecutors in Ohio, or any other state for that matter, have abused their discretion in this fashion. Indeed the Secretary concedes that he has no evidence at all in support of his theory that
§ 3599.45 prevents actual or perceived corruption among prosecutors in Ohio.
Meanwhile, the plaintiffs have evidence showing the contrary, in the form of affidavits from three former Ohio Attorneys General, each of whom says that “decision making in the Attorney General’s office regarding Medicaid fraud would not have been influenced by my campaign committee’s receipt of campaign contributions from individual
Medicaid providers or those with ownership interests in them.” (Petro Declaration at ¶ 5; Fisher Declaration at ¶ 5;im Declaration at ¶ 7.) The Secretary’s claim that § 3599.45 prevents corruption, therefore, is dubious at best.
What is even more clear, however, is that the contribution ban is not closely drawn. To be closely drawn, a law restricting campaign contributions must “avoid unnecessary abridgement of associational freedoms.” Buckley, 424 U.S. at 25. Here, as
discussed above, the theory behind § 3599.45 is that the Attorney General and county
prosecutors might choose not to prosecute campaign contributors who commit Medicaid fraud. But even if we were to accept this theory at face value, the ban is vastly more restrictive than necessary to achieve its stated goal. According to the State’s own statistics, there were over 93,000 Medicaid providers in Ohio in July 2009. That same year, Ohio investigated 316 reports of Medicaid fraud, prosecuted 97 people for Medicaid fraud, convicted 68, and completed 21 civil settlements. Which is to say that, in a one year period, only .003% of Ohio’s Medicaid providers—or 316 of them—were

 
 Case: 1:10-cv-01986-DCN Doc #: 96 Filed: 09/11/12 1 of 1. PageID #: 3341

UNITED STATES DfSTRJCT COURT NORTHERN DISTRICT Of OHIO EASTERN DIVISION

Arthur Lavin, M.D., et al.,
Plaintiffs, vs.
Jon Husted, in his official capacity as Ohio Secretary of State,
D efend a n t.

)

Case No. 1: 10 CV 1986

)

)

JUDGE DONALD C. NUGENT

)

)

)

JUDGMENT

)

)

)

Pursuant to the Mandate Order of the Sixth Circuit Court of Appeals in the captioned matter, the Court enters Judgment as follows:
( I) Ohio Rev. Code§ 3599.45 is declared unconstitutional in its entirety as violating the f irst and Fourteenth Amendments to the Constitution of the United States;
(2) A permanent injunction is entered against Defendant Secretary of State of Ohio Jon Husted in his official capacity, enjoining him from enforcing Ohio Rev. Code § 3599.45 against those candidates to whom named Plaintiffs in this case may elect to make campaign contributions, or from enforcing the statute against Plai ntiffs themselves.
Plaintiffs may petition the Court fo r attorneys ' fees and costs as prevailing parties under
42 U.S.C. § 1988, and move to tax costs under Fed. R. Civ. P. 54(b).
IT IS SO ORDERED.

DONALD C. NUGENT UNITED STATES DIST

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Arthur Lavin, et al.,
Plaintiffs, vs.
Jon Husted, in his official capacity as Ohio Secretary of State,
Defendant.

)

Case No. 1: 10 CV 1986

)

)

JUDGE DONALD C. NUGENT

)

)

)

MEMORANDUM OPINION

)

AND ORDER

)

)

This matter is before the Court on the Report and Recommendation of Magistrate Judge Nancy Vecchiarelli (ECF #127) on the Plaintiffs’ motion for attorney’s fees in the amount of $657,652.75 and expenses and costs in the amount of $7,792.93. (ECF #97) In her Report and Recommendation, Magistrate Judge Vecchiarelli proposes that the Plaintiffs’ Motion for fees and costs be granted with the following deductions:
1) $100,183.00 for exploratory work performed between July 1, 2010 through September 2, 2010, prior to plaintiffs’ signing the fee agreement;
2. $1,164.13 for costs incurred prior to September 2, 1010; 3. $10,463.75 to account for the reduced rate for work performed by Screen; 4. $164.00 for work done in Kilroy and improperly billed to the present case; 5. $1,120.00 due to the imprecision in block billing when attempting to account post hoc for time spent talking to the press; 6. $4,252.50 representing all attorneys’ fees requested for Mills and Hill; 7. $24,306.94 to reflect an across-the-board reduction of 25% for discovery related to third parties;

8. $60,972.13 to reflect an across-the-board reduction of 25% for appellate work; and
9. $386.77 due to unnecessary costs incurred as a result of Ms. Gupta’s travel to Cincinnati ($280.83) and the excessive cost of Mr. Chandra’s hotel room in Cincinnati ($105.94).
In sum, Magistrate Judge Vecchiarelli recommends that Plaintiffs be awarded a total of $454,635.53 in fees and $6,442.03 in costs for this litigation. Both Plaintiffs and Defendant have filed objections to the Report and Recommendation and have both filed Responses to the others’ objections.1 Plaintiffs have further filed a Reply in support of Plaintiffs’ Objections. In addition, a group of attorneys who perform contingency and/or fee-shifting work have filed a Motion for Leave Instanter to File an Amicus Curiae Brief in support of Plaintiffs’ Objections to the Report and Recommendation.2 Specifically, Plaintiffs object to all of the Magistrate Judge’s cuts except for cuts of $45,054.693 which they do not contest. Plaintiffs ask this Court to award total fees in
1
Prior to filing their Objections to the Report and Recommendation, Plaintiffs filed a Motion for Reconsideration of Part III of the Report and Recommendation. Magistrate Judge Vecchiarelli denied that Motion as being procedurally inappropriate.
2
The Motion for Leave to file Instanter (ECF # 133) is granted. The Court has reviewed the brief in connection with the other filings in this action.
3
Plaintiffs do not elucidate how they arrived at the specific amount of $45,054.69 in uncontested cuts made by Magistrate Judge Vecchiarelli, except to say that they do not dispute cutting the time charges related to correction and re-submission of their first appellate merit brief that was required by the Sixth Circuit Court of Appeals.
2

the amount of $612,598.06 and costs of $7,606.16.4 Defendant objects to the Report and
Recommendation because the recommended reductions do not go far enough to bring Plaintiffs’
fee request within the bounds of reasonableness. Defendant contends that the facts of this case
warrant a complete denial of fees, or at a minimum, significant further reductions.
Factual and Procedural Background
Plaintiffs, who are Ohio physicians and Medicaid providers5, filed this action on
September 3, 2010, seeking a declaratory judgment that Ohio Rev. Code § 3599.45 violates the
First and Fourteenth Amendments to the United States Constitution and an injunction barring
Defendant6, the Secretary of State, from enforcing § 3599.45 against candidates for attorney
4
Plaintiffs also filed a bill of costs (ECF #99) pursuant to Fed. R. Civ. P. 54(D)(1), Fed. R. App. P. 39(E), and 28 U.S.C. §§ 1920, 1921, 1923, 1914. The costs set forth in the Bill of Costs mirror the costs and expenses sought in Plaintiffs’ Motion for Attorneys fees and Expenses. (ECF #97). As all of those expenses have been addressed by the Magistrate Judge and this Court, Plaintiffs’ Bill of Costs (ECF #99) is now moot and will be terminated. Plaintiffs’ apparently do not object to the Magistrate Judge’s deduction of Attorney Gupta’s travel time for oral argument in the Sixth Circuit or her 25% reduction of Mr. Chandra’s hotel bill the night before oral argument. Thus, Plaintiffs’ new request for fees is for $7,606.16.
5
The names of the Plaintiffs are Arthur Lavin, M.D., Jason Chao, M.D., Michael Devereaux, M.D., Patricia J. Kellner, M.D., Jerone Liebman, M.D., Eric R. Schreiber, M.D., Constance D. Magoulias, M.D., Peter A. Degolia, M.D., and Nathan R. Beachy, M.D. All of the Plaintiffs claim to be Ohio Medicaid providers who serve Medicaid patients, as authorized by the Ohio Department of Job and Family Services. (Compl. at ¶¶3-11) From Plaintiffs’ declarations, it appears that only Dr. Lavin has an ownership interest in a Medicaid provider. Specifically, Dr. Lavin is the 100% owner of Advanced Pediatrics, which is a Medicaid provider. (2nd Lavin Dec. at ¶2)
6
The current Secretary of State Jon Husted, was substituted for Jennifer Brunner, who held the office of Secretary of State when this action was filed. The Secretary has been sued in his official capacity, as the Ohio Secretary of State is the chief elections officer of Ohio and is charged with enforcing the State’s election laws. Ohio Rev. Code § 3501.04.
3

general or county prosecutor to whom Plaintiffs wish to make campaign contributions. Plaintiff
Lavin asserts that he contacted the campaign office of Ohio Attorney General Richard Cordray in July 20107 to ask how Plaintiffs might make a donation to his re-election campaign. The
campaign office informed Dr. Lavin that it could not accept campaign donations from Plaintiffs
under the provisions of R.C. § 3599.45.
While the exact origin of this action is hazy, based upon the affidavits and filings
submitted to the Court, it appears that Dr. Lavin knew Attorney Chandra; that some discussions
regarding § 3599.45 may have occurred in April, 2010, at least between counsel; and, that counsel began billing time in June 2010.8 As of July 1, 2010, Dr. Lavin allegedly had contact
with the Chandra Law firm, who purportedly began a preliminary investigation regarding
whether §3599.45 was constitutional. This action was filed months later seeking immediate
injunctive relief before the November 2010 elections. Magistrate Judge Vecchiarelli held a
hearing on Plaintiffs’ Motion for a Preliminary Injunction and issued a Report and
Recommendation advising that the injunction be granted. After objections were complete, this
Court declined to adopt the Report and Recommendation. The parties, mainly Plaintiffs,
7
This was 1-2 months after counsel began billing time in this case. (ECF 97-3; 97-9)
8
It appears from billing records filed with this Court, that counsel began work on this issue in June, well before Dr. Lavin asserts that he contacted the Cordray campaign. This could lead to a somewhat cynical conclusion that counsel was merely scouring through campaign laws hoping to find an old one such as the statute at issue here to challenge in the hope of raking in overstated fees. Indeed, only one of the named plaintiffs even attempted to make a belated inquiry into donation, and that was only after speaking with counsel, raising the inevitable speculation that this action was derived mainly by counsel in order to garner fees and not from Plaintiffs’ frustrated desire to make a campaign contribution to Mr. Cordray.
4

conducted extensive discovery, much of it of questionable value, as the claim made by Plaintiffs is a facial challenge to the statute, and filed cross motions for summary judgment. Defendant’s Motion for Summary Judgment was granted and Plaintiffs’ was denied. Plaintiffs appealed to the Sixth Circuit. Plaintiffs’ counsel claimed to have expended hundreds of hours on the appeal, including: identifying and coordinating with amici; producing and endlessly editing merit briefs, including correcting and re-filing the first merit brief that was rejected by the appellate court for non-conformance with its rules; attending moot court practices for the oral argument; and, otherwise prepping for argument. The Sixth Circuit eventually reversed this Court’s ruling and remanded the case for entry of judgment in favor of Plaintiffs. Thereafter, on September 11, 2012, this Court entered judgment in favor of Plaintiffs, declared §3599.45 unconstitutional in its entirety, and enjoined enforcement of the statute. As Plaintiffs were the prevailing parties they now move pursuant to 42 U.S.C. § 1988 for attorneys’ fees, expenses, and costs.
Discussion Section 1988 provides in relevant part that a court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, in any action brought to enforce a provision of § 1983. 42 U.S.C. § 1988(b). The purpose of § 1988 is to ensure “effective access to the judicial process’ for persons with civil rights grievances. ” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)(citations omitted.) Nevertheless, “Congress and the Supreme Court have made it abundantly clear that the aim of [§ 1988] ‘is not for the purpose of aiding lawyers. The purpose of th[e] bill is to aid civil rights.’” Binta B. v. Gordon, 710 F.3d 608, 612 (6th Cir. 2013). (citations omitted). As such, it is the goal of the court to assure that lawyers are fairly compensated for prevailing in civil rights actions, especially on
5

behalf of plaintiffs who could not otherwise afford to pay an attorney to pursue their claim. That
does not mean, however, that lawyers should expect a windfall; to bill excessive hours beyond
what a paying client would permit; or, to be paid at a rate that exceeds the norm in their locality.
That is particularly true in cases such as this one where the Defendant is a state or local
government whose taxpayers will ultimately bear the burden of any fee award and the named
Plaintiffs are medical doctors presumably abundantly capable of paying for representation. This
is especially true where, as here, the Plaintiffs sought to make political monetary contributions to
an elected official who was barred by statute from accepting contributions from any entity that
the elected official had regulatory authority over.
In order to properly review and analyze a fee request under § 1988, this Court must
review the fee filings and all facts related to the fee filing, as well as the legal rationale set forth
in the fee sharing statute and the many cases interpreting the statute in order to determine first,
whether a fee award is appropriate in the given circumstances and second, what amount is
reasonable. The statute and corresponding case law interpreting this Court’s responsibility,
contemplates a fee application that is, at a minimum, accurate and trustworthy.9
9
Here, as will be discussed in greater detail at a later point in this Opinion, the fee application falls woefully short of being either accurate or trustworthy. And, as a result, the Defendant; the Magistrate Judge; and, this Court have been obligated to expend much more time and effort to decipher and study the application than would have been required with the submission of a fair and accurate fee application. For instance, Plaintiffs’ counsel failed to even add up the number of hours for each individual attorney they were requesting fees for. Rather, they submitted 121 pages of raw billing data without further grouping or completion of sub-totals of hours expended by each attorney or paralegal. As noted by Magistrate Judge Vecchiarelli, the Defense counsel spent considerable time and effort to add the numbers of hours billed by each person in Plaintiffs’ extensive filing. Magistrate Judge Vecchiarelli thereafter, made additional exhaustive and time consuming effort to analyze of the raw information provided by Plaintiffs. Finally, this Court has literally spent weeks trying to decipher the raw data submitted by Plaintiffs.
6

Moving first to the initial determination of whether this Court should exercise its discretion and award attorneys fees in this instance, the Defendant argues that the facts and circumstances of this case warrant a complete denial of fees. Specifically, Defendant asserts that this case constitutes one of the rare situations envisioned by the Supreme Court in Hensley v. Echart, 461 U.S. 424, 429 (1983), where “special circumstances would render an award [of attorneys’ fees] unjust.” Specifically, Defendant argues that Plaintiffs’ conduct in billing $101,183.00 for work done prior to the signing of a written fee agreement contravenes the clear mandate of Rule 1.5(c)(1) of the Ohio Code of Professional Conduct.10 Defendant further asserts that Magistrate Vecchiarelli’s recommendation to exclude all hours spent prior the “commencement of the Chandra Law Firm’s or Berkman’s agreement with plaintiffs to undertake this litigation,” while correct, is not sufficient to penalize Plaintiffs’ counsel for their unprofessional conduct or to deter similar conduct in the future. When coupled with the numerous other defects in Plaintiffs’ counsels’ fee request such as the errors in billing for time spent on a different case; billing for time spent on tasks that are not reimbursable such as talking to the press; charging excessive billing rates; engaging in imprecise block billing; and, seeking fees for an unreasonable amount of hours; Defendant concludes that these collective errors cast
The level of effort required to analyze this particular fee request is entirely beyond what the statute contemplates. 10Ohio Prof. Con. R. 1.5(c)(1) provides: Each contingent fee agreement shall be in writing signed by the client and the lawyer and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the payer in the event of settlement, trial, or appeal; litigation and other expense to be deducted before or after the contingent fee is calculated. The agreement shall clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.
7

doubt on the credibility of Plaintiffs’ counsels’ billing records and make a compelling case for a complete denial of fees.
While Defendant has highlighted the defects that the Magistrate Judge and this Court recognize in Plaintiffs’ counsels’ fee request, a complete denial of fees based upon a finding of special circumstances is a stringent sanction, “reserved for only the most severe situations.” Project Vote v. Blackwell, Case No. 1:06 CV 1628, 2009 WL 917737 at *4, (N.D. Ohio Mar. 31, 2009). Further, in the Sixth Circuit, the non-prevailing party bears the burden of making a “strong showing” of special circumstances sufficient to warrant denial of fees and costs to a prevailing party. Deja Vu of Nashville, Inc. v. Metro Gov’t of Nashville & Davidson Cty, 421 F.3d 417, 422 (6th Cir. 2005) (citation omitted). This is not a light burden. Indeed, the Sixth Circuit noted in McQueary v. Conway, 614 F.3d 591, 604 (6th Cir. 2010) that “we have never (to our knowledge) found a special circumstance justifying the denial of fees.” In Project Vote, the Defendant argued that the prevailing plaintiffs' request for fees and costs should be denied in its entirety, because the fee application—both on its face and with respect to repeated specific instances of double billings, inflated hours, improper charges, and exorbitant and unsubstantiated proposed hourly rates—should shock the conscience of the Court. The Court found that a complete denial of the fee request was inappropriate because plaintiffs’ counsel had obtained an excellent result in a short time frame and determined that a significant reduction in the fee request was sufficient in those circumstances. See also, Harkless v. Husted, Case No. 1:06 CV 2284, 2011 WL 2149179 at *12 (N.D. Ohio Mar. 31, 2011) (defendants’ request that court completely deny fees was not frivolous in the circumstances as many of plaintiffs’ counsels’ billing practices and the sheer size of the request raised questions, however defendant did not
8

