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he was sanctioned by the Ohio Elections Commission; and, (2) an injunction against the
Ohio Elections Commission from enforcing Ohio’s false campaign statement law against
him in the future. :

Her opponent's federal court action named the Ohio Elections Commission and its
members as parties, but did not name her or her campaign committee as a party.
However, her attorneys were allowed ta file amicus briefs on her behalf.

Discussion .

Under the Federal Election ‘Campaign Act of 1971, as amended, categories of permissible
uses of campaign funds include otherwise authorized expenditures in connection with a
candidate's campaign for Federal office; and, ordinary and necessary expenses incurred
in cormection with a Federal ufficehelder’s duties, among others. 2 U.S.C. 439a(a).

The Act prahibits the conversion af campaign funds ta personal use. Both the Act and
Commission regulations define personal use as “any use of funds in a campaign account
of a present or former candidate to fulfill a commitment, obligation or expense of any
person that would exist irrespective of the candidate's election campaign or duties as a
Federal officeholder.” 11 CFR 113.1(g).

The Comrnission determines whether the use of campaign funds for the payment of legal
fees and expenses constitutes personal use on a case-by-case basis. The Commission has
recognized that when a candidate “can reasonably show that the expenses at issue
resulted irom campaign vr offiecholder activicies, the Commission will not consider the
use to he personal use.” 1995 Personal Use E&J at 7,8f7. It has eoncluded that the use
of campaign funds for legal fees and expenses does not constitute personal use when the
legal proceedings involve allegations directly relating to the candidate’s campaign ar
duties as a Federal officeholder. Advisory Opinions 2009-10, 2009-20, 2008-07, 2006-
35, 2003-17, among others.

While neither Mrs. Schmidt nor her catnpaign were named parties to the federal court
action, it is quite clear that legal proceedings directly related to her campaign or duties as
a Federal officeholder. Her opponent was clearly attempting to use the federal court to
improperly attack her victory at the Ohio Elections Commission. In deciding this case,
Judge dott agreed with the amicus brief filed on her behalf that the federal case was
simply an improper atterapt to relitigate the Ohio Elections Commission ease in federal
court. In her opinion (attached) Judge Dlott writes, “However, the plain language af his
complaint belies the true basis of this suit. Krikorian essentially seeks an order from this
Court overturning, or annulling, the findings of the OEC with regard to specific
statements he made regarding Schmidt's position on the Armenian genocide.”
Additionally, it is my understanding that Mrs. Schmidt would have had standing to
intervene in the federal action if she believed that an amicus brief would not have
adequately protected her interests in this case.


tenesmnnentires:

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(3) Limitation on contributions and expenditures regarding Federal
candidates and political committees,

(c) The Act does not supersede State laws which h provide for the--
(1) Manner of qualifying as a candidate or political party organization;
(2) Dates and places of elections;
(3) Voter registration;

(4) Prohibition of false registration, voting fraud, theft of ballots, and
similar offenses;

(5) Candidate's personal financial disclosure; or

(© Application of State law to the funds:used for the purchase or

construction of a State or local party office building to the extent

described in 11 C.F.R. 300.35. ;
Id. Baséd in part on that regulation, the Sixth Circuit held in Burning that 2 U.S.C. § 453
preempted a Kentucky campaign financing statute and prevented the state Registry of Election
Finance from investigating polling expenditures made by a federal political committee registered
with the FEC. Bunning, 42 F.3d at 1012. Krikorian relies on Bunning to demonstrate that § 453
is broad in scope. However, Bunming in distinguishable from this case in that it involved a state
law related to campaign financing ~ an area in which FECA has often been found to preempt
state law. The instant case, in contrast, does not involve the area of campaign finance. Instead,
the state law at iosuc herein is aimed at regulating false statements made during the course of an
election. Accordingly, Bunning is not dispositive of the issue before this Court.

At Jeast one other court has ruled that FECA does not preempt a state statute substantially

similar to the Ohio Statute that Krikorian challenges, albeit with only a brief analysis. See State
of Minn. v. Jude, 554 N.W.2d 750, 752-53 (1996) (finding that FECA does not preempt a state

20

neat nttih ta!