meet burden of making a strong showing of “special circumstances” sufficient to justify denial of an award of any fees and costs.)
After very careful review, the Court narrowly agrees with Magistrate Judge Vecchiarelli in finding that the “special circumstances” identified by Defendant in this case do not justify a complete denial of fees and costs in this instance. Instead, any violation of Rule 1.5(c)(1) as well as the other deficiencies in the fee application have been adequately addressed by the significant reductions imposed by Magistrate Judge Vecchiarelli and then by this Court. The end result is a fee which this Court has determined is “reasonable” in these circumstances.
Moving on to the second part of the Court’s determination, i.e., what is a reasonable fee, Magistrate Judge Vecchiarelli’s Report sets forth the appropriate “lodestar” analysis and examines whether the hours sought by counsel, as well as the rates sought were reasonable. The Report further analyzes the twelve factors identified in Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) to determine whether the final fee award should be adjusted upwards or downwards. Magistrate Judge Vecchiarelli concluded that the Johnson factors “do not clearly warrant either an increase or a decrease in the lodestar amount except insofar as the court determines that the hours billed and the rates charged were reasonable.” (ECF #127 at 9) Using the Report and Recommendation as a starting point, this Court has also carefully examined the time keeping records submitted by Plaintiffs and has made its own lodestar analysis, including finding “reasonable” attorney rates as well as the number of hours that would be reasonable to prosecute this action.
The primary goal for the Court is ‘reasonableness’ under all the facts and circumstances fairly presented to the Court. “The primary concern in an attorney fee case is that the fee
9

awarded be reasonable.” Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)(citing Blum v. Stenson, 465 U.S. 886, 893 (1984)). Courts have also held that the hourly rate awarded should not be greater than required to encourage competent and experienced lawyers to undertake the representation, and should not produce a windfall to the attorneys. (Id.). This consideration is especially important when the Defendant subject to the fee-shifting award is a governmental entity. In such cases the cost of attorney’s fees will be borne by the government, and therefore, in actuality by the taxpayer. Therefore, it is essential that the reasonableness determination limits the fees awarded, both in hours and rates, in a manner that ensures the prevailing attorneys are sufficiently compensated for the necessary and reasonable work they performed, without reaping a windfall from premium pricing, overstaffing, or overzealous representation.
In order to determine a rate that is consistent with the goals of the fee-shifting statute, while remaining mindful that the fees assessed will in the end be paid by all taxpayers, the Court relied on the Ohio Bar Association’s report entitled “The Economics of Law Practice in Ohio: Desktop Reference for 2010” (hereinafter “Economics of Law”). This report was generated to “help in developing sound and equitable hiring and compensation policies” within Ohio. (Economics of Law, at 3). The Court finds that a rate based on the median fees charged by civil lawyers in the same geographic vicinity, adjusted for the size of the relevant law firm and the experience levels of the billing attorneys should satisfy the goal of providing reasonable fees that would be accepted by a sufficient number of competent, experienced lawyers in the field, thereby ensuring that civil rights litigants would have effective access to the judicial process.
The median hourly billing rate for all reporting civil attorneys was $200/hour, in 2009, with the median level of experience for reporting civil attorneys being eighteen years in practice.
10

(Id. at 4). Two hundred dollars an hour was also the median billing rate for a partner in a firm with 2-7 partners. (Id. at 24). Associates in a 2-7 partner firm had a median billing rate of $175/hour. (Id. at 24). The median hourly rate for attorneys in suburban Cleveland was $200/hour, while the Greater Cleveland area had a slightly higher median at $210/hour. Although there was no separate category for billing rates of attorneys in the civil rights practice area, the report did compare the average salaries for attorneys in these categories to the average salaries of other practitioners. For attorneys whose primary field of law is civil rights practice, the median annual income for full-time attorneys was $79,500, or about 12% lower than the reported salary of all full-time attorneys. (Id. at 13). This differential remained the same among lawyers in the top 25th percentile of the salary range. However, civil rights lawyers who had an income in the top 5th percentile, had an approximately 37% higher salary than the average fulltime practitioner in the same salary percentile. (Id. at 17). The mid-range billing rates for paralegals with five or more years of experience was between $81 and $90. (Id. at 25, 27). Further, up to 38.9% of reporting firms with 3-6 attorneys did not bill separately for the time spent by legal assistants. (Id. at 30).
The fees sought for the partners in this case exceed the rates charged by civil attorneys even in the 95th percentile of every category of firm size and experience level in Ohio as reported in the Economics of Law report. (Id. at 23). Mr. Screen’s rate exceeds every single billing rate listed in the report, and Mr. Chandra’s rate matches up with the top 95th percentile of fees charged in the greater Cleveland area, with Cleveland being the highest charging city listed in Ohio. Ms. Gupta’s rate also falls within the top 95th percentile of rates charged for someone with her years of experience. The Court does not question Mr. Chandra’s representation that he
11

bills these rates to paying clients, or that there may be other attorneys in the Cleveland area who
charge similar fees. However, the fee-shifting provisions of Section 1988, do not guarantee that
attorneys will be able to recover fees in the highest conceivable range charged in their
geographic vicinity, nor does it guarantee litigants that they will have free access to the highest paid lawyers in their city.11 Rather, a reasonable hourly rate is based upon the prevailing rates in
the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.12 Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).
It also bears noting, that lawyers who accept court appointments in criminal cases, and
are paid by the government to fulfill a constitutional duty to represent the accused, are currently
being paid only $125.00 per hour regardless of their level of experience, skill or reputation, or
the difficulty of the case. Even in death penalty cases, the most dedicated and experienced
attorneys, taking on the most profound responsibility known in the law, are limited to a
maximum hourly rate of $178.00. (See, Criminal Justice Act (CJA) as amended by the Judicial
Administration and Technical Amendments Act of 2010, enacted May 27, 2010). In addition,
each criminal case involving court appointed (and taxpayer funded) attorneys is subject to a case limit.13 The most generous limit applies to felony representations, which are capped at $9700.00.
11This is especially true when the question being litigated is of only moderate difficulty.
12
In this case, there is no evidence that Mr. Chandra’s skill, experience, and reputation exceed that of the attorneys who reported their fees in the Economics of Law report, nor is there any indication that this firm was chosen based on their stellar reputation in the field of election law. Rather, the lead Plaintiff, Dr. Lavin stated in his declaration that he knew Mr. Chandra through friends of friends, and through community activism work.
13
Exceptions may be made with proof that the case is “extended and complex” as defined in Section 230.23.40 of the Guidelines for Administering CJA and Related Statutes. This
12

Appeals are also capped at $6900.00. (Id.). The contrast between these cases which may

literally mean the difference between life and death, the most thorough deprivation of freedom

sanctioned under the law, and the instant case is as stark a difference as black and white or good

and evil. It is unfathomable to think that a persons’ life and liberty can be defended at a total

cost, including appeals, of under $17,000.00, while the attorneys in this case have sought in

excess of $660,000.00 from the government for a facial challenge to a thirty year old law that

was enacted to prevent corruption in election campaigns. Nonetheless, the Court remains bound

to consider the reasonableness of the fee request in the context of fees charged by other civil

lawyers in this geographic community.

In this case, based on the level of difficulty of the case, and the skill needed to

competently perform the legal service requested, and the billing rate ranges reported in the 2010

Economics of Law report,14 the Court finds that the appropriate and reasonable rates to be

awarded for each billing attorney are as follows:

DiTerro: Gupta: Hill: Mills: Screen: Chandra: Vasvari: Hedyt: Zorenko:

$87/hour $188/ hour $193/hour $193/hour $212/hour $212/hour $212/hour $75/hour $87/hour

case would not be in any way comparable to an “extended and complex” criminal case warranting additional attorneys’ fees.
14
The case began in 2010 so the billing rates addressed in this report are an appropriate comparison.
13

These rates were calculated starting with the median rate charged by all reporting civil
attorneys in Ohio, in all fields of expertise, with the same range of experience as measured by
the years since their graduation from law school. (Id. at 23). This median rate for Ohio was then
multiplied by 1.07 to represent the average premium paid in the Greater Cleveland area. (Id.).
The Court did not discount the rate based on the average 12% lower median rate charged by civil
rights lawyers. Paralegals were assessed a base rate of $81/hour based on the mid-range reported
by the Economics in Law report, and they were also given the 1.07 multiplier for the Cleveland
area.
The Court can neither determine whether the Chandra law firm would have represented
the Plaintiffs in this case for this lower hourly fee, nor can the Court determine whether the
Plaintiffs might have been willing and able to pay any additional premium out of their own
pocket in order to ensure they had one of the highest priced law firms on the case. Based on the
quantitative evidence available to the Court, however, there would undoubtedly have been a
sufficient number of competent, experienced attorneys who would accept the rates set forth by
the Court for a case of this nature.
Using the above listed hourly rates, if the Court were to accept that all hours billed in this case were reasonable and appropriate charges, the total fees would amount to $399,433.48.15
However, as set forth in the Report and Recommendation issued by Magistrate Judge
15
This number was calculated as follows: DiTerro’s rate of $87.00 times 3.5 hours, equals $304.50. Gupta’s rate of $188.00 times 987.85 hours, equals $185,715.80. Hill’s rate of $193.00 times 6.3 hours, equals $1215.90. Mills’ rate of $193.00 times 6 hours, equals $1158.00. Screen’s rate of $212.00 times 418.55 hours, equals $88,732.60. Chandra’s rate of $212.00 times 434.2 hours, equals $92,050.40. Vasvari’s rate of $212.00 times 118.4 hours, equals $25,100.78. Hedyt’s rate of $75.00 times 26.4 hours, equals $1980. Zorenko’s rate of $87.00 times 36.5 hours, equals, $3175.50.
14

Vecchiarelli, the number of hours spent by the Plaintiffs’ attorneys in this case were well beyond

reasonable. The Court agrees with many of the cuts proposed by Magistrate Judge Vecchiarelli

in her Report and Recommendation and for the reasons set forth therein, the following cuts

should be taken from the submitted fee request:16

Pre-engagement fees - work performed prior to 9/2/1317 Work performed in the Kilroy case Time spent talking to the press (block billing) Time spent by Hill and Mills for “Moot Court” practice

$ 73,806.00 $ 84.80 $ 612.00 $ 2377.90

In addition, the Court agrees that the fees related to discovery in this case are excessive and unreasonable. This case involved a facial attack to a statute that had been in place since the 1970s. A facial attack challenges the statute without regard to the underlying facts of any individual’s case and without need for discovery as to how the statute was applied in any

16
The categories of cuts have been upheld, however, the amounts have been changed to account for the revised billing rates assigned by the Court, as well as to include charges by Mr. Vasvari that fall within the described categories of cuts but were not addressed in the Report and Recommendation.
17
Plaintiffs contend that it is appropriate to bill for work done prior to filing. This is not disputed. Rather, the Magistrate Judge, and this Court by adoption, have determined that it is not appropriate in this case to award fees for exploratory work performed prior to there being a representation agreement whether work is being directly billed to the client or is being performed on a contingency basis. In this case, based on Dr. Lavin’s declaration, not only was there no written agreement signed before September 2, 2010, there was no indication from the attorneys that a case could or would be filed until August 31, 2010 when the representation letter was sent to the Plaintiffs for signature. Plaintiffs bear the burden of showing that the fees were reasonably accrued in the litigation. In this case they have failed to convince the Court that there was any representation undertaken, let alone memorialized orally or in writing prior to the receipt and signing of the Aug. 31 contingency fee agreement. The Court emphasizes that it is not setting forth a new “bright line” rule as Plaintiffs’ counsel and amici fear or exacting a “financial punishment” for any alleged violation of Rule 1.5(c)(1). This ruling is limited to the unique facts and evidence submitted in this action.
15

particular case. Further, much of the discovery that was billed in this case was related to the preparation, service, and defense of third-party subpoenas that were untimely under the discovery schedule set forth by the Court, and did not seek to provide any information necessary to the facial challenge of the statute at issue.18 Further, even if this line of discovery had been timely implemented, the scope and subject matter of the discovery was unreasonable for a case of this nature. As Magistrate Judge Vechiarelli articulated in the Report and Recommendation, “the expenditure of more than 270 hours of time totaling $97,227.75 in fees . . . to discovery whether certain entities are Medicaid providers and whether those providers had substantial number of shareholders is clearly excessive and incredibly inefficient.” (ECF #127 at 37). This Court would go even further by characterizing this as a foray into exploratory discovery that led more to the discovery of new potential clients than facts necessary to the litigation of the case.19 In addition, the discovery attempts aimed at gaining information from Attorney General Mike DeWine, which were quashed by this Court, would have, at best, led to the establishment of a peripheral and largely irrelevant body of facts and line of argument. Thus, instead of adopting the twenty-five percent overall cut to fees sought for discovery, the Court has cut all fees attributed to discovery (primarily third-party discovery) that occurred after the discovery deadline had already passed. This amounts to a reduction of $18,250.60.
18 Included was a subpoena for Attorney General Mike DeWine which was quashed.
19
Before the Court ruled on the cross-motions for summary judgment, but after attempting to engage in untimely discovery (which was billed against the Defendants in this case) seeking information on the number of mutual funds holding stock in public corporations that serve as Medicaid providers, the Chandra law firm took on a separate but related case, challenging the same statute on behalf of a shareholder of a Medicaid provider. Kilroy v. Husted, Case No. 2:11-cv-145 (S.D. Ohio 2011). (ECF #127 at 4).
16

The Court also agrees that the time spent on the appeals briefing was excessive.
However, a twenty-five percent reduction, as suggested by the Magistrate Judge, is not sufficient
to address the scope of over-billing that occurred in this case. Because the issues on appeal were
exactly the same as those repeatedly briefed and argued in connection with the multitude of filings submitted at the trial level,20 and because each of those filings was drafted, edited, and re-
drafted an inordinate number of times below, the appellate brief should have required no more
than a minor re-working of the work that had already been completed at the trial level.
Nonetheless, the original attorneys fee request sought nearly $250,000.00 for the appellate work
alone. For this reason, the Court finds that at least a fifty percent reduction in the amount billed
on the appeal is appropriate. This leaves these attorneys with compensation for more than a
reasonable number of hours for the work that was required during this appeals process. Under
the newly calculated billing rates set forth above, this reduction amounts to $65,584.58.
The Court also finds that it is unreasonable to charge the Defendant for the following fee
submissions:
* Time spent seeking out amicus partners and assisting in the preparation of amicus briefs. This amounts to $6503.10.
* Time spent trying to expedite the appeal and argument schedules. This amounts to $ 937.10.
20
Prior to briefing of the appeal, Plaintiffs had filed a motion for preliminary injunction, prepared for a hearing on the preliminary injunction motion, filed objections to the Report and Recommendation, responded to Defendant’s objections to the R &R; filed a motion for summary judgment; responded to the Defendant’s motion for summary judgment; replied to the Defendant’s response to Plaintiffs’ motion for summary judgment; filed a motion to supplement the record; and, filed a reply in response to the objections to the motion to supplement the record. Each of these filings involved innumerable reviews, edits, corrections, and in some cases, re-filings or corrected filings.
17