_ 12 Page’ “49
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C. Important State Interest

There does not appear to be any substantial dispute that the underlying OEC proceeding
involved an important state interest, namely, maintaining truth in the electoral process. That
interest has been recognized as important by at least one other court in a case dealing with the
same Ohio Statute at issue in this case. See Walter, No. C-2-00-1070, 2000 WL 1505945, at *3
Thus, the second Younger requirement is satisfied.

D. Adequate Opportunity to Raise Constitutional Challenges

As to the third Younger factor, the Court must “presume thnt the state courts are able to
protect the interests of the federal plaintiff” Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir. 1995).
The burden of establishing the inadequacy of the state court proceedings lies with the plaintiff.
Meyers v. Franklin Cty. Ct. of Common Pleas, 23 F. App’x 201, 205 (6th Cir. 2001). The Sixth
Circuit has previously found that plaintiffs have an adequate opportunity to raise constitutional
challenges during OEC proceedings. Citizens for a Strong Ohio, 123 F. App’x at 634. Krikorian
challenges the expertise of the OEC members who presided over Schmidt's complaint.
However, Krikorian had the opportunity to avail himself of state appellate procedure, but chose
not to. There is no dispute that Krikorian could have raised his First Amendment and
preemption claims through the state appeal. The Sixth Cirouit “has previously observed that
even where state administrative preeedings would not afford the opportunity to raise
constitutional claims, it is sufficient to satisfy this third prong that constitutional claims may be

raised in state court judicial review of the administrative proceeding.” Sun Refining & Mig. Co.

future action. The instant lawsuit is a direct challenge to the Ohio Election
Commission’s proceeding and decision on the [original] complaint.
Id.

16



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EXHIBIT A






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A Younger and Its Progeny
In Younger, 401 U.S. at 38-39, soveral individuals asked a federal district court to enjoin
the Los Angeles County District Attorney from enforcing the California Criminal Syndicalism

Act (the “California Act”), a law that prevented the teaching of socialist or communist doctrine.

‘The main plaintiff, John Hanis, Jr.,? was indicted under the California Act in state court and
then, while the eximinal case was pending, filed a complaint in the United States District Court
for the Centr Distriat of Califomia to extjoin his prosecution. Jd. ut 39. Harris argued that tho
mace presence of the Califomia Ant inhibited him in the exercise of his First Amendment rights.
The district conrt held that it had jurisdiction and power to restrain the district attomey from
enforcing the California Act, found that the Act was vold for vagueness and overbreadth, and

; enjoined Harris’s prosecution. The district attormey appealed and the Supreme Court reversed

the judgment of the district court on public policy grounds, holding that the injunction violated
the “national policy forbidding federal courts to stay or enjoin pending state court proceedings
except under special circumstances.” Jd, at 41. The Supreme Court also held in a footnote that
declaratory relief would similarly be improper under that policy. Jd. at 41 n 2.

Describing a longstanding policy of federal abstention when asked to enjoin pending
criminal proceedings in state court, the Younger Court found that inte: vention would be
appropriate only under extraordinary circumstances:

{Jn view of the fundamental policy against federal interference with state

> After Harris filed suit, three other individuals intervened as plaintiffs, claiming that
Harris’s prosecution would inhibit their First Amendment freedoms by casting a chill over
protected speech. Jd. at 39-40. The Sepremo Court brid that the intervening plaintitfs lacked
standing, noting that they sought intervention solely on the basis of “feel[ing] inhibited” and did

not claim that they had “ever been threatened with prosecution, that a prosecution [was] likely,
or even that a prosecution was remotely possible.” Id. at 42.

7

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3517.21, the OEC ruled in two separate orders that it would not refer the matter for further
prosecution, but woilld instead issue letters of public reprimand. (See Doo. 19, Exs. 3, 4.)

On November 27,2009, shortly after the OBC issued it ruling, Krikorian appealed the
OEC’s rulings to the Frinklin County, Ohio Court of Common Pleas? (Déc. 19, Bus. 5, 6.)

‘ Through his appeal, Krikorian alleged that the OEC’s decisions were not supported by reliable,

probative, and substantial evidence, and were not made in accordance with law, for the following
reasons: (a) FECA preempts application of Ohio Rev. Code § 3517.21(B)(10) in regulate —
political speech in a campaipn for fedemal office; (b) § 3517.21(BX(10), onits fae and es applied
to Mr. Krikarian's conduct, violates the First Amendment to the U.S. Constitation, (0) §
3517.21(B)(10), on its face and as applied to Mr. Krikorian’s canduct, violates the procedural
and due process guarantees of the Fourteenth Amendment to the U.S. Constitution; and (4) the
O8C’s order is unjust, contmiy to lew, and is not supported by reliable, probative, and
substantial evidence presented at the heating and contained in the official record. (See Doc. 19,
Exs. 5&6.) On the basis of those arguments, Krikorian asked the Court of Common Pleas to .
reverse, vacate, or modify the OEC’s decisions, declare § 3517.21(B)(10) unconstitutional,
enjoin the ORC from enforcing the Ohio Statute, and award any other legal or equitable relief.
dd)

On January 8, 2010, the ORC moved to intervene in Krikorian’s apppal and filed a
motion to dismiss, arguing that Krikorian failed to properly invoke the jurisdiction of the
common pleas court because he failed to name the OBC ae a party-appellee pursuant to Ohio

2 Because the OBC issued two separate rulige, Krikorian filed two separate notices of
appeal. Those appellate actions were eventually consolidated and dismissed in a single order.
Accordingly, from this point forward, the Court refers to the separate actions collectively as a
single “appeal.” .

5

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8.
te

’
tae

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complaint on abstention grounds. Td. ‘The court applied the day-of-filing rule to determine that
Federal Express’ petition for review in the Tennessee Court of Appeals constituted an ongoing
; state judicial proceeding. Jd. On appeal to the Sixth Circuit, Federal Express argued that there,
in fact, was no ongoing state proceeding which it sought to enjoin, Id, at 969. Federal Express
relied on two cases in support of that assertion. First, Federal Express cited a Fifth Circuit case,
- Thomas v. Texas State Bd. of Medical Examiners, 807 F.2d 453, 456-57 (Sth Cir. 1987), in which
the court held that for the purpose of determining whether a federal court should abstain on
Younger grounds, there is no requirament that a plaintiff exktust state remedies as a prerequisite
to seeking the aid of a federal court to enforce federal constitutional rights and that once an
administrative proceeding has concluded, a plaintiff may opt to raise constitutional challenges in
federal court rather then initiate a state court review of an administrative decision. Quoting
language from Thomas, Federal Express argued that “[dJeference to a state proceeding is not due
when the ‘administrative proceedings have ended,’ and where ‘no state trial has taken place and
no injunction against a pending state proceeding is sought." Fed. Express Corp., 925 F.2d at
969 (quoting Thomas v. Texas State Bd. of Med. Examiners, 807 F.2d at 456). In addition to
citing Thomas, Federal Express also relied on an carlier Supreme Court case, Huffman y, Pursue,
Ltd, 420 US. 592, 609 n. 21 (1975), for the proposition that a party aggrieved by a state
administrative proceeding need not exhnust sinte judicial remedies as a condition to secking
judicial relief for his constitutional claims in a federal court. Fed Express Corp., 925 F.2d at
969. Based on Thomas and Hisffinan, Federal Express argued that sbstention was improper
because its decision to voluntarily withdraw its appeal after Sling suit in federal court was no
different from deciding to seek judicial relief in federal court in lieu of filing an appeal in state

Ve



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they are “protected speech” would effectively sanction the further propagation of statements that
Krikorian knows are false. Accordingly, while Krikorian claims ho only seks prospective relic,
the relief that he actully prays for in his Complaint is an order from a federal court overtuming
the OEC’s findings and declaring that the allegations he has made against Schmidt are true.*

As discussed below, Krikorian had an opportunity to appeal the ruling of the OBC in
state court. Rather than pursue that sppeal, he chose to launch a collateral attack against the
OEC in this forunr, attempting te disguise it as a complaint for prospective relief. The Court
finds that under the circumstances, it would be improper to exercise jurisdiction in this matter
and that the better course of action would be to abstain pursuant to the principles set farth in
Younger. See Walter v. Cincione, No. C-2-00-1070, 2000 WL 1505945, at *3 (S.D. Ohio Oct. 6,
2000) (finding, in a case factually similar to the instant case, that the Younger abstention doctrine
applied despite the plaintiffs’ claim that they were only seeking progpective relief) >