* Time spent for Ms. Gupta to travel to Cincinnati for oral argument. This amounts to $2,011.60.21
* Charges submitted relating to the “moot court” presentation made to Mills and Hill. This amounts to $5,816.40.22
* Time spent amending appellate brief to give credit to co-counsel and asking the Court of Appeals to add co-counsel’s name to the Court of Appeals opinion. This amounts to $530.00.
* In excess of 65 hours of delegable non-professional and clerical work that was charged at attorney rates.23 Adjusting for the difference between Ms. Gupta’s rates and the paralegal rates, this amounts to a further reduction of $6625.60.
Finally, Plaintiffs seek far more than allowed for fees related to the preparation and filing
of their request for attorneys’ fees. Absent special circumstances, which are not present in this
case, the hours spent preparing and litigating the issue of attorneys’ fees are limited to 3% of the
total hours reasonably spent litigating the main case. Coulter v. Tennessee, 805 F.3d 146, 151
(6th Cir. Tenn. 1986); see also Northeast Ohio Coalition v. Sec’y of Ohio, 695 F.3d 563, 574-75
(6th Cir. Ohio 2012). Plaintiffs originally sought compensation for over 2000 hours of time
their attorneys spent on this case, including over 114.5 hours spent addressing the attorneys’ fees
21
The Report and Recommendation addresses why the costs associated with this travel are not reasonable. The same reasoning applies to the attorney fees charged in connection with this unnecessary travel. While it is completely reasonable to assume that Ms. Gupta would have an interest in attending the arguments, it is unreasonable to bill this as an expense to be paid by the Defendant when she was not actually participating in the appellate argument.
22
For the same reasons that it was unreasonable to bill time spent by Mills and Hill, it is not reasonable to allow billing for the time spent by the other attorneys preparing to present their moot court case to Mills and Hill.
23
Attorney’s fees are not recoverable for performing tasks that are “easily delegable to non-professional assistance.” Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942 (3rd Cir. 1995); Spegon v. Catholic Bishop, 175 F.3d 544, 553 (7th Cir. 1999).
18

request.24 This would have resulted in additional attorney’s fees in the amount of nearly $38,000
just for submitting a request for fees.
Even had all of the submitted hours been reasonably billed, the hours attributable to the
fee request would have been more than double the allowable amount. The Court has determined,
under the particular circumstances of this case, at the very most, only approximately 740 hours
are reasonably compensable for work on the main case. Therefore, the time spent preparing and
filing the attorneys’ fees request was nearly 92.3 hours more than is allowed under the 3% limit
imposed by the Sixth Circuit. This means that the original request related to the preparation of a
fee request was nearly eighty percent higher than is allowed under the law. The Court must, therefore, further reduce the amount of attorneys’ fees awarded by an additional $17,972.66.25
Taking all of the above deductions into account, the total billing amount under the
lodestar calculation would be $198,321.14. However, this does not end the Court’s inquiry into
the reasonableness of the fees to be awarded. “Upon determining the lodestar, a district court
also has discretion to decide whether an upward or downward adjustment is warranted in order
to reach a reasonable fee award.” Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 Fed.
24
Plaintiffs’ counsel notes that, at the appropriate time, he will be submitting a motion seeking fees and costs for the time expended litigating their fees and costs. (ECF #138, fn. 61) However, as noted herein, Plaintiffs have already submitted 9 pages of time sheets dedicated to billing for preparation of their fee requests. (ECF #97-3, pp.112-12) This already exceeds the 3% cap by a wide margin. Accordingly, no further submissions will be considered.
25
Approximately 72% of the work attributable to the attorneys’ fee request was performed by Ms. Gupta at an allocated rate of $188.00 per hour. The remainder was billed by Mr. Screen, Mr. Vasvari, or Mr. Chandra, who have been allocated a rate of $212.00 per hour.
19

Appx. 496, 499-500 (6th Cir. 2011)(citing Geirer v. Sundquist, 372 F.3d 784, 792(6th Cir. 2004)). The Court may consider the following factors when determining whether an adjustment is appropriate:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Hensley v. Eckerhart, 461 U.S. 424, 430 n.3, 103 S.Ct. 1933, 76 L. Ed. 2d 40 (1983)(citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The evaluation of these factors is meant to ensure that the awarded fees “are adequate to attract competent counsel, but ... not produce windfalls to attorneys” and will compensate the attorneys in the same manner that they would be compensated by a fee-paying client.” Id. at 430 n.4. The amount of reasonable time and labor required was addressed to some degree in the discussion explaining the appropriate number of hours allowed under the lodestar calculation. Blocks of time that were categorically overcharged have been addressed, but the Court has also found numerous instances in which the Plaintiffs’ attorneys spent additional unwarranted time addressing filing errors, rule violations, requests for extensions of time, and briefing limits that are not appropriately billed to a government defendant in a fee-shifting case. (See, e.g., ECF #30, 36, 48, 50, 52, 61, 63, 64, 65, 68, 77, 90, 94, 118, 119, 129). In addition, this case did not require the amount of time and labor Plaintiffs poured into the discovery process in order to effectively address the legal question at hand. Indicative of the fact that the question raised was
20

to be determined as a matter of law, without heavy reliance on factual evidence, neither Plaintiffs nor Defendant presented any testimony at the preliminary injunction hearing, nor did they seek admission of any evidence other than what had been attached as exhibits to the briefs, despite having engaged in over three months of preliminary research and discovery. (ECF #16).
Having spent days upon days combing through the billing entries to quantify the deductions required under the lodestar analysis, the Court did not find an additional entry-byentry review would be justified to find the precise amount of time spent addressing each additional or other unnecessary discovery and filings. Further, having reviewed the entries previously, the Court was aware that even if undertaken, such a review would not be effective in achieving this goal due in large part to the block billing methods and general descriptions used by the attorneys in recording their time. These numerous instances of excessive and unnecessary time spent, however, do weigh in favor of an additional downward adjustment based on the Johnson factors.
The difficulty of the case and the skill required to do it properly also weigh in favor of a downward adjustment. This case was a facial attack on a long-established statute which was enacted to prevent election fraud.26 (ECF #1 ¶ 19, 25, 51). While there may not have been any cases directly on point factually, the legal principles were well established and there is an abundance of case law addressing the constitutional arguments raised by the Plaintiffs. The case involved a series of repetitive arguments at the preliminary injunction stage, the summary judgment stage, and on appeal. It involved a question of pure law and did not require the degree
26
Both the Complaint and the Court of Appeals opinion make clear that the issues here involved whether the statute could survive strict scrutiny, and whether it was overbroad. (ECF #1, 88). As alleged in the Complaint, these are facial attacks to the statute.
21

of overzealous investigation, strategizing, and unending drafting and re-drafting that was performed by Plaintiffs’ attorneys. As indicated in the lodestar analysis above, while Plaintiffs had every right to hire an attorney who would leave no stone unturned; explore and investigate every conceivable nuance of the case; engage in excessive and overbroad discovery practices; run down every false lead; endlessly edit and repeatedly re-draft each document filed; and, who would charge the highest reported rates in the state of Ohio; the Civil Rights fee-shifting statute was not meant to pass such excesses on as costs to a losing Defendant. Further, when that Defendant is the government, and the fees will eventually be borne by all taxpayers, it would be fiscally unconscionable for this Court to award fees so clearly in excess of what is necessary to competently address the issue in the case and to encourage competent counsel to accept such cases in the future.
Preclusion of employment is also not a factor weighing in favor of Plaintiffs. This case should have involved, at the very most, only about 740 hours of work on the main case, stretched over more than two years. In a firm of four people, this equals less than eight hours a month of reasonably necessary work per person. In fact, even if every hour billed by the firm had been reasonable, it would have averaged out to only about 21 hours a month per person. Unlike a discovery laden case being prepped for lengthy trial, this is not the type of intensive work that should have precluded the attorneys from taking on other cases and addressing other matters. Further, by taking on the Kilroy case mid stream in this litigation, the Chandra firm should have been able to capitalize on the similarities of the two cases, thereby reducing the effort needed to advance the interests of each.
With regard to the type of fee agreement reached in this case, the Court finds that there is
22

absolutely no evidence or indication that these Plaintiffs would have agreed to pay the rates or
hourly charges submitted by these attorneys if this were not a fee-shifting case, even if they had
the means to pay for representation. These Plaintiffs are not the typical civil rights Plaintiffs
seeking redress for physical or monetary harm, who have no access to funds that could pay for
representation. These Plaintiffs are physicians who were purportedly seeking to donate sums of
money to forward a politician’s election campaign. (ECF #2-1). Further, there is no actual
evidence in the multitude of filings submitted in this case indicating that any of these Plaintiffs,
other than Dr. Lavin, ever intended to donate money. (ECF #2-1).27 Of the more than 50
declarations filed in connection with the Summary Judgment motion, there were no affidavits or
declarations from any Plaintiff other than Dr. Lavin addressing a desire or attempt to donate
money to Mr. Cordray’s campaign.28 Of the over forty declarations filed in connection with the
fee request, there were no affidavits or declarations from any Plaintiff other than Dr. Lavin.
Dr. Lavin began speaking with attorneys in April, 2010 (ECF #127 at 9); he knew Mr.
Chandra through friends and through civic activism. (ECF #117-12). The attorneys began
billing in June (Vasvari - ECF #97-9)) and July (The Chandra firm - ECF # 97-3). Dr. Lavin did
27
The Complaint, and Dr. Lavin’s affidavits state that he wished to contribute to Mr. Cordray’s campaign, and that the other Plaintiffs did too. However, there is no actual evidence that the other Plaintiffs ever sought, or intended to contribute to the campaign. Dr. Lavin’s declaration cannot be taken as evidence as to the other Plaintiffs’ state of mind (including their intent, desire, or understanding relating to campaign contributions). (ECF #2-1; 117-12). It is undisputed, however, that Mr. Cordray’s campaign posted information that indicated it would not accept contributions from Medicaid providers, in compliance with R.C. 3599.45.
28
There was an affidavit filed by Plaintiff Mr. Schreiber, but it did not state that he ever desired to or attempted to donate to any campaign, nor that he was harmed in any way by the statute being challenged. (ECF #53-5).
23

not actually attempt to donate any money until after they had agreed that they would look into the case without any cost to him or the other Plaintiffs. (ECF #127). Further, Dr. Lavin specifically stated that he did not know if these attorneys would file a case on his behalf until he received the engagement letter at the end of August. (ECF #117-12). Rather, he understood that the attorneys would look into whether a Complaint even could be filed, without cost to him. (ECF #117-12).
The Plaintiffs contend that this case was accelerated and condensed due to time limitations created by the pending election. This Court finds, however, that the consideration of time limitations also weighs in favor of a downward adjustment to the attorney fees in this case. The Plaintiffs’ attorneys filed this case on September 3, 2010 and a Motion for Preliminary Injunction was filed the next day. (ECF # 1,2 ). This was less than two months before the election related to the campaign at issue in the case.
The statute, at issue, however, was part of Amended Senate Bill 159, which was passed in 1978. (ECF #1, ¶19, 25). As stated above, Dr. Lavin began speaking with attorneys in April, and the attorneys started tracking time spent on the case in early June. The billing records show that a Complaint was being drafted at the beginning of July, 2010. Therefore, it appears that any time constraints imposed by the November 2010 election could have easily been alleviated by filing the case prior to September. It appears that Plaintiffs were aware of the problem no later than April of 2010, and had they been serious about their desire to overturn the statute and contribute to Mr. Cordray’s campaign, they, along with their lawyers, should have filed something as soon as possible to ensure the issue could be resolved not only before the election, but while the donations could still have some positive effect on the campaign. Had this been
24

done, the Defendants would have had a full opportunity to respond and the Court could have had time to rule on an expedited schedule without need for the filing for a preliminary injunction. This would have eliminated hours of unnecessary work and would have resulted in a more reasonable overall cost for this litigation.
The remaining Johnson factors also fail to provide any support for Plaintiffs’ position that the fees requested in this case were reasonable and that any reduction would be unfair. There was no monetary award to be recovered in this case. Although the results obtained were good, in that the statute was found unconstitutional on appeal, many of the tangential arguments made, which were developed at an immense cost in terms of hours spent, were unsuccessful and unnecessary. Further, there is no evidence that this case was undesirable, or that other attorneys, who may have had lower billing rates and a more concise approach to this limited question of law, would not have been willing to take the case for a lesser fee. There is also no evidence as to the nature and length of the attorneys’ relationship with these clients other than an indication that Dr. Lavin was an acquaintance, and a friend of a friend of Attorney Chandra. Further, there is no evidence that any of the attorneys had a direct relationship with any of the other Plaintiffs, even through the pendency of the this litigation.
Plaintiffs do cite to a multitude of cases in which courts have awarded higher hourly rates than this Court is willing to award in this case. While the Court does not hold that higher rates should never be awarded, under the circumstances of this case the fee request is excessive, unwarranted and overreaching. Many of the cases cited by Plaintiffs involved Defendants who either did not contest the fee request or who came to a negotiated award amount without the Court’s intervention. Further, as government funding at all levels of government is leading to
25

increased taxes and fiscal crises, it is imperative that this Court review fee requests that will ultimately be borne by the taxpayer with a renewed level of scrutiny. In doing so, the Court must find a balance between satisfying the goals of the fee-shifting provisions in the civil rights statutes, and overburdening the governmental defendant with fees and charges that produce an unnecessary and unwarranted windfall to the Plaintiffs’ attorneys. By carefully examining the median fees of competent attorneys in the area; by prohibiting the charging of extreme premium rates in a fee-shifting case; and by ensuring that all hours billed actually provided added value to the representation; this goal can be achieved without affecting the availability of willing and competent counsel in such cases.
Other factors have also been noted and considered in the decision to impose a downward adjustment to the fees awarded in this case. The Court has noted in its review of the billing records, that the Chandra law firm’s invoice improperly added $5 to $20 per entry through improper calculations to many if not all of the entries ending in a fifteen minute increment. It appears that these entries were rounded up to .3 hours, rather than being calculated as .25 hours. This resulted in overbilling in at least the hundreds of dollars range, and likely reaching into the thousands. While the Court did not check each and every entry to see if this occurred throughout the entire 121 pages of time entries, it appeared in each instance throughout a random sampling of over twenty entries taken from various pages in the billing invoice. Other calculating errors, which also favored the attorneys, were found as well, although not as consistently.
In addition, as set forth in the Magistrate Judge’s Report and Recommendation, the original fee request contained numerous other errors and questionable billing practices that inured to the benefit of the Plaintiffs’ attorneys. These included but are not limited to: recording
26

of time spent in a different litigation; recording time under the wrong dates; the use of imprecise block billing; billing for unnecessary travel expenses; excessive and largely unnecessary or irrelevant lines of discovery; billing attorney rates for purely clerical work; billing for corrections caused by filing errors and failure to follow court rules; and, billing for time spent speaking to the press. These collective errors and misjudgments resulted in numerous instances of over billing, and cast doubt on the accuracy and reliability of the Chandra firm’s billing records in general. Such practices also lend support to the Court’s decision to impose a downward adjustment of the fee award in this case.
Finally, the Court has also factored into the post-lodestar analysis the fact that the Defendant in this case is a governmental entity, and the award will ultimately be borne by the taxpayers of the state (including the Plaintiffs themselves). When exercising its discretion to award fees that will be charged to a governmental entity, the Court is and must be the guardian of the public fisc. This role, of course, cannot overshadow the Court’s responsibility to be a fair and impartial arbiter of the questions presented, but it does require the Court to give some consideration to the taxpayers who become in essence an unwitting, affected party to the action. To be faithful to these obligations, the Court exhaustively and painstakingly reviewed every aspect of this fee application to arrive at an award that is not only fair to all parties, but also reasonable in light of the unique facts and circumstances of this case.
The fee request originally submitted was “grossly exaggerated and absurd” considering the type and quality of work that would have been sufficient to provide justice to the litigants in this case. Under such circumstances courts have held that courts have the authority to deny fees in their entirety. See, M.G. v. Eastern Regional High School Dist., 2009 U.S. Dist. LEXIS 98631
27

at *10 (D. N.J.)(quoting Hall v. Borough of Roselle, 747 F.2d 8385, 842 (3d Cir. 1984)). An argument can be made that such a sanction would be supportable under the facts of this case, based on all of the considerations set forth above. Nonetheless, the Court finds that under the unique circumstances of this case a downward adjustment to the lodestar calculation would be a an adequate consequence. Neither the EAJA nor the Sixth Circuit case law mandates that Courts slave over a detailed analysis of each entry in every case, “particularly where analysis of other factors makes clear that the total award is not ‘reasonable.’” Crim v. Commissioner of Soc. Sec., 2013 U.S. Dist. LEXIS 35373, *10 (S.D. Ohio 2013). Rather courts routinely apply significant across the board percentage reductions where an adjustment is deemed warranted. Id.
Considering the outrageous nature of the original request; the plethora of billing errors and inconsistencies; the relatively straightforward nature of the issue being litigated; the moderate level of difficulty involved; the repetitive nature of the various filings; the excessive amount of editing and re-drafting undertaken; the numerous re-filings caused by inattention to court rules or orders; and, other excessive and inefficient practices outlined in the Report and Recommendation, the Court has made a reduction of 35 percent to the lodestar calculation of $198,321.14.29 This brings the final award for attorneys fees to $128,908.74. This is a number that the Court still considers higher than necessary for the work that was actually required in order to provide competent and effective representation on the issue, but finds that it is within the realm of reason for an ambitious approach to the case at hand.
29
Courts are allowed to make an across the board reduction based on a percentage of fees sought in order to account for multiple, miscellaneous, errors, inconsistencies, or improper billing practices as determined after a consideration of the Johnson factors. See, Hensley, 461 U.S. 424.
28

Conclusion For the reasons set forth above, the Report and Recommendation of Magistrate Judge Vecchiarelli (ECF #127) is Adopted in Part and Not Adopted in Part. Plaintiffs’ Motion for Attorneys’ Fees (ECF #97) is granted in the total amount of $128,908.74. The Court further adopts the reasoning of Magistrate Judge Vecchiarelli with regard to the recommended cuts to the costs requested by Plaintiffs’ attorneys with one exception. Plaintiffs’ request for the cost of serving a third party subpoena on Kroger Co., in the amount of $127.03, will be denied as it was served after the discovery cutoff date. Subtracting $127.03 from $6,442.03 results in a final cost award of $6,315.00. These costs are reasonable and supported by the evidence. Plaintiffs’ Bill of Costs is terminated as moot. (ECF #99) IT IS SO ORDERED.

DATED:__June 13, 2013___

__/s/Donald C. Nugent______ DONALD C. NUGENT UNITED STATES DISTRICT JUDGE

29

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0245p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

ARTHUR LAVIN; JASON CHAO; MICHAEL W. DEVEREAUX; PATRICIA J. KELLNER; JEROME LIEBMAN, ERIC R. SCHREIBER; CONSTANCE

X -

D. MAGOULIAS; PETER A. DEGOLIA; NATHAN -

A. BEACHY,

,>

Plaintiffs-Appellants, -

-

v.

-

-

JON HUSTED, in his Official Capacity as Ohio -

Secretary of State,

-

Defendant-Appellee,

-

-

RICHARD MICHAEL DEWINE; J.B. HADDEN;

-

MIKE DEWINE FOR OHIO,

-

Intervenors,

-

-

THE OHIO STATE MEDICAL ASSOCIATION;

-

OHIO OSTEOPATHIC ASSOCIATION; THE ACADEMY OF MEDICINE OF CLEVELAND &

-

NORTHERN OHIO,

-

Amici Curiae. N

No. 11-3908

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:10-cv-1986—Donald C. Nugent, District Judge.

Argued: July 25, 2012

Decided and Filed: August 3, 2012

Before: DAUGHTREY, KETHLEDGE, and DONALD, Circuit Judges.

_________________

COUNSEL
ARGUED: Subodh Chandra, THE CHANDRA LAWFIRM, LLC, Cleveland, Ohio, for Appellants. Richard N. Coglianese,OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Subodh Chandra, Dona ld P. Screen, Sandhya Gupta, THE CHANDRA LAWFIRM, LLC, Cleveland, Ohio, for Appellants. Richard N. Coglianese, Michael J. Schuler, OFFICE OF THE OHI O ATTORNEY

1

No. 11-3908

Lavin, et al. V. Husted

Page 2

GENERAL, Columbus, Ohio, for Appell ee. James A. King, PORTER WRIGHT MORRIS & ARTHUR LLP, Colum bus, Ohio, for Interve nors. Maureen P. Tracey, Diane E. Citrino, THACKER MARTINSEK,LPA, Cleveland, Ohio, for Amici Curiae.
_________________
OPINION _________________
KETHLEDGE, Circuit Judge. A n Ohio statute m akes it a crim e for state Attorney-General or county-pros ecutor candidates to accept cam paign contributions from Medicaid providers or any person with an ownership i nterest in a Medicaid provider. See Ohio Rev. Code § 3599.45. The plaintiff physicians here are all Medicaid providers who attem pted to contribute to Richard Cordray’s 2010 cam paign for reelection as Ohio Attorney General. When the campaign learned that the plaintiffs were Medicaid providers, however, it refused to accept their contributions, citing Ohio law.

The plaintiffs brought this lawsuit against Ohio’ s Secretary of State on September 3, 2010, claiming that § 3599.45 is unconstitutional, and seeking declaratory and injunctive relief . A fter discovery, both sides m oved for summary judgment. On July 22, 2011, the district court denied the plaintiffs’ m otion and gr anted the Secretary’s motion. The court reasoned that § 3599.45 was s upported by a general interest in “preventing corruption” and that the court should not “second guess” the Ohio Legislature’s means of furthering that interest. This appeal followed.
The Secretary’s first argum ent on appeal—and indeed, alm ost his prim ary one—is that the plaint iffs lack standing to bring this suit. To have standing, the plaintiffs must have suffered (i) an injury in fact that is (ii) fairly traceable to the statute and (iii) redressable by a favorable decision.Fednav, Ltd. v. Chester, 547 F.3d 607, 614 (6th Cir. 2008). Although the Secretary contests the first two elements in his brief, he abandoned those argum ents at oral argum ent. And for good reason: the plaint iffs suffered cognizable harm under the First Am endment when the Cordray cam paign

No. 11-3908

Lavin, et al. V. Husted

Page 3

refused their campaign contributions, see Buckley v. Valeo, 424 U.S. 1, 22 (1976); and that refusal was plainly traceable to the statute challenged here.
The Secretary argues, however, that the palintiffs’ injury—their inability to make campaign contributions because of § 3599.45—is nortedressable in a lawsuit against the Secretary in particul ar. The argum ent is that the plaintiffs have chosen the wrong defendant: only the Ohio Attorney General orlocal Ohio prosecutors can bring criminal charges for violations of § 3599.45, so the Secertary contends that a lawsuit against him cannot bring the plaintiffs any relief. But the Secretary does, in fact, have a meaningful role in the statute’s enforcement. The Secretary is Ohio’s “chief election officer” and must “investigate the administration of election laws . . . and report violations of election laws to the attorney general or prosecut ing attorney, or both, for prosecution.” Ohio Rev. Code §§ 3501.04, 3501.05(N)(1). Relatedly, hehas the power to “administer oaths, issue subpoenas, summon witnesses, compel the production of . . . evidence, and fix the time and place for hearing any matters relating to the administration and enforcement of the election laws.” Id. § 3501.05(DD). An injunction disabling the S ecretary from doing any of these things in connection with § 3599.45 would bring these plaintiffs meaningful if not total relief ; and a c oncomitant declaration that the statute is unconstitutional would handle the rest. The Secretary’s redressability argument is without merit.
That does leave the lingering question whet her this case is m oot, since the plaintiffs sought to contribute to a 2010 cam paign that is now over. W e conclude, however, that this case fits “within the established exception to mootness for disputes capable of repetition, yet evading review.” Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). The exception applies where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Spencer v. Kemna, 523 U.S. 1, 17 (1998) (internal quotation marks and brackets omitted). Both of these conditions are satisfied here: the plaintiffs could not fully litigate their claims before the end of the 2010 election cycle, and they

No. 11-3908

Lavin, et al. V. Husted

Page 4

have otherwise made clear that they wish to m ake the same kinds of contributions in future cycles. Cf. Carey v. Wolnitzek, 614 F.3d 189, 197 (6th Cir. 2010) (suit brought by a candidate in prior election not moot); Citizens for Clean Gov’t v. City of San Diego, 474 F.3d 647, 650 (9th Cir. 2007) (“election cases tend to fa ll within [the ‘capable of repetition, yet evading review’] exception”). We therefore have jurisdiction to decide this case. See Wis. Right to Life, 551 U.S. at 464.
Contribution limits “implicate fundamental First Amendment interests, namely, the freedoms of political expression and political association.” Randall v. Sorrell , 548 U.S. 230, 246 (2006) (plurality opinion)(internal quotation marks omitted); see also Buckley, 424 U.S. at 14–15. Consequently, contribution limits are permissible only if “the Government demonstrates that the limits are ‘closelydrawn’ to match a ‘sufficiently important interest.’” Randall, 548 U.S. at 247 (quoting Buckley, 424 U.S. at 25). We review de novo the district court’s determ ination that the Secretary has m ade this showing with respect to § 3599.45. Citizens for Tax Reform v. Deters, 518 F.3d 375, 379 (6th Cir. 2008).
The Secretary’s theory in support of the challenged contribution ban is that § 3599.45 prevents corruption. That interest, of course, is one that t he courts have recognized as important. See, e.g., Buckley, 424 U.S. at 25–26. But to demonstrate that a contribution limit furthers an interest important enough to suppress “the freedoms of political expression and political association[ ,]” Randall, 548 U.S. at 246 (internal quotation marks omitted), a state must do more than merely recite a general interest in preventing corruption. What Buckley requires is a demonstration, not a recitation.
What the state must do, instead, is demonstrate how its contribution ban furthers a sufficiently important interest. The State of Connecticut made this demonstration in Green Party of Connecticut v. Garfield, 616 F.3d 189 (2d Cir. 2010).At issue there was Connecticut’s ban on campaign contributions from state contractors to candidates for state office (among other challenged provisions). The ban was enacted “in response to a series of scandals in which contractor s illegally of fered bribes, ‘kick-backs,’ and campaign contributions to state officials in exchange for contracts with the state.” Id.

No. 11-3908

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Page 5

at 200. One of those scandals landed the State’s Governor in prison. Id. It was easy, then, for the State to demonstrate how its ban on contributions from contractors would help bring such scandals to an end. See id.
We have nothing of that sort here. W hen pressed to explain how § 3599.45 furthers the State’s interest in preventing corruption, the Secretary says that prosecutors have considerable discretion about whomto prosecute, that Medicaid fraud is a problem in Ohio (as it is elsewhere), and that, ifprosecutors are permitted to accept contributions from Medicaid providers, they might choose not to prosecute contributor-providers that commit fraud. But the Secretary concedes that he has no evidence that prosecutors in Ohio, or any other state for that m atter, have abused their discretion in this fashion. Indeed the Secretary concedes that he has noevidence at all in support of his theory that § 3599.45 prevents actual or perceived corruption am ong prosecutors in Ohio. Meanwhile, the plaintiffs have evidence showing the contrary, in the formof affidavits from three former Ohio Attorneys General, each of whomsays that “decision making in the Attorney General’s office regarding Medci aid fraud would not have been influenced by my campaign committee’s receipt of cam paign contributions from individual Medicaid providers or those with ownership interests in them .” (Petro Declaration at ¶ 5; Fisher Decl aration at ¶ 5; Mann Declaration at ¶ 7.) The Secretary’s claim that § 3599.45 prevents corruption, therefore, is dubious at best.
What is even m ore clear, however, is that the contribution ban is not clos ely drawn. To be closely drawn, a law restri cting campaign contributions must “avoid unnecessary abridgement of associational freedoms.” Buckley, 424 U.S. at 25. Here, as discussed above, the theory behind § 3599.45 is that the Attorney General and county prosecutors might choose not to prosecutecampaign contributors who commit Medicaid fraud. But even if we were to accept this theory at face value, the ban is vastly m ore restrictive than necessary to achieve its st ated goal. According to the State’s own statistics, there were over 93,000 Medicaid providers in Ohio in July 2009. That same year, Ohio investigated 316 reports of Medicaid fraud, prosecuted 97 people for Medicaid fraud, convicted 68, and completed 21 civil settlements. Which is to say that,

No. 11-3908

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in a one year period, only .003% of Ohio’sMedicaid providers—or 316 of them—were implicated in Medicaid f raud. And yet § 3599.45 prevents all 93,000 of Ohio’s Medicaid providers from c ontributing to ca ndidates for Attorney General or county prosecutor. Based on the numbers alone, therefore, the ban restricts “fundamental First Amendment interests,” id. at 23, much more broadly than necessary. And that is true even without considering the statute’s ban on contributions from “any person having an ownership interest in” a Medicaid provider. Ohio Rev. Code § 3599.45.
It is not hard to imagine what a less restrictive ban might look like. Such a ban might permit contributions from Medicaid providers with clean records, but ban them from providers penalized civilly for billing violations, see Ohio Rev. Code § 5111.03, or convicted criminally of Medicaid fraud under any state or federal law.See, e.g., Ohio Rev. Code § 2913.40. And of course Ohi o could have taken a qualitatively less restrictive approach, by limiting campaign contributions from Medicaid providers rather than banning them. See Green Party, 616 F.3d at 206 (“an outright ban on contributions is a drastic measure”).
We are mindful, of course, that the “closely drawn” standard is not a strictscrutiny standard. Legislators have some latitude in determining how to craft limits on campaign contributions, given that, as an empirical matter, courts are without a “scalpel to probe” where the contours of a m inimally restrictive lim it might lie. Buckley, 424 U.S. at 30. But neither can we stand by while the patient is euthanized. The statute here restricts the First Amendment rights of nearly 100,000 Medicaid providers who do not commit fraud, based on an attenuated concern about a relative handful of providers who do. There is no avoiding the conclusion that the contribution ban set forth in § 3599.45 is not closely drawn. The ban is therefore unconstitutional.
* * *
The district’s court’s judgment is reversed, and the case rem anded with instructions to enter judgment for the plaintiffs.

 
 FOR IMMEDIATE RELEASE Contact: Subodh Chandra 216.578.1700 (o); 216.965.6463 (m) Subodh.Chandra@ChandraLaw.com
Cleveland-Area Physicians Win Federal Appeal Seeking To Restore Their Free-Speech Rights
Plaintiffs Succeeded in Overturning Ohio Law That Forced Physicians to Give Up Free Speech In Return For Providing Health Care to Medicaid Patients
CLEVELAND, OHIO – Today, nine Cleveland-area physicians who provide health care to poor patients through the Medicaid program, and were blocked by state law from expressing their support for then-Ohio Attorney General Richard Cordray in his 2010 re-election race, won their appeal to the federal Sixth Circuit Court of Appeals seeking to restore their First-Amendment rights. The physicians were seeking to prevent Ohio’s chief elections officer, Secretary of State Jon Husted, from enforcing an Ohio statute that makes it a crime for Ohio attorney-general and county-prosecutor candidates to accept campaign contributions from physicians who serve Medicaid patients.
The Sixth Circuit’s decision reverses the decision of the U.S. District Court for the Northern District of Ohio.
The criminal statute at issue, Ohio Revised Code Section 3599.45, was adopted in 1978 and provides that “[n]o candidate for the office of attorney general or county prosecutor or such a candidate’s campaign committee shall knowingly accept any contribution from” any Medicaid provider “or from any person having an ownership interest in the provider.”
In a unanimous decision, the Sixth Circuit held, ”The statute here restricts the First Amendment rights of nearly 100,000 Medicaid providers who do not commit fraud, based on an attenuated concern about a relative handful of providers who do. There is no avoiding the conclusion that the contribution ban set forth in § 3599.45 is not closely drawn.”
The Court observed that the State’s own statistics for 2009 showed that there were nearly 100,000 Ohio Medicaid providers, and that that same year, “only 0.003% were implicated in Medicaid fraud.” “Based on the numbers alone, therefore,” the Court held, “the ban restricts ‘fundamental First Amendment interests’… much more broadly than necessary. And that is true even without considering the statute’s ban on contributions from ‘any person having an ownership interest in’ a Medicaid provider.” (That ban squelches the rights of hundreds of thousands if not millions of shareholders in Wal-Mart, Target, Walgreens, CVS, Rite-Aid, and other publicly traded providers of Medicaid pharmacy services.)
The Court noted that Secretary of State Husted “concedes that he has no evidence at all in support of his theory that § 3599.45 prevents actual or perceived corruption among prosecutors in Ohio” or that prosecutors have “abused their discretion” to prosecute Medicaid fraud. “The Secretary’s claim that § 3599.45 prevents corruption, therefore, is dubious at best,” the Court observed.
Subodh Chandra, lead counsel for the physicians, said, “Dr. Lavin and his physician colleagues are gratified that the Court affirmed their constitutional rights of free speech and association. While they will never get back the rights they lost in the 2010 election, at least from now on, doctors and others will have their free-speech rights restored.”

This case arose because the physicians were all long-time advocates of reforming health insurance to ensure better quality and access to healthcare for all Americans. They were pleased when President Obama signed the Patient Protection and Affordable Care Act into law in March 2010 because the law, among other things, bans insurers from discriminating against patients for pre-existing conditions and permitted people to stay on their parents’ policies until the age of 26.
According to lead plaintiff, Arthur Lavin, M.D., the physicians were all “baffled and dismayed” by thenOhio attorney general candidate Mike Dewine’s pledge to challenge health-insurance reform in federal court, but were pleased with Attorney General Cordray’s support for the act. The plaintiffs sought to support Cordray by contributing to his campaign. But they were shocked to learn that because they were Medicaid providers, Cordray’s acceptance of such contributions would be a criminal act.
“We wanted to contribute to keep Mike DeWine from trying to take us back to allowing insurers to discriminate against patients,” said Dr. Lavin, “and here we found we were being discriminated against ourselves, all because some of our patients’ bills are paid through the Medicaid program. It didn’t make any sense.”
The plaintiffs are Arthur Lavin, M.D., a Beachwood-based pediatrician with Advanced Pediatrics; Jason Chao, M.D., attending physician at University Hospitals and a professor of Family Medicine at Case Western Reserve University School of Medicine; Michael Devereaux, M.D., a neurologist at University Hospitals and Professor of Neurology at Case Western Reserve University School of Medicine; Nathan Beachy, M.D., a family physician at MetroHealth and Senior Instructor of Family Medicine at Case Western Reserve University School of Medicine; Patricia Kellner, M.D., a family physician with Eastside Family Practice who is also affiliated with University Hospitals; Jerome Liebman, M.D., a pediatric cardiologist at University Hospitals; Eric Schreiber, M.D., a diagnostic radiologist at the Cleveland Clinic; Constance Magoulias, M.D., a family physician at MetroHealth; and Peter DeGolia, M.D., a family physician with Foley Elder Health Center who is also affiliated with University Hospitals.
The federal suit, captioned Lavin, et al. v. Husted, was originally filed on September 3, 2010 against thenSecretary of State Jennifer Brunner in the U.S. District Court, Northern District of Ohio, Eastern Division. In addition to Subodh Chandra, Donald P. Screen and Sandhya Gupta of The Chandra Law Firm, LLC; and Raymond V. Vasvari, Jr. of Berkman, Gordon, Murray, and DeVan serve as co-counsel for the plaintiffs.
The Ohio State Medical Association, Ohio Osteopathic Association, and Academy of Medicine of Cleveland and Northern Ohio, represented by Maureen P. Tracey and Diane E. Citrino of Thacker Martinsek, LPA filed an amicus (“friend of the Court”) brief in support of the plaintiffs before the Sixth Circuit, pointing out that because many of Ohio’s physicians are Medicaid providers, their rights were also at stake in the suit.