4 "The Court recognizes that the OEC did not ultimately issue a ruling on all of the
statements addressed in the Complaint. However, all of the statements are intricately related and
the statements that Schmidt voluntarily dismissed are go similar to the statements that were ruled
upon that this Court could not issue a declaration as to the truth or falsity of any of the
voluntarily dismissed statements without affecting the ORC’s ruling.

5 In Walter, plaintiffs sougit declaratory and injunctive relief relating to a tecision by the
OEC which fond that the plaintiffs’ use of the phrase “Indepentlent Democmt” in connection -
‘with a campaign for the U.S. House of Reprosentatives was false and therefore violated Ohio
Revised Code § 3517.21. Walter, No. C-2-00-1070, 2000 WL 1505945, at *1. By the time the
plaintiffs had filed their federal suit, the OBC had already orally miled that plaintiffs had violated
the Ohio Statute. Jd. Like in the instant case, the OEC decided not to refer the matterfor
criminal prosecution. Jd. In their federal suit, the plaintiffs argued that the court should not
abstain under Younger because they only sought to enjoin prospectively any further action on the
part of the OEC in connection with the use of the phrase “Independent Democrat.” Id. at *3.
The court rejected that argument, finding that:

This is the proverbial distinction without a difference. Obviously, enjoining

defendants from taking action on plaintiffs’ use of the phrase

Democrat” has the effeot of enjoining defendants fron proceetiing om the original

] complaint and desision. But for the [original] proceeding, there would be no

5



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during the primary elections.

The instant dispute dates back to the days preceding the 2008 generel election. During
that time period, Krikorian addressed a letter (hereinafter “2008 Lettes”) to his supporters and
the people of the Second Congressional District that contained statemonts related to Schmidt's.

&

alleged position on the “Armenian Genocide.” (Doc. 2 at 11.) In addition to sending copies of
the 2008 Letter through the mail, Krikorian also posted the letter on bis campaign website.

On April 29, 2009, Rapreseutative Schmidt filed a cormplaint with the OBC alleging that
Plaintiff violated Ohio Rev. Code § 3517.21' by making eight fulse statements in the 2008
Letter, all of which relate to Krikorian’s accusation that Schmidt accepted money from Turkish
government-sponsored political action committees in exchange for her agreement to deny the
“Armenian Genocide.” (See Doo. 19, Ex. 3.) On July 21, 2009, Schmidt filed a second
complaint against Plaintiff regarding one additional statement from the 2008 Letter.

On October 1, 2009, after a panel of the OEC coheluded that there was probable cause
that all of the challenged statements violated § 3517.21,-the OBC conducted a two-day

} Section 3517.21 states in relevant part the following:

() No person, during the course of any campaign for nomination or election to
public office or office of a political party, by means of campaign materials,
including sample ballots, ah adverfisement on radiv ertelevision or ina
newspaper or periodical, a public speech, press release, or otherwise, shall
knowingly and with intent to affect the outcome of such campaign de any of the

(10) Post, publish, circulate, distribute, or otherwise disseminato a fulse
statement concerning a candidate, either knowing the same to be false or with
reckless disregard of whether it was false or not, if the statement is designed to
promote the election, nomination, or defeat of the candidate.

Ohio Rev, Cods § 3517.21(B)(10).

or

is



ferrin ate ESET EV OU2EI-SID Boe # V-1 Filéd: 08/26/12 Pagé: 6 of 25 PAGEID #: 13

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during the primary elections. :

The instant dispute dates back to the days preceding the 2008 general election. During
that time period, Krikorian addressed a letter (hereinafter “2008 Letter”) to his supporters and
the people of the Second Congressional District that contained statements related to Schmidt’s
alleged position on the “Armenian Genocide.” (Doc. 2 at 11.) In addition to sending copies of
the 2008 Letter through the mail, Krikorian also posted the letter on his campaign website.