 
 Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 1 of 21
Cat03,Standard,Termed,Vecchiar
U.S. District Court Northern District of Ohio (Cleveland) CIVIL DOCKET FOR CASE #: 1:10−cv−01986−DCN

Lavin et al v. Brunner Assigned to: Judge Donald C. Nugent Case in other court: 6th Circuit, 11−03908 Cause: 42:1983 Civil Rights Act
Plaintiff
Arthur Lavin

Date Filed: 09/03/2010 Date Terminated: 09/11/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Donald P. Screen Ste. 400 1265 West Sixth Street Cleveland, OH 44113 216−578−1700 Fax: 216−578−1800 Email: donald.screen@chandralaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Michael Murray Berkman, Gordon, Murray &DeVan 2200 Illuminating Bldg. 55 Public Square Cleveland, OH 44113 216−781−5245 Fax: 216−781−8207 Email: jmmurray@bgmdlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond V. Vasvari , Jr. Berkman, Gordon, Murray &DeVan 2200 Illuminating Bldg. 55 Public Square Cleveland, OH 44113 216−781−5245 Fax: 216−781−8207 Email: rvasvari@bgmdlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashlie Case Sletvold Chandra Law Firm Ste. 400 1265 West Sixth Street Cleveland, OH 44113 216−578−1700 Fax: 216−578−1800 Email: ashlie.sletvold@chandralaw.com ATTORNEY TO BE NOTICED
Sandhya Gupta Ste. 400 1265 West Sixth Street Cleveland, OH 44113 216−578−1700 Fax: 216−578−1800 Email: sandhya.gupta@chandralaw.com ATTORNEY TO BE NOTICED

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 2 of 21

Subodh Chandra Chandra Law Firm Ste. 400 1265 West Sixth Street Cleveland, OH 44113 216−578−1700 Fax: 216−578−1800 Email: Subodh.Chandra@chandralaw.com ATTORNEY TO BE NOTICED

Plaintiff Jason Chao

represented by Donald P. Screen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Michael Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raymond V. Vasvari , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashlie Case Sletvold (See above for address) ATTORNEY TO BE NOTICED

Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED

Subodh Chandra (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michael W. Devereaux

represented by Donald P. Screen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Michael Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raymond V. Vasvari , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashlie Case Sletvold (See above for address) ATTORNEY TO BE NOTICED

Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED

Subodh Chandra (See above for address)

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 3 of 21

ATTORNEY TO BE NOTICED

Plaintiff Patricia J. Kellner

represented by Donald P. Screen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Michael Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raymond V. Vasvari , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashlie Case Sletvold (See above for address) ATTORNEY TO BE NOTICED

Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED

Subodh Chandra (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jerome Liebman

represented by Donald P. Screen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Michael Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raymond V. Vasvari , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashlie Case Sletvold (See above for address) ATTORNEY TO BE NOTICED

Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED

Subodh Chandra (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Eric R. Schreiber

represented by Donald P. Screen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 4 of 21

Plaintiff Constance D. Magoulias
Plaintiff Peter A. DeGolia

J. Michael Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond V. Vasvari , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashlie Case Sletvold (See above for address) ATTORNEY TO BE NOTICED
Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED
Subodh Chandra (See above for address) ATTORNEY TO BE NOTICED
represented by Donald P. Screen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Michael Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond V. Vasvari , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashlie Case Sletvold (See above for address) ATTORNEY TO BE NOTICED
Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED
Subodh Chandra (See above for address) ATTORNEY TO BE NOTICED
represented by Donald P. Screen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Michael Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond V. Vasvari , Jr. (See above for address)

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 5 of 21

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashlie Case Sletvold (See above for address) ATTORNEY TO BE NOTICED

Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED

Subodh Chandra (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Nathan A. Beachy

represented by Donald P. Screen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Michael Murray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raymond V. Vasvari , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashlie Case Sletvold (See above for address) ATTORNEY TO BE NOTICED

Sandhya Gupta (See above for address) ATTORNEY TO BE NOTICED

Subodh Chandra (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Jennifer Brunner TERMINATED: 03/02/2011

represented by Karl H. Schneider Maguire &Schneider Ste. 150 1650 Lake Shore Drive Columbus, OH 43204 614−224−1222 Fax: 614−224−1236 Email: khschneider@ms−lawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark R. Meterko Maguire &Schneider Ste. 150 1650 Lake Shore Drive Columbus, OH 43204 614−224−1222

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 6 of 21

Fax: 614−224−1236 Email: mmeterko@ms−lawfirm.com ATTORNEY TO BE NOTICED

Defendant Jon Husted

represented by Karl H. Schneider (See above for address) ATTORNEY TO BE NOTICED

Mark R. Meterko (See above for address) ATTORNEY TO BE NOTICED

Michael J. Schuler Office of the Attorney General − East Broad Street State of Ohio 30 East Broad Street Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: schuler@occ.state.oh.us TERMINATED: 12/20/2012

Richard N. Coglianese Office of the Attorney General − Constitutional Offices State of Ohio 16th Floor 30 East Broad Street Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: richard.coglianese@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

Ryan L. Richardson Office of the Attorney General − Constitutional Offices State of Ohio 16th Floor 30 East Broad Street Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: ryan.richardson@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

Amicus Curiae W. Craig Bashein

represented by W. Craig Bashein Bashein &Bashein 35th Floor 50 Public Square Cleveland, OH 44113 216−771−3239 Fax: 216−781−5876 Email: cbashein@basheinlaw.com ATTORNEY TO BE NOTICED

Interested Party Richard Michael DeWine

represented by James A. King Porter, Wright, Morris &Arthur − Columbus 32nd Floor

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 7 of 21

41 South High Street Columbus, OH 43215 614−227−2051 Fax: 614−227−2100 Email: jking@porterwright.com ATTORNEY TO BE NOTICED

Interested Party Treasurer J.B. Hadden

represented by James A. King (See above for address) ATTORNEY TO BE NOTICED

Interested Party
Custodian of Records for Mike DeWine for Ohio

represented by James A. King (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/03/2010 09/04/2010
09/07/2010 09/07/2010 09/07/2010 09/08/2010 09/14/2010 09/16/2010 09/17/2010 09/17/2010

# Docket Text
1 Complaint for Declaratory Judgment, Preliminary−and−Permanent−Injunctive Relief, and Attormeys' Fees and Costs against Jennifer Brunner. Filing fee paid $ 350, Receipt number 0647−4274511. Filed by plaintiffs. (Attachments: # 1 Civil Cover Sheet, # 2 Summons) (Chandra, Subodh) (Entered: 09/03/2010)
2 Motion for preliminary injunction filed by plaintiffs. Related document(s) 1 . (Attachments: # 1 Exhibit Lavin, Arthur Declaration, # 2 Exhibit Cordray Contribution Form, # 3 Exhibit Enacted S.B. 159, # 4 Exhibit House &Senate Journal Minutes, # 5 Exhibit Analysis of SB 159, # 6 Exhibit SB 159 as passed by Senate, # 7 Exhibit Hearing Committee Minutes Mar 8, 1978, # 8 Exhibit Sen Meshel Declaration # 9 Exhibit R.C. 3517.13 (pre 2006), # 10 Exhibit Green Party v. Garfield, # 11 Exhibit Dispatch article Mar 9, 1978, # 12 Exhibit PD article Apr 25, 1978, # 13 Exhibit PM Hearing Committee MinutesFeb 15, 1978, # 14 Exhibit AM Hearing Committee Minutes Feb 15, 1978, # 15 Exhibit Hearing Committee Minutes Jan 11, 1978, # 16 Exhibit PD article Feb 16, 1978)(Chandra, Subodh) Modified text on 9/7/2010 (B,B). (Entered: 09/04/2010)
Judge Donald C. Nugent assigned to case. (C,BA) (Entered: 09/07/2010)
Random Assignment of Magistrate Judge pursuant to Local Rule 3.1. In the event of a referral, case will be assigned to Magistrate Judge Perelman. (C,BA) (Entered: 09/07/2010)
3 Original Summons and Magistrate Consent Form issued for service upon Jennifer Brunner. (Attachments: # 1 Magistrate Consent Form) (C,BA) (Entered: 09/07/2010)
Service by Clerk. Summons and Complaint addressed to Jennifer Brunner placed in U.S. Mail. Type of service: certified mail. Receipt # 70092250000340998972. (C,B) (Entered: 09/08/2010)
4 Waiver of Service Returned Executed by All Plaintiffs. Jennifer Brunner waiver sent on 9/7/2010, answer due 11/8/2010. filed on behalf of All Plaintiffs (Chandra, Subodh) (Entered: 09/14/2010)
5 Return of Service by Clerk by certified mail executed upon Jennifer Brunner on 9/13/2010, filed on behalf of All Plaintiffs (B,R) (Entered: 09/16/2010)
FILING ERROR − WRONG CASE− Partial filing fee Melvin Tucker (C,B) Modified on 9/17/2010 (C,B). (Entered: 09/17/2010)
Random Assignment of Magistrate Judge pursuant to Local Rule 3.1. In the event of a referral, case will be assigned to Magistrate Judge Vecchiarelli. (C,B) (Entered: 09/17/2010)

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 8 of 21

09/21/2010 09/23/2010 09/24/2010
09/24/2010 09/29/2010 09/30/2010 10/04/2010 10/04/2010 10/08/2010 10/08/2010 10/08/2010 10/12/2010
10/12/2010
10/13/2010
10/19/2010

6 Order referring case to Magistrate Judge Nancy A. Vecchiarelli for Preliminary Injunction Hearing to be held on October 7, 2010 at 9:30 a.m. re 2 Judge Donald C. Nugent on 9/21/10. (R,JM) (Entered: 09/21/2010)
7 Attorney Appearance of Karl H. Schneider and Mark R. Meterko by Mark R. Meterko filed by on behalf of Jennifer Brunner. (Meterko, Mark) (Entered: 09/23/2010)
Notice [non−document] of Telephone Conference set for 9/29/2010 at 09:30 AM before Magistrate Judge Nancy A. Vecchiarelli. Counsel for plaintiff will host the call and join in opposing counsel and this Court. Opposing counsel are responsible for informing counsel for plaintiff of the telephone number where he/she can be contacted for the conference call. Cellular telephones or other mobile devices are not an acceptable means of conferencing with this Court. (G,W) (Entered: 09/24/2010)
8 Notice of preliminary injunction hearing to be held on 10/7/2010 at 09:30 AM in Courtroom 10B before Magistrate Judge Nancy A. Vecchiarelli. The parties shall file briefs in support of their respective positions on or before 09/30/2010. These deadlines shall not be extended. (G,W) (Entered: 09/24/2010)
9 Minutes of proceedings before Magistrate Judge Nancy A. Vecchiarelli. Teleconference held 9/29/10. (Court Reporter: None.) Time: 15 minutes. (C,KA) (Entered: 09/29/2010)
10 Opposition to 2 Motion for preliminary injunction filed by Jennifer Brunner. (Meterko, Mark) (Entered: 09/30/2010)
11 Exhibit List for Hearing on Plaintiff's Motion for Preliminary Injunction filed by Jennifer Brunner. (Meterko, Mark) (Entered: 10/04/2010)
12 Notice Regarding Plaintiff's Exhibits and Witnesses to be Used in Preliminary−Injunction Hearing filed by All Plaintiffs. (Chandra, Subodh) (Entered: 10/04/2010)
13 Proposed Findings of Fact and Conclusions of Law filed by All Plaintiffs. (Chandra, Subodh) (Entered: 10/08/2010)
14 Proposed Findings of Fact and Conclusions of Law filed by Jennifer Brunner. (Meterko, Mark) (Entered: 10/08/2010)
15 Proposed Stipulation Regarding Timing of Objections and Responses filed by All Parties. (Chandra, Subodh) (Entered: 10/08/2010)
16 Minutes of proceedings before Magistrate Judge Nancy A. Vecchiarelli. Preliminary Injunction Hearing held on 10/07/2010. Neither plaintiffs nor defendants offered testimony or evidence additional to that submitted with the briefs. (Court Reporter: S. Perkins.) Time: 2 Hours 35 Minutes. Related document(s) 2 . (G,W) (Additional attachment(s) added on 10/15/2010: # 1 Attendance) (G,W). (Entered: 10/12/2010)
17 Report and Recommendation that 2 Plaintiffs motion should be granted and a preliminary injunction against enforcement of Ohio Rev. Code § 3599.45 should issue. By 15 stipulation of the parties, objections to this Report and Recommendation must be filed within 7 days after the party objecting has been served; Responses must be filed within three 3 days thereafter. Objections to RRdue by 10/19/2010; Responses due 10/22/2010. Magistrate Judge Nancy A. Vecchiarelli on 10/12/2010. (G,W) (Entered: 10/12/2010)
18 Motion for Refund of Fees Paid Electronically filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. Related document(s) 1 . (Attachments: # 1 Exhibit 1 − Statement)(Chandra, Subodh) (Entered: 10/13/2010)
19 Objection to Report and Recommendation filed by Jennifer Brunner. Related document(s) 17 . (Meterko, Mark) (Entered: 10/19/2010)

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 9 of 21

10/19/2010
10/20/2010 10/22/2010 10/22/2010 10/27/2010 10/27/2010 10/29/2010 11/08/2010 11/19/2010 11/29/2010 11/29/2010 12/03/2010
12/03/2010 12/07/2010

20 Objection to Magistrate Judge's Report and Recommendation filed by All Plaintiffs. Related document(s) 17 . (Attachments: # 1 Exhibit 1 − ODJFS Annual Report, # 2 Exhibit 2 − Medicaid Provider Rept, # 3 Exhibit 3 − Provider Directory − CVS search, # 4 Exhibit 4 − CVS 10K, # 5 Exhibit 5 − Provider Directory − Pharmacy, # 6 Exhibit 6 − U.S. v. CVS, # 7 Exhibit 7 − Press Release, # 8 Exhibit 8 − Ohio MCEC − Contact Us, # 9 Exhibit 10 − Molina Healthcare − Members, # 10 Exhibit 11 − Wellcare Annual Report) (Chandra, Subodh) (Entered: 10/19/2010)
21 Exhibit(s) Ex. 9 to Plaintiffs' Objections to Magistrate's Report and Recommendation filed by All Plaintiffs. Related document(s) 20 . (Chandra, Subodh) (Entered: 10/20/2010)
22 Response to Plaintiffs' Objections to the Magistrate Judge's Report and Recommendation filed by Jennifer Brunner. Related document(s) 17 , 20 . (Meterko, Mark) Modified to create an additional link on 10/25/2010 (B,B). (Entered: 10/22/2010)
23 Response To Defendants Objections To The Magistrate Judges Report And Recommendation filed by All Plaintiffs. Related document(s) 17 , 19 . (Attachments: # 1 Proposed Order) (Chandra, Subodh) Modified to create an additional link on 10/25/2010 (B,B). (Entered: 10/22/2010)
24 Memorandum Opinion and Order not adopting 17 Report and Recommendation and denying 2 plaintiff's motion for preliminary injunction. Judge Donald C. Nugent (C,KA) (Entered: 10/27/2010)
25 Motion for case management conference filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. Related document(s) 1 . (Chandra, Subodh) Modified text on 10/28/2010 (B,B). (Entered: 10/27/2010)
Order [non−document]granting Plaintiff's Motion for case management conference (Related Doc # 25 )to be held on 12/2/2010 at 9:30 AM at Chambers 15A before Judge Donald C. Nugent.(R,JM) (Entered: 10/29/2010)
26 Answer to 1 Complaint, filed by Jennifer Brunner. (Meterko, Mark) Modified text on 11/9/2010 (B,B). (Entered: 11/08/2010)
27 Joint Motion to excuse appearance at the December 2, 2010 Case Management Conference filed by All Parties. (Meterko, Mark) Modified text on 11/19/2010 (B,B). (Entered: 11/19/2010)
Order [non−document]granting Joint Motion to excuse appearance of Plaintiffs Arthur Lavin, et al and Defendant Jennifer Brunner at case management conference.(Related Doc # 27 ) Judge Donald C. Nugent on 11/29/10.(R,JM) (Entered: 11/29/2010)
28 Report of Parties' Planning Meeting , parties do not consent to this case being assigned to the magistrate judge, filed by Jennifer Brunner. (Meterko, Mark) Modified text on 11/30/2010 (B,B). (Entered: 11/29/2010)
29 Minutes of proceedings of Status Conference held on 12/02/10. Case is assigned to the Standard track. Discovery limited, discovery cut off date is 1/31/11. Any dispositive motion to be filed by 2/14/11; response due 3/14/11; reply, if any due 3/21/11. A hearing to be held on 3/30/2011 at 8:30 AM in Courtroom 15A before Judge Donald C. Nugent. Time: 20. (R,JM) (Entered: 12/03/2010)
Set Deadlines and Hearings Discovery due by 1/31/2011. Dispositive Motions due by 2/14/2011. (B,B) (Entered: 12/03/2010)
30 Unopposed Motion for extension of all dates consistent with those proposed in Rule 26(f) parties' planning report filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. Related document(s) 17 , 29 , 28 . (Chandra, Subodh) Modified text on 12/8/2010 (B,B). (Entered: 12/07/2010)

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 10 of 21

12/13/2010 12/23/2010 01/03/2011 01/03/2011 01/12/2011 01/28/2011 01/31/2011 01/31/2011 01/31/2011 01/31/2011 02/04/2011 02/04/2011

31 Marginal Entry Order denying Plaintiffs' Unopposed Motion to Change Deadlines. Signed by Judge Donald C. Nugent on 12/13/2010.(Related doc 30 )(B,B) (Entered: 12/13/2010)
32 Notice of Subpoenas filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. (Attachments: # 1 Exhibit 1 − Supboena to ODJFS, # 2 Exhibit 2 − Subpoena to Ohio Attorney General, # 3 Exhibit 3 − Subpoena to CVS Caremark Corp.)(Chandra, Subodh) (Entered: 12/23/2010)
33 Subpoena Returned Executed; served upon Custodian of Records for Ohio Attorney General Richard Cordray by US Certified Mail Return Receipt Requested on 12/31/2010 filed on behalf of Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber Related document(s) 32 . (Chandra, Subodh) (Entered: 01/03/2011)
34 Subpoena Returned Executed; served upon Custodian of Records for Ohio Dept of Job and Family Services by US Certified Mail Return Receipt Requested on 12/28/2010 filed on behalf of Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber Related document(s) 32 . (Chandra, Subodh) (Entered: 01/03/2011)
35 Subpoena Returned Executed; served upon Custodian of Records for CVS Caremark Corporation by Certified U.S. Mail return receipt requested on 1/1/2011 filed on behalf of Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber Related document(s) 32 . (Screen, Donald) (Entered: 01/12/2011)
36 Unopposed Motion for extension of Discovery And All Other Deadlines until 3/3/2011 filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. Related document(s) 29 . (Attachments: # 1 Exhibit 1 − 1.26.11 email Chanda to Tassie, # 2 Exhibit 2− 1.28.11 email Chandra to Griffith)(Chandra, Subodh) (Entered: 01/28/2011)
37 Subpoena Returned Executed; served upon CVS Caremark Corporation by Commercial Courier Service on 1/26/2011 filed on behalf of Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber (Gupta, Sandhya) (Entered: 01/31/2011)
38 Subpoena Returned Executed; served upon Target Corporation by Commercial Courier Service on 1/26/2011 filed on behalf of Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber (Gupta, Sandhya) (Entered: 01/31/2011)
39 Subpoena Returned Executed; served upon Walgreen Company by Commercial Courier Service on 1/26/2011 filed on behalf of Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber (Gupta, Sandhya) (Entered: 01/31/2011)
40 Subpoena Returned Executed; served upon Wal−Mart Stores, Inc. by Commercial Courier Service on 1/26/2011 filed on behalf of Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber (Gupta, Sandhya) (Entered: 01/31/2011)
Order [non−document]granting 36 Plaintiffs Unopposed Motion to Extend Deadlines until 3/3/2011. Judge Donald C. Nugent (R,JM) (Entered: 02/04/2011)
Set Deadlines and Hearings Discovery due by 3/3/2011. (B,B) (Entered: 02/07/2011)

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 11 of 21

02/11/2011 02/18/2011
02/18/2011
02/18/2011
02/22/2011
03/01/2011 03/02/2011 03/02/2011 03/02/2011 03/09/2011 03/10/2011 03/11/2011 03/16/2011 03/16/2011 03/16/2011

41 Notice. The hearing currently scheduled for March 30, 2011, (Related document 29 ) is rescheduled to 5/2/2011 at 09:15 AM in Courtroom 15A. Signed by Judge Donald C. Nugent on 2/11/2011. (K,K) (Entered: 02/11/2011)
42 (FILING ERROR) Subpoena Returned Executed; served upon Rite Aid Headquarters Corp. by commercial courier service on 1/31/2011 filed on behalf of Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber (Gupta, Sandhya) Modified to add filing error per held desk call on 2/22/2011. Attorney filed the wrong document and will refile (H,KR). (Entered: 02/18/2011)
43 Subpoena Returned Executed; served upon Rite Aid of Ohio, Inc. by commercial courier service on 1/31/2011 filed on behalf of Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber (Gupta, Sandhya) (Entered: 02/18/2011)
44 Subpoena Returned Executed; served upon Rite Aid Corporation by commercial courier service on 1/31/2011 filed on behalf of Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber (Gupta, Sandhya) (Entered: 02/18/2011)
45 Subpoena Returned Executed; served upon Rite Aid Headquarters Corp. by commercial courier service on 1/31/2011 filed on behalf of Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber (Gupta, Sandhya) (Entered: 02/22/2011)
46 Joint Motion for leave to Conduct Discovery Beyond the March 3, 2011 Discovery Deadline for the Limited Purpose of a 30(B)(6) Deposition filed by All Parties. (Schneider, Karl) Modified text on 3/1/2011 (B,B). (Entered: 03/01/2011)
Notice (non−document)of Status Conference re−set for 4/1/2011 at 9:30 AM in Chambers 15A before Judge Donald C. Nugent. (R,JM) (Entered: 03/02/2011)
47 Notice of Substitution of Party filed by Jennifer Brunner. (Meterko, Mark) (Entered: 03/02/2011)
Order [non−document]granting Joint Motion for leave to conduct discovery beyond the March 3, 2011 discovery deadline for the limited purpose of a 30(B)(6) deposition. (Related Doc # 46 ). Judge Donald C. Nugent (R,JM) (Entered: 03/02/2011)
48 Motion for leave to Exceed the Dispositive−Motion Page Limit Under Local Rule 7.1(F) filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. (Chandra, Subodh) (Entered: 03/09/2011)
49 Motion for leave to Exceed the Dispositive Motion Page Limit filed by Defendant Jon Husted. (Meterko, Mark) (Entered: 03/10/2011)
50 Marginal Entry Order Plaintiffs' Motion to exceed the dispositive−motion page limit is granted in part. Page limit increased from 20 pages to 30 pages. (Related Doc # 48 )Judge Donald C. Nugent(R,JM) Modified text on 3/14/2011 (B,B). (Entered: 03/11/2011)
Order [non−document]granting Defendants Motion to Exceed the Dispostive Motion Page Limit can not exceed 30 pages (Related Doc # 49 ) Judge Donald C. Nugent (R,JM) Modified on 3/16/2011 (R,JM). (Entered: 03/16/2011)
51 Motion for summary judgment filed by Defendant Jon Husted. (Attachments: # 1 Exhibit 1−17 to Motion for Summary Judgment)(Meterko, Mark) (Entered: 03/16/2011)
52 Motion for summary judgment and Permanent Injunction filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber.

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 12 of 21

03/17/2011
03/17/2011 04/01/2011 04/13/2011 04/13/2011 04/13/2011 04/20/2011 04/20/2011

(Screen, Donald) (Entered: 03/16/2011)
53 Notice of Filing Exhibits to Plaintiffs' Motion for Summary Judgment and Permanent Injunction filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. (Attachments: # 1 Exhibit 1 Mayhew Depo Mar. 14, 2011, # 2 Exhibit 2 ODJFS Provider Update Control Report Jan 2011, # 3 Exhibit 3 Lavin Decl Sep. 2, 2010, # 4 Exhibit 4 Lavin Response to Def's 1st set of ROGS, Feb. 19, 2011, # 5 Exhibit 5 Schreiber Decl., # 6 Exhibit 6 Second Lavin Decl., Mar. 14, 2011, # 7 Exhibit 7 Cordray Contribute, # 8 Exhibit 8 Kendall Decl. with attachment, # 9 Exhibit 9 Thom Decl. with attachment, # 10 Exhibit 10 Rohan Decl., # 11 Exhibit 11 Walmart 10 Q, # 12 Exhibit 12 Target 10−Q, # 13 Exhibit 13 Walgreen 10−Q, # 14 Exhibit 14 Moffatt Decl., # 15 Exhibit 15 Comitale Decl, # 16 Exhibit 16 Sears Holdings 10−k., # 17 Exhibit 17 Kroger 10 Q, # 18 Exhibit 18 Winn Dixie 10Q, # 19 Exhibit 19 ODJFS Pharm &Med Supplier Provider Listing, # 20 Exhibit 20 R.C. 3517.13 effective before HB 694, # 21 Exhibit 21 Enacted S.B. 159, # 22 Exhibit 22 Analysis on 1978 sb 159, # 23 Exhibit 23 State &House Journals 112th GA, # 24 Exhibit 24 SB 159 Version Passed by Senate, # 25 Exhibit 25 Mar. 8, 1978 at 9_30 AM House Comm. Hearing Minutes SB 159 with Attendance List, # 26 Exhibit 26 2 Youngstown Democrats, PD 2−16−78 page 4−E or page 74, # 27 Exhibit 27 New law empowers State to probe Medicaid fraud, PD 4−25−78 page 5, # 28 Exhibit 28 House Panel Approves Medicaid Fraud Bill, Dispatch 3.9.78 B−7., # 29 Exhibit 29 Meshel Decl, # 30 Exhibit 30 OAG Comprehensive Expenditu, # 31 Exhibit 31 OAG Chart of Accounts FY2010, # 32 Exhibit 32 Nahvi Decl, # 33 Exhibit 33 Medicaid Fraud Section Budget Report FY2010., # 34 Exhibit 34 Petro Decl, # 35 Exhibit 35 Fisher Decl, # 36 Exhibit 36 Dann Decl., # 37 Exhibit 37 MFCU Handbook − Complaint Review and Case Intake, # 38 Exhibit 38 LSC AGO Redbook FY10 &FY11, # 39 Exhibit 39 Feb. 15, 1978 at 1_30PM House Comm. Hearing Minutes SB 159, # 40 Exhibit 40 Feb. 15, 1978 9_30AM House Comm. Hearing Minutes SB 159, # 41 Exhibit 41 Jan. 11, 1978 9_45am, House Comm. Hearing Minutes SB 159)Related document(s) 52 .(Screen, Donald) (Entered: 03/17/2011)
54 Notice of Filing Table of Authorities for Plaintiffs' Motion for Summary Judgment and Permanent Injunction filed by All Plaintiffs. (Attachments: # 1 Exhibit Table of Authorities)Related document(s) 52 .(Screen, Donald) (Entered: 03/17/2011)
55 Minutes of proceedings before Judge Donald C. Nugent. Status Conference held on 4/01/11. Briefing to be complete. Next Status Conference set for 5/2/2011 at 9:15 AM in Chambers 15A before Judge Donald C. Nugent. Time: 10 min. (R,JM) (Entered: 04/01/2011)
56 Opposition to 52 Motion for summary judgment and Permanent Injunction filed by Jon Husted. (Meterko, Mark) (Entered: 04/13/2011)
57 Notice of Filing of J. Curtis Mayhew's Deposition Transcript with Exhibit 1 (Notice of 30(b)(6) Deposition) and Errata Sheet filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 Mayhew Dep. Transcript, Mar. 14, 2011 (Ex. 1 to Pls.' Mot. Summ. J.), # 2 Exhibit 2 Notice of 30(b)(6) Deposition (Deposition Exhibit 1), # 3 Exhibit 3 Mayhew Dep. Tr. Errata Sheet)Related document(s) 52 , 53 .(Chandra, Subodh) (Entered: 04/13/2011)
58 Opposition to 51 Motion for summary judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 MFCU Complete Handbook, # 2 Exhibit 2 Declaration of Dr. Constance Magoulias, # 3 Exhibit 3 Declaration of Dr. Jason Chao, # 4 Exhibit 4 Dr. Magoulias' Amended Responses to Interrogatories, # 5 Exhibit 5 Dr. Chao's Amended Responses to Interrogatories, # 6 Exhibit 6 Declaration of John Kilroy)(Chandra, Subodh) (Entered: 04/13/2011)
59 Reply to response to 51 Motion for summary judgment filed by Jon Husted. (Meterko, Mark) (Entered: 04/20/2011)
60 Reply to response to 52 Motion for summary judgment and Permanent Injunction filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 Efron Declaration, # 2 Exhibit 2 Marketwatch Top 25 funds, # 3 Exhibit 3 Vanguard holdings, # 4 Exhibit 4 Growth fund of America holdings, # 5 Exhibit 5 Capital Income fund holdings, # 6 Exhibit 6 spdr fund holdings, # 7 Exhibit 7 van Der Velde declaration, # 8 Exhibit 8 Medco

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 13 of 21

04/25/2011 04/25/2011 05/10/2011 05/10/2011 05/10/2011 05/10/2011 05/10/2011 05/10/2011 05/10/2011 05/13/2011 05/17/2011
05/17/2011

10−K, # 9 Exhibit 9 provider listing additional excerpts)(Screen, Donald) (Entered: 04/20/2011)
61 Errata : Corrections to Table of Authorities filed with Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion for Summary Judgment filed by All Plaintiffs. Related document(s) 52 , 60 . (Gupta, Sandhya) Modified to create an additional link on 4/26/2011 (B,B). (Entered: 04/25/2011)
62 Notice of Status Conference rescheduled for 5/18/2011 at 09:00 AM in Courtroom 15A before Judge Donald C. Nugent. (E,P) (Entered: 04/25/2011)
63 Filing error, document refiled. Notice Proof of Service filed by Arthur Lavin. (Chandra, Subodh) Modified on 5/10/2011 (K,V). Modified on 5/10/2011 (C,KA). (Entered: 05/10/2011)
64 Filing error, document refiled. Notice Richard Michale Dewine filed by All Plaintiffs. (Chandra, Subodh) Modified on 5/10/2011 (C,KA). (Entered: 05/10/2011)
65 Filing error, document refiled. Notice J.B.Hadden filed by All Plaintiffs. (Chandra, Subodh) Modified on 5/10/2011 (C,KA). (Entered: 05/10/2011)
66 Subpoena Returned Executed; served upon Richard Michael DeWine by Federal Express Overnight on May 2, 2011 filed on behalf of All Plaintiffs (Chandra, Subodh) (Entered: 05/10/2011)
67 Subpoena Returned Executed; served upon J.B.Hadden, Treasurer of Mike DeWine for Ohio by Federal Express Overnight on May 2, 2011 filed on behalf of All Plaintiffs (Chandra, Subodh) (Entered: 05/10/2011)
68 FILING ERROR, duplicate of #67. Subpoena Returned Executed; served upon J.B.Hadden, Treasurer of Mike DeWine for Ohio by Federal Express Overnight on May 2, 2011 filed on behalf of All Plaintiffs (Chandra, Subodh) Modified on 5/11/2011 (W,G). (Entered: 05/10/2011)
69 Subpoena Returned Executed; served upon Custodian of Records, Mike DeWine for Ohio by Federal Express Overnight on May 2, 2011 filed on behalf of All Plaintiffs (Chandra, Subodh) (Entered: 05/10/2011)
70 Motion to quash Subpoenas of Non−Parties filed by Richard Michael DeWine, J.B. Hadden, Custodian of Records for Mike DeWine for Ohio. Related document(s) 67 , 69 , 66 . (Attachments: # 1 Exhibit A)(King, James) (Entered: 05/13/2011)
71 Response to 70 Motion to quash Subpoenas of Non−Parties filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 Decl of Stacey Bernstein, # 2 Exhibit 2 Dispatch Article: DeWine's Campaign Contributions Illegal, # 3 Exhibit 3 Decl. of Subodh Chandra, # 4 Exhibit 4 Toledo Blade Article: DeWine Talks to Toledo Rotarians, # 5 Exhibit 5 AG News Release: AG announces Cyber−safety initiatives in Akron, # 6 Exhibit 6 AG News Release: AG addresses crime prevention in Canton, # 7 Exhibit 7 WFMJ: South Side Summit Scheduled in Youngstown, # 8 Exhibit 8 WFMJ: AG promises crime crack down, # 9 Exhibit 9 Morning Journal: New AG Says no magic wand for crime in Youngstown, # 10 Exhibit 10 Youngstown Vindicator photo, # 11 Exhibit 11 Plain Dealer: Cordray and DeWine at PD, # 12 Exhibit 12 Plain Dealer: DeWine and Cordray to debate, # 13 Exhibit 13 Plain Dealer: DeWine announcing run for AG, # 14 Exhibit 14 DeWine Financial Disclosure Statement Apr. 15, 2011, # 15 Exhibit 15 DeWine Designation of Treasurer Form Cover Page, # 16 Exhibit 16 DeWine Contributions to Mike DeWine for Ohio, # 17 Exhibit 17 Decl of Dorothy Roberts, # 18 Exhibit 18 Ohio AG Cleveland Office, # 19 Exhibit 19 Online Donation Page for Mike DeWine for Ohio, # 20 Exhibit 20 Plain Dealer: Attorney General Mike DeWine's Stocks Raise Question of Conflict)(Screen, Donald) (Entered: 05/17/2011)
72 Order granting Non−Parties' Richard Michael DeWine,J.B. Hadden, and Custodian for RecordsMotion to quash subpoenas (Related Doc # 70 ). Judge Donald C. Nugent(C,KA) (Entered: 05/17/2011)