On April 29, 2009, Representative Schmidt filed a complaint with the ORC alleging that
Plaintiff violated Ohio Rev. Code § 3517.21' by making eight false statements in the 2008
Letter, all of which relate to Krikorian’s accusation that Schmidt accepted money from Turkish
government-sponsored political action committees in exchange for her agreement to deny the
“Armenian Genocide.” (See Doc. 19, Ex. 3.) On July 21, 2009, Schmidt filed a second.
complaint against Plaintiff regarding one additional statement from the 2008 Letter.

On October 1, 2009, after a panel of the OEC concluded that there was probable cause

that all of the challenged statements violated § 3517.21,-the OEC conducted a two-day

1 Section 3517.21 states in relevant part the following:

(B) No person, during the course of any campaign for nomination or election to
public office or office of a political party, by means of campaign materials,
including sample ballots, au advertisement an radio ar television or ina
newspaper or periodical, a public speech, press release, or otherwise, shall
knowingly and with intent to affect the outcome of such campaign de any af the
following: ...

(10) Post, publish, circulate, distribute, or otherwise disseminate a false
statement conceming a candidate, either knowing the same to be false or with
reckless disregard of whether it was false or not, if the statement is designed to
promote the election, nomination, or defeat of the candidate.

Ohio Rev. Code § 3517.21(B)(10).


CBSS TH DVGOZ4Z-SID DIE

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law regulating false campaign advertising and other false statements in the course of a
campaign); see also Friends of Phil Gramm v. Americans for Phil Gramm in 84, 587 F. Supp.
769, 776 (B.D. Vir. 1984) (noting that because the “Federal Election Act .. . nowhere
specifically addresses the problem of fraud in political advertising,” “Congress obviously did not
intend completely to preclude state regulation in this area, thus giving political organizations
license to mislead,” and finding asa result that “[t]he only reasonable conclusion is that
Congress intendad to leave regulation cf fraud in political advertising to the states, except where
such regulation conflicts with the Act’s specific provisions.”)

On its face, the Ohio Statute at issue here does not fit neatly into any of the categories
listed under 11 C.F.R. § 108.7. The question of whether the statute is federally preempted is far
from clear and would require this Court to engage in a detailed analysis of state and federal law.
Accordingly, the Court finds that the issue of federal preemption in this case is not facially
conclusive, See Fed. Express Corp., 925 F.2d at 968 (holding that abstention was proper where
the question of federal preemption was not clear and the state court had concurrent jurisdiction to

address preemption issues).

21



Case: 1:12-cv-00242-SJD Doc #: 1-3 Filed: 03/26/12 Page: 1 of 1 PAGEID #: 60

Mark W. Miller
3630 Zumstein Avenue
Cincinnati, Ohio 45208
Day Telephone Number: (513) 533-3525

Email Address: mmiller@mepdq.com
January 9, 2012

FOIA APPEAL

Via e-mail (FOIA@fec.gov) and regular mail
Chief FOIA Officer

Federal Election Commission

999 E Street, NW.,

Washington, DC 20463

Re: FOIA Request dated November 23, 2011
Appeal of No Response to Request
Dear Sir or Ma’am:

I am appealing the lack of any response to the FOIA Request that I submitted on
November 23, 2011. A copy of this request is attached hereto.

Greater than 20 business days have elapsed since I tendered the request and it was
received by the Federal Elections Commission. To date, no response whatsoever has been
provided. Thus, I am filing this appeal and request that the Commission, pursuant to 11 CFR
4.8(a), direct that the requested records be made available and that such records be released

forthwith.
Th .
Mark W, Miller .
Enclosures

Exhibit C


Case: 1:12-cv-00242-SJD Doc #: 1 Filed: 03/26/12 Page: 1 of 7 PAGEI

UNITED STATES DISTRICT COURT 9017 EDD
SOUTHERN DISTRICT OF OHIO wrens
WESTERN DIVISION OF
MARK W. MILLER, : Case No. 1:12:-CV-242
Plaintiff, Judge

Vv

FEDERAL ELECTIONS COMMISSION, COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF
Defendant.