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 14 of 21

05/18/2011 05/20/2011
06/03/2011 06/03/2011 06/13/2011 06/13/2011 07/22/2011 07/22/2011 07/22/2011
08/19/2011 08/19/2011
08/26/2011

73 Minutes of proceedings before Judge Donald C. Nugent of Oral Argument held on 5/18/11. Oral argument held on each parties Motions for Summary Judgment. Court has heard all arguments and shall issue ruling on pending motions. Judge Donald C. Nugent (Court Reporter: Sue Trischan.)Time: 1 hour. (R,JM) Modified typo on 8/19/2011 (H,SP). (Entered: 05/18/2011)
74 Motion to supplement the Record, or, in the Alternative, to Take Judicial Notice, and For Supplemental Briefing filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. (Attachments: # 1 Exhibit 1 Mike DeWine Financial Disclosure Statement, # 2 Exhibit 2 Declaration of Dorothy Roberts (Kroger Co.), # 3 Exhibit 3 Declaration of Scott Henderson (Kroger Co.), # 4 Exhibit 4 Ohio Campaign Finance Handbook Ch. 2, # 5 Exhibit 5 Plain Dealer article DeWine Campaign Contributions Illegal, # 6 Exhibit 6 Online Donation Page, Mike DeWine for Ohio, # 7 Exhibit 7 Plain Dealer article: DeWine's Stocks Raise Question of Conflict, # 8 Exhibit 8 Declaration of Subodh Chandra, # 9 Exhibit 9 Declaration of Stacey Bernstein (Medco), # 10 Exhibit 10 Designation of Treasurer Form, Mike DeWine for Ohio)(Gupta, Sandhya) (Entered: 05/20/2011)
75 Notice of Substitution of Counsel removing attorneys Karl Schneider and Mark Meterko and adding attorneys Richard N. Coglianese and Michael J. Schuler on behalf of Jon Husted. (Coglianese, Richard) Modified text on 6/3/2011 (B,B). (Entered: 06/03/2011)
76 Opposition to 74 Plaintiffs' Motion to supplement the Record filed by Jon Husted. (Coglianese, Richard) Modified text on 6/6/2011 (B,B). (Entered: 06/03/2011)
77 Notice of Errata: Exhibit Omitted From Motion to Supplement the Record filed by All Plaintiffs. (Attachments: # 1 Exhibit #11 Mike DeWine Contribution List)Related document(s) 74 .(Gupta, Sandhya) (Entered: 06/13/2011)
78 Reply to response to 74 Motion to supplement the Record, or, in the Alternative, to Take Judicial Notice, and For Supplemental Briefing filed by All Plaintiffs. (Chandra, Subodh) (Entered: 06/13/2011)
Order [non−document]granting Plaintiffs' Motion to supplement The Record(Related Doc # 74 ). Judge Donald C. Nugent (R,JM) Modified text on 7/22/2011 (B,B). (Entered: 07/22/2011)
79 Memorandum Opinion For the reasons stated in the Order, Plaintiffs' Motion for Summary Judgment and Permanent Injunction 52 is denied and Defendant's Motion for Summary Judgment 51 is granted. This action is terminated. Signed by Judge Donald C. Nugent on 7/22/11. (K,K) Modified text on 7/22/2011 (B,B). (Entered: 07/22/2011)
80 Judgment Entry Pursuant to a Memorandum Opinion of this Court, Plaintiffs' Motion for Summary Judgment and Permanent Injunction (ECF # 52 ) is denied and Defendant's Motion for Summary Judgment (ECF # 51 ) is granted. This action is terminated. Related document 79 . Signed by Judge Donald C. Nugent on 7/22/11. (K,K) Modified to create an additional link on 7/22/2011 (B,B). (Entered: 07/22/2011)
81 FILING ERROR: Notice filed by All Plaintiffs. (Chandra, Subodh) Modified text on 8/19/2011 (B,B). (Attorney used the wrong event, attorney re−filed, please see Document #82) (Entered: 08/19/2011)
82 NOTICE OF APPEAL to the Sixth Circuit Court of Appeals from the 72 Order of 5/17/11, 31 Marginal Entry Order of 12/13/10, 24 Memorandum Opinion and Order of 10/27/10 and from the 79 Memorandum Opinion and 80 Judgment of 7/22/11, filed by Arthur Lavin, et al.. (Filing fee of $455 paid, receipt number 0647−4875333) (Chandra, Subodh). Modified text on 8/19/2011 (H,SP). (Entered: 08/19/2011)
83 Acknowledgment from the USCA for Sixth Circuit of receipt of 82 Notice of Appeal (USCA# 11−3908). Date filed in USCA 8/24/11. (H,SP) (Entered: 08/26/2011)

Case: 1:10-cv-1986 As of: 06/26/2013 12:48 PM EDT 15 of 21

09/07/2011 09/07/2011 09/28/2011 09/28/2011 10/28/2011
10/28/2011
08/06/2012 08/06/2012 08/14/2012 08/14/2012 08/27/2012 09/06/2012

84 Transcript Request by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber for proceedings held on 10/07/2010 before Judge Mag. Judge Nancy A. Vecchiarelli, re 82 Notice of Appeal,. Court Reporter: Shirle Perkins. Transcript required for appeal. (Chandra, Subodh) (Entered: 09/07/2011)
85 Transcript Request by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber for proceedings held on 05/18/211 before Judge Judge Donald C. Nugent, re 82 Notice of Appeal,. Court Reporter: Sue Trischan. Transcript required for appeal. (Chandra, Subodh) (Entered: 09/07/2011)
Transcript Order received by court reporter Shirle Perkins. Estimated number of pages: 97. Transcript Order received on 9/21/2011. Financial arrangements made on 9/21/2011. Estimated completion date is 10/28/2011. Related document(s) 84 . (P,Sh) (Entered: 09/28/2011)
Transcript Order received by court reporter Sue Trischan. Estimated number of pages: 25. Transcript Order received on 9/21/2011. Financial arrangements made on 9/28/2011. Estimated completion date is 10/28/2011. (T,S) (Entered: 09/28/2011)
86 Transcript of Hearing held on October 7, 2010 before Judge Nancy A. Vecchiarelli. To obtain a bound copy of this transcript please contact court reporter Shirle Perkins at 216−357−7106. [97 pages] Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties requesting that privacy information be redacted must file a notice of intent to redact with the court by 11/4/2011. Redaction Request due 11/18/2011. Redacted Transcript Deadline set for 11/28/2011. Release of Transcript Restriction set for 1/26/2012. Related document(s) 84 . (P,Sh) (Entered: 10/28/2011)
87 Official Transcript of Motion Hearing of 5/18/11 re 82 Notice of Appeal. Court Reporter: Sue Trischan [28 pages]. Parties requesting that privacy information be redacted must file a notice of intent to redact with the court by 11/4/2011. Redaction Request due 11/18/2011. Redacted Transcript Deadline set for 11/28/2011. Release of Transcript Restriction set for 1/26/2012. Related document(s) 82 (T,S). Modified text on 11/1/2011 (H,SP). (Entered: 10/28/2011)
88 Information copy of opinion from the USCA for the Sixth Circuit: The District Court's judgment is reversed, and the case is remanded with instructions to enter judgment for the plaintiffs re 82 Notice of Appeal (USCA# 11−3908). This is not a mandate order. Circuit Judges: Daughtrey, Kethledge and Donald. Date issued by USCA 8/3/12 (Attachments: # 1 Judgment) (H,SP) (Entered: 08/06/2012)
89 Appeal Order from USCA for the Sixth Circuit: Any petition for rehearing or rehearing en banc must be filed no later than Monday, August 13, 2012 re 82 Notice of Appeal (USCA# 11−3908). Date issued by USCA 8/3/12 (H,SP) (Entered: 08/06/2012)
90 Appeal Order from USCA for the Sixth Circuit: Granting appellants' motion to amend previous opinion filed on August 3, 2012 re 88 Information Copy (USCA# 11−3908). Circuit Judges: Daughtrey, Kethledge and Donald. Date issued by USCA 8/13/12 (H,SP) (Entered: 08/14/2012)
91 Appeal Remark from USCA for the Sixth Circuit: Corrected pages to USCA opinion of 8/3/12 re 88 Information Copy (USCA# 11−3908). Date issued by USCA 8/13/12 (H,SP) (Entered: 08/14/2012)
92 True copy of mandate from the USCA for the Sixth Circuit: Reversing the judgment of the District Court, and remanding as to 82 Notice of Appeal (USCA# 11−3908). Date issued as mandate 8/27/12, Costs: None (Related document 88 ) (H,SP) (Entered: 08/27/2012)
93 Proposed Order of Permanent Injunction and Judgment for Plaintiffs filed by All Plaintiffs. Related document(s) 92 , 88 . (Chandra, Subodh) (Entered: 09/06/2012)

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94 Duplicate Filing. Proposed Order of Permanent Injunction and Judgment for Plaintiffs filed by All Plaintiffs. Related document(s) 92 , 93 , 88 . (Chandra, Subodh) Modified text 9/7/2012 (C,KA). (Entered: 09/06/2012)
95 Unopposed Motion to substitute party filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. (Chandra, Subodh) (Entered: 09/07/2012)
96 Judgment Entry in favor of Arthur Lavin, Constance D. Magoulias, Eric R. Schreiber, Jason Chao, Jerome Liebman, Michael W. Devereaux, Nathan A. Beachy, Patricia J. Kellner, Peter A. DeGolia against Jon Husted re 92 USCA Mandate. (1) Ohio Rev. Code § 3599.45 is declared unconstitutional in its entirety as violating theFirst and Fourteenth Amendments to the Constitution of the United States;(2) A permanent injunction is entered against Defendant Secretary of State of Ohio Jon Husted in his official capacity, enjoining him from enforcing Ohio Rev. Code § 3599.45 against those candidates to whom named Plaintiffs in this case may elect to make campaign contributions, or from enforcing the statute again st Plaintiffs themselves. Plaintiffs may petition the Court for attorneys' fees and costs as prevailing parties under 42 U.S.C. § 1988, and move to tax costs under Fed. R. Civ. P. 54 (b). Judge Donald C. Nugent(C,KA) (Entered: 09/11/2012)
97 Motion for attorney fees , expenses, and costs under 42 U.S.C. § 1988(b) by Subodh Chandra filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. (Attachments: # 1 Exhibit 1: Declaration of Subodh Chandra regarding Lavin Attorney Fees and Costs, # 2 Exhibit 1A: Chandra Biography, # 3 Exhibit 1B: Lavin Fees Invoice, # 4 Exhibit 1C: Lavin Expenses Invoice, # 5 Exhibit 1D: Kilroy Fees and Expenses Invoice, # 6 Exhibit 1E: Lockhart v. Woodmere court−approved fee agreement, # 7 Exhibit 1F: 2010 Parker Fee Order, # 8 Exhibit 1G: 2009 O'Malley fee consent order, # 9 Exhibit 2 and 2A: Raymond Vasvari Declaration for Lavin Attorney Fees, # 10 Exhibit 3 and 3A: David Mills Declaration for Lavin Attorney Fees, # 11 Exhibit 4 and 4A: Jessie Hill Declaration for Lavin Attorney Fees)(Chandra, Subodh) (Entered: 09/21/2012)
98 Unopposed Motion for leave to exceed page limitations , Instanter, in Accompanying Motion for Attorneys' Fees and Memorandum in Support filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. Related document(s) 97 . (Chandra, Subodh) (Entered: 09/21/2012)
99 Bill of costs Under FED. R. CIV. P. 54(D)(1), FED. R. APP. P. 39(E), and 28 U.S.C. §§ 1920, 1921, 1923, 1914 filed by All Plaintiffs. (Attachments: # 1 Exhibit 1: Supplemental Declaration of Subodh Chandra in support of Lavin Bill of Costs, # 2 Exhibit 1A: Bill of Costs)(Chandra, Subodh) (Entered: 09/24/2012)
100 Order referring case to Magistrate Judge Nancy A. Vecchiarelli for a Report and Recommendation re 97 Motion for attorney fees , expenses, and costs under 42 U.S.C. § 1988(b). Judge Donald C. Nugent on 9/25/12. (R,JM) (Entered: 09/25/2012)
IMPORTANT: Notice [non−document] of Telephone Conference set for 9/27/2012 at 11:00 AM to be held telephonically before Magistrate Judge Nancy A. Vecchiarelli. Counsel for plaintiff will host the call and join in opposing counsel and this Court. Opposing counsel are responsible for informing counsel for plaintiff of the telephone number where he/she can be contacted for the conference call. Cellular telephones are not an acceptable means of conferencing with this Court. (G,W) (Entered: 09/25/2012)
101 Minute Order of Telephone Conference held on 9/27/2012. Discovery due 10/19/2012; Response to motion for fees due 11/16/2012; Reply brief due 11/30/2012. Telephone conference set for 11/30/2012 at 11:00 AM. Hearing and/or Argument set for 12/18/2012 at 9:30 AM. Magistrate Judge Nancy A. Vecchiarelli on 9/27/2012. Time: 15 Minutes (G,W) (Entered: 09/27/2012)

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102 Notice of Telephone Conference set for 11/30/2012 at 11:00 AM to be held telephonically before Magistrate Judge Nancy A. Vecchiarelli. The court will host the conference call and inform counsel by way of separate email of the conferencing details. Hearing and/or Oral Argument set for 12/18/2012 at 09:30 AM in Courtroom 10B before Magistrate Judge Nancy A. Vecchiarelli. (G,W) (Entered: 09/27/2012)
Set Deadlines and Hearings Discovery due by 10/19/2012. (B,B) (Entered: 09/28/2012)
103 Motion for extension of time until 11/26/2012 to file response/reply to 97 Motion for attorney fees , expenses, and costs under 42 U.S.C. § 1988(b) by Subodh Chandra filed by Defendant Jon Husted. Related document(s) 97 . (Coglianese, Richard) (Entered: 11/14/2012)
104 Response to 103 Motion for extension of time until 11/26/2012 to file response/reply to 97 Motion for attorney fees , expenses, and costs under 42 U.S.C. § 1988(b) by Subodh Chandra filed by All Plaintiffs. (Attachments: # 1 Exhibit Ex. 1 2012−09−28 through 11−05 emails among counsel)(Chandra, Subodh) (Entered: 11/14/2012)
105 Order granting 103 Defendant's Motion for an extension of time until 11/26/2012 to file response/reply to Plaintiff's motion for attorney's fees. No further extensions will be granted. Magistrate Judge Nancy A. Vecchiarelli on 11/15/2012.(G,W) (Entered: 11/15/2012)
106 Opposition to 97 Motion for attorney fees , expenses, and costs under 42 U.S.C. § 1988(b) by Subodh Chandra filed by Jon Husted. (Attachments: # 1 Exhibit A − Retainer Agreement, # 2 Exhibit B − Gupta's Clerical Work, # 3 Exhibit C − Zaranko's Clerical Work, # 4 Exhibit D − Work Claimed in Filing Corrected Brief, # 5 Exhibit E − Time on Motion to Stay, # 6 Exhibit F − Third Party Intervention in Court of Appeals, # 7 Exhibit G − Time Spent on Amicus Work, # 8 Exhibit H − Legislative History, # 9 Exhibit I − Gupta Discovery Work, # 10 Exhibit J − Motion for Summary Judgment, # 11 Exhibit K − Opposition Brief, # 12 Exhibit L − Reply Brief work, # 13 Exhibit M − Motion to Supplement, # 14 Exhibit N − Time Spent on Appellate Briefs)(Coglianese, Richard) Modified text on 11/27/2012 (B,B). (Entered: 11/26/2012)
107 Joint Motion to continue Attorneys'−Fees Conference Call with Court Set for November 30, 2012, at 11am filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber, Defendant Jon Husted. Related document(s) 102 . (Chandra, Subodh) (Entered: 11/29/2012)
Order [non−document] denying Joint Motion to Continue Attorneys' Fees Conference Call Set for November 30, 2012 at 11:00 a.m. (Related Doc # 107 ). Magistrate Judge Nancy A. Vecchiarelli on 11/29/12.(M,M) (Entered: 11/29/2012)
108 Minutes of proceedings before Magistrate Judge Nancy A. Vecchiarelli.Telephone Conference held on 11/30/12. After a discussion with the parties, the court determined that a settlement conference would not be productive and that it would hold a hearing on 12/18/2012 at 09:30 AM in Chambers 10B over the issue of attorney's fees.(Court Reporter: N/A.)Time: 15 minutes. (M,M) (Entered: 11/30/2012)
109 Notice and Order with hearing to be held on 12/18/2012 at 09:30 AM in Courtroom 10B. Magistrate Judge Nancy A. Vecchiarelli on 11/30/12. (Relate doc 108 ) (M,M) Modified text on 12/3/2012 (B,B). (Entered: 11/30/2012)
110 Unopposed Motion for extension of time to file reply brief in support of motion for fees and costs and to notify opposing counsel regarding witnesses and additional exhibits until December 11 and 13, respectively, filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. Related document(s) 97 , 109 , 106 . (Chandra, Subodh) (Entered: 12/05/2012)
111 Order granting 110 Plaintiff's Motion for an extension of time until 12/11/2012 to file reply brief in support of their motion for fees and costs and until 12/13/2012 to

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12/11/2012 12/11/2012 12/11/2012 12/12/2012
12/12/2012 12/12/2012

provide notice of additional witnesses or exhibits to be used at the 12/18/2012 hearing. Magistrate Judge Nancy A. Vecchiarelli on 12/5/2012. (G,W) (Entered: 12/05/2012)
112 Notice of Lodging of the Sixth Circuit Oral−Argument Recording in the Captioned Matter filed by All Plaintiffs. Related document(s) 97 , 82 .(Chandra, Subodh) Modified text on 12/12/2012 (B,B). (Diskette attached) (Entered: 12/11/2012)
113 Motion for leave to exceed page limitations , Instanter, in Accompanying Reply Brief in Support of Motion for Attorneys' Fees and Memorandum in Support filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. (Chandra, Subodh) (Entered: 12/11/2012)
114 STRICKEN. Reply to response to Motion for attorney fees , expenses, and costs under 42 U.S.C. § 1988(b) filed by Subodh Chandra, on behalf of All Plaintiffs. (Related doc 97 , 113 )(Chandra, Subodh) Modified text on 12/12/2012 (B,B). Modified on 12/13/2012 (G,W). (Entered: 12/12/2012)
115 Notice of Filing Exhibits to Reply Brief in Support of Motion for Fees and Costs due to ECF not Uploading Exhibits with Reply Brief filed by All Plaintiffs. (Attachments: # 1 Exhibit 1: Second Chandra Declaration, # 2 Exhibit 2: 2007 OSBA Economics of Law Practice in Ohio, # 3 Exhibit 3: 2010 OSBA Economics of Law Practice in Ohio (MOST RECENT STUDY), # 4 Exhibit 4: Zaranko Declaration, # 5 Exhibit 4A: Engagement agreement and all Plaintiffs' signature pages, # 6 Exhibit 4B: 2012 Chandra Law Invoice civil−rights/First Amendment matter, fee−paying client at $425/hour, # 7 Exhibit 4C: 2012 Chandra Law Invoice civil rights $425/hr, # 8 Exhibit 4D: 2011 Chandra Law Invoice civil rights $410/hr, # 9 Exhibit 4E: Chandra October 2010 billing not submitted, # 10 Exhibit 4F: Legislative History Comparison Chart, # 11 Exhibit 4G: Gupta Clerical Comparison Chart, # 12 Exhibit 5: Lavin Declaration, # 13 Exhibit 6: Zagrans Declaration, # 14 Exhibit 7: Bashein Declaration, # 15 Exhibit 8: Leopold Declaration, # 16 Exhibit 9: Citrino Declaration, # 17 Exhibit 10: Grostic Declaration, # 18 Exhibit 11: Mills Second Declaration, # 19 Exhibit 12: Paul Declaration, # 20 Exhibit 13: Gerhardstein 2008 Declaration, # 21 Exhibit 14: Fuchs 2010 Declaration, # 22 Exhibit 15: Yalamanchili Declaration, # 23 Exhibit 16: Stiffman, Dr. Lawrence Declaration, # 24 Exhibit 17: Frech Declaration, # 25 Exhibit 18: Shakelton Declaration, # 26 Exhibit 19: Letter from Minerva Elizaga of Ohio Supreme Court to Chandra re 2010 Ohio active in−state attorney data, # 27 Exhibit 20: Gupta Declaration, # 28 Exhibit 21: Screen Declaration, # 29 Exhibit 22: Sletvold Declaration)Related document(s) 97 , 114 , 106 , 113 , 112 .(Chandra, Subodh) (Entered: 12/12/2012)
116 Order granting in part Plaintiffs' Motion to Exceed Page Limitations (Related Doc # 113 ). Plaintiff may file a reply brief of 20 pages. The reply brief must be filed by midnight tonight, Wednesday, December 12, 2012. Magistrate Judge Nancy A. Vecchiarelli on 12/12/12.(M,M) (Entered: 12/12/2012)
117 Reply to response to 97 Motion for attorney fees , expenses, and costs under 42 U.S.C. § 1988(b) filed by Subodh Chandra on behalf of All Plaintiffs. (Attachments: # 1 Exhibit 1: Second Chandra Declaration, # 2 Exhibit 2: 2007 OSBA Economics of Law Practice in Ohio, # 3 Exhibit 3: 2010 OSBA Economics of Law Practice in Ohio (MOST RECENT STUDY), # 4 Exhibit 4: Zaranko Declaration, # 5 Exhibit 4A: Engagement agreement and all Plaintiffs' signature pages, # 6 Exhibit 4B: 2012 Chandra Law Invoice civil−rights/First Amendment matter, fee−paying client at $425/hour, # 7 Exhibit 4C: 2012 Chandra Law Invoice civil rights $425/hr, # 8 Exhibit 4D: 2011 Chandra Law civil−rights matter $410/hr, # 9 Exhibit 4E: Chandra October 2010 billing not submitted, # 10 Exhibit 4F: Legislative History Comparison Chart, # 11 Exhibit 4G: Gupta Clerical Comparison Chart, # 12 Exhibit 5: Lavin Declaration, # 13 Exhibit 6: Zagrans Declaration, # 14 Exhibit 7: Bashein Declaration, # 15 Exhibit 8: Leopold Declaration, # 16 Exhibit 9: Citrino Declaration, # 17 Exhibit 10: Grostic Declaration, # 18 Exhibit 11: Mills Second Declaration, # 19 Exhibit 12: Paul Declaration, # 20 Exhibit 13: Gerhardstein 2008 Declaration, # 21 Exhibit 14: Fuchs 2010 Declaration, # 22 Exhibit 15: Yalamanchili Declaration, # 23 Exhibit 16: Stiffman, Dr. Lawrence Declaration, # 24 Exhibit 17: Frech Declaration, # 25

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02/12/2013

Exhibit 18: Shakelton Declaration, # 26 Exhibit 19: Letter from Minerva Elizaga of Ohio Supreme Court to Chandra re 2010 Ohio active in−state attorney data, # 27 Exhibit 20: Gupta Declaration, # 28 Exhibit 21: Screen Declaration, # 29 Exhibit 22: Sletvold Declaration, # 30 Exhibit 23: Johnson factors chart)(Chandra, Subodh) Modified text on 12/13/2012 (B,B). (Entered: 12/12/2012)
118 Notice of Re−filing Exhibits Mills and Hill Declarations to Plaintiffs' Fees Motion filed on 9/21/12 filed by All Plaintiffs. (Attachments: # 1 Exhibit 3 to Plaintiffs' Motion for Fees: David E. Mills Declaration, # 2 Exhibit 4 to Plaintiffs' Motion for Fees: Jessie Hill Declaration)Related document(s) 97 .(Gupta, Sandhya) Modified text on 12/13/2012 (B,B). (Entered: 12/13/2012)
119 Order striking from the docket 114 Plaintiffs' Reply. Magistrate Judge Nancy A. Vecchiarelli on 12/13/2012. (G,W) (Entered: 12/13/2012)
120 Notice of Filing Table of Contents and Table of Authorities for Reply in Support of Plaintiffs Motion for Attorneys Fees and Costs (Doc. No. 117) filed by All Plaintiffs. (Attachments: # 1 Exhibit Table of contents and Table of authorities)Related document(s) 97 , 117 .(Gupta, Sandhya) Modified to create an additional link on 12/14/2012 (B,B). (Entered: 12/13/2012)
121 Order. The Court limits each party to no more than 20 minutes of oral argument at the December 18, 2012 hearing. Magistrate Judge Nancy A. Vecchiarelli on 12/17/2012. (G,W) (Entered: 12/17/2012)
122 Minutes of proceedings before Magistrate Judge Nancy A. Vecchiarelli. The Court conducted a hearing on 12/18/12 at 9:30 a.m. The parties presented arguments regarding plaintiffs' request for attorney's fees. (Court Reporter: Judith Gage.)Time: 55 minutes. (M,M) (Entered: 12/18/2012)
Order [non−document] granting Unopposed Motion to Exceed Page Limitations Instanter in Accompanying Motion for Attorneys' Fees and Memorandum in Support filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber, (Related Doc # 98 ). Magistrate Judge Nancy A. Vecchiarelli on 12/18/12.(M,M) (Entered: 12/18/2012)
123 Notice of Substitution of Counsel removing attorney Michael J. Schuler and adding attorney Ryan L. Richardson on behalf of Jon Husted. (Richardson, Ryan) Modified text on 12/28/2012 (B,B). (Entered: 12/20/2012)
124 Non−Appeal Transcript Order Form for proceedings dated 12/18/2012 before Magistrate Judge Vecchiarelli, Court Reporter: Judith Gage filed by All Plaintiffs. (Document re−filed, please see Document #125) (Gupta, Sandhya) Modified text on 1/15/2013 (B,B). (Entered: 01/14/2013)
125 Non−Appeal Transcript Order Form for proceedings held on December 18, 2012 before Judge Vecchiarelli, Court Reporter: Judith Gage. Requested completion date: February 15, 2013 filed by All Plaintiffs. (Gupta, Sandhya) (Entered: 01/15/2013)
126 Transcript of Oral Argument held on December 18, 2012 before Judge Nancy A. Vecchiarelli. To obtain a bound copy of this transcript please contact court reporter Judy Gage at 216−357−7238. [37 pages] Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties requesting that privacy information be redacted must file a notice of intent to redact with the court by 1/24/2013. Redaction Request due 2/7/2013. Redacted Transcript Deadline set for 2/18/2013. Release of Transcript Restriction set for 4/17/2013. Related document(s) 124 , 125 . (G,Ju) (Entered: 01/17/2013)
127 Report and Recommendation re 97 Plaintiffs' Motion for attorney fees and costs. For the reasons given in the RPlaintiffs' costs and fees should be awarded after deductions are made from Plaintiffs' request. Objections to RRdue by 2/26/2013. Magistrate Judge Nancy A. Vecchiarelli on 2/12/2012. (Attachments: # 1 Appeal, # 2 Discovery) (G,W) (Entered: 02/12/2013)

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128 Motion for reconsideration of Part III.A Magistrate Judge's Report &Recommendation Regarding Plaintiffs' Fees−and−Costs Motion filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. Related document(s) 127 , 117 . (Chandra, Subodh) Modified text on 2/19/2013 (B,B). (Entered: 02/19/2013)
129 Order denying 128 Plaintiffs' Motion for reconsideration as procedurally inappropriate. Magistrate Judge Nancy A. Vecchiarelli on 2/19/2013. (G,W) (Entered: 02/19/2013)
130 Objection to Report and Recommendation filed by Jon Husted. Related document(s) 127 . (Coglianese, Richard) (Entered: 02/26/2013)
131 Attorney Appearance filed by Ashlie Case Sletvold on behalf of All Plaintiffs. (Sletvold, Ashlie) Modified text on 2/27/2013 (B,B). (Entered: 02/27/2013)
132 Objection to Report and Recommendation regarding attorneys' fees and costs under 42 U.S.C. § 1988 filed by All Plaintiffs. Related document(s) 127 . (Attachments: # 1 Exhibit 1 Supplemental Declaration of Arthur Lavin, M.D..pdf, # 2 Exhibit 2 Declaration of Bruce B. Elfvin, # 3 Exhibit 3 Declaration of Frederick M. Gittes, # 4 Exhibit 4 Declaration of Christina M. Royer, # 5 Exhibit 5 9/3/10 Email from OHND district court, # 6 Exhibit 6 9/4/10 Email from OHND district court, # 7 Proposed Order) (Chandra, Subodh) Modified text on 3/4/2013 (B,B). (Entered: 03/01/2013)
133 Motion for leave instanter to file Brief of Amici Curiae W. Craig Bashein, John R. Climaco, David M. Cuppage, R. Eric Kennedy, James A. Lowe, James P. Sammon, Daniel R. Karon, Jack Landskroner, Joseph A. Delguyd, Robert D. Gary, Ronald Frederick, Eric H. Zagrans, Richard C. Alkire, Alphonse A. Gerhardstein, Christopher P. Thorman, Stephen M. Dane, Daniel P. Goetz, Matthew D. Besser, and Terry H. Gilbert in support of Plaintiffs Objections to the Magistrate Judges Report &Recommendation regarding Plaintiffs Motion for Attorneys Fees and Costs filed by Amicus Curiae W. Craig Bashein. Related document(s) 132 , 127 . (Attachments: # 1 Exhibit Brief of Amici Curiae W. Craig Bashein, John R. Climaco, David M. Cuppage, R. Eric Kennedy, James A. Lowe, James P. Sammon, Daniel R. Karon, Jack Landskroner, Joseph A. Delguyd, Robert D. Gary, Ronald Frederick, Eric H. Zagrans, Richard C. Alkire, Alphonse A. Gerhardstein, Christopher P. Thorman, Stephen M. Dane, Daniel P. Goetz, Matthew D. Besser, and Terry H. Gilbert in support of Plaintiffs Objections to the Magistrate Judges Report &Recommendation regarding Plaintiffs Motion for Attorneys Fees and Costs)(Bashein, W.) (Entered: 03/01/2013)
134 Response to Plaintiffs' Ojections to the Report and Recommendation of Magistrate Judge Nancy A. Vecchiarelli filed by Jon Husted. Related document(s) 127 , 132 . (Coglianese, Richard) Modified text and links on 3/18/2013 (B,B). (Entered: 03/15/2013)
135 Motion for extension of time until March 18, 2013 to File Response to Defendant Secretary of State's Objections to the Report and Recommendation of Magistrate Judge Nancy A. Vecchiarelli filed by Nathan A. Beachy, Jason Chao, Peter A. DeGolia, Michael W. Devereaux, Patricia J. Kellner, Arthur Lavin, Jerome Liebman, Constance D. Magoulias, Eric R. Schreiber. Related document(s) 130 . (Chandra, Subodh) (Entered: 03/15/2013)
136 Response to Defendant Secretary of State's objections to the Report and Recommendation of Magistrate Judge Vecchiarelli for attorney fees , expenses, and costs under 42 U.S.C. § 1988(b) by Subodh Chandra filed by All Plaintiffs. (Attachments: # 1 Exhibit Third Declaration of Subodh Chandra) (Related doc [127[, 130 ) (Chandra, Subodh) Modified text and links on 3/18/2013 (B,B). (Entered: 03/15/2013)
137 Notice of Withdrawal of Motion for Extension of Time through March 18 to File Their Response to Secretary's Objections to Magistrate Judge's Report &Recommendation filed by All Plaintiffs. Related document(s) 135 .(Chandra, Subodh) Modified text on 3/18/2013 (B,B). (Entered: 03/18/2013)

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03/19/2013 03/22/2013 06/13/2013

Order [non−document]granting 135 Plaintiffs' Motion for Extension of Time until March 18, 2013 to File Response to Defendant Secretary of State's Objections to the Report and Recommendation of Magistrate Judge Nancy A. Vecchiarelli. Judge Donald C. Nugent on 3/19/13.(R,JM) (Entered: 03/19/2013)
138 Reply In support of Plaintiffs' Objections to Report and Recommendation filed by All Plaintiffs. Related document(s) 127 , 132 , 134 . (Chandra, Subodh) Modified to create an additional link on 3/25/2013 (B,B). (Entered: 03/22/2013)
139 Memorandum Opinion and Order For the reasons stated in the Order, the Report and Recommendation of Magistrate Judge Vecchiarelli (ECF # 127 ) is Adopted in Part and Not Adopted in Part. Plaintiffs' Motion for Attorneys' Fees (ECF # 97 ) is granted in the total amount of $128,908.74. The Court further adopts the reasoning of Magistrate Judge Vecchiarelli with regard to the recommended cuts to the costs requested by Plaintiffs' attorneys with one exception. Plaintiffs' request for the cost of serving a third party subpoena on Kroger Co., in the amount of $127.03, will be denied as it was served after the discovery cutoff date. Subtracting $127.03 from $6,442.03 results in a final cost award of $6,315.00. These costs are reasonable and supported by the evidence. Plaintiffs' Bill of Costs is terminated as moot. (ECF # 99 ). Signed by Judge Donald C. Nugent on 6/13/2013. (K,K) Modified text and links on 6/14/2013 (B,B). (Entered: 06/13/2013)