Plaintiff Mark W. Miller, hereby files this Complaint to compel compliance with the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. As grounds therefor, Mr. Miller alleges as
follows:

PARTIES

1. Plaintiff Mark W. Miller is a citizen of the State of Ohio and is a resident within this
District.

2. Defendant Federal Elections Commission is an agency of the federal government and
has possession, custody or control over the records that Plaintiff sought pursuant to FOIA.

JURISDICTION & VENUE

3, This Court has jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.

4. Venue is proper within this judicial district pursuant to 5 U.S.C. § 552(a)(4)(B), as the
Plaintiff resides and is domicilated within this District.

STATEMENT OF FACTS / CAUSE OF ACTION
5. Inthe Congressional election of November 2008, Jean Schmidt (a member of Congress

representing Ohio’s second congressional! district) ran against David Krikorian.





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Mark W. Miller
3630 Zumstein Avenue
Cincinnati, Ohio 45208
Day Time Telephone: (513) 617-2263
Email Address: MarkMiller@Plumechtrics.Com

February 14, 2012
FOIA APPEAL

VIA CERTIFIED MAIL,

RETURN RECIEPT REQUESTED,
ORIDNARY MAIL AND EMAIL

(FOIA@fec.gov)
Chief FOIA Officer

Federal Election Commission
999 E. Street, N.W.,
Washington, DC 20463

Re: FOIA Requested dated November 23, 2011.
Appeal of No Response to Request
Dear Sir or Madam:
On January 9, 2012 I sent, via ordinary mail, an appeals letter. On that letter I had the

incorrect telephone number; the correct telephone number is (513) 617-2263. Also, the email
address MarkMiller@Plumechtrics.com is preferred.

Attached hereto you will find the original appeals letter dated, January 9, 2012 as Exhibit
Aand also attached you will find the FOIA Request dated November 23, 2011 as Exhibit B.

I am once again appealing for the lack of any response to the FOIA Request that 1
submitted on November 23, 2011. Thus, I am filing this appeal and request that the Commission,
pursuant to 11 CFR 4.8(a), direct that the requested records be made available and that such
records be released forthwith.

Exhibit D


)

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and noted that the case was quite different from a case in which a prosecution is threatened for
the first time. Jd.

There is no such threat of repeated prosecutions or OKC enforcement actions present in
the instant case. More importantly, Krikorian is not seeking relief that is wholly prospective.
Krikorian argues that he is simply seeking to prevent future enforcement of Ohio Rev. Code §
3517.21 against him in connection with his desired speech. However, the plain language of his
Complaint belies the true basts of this suit. Krikorian essentiatly secks an erder Irom this Court
overturning, or annulling, the findings of the OFC with regard to the specific statements hc made :
regarding Schmidt's position on the Armenian genocide. Specifically, Krikerian seeks a
declaratory judgment that the nine statements forming the basis of Schmidt’s OEC complaint
“constitute speech protected by the First Amendment and that Defendants lack the legal
authority to enforce the Statute against Plaintiff for making such statement.” Krikorian seeks
injunctive relief on the same basis that would enjoin the OEC from taking any further action
against him in the event he continues to make those statements.

The First Amendment does not protect speech that is made with knowledge of or reckless
disregard ofits falsity. See Garrison, State of La., 319 US. 64, 74-15 (1964) (“[T]he
knowingly false statement and the fatse statement made with reckless disregard of the truth, do
not etjoy constitutional protection.”); N. ¥. Times Co. v, Sullivan, 376 U.S. 254, 279-80 (1964).
With that principle in mind, this Court could nat declare that the nine statements roade by
Krikorian about Schmidt’s position on the Armenian Genocide constitute protected speech and
enjoin the state from regulating that speech without finding that those statements are, in fact,

true. That is because to the extent that the Court finds the statements false, any declaration that

14



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Conclusion

Based on the foregoing, I respectfully request that the Commission confirm that it would
be permissible for the campaign committee te pay legal fees and expenses associated
with the filing of the above-cited amicus briefs.

Please contact me if you have any questions or need additional information regarding this
request. :

Sincerely,
fd c-

Phil Greenberg
Treasurer

a


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. Revised Code § 119.12. Rather than naming the OHC, Krikorian had named Schmidt as the
- -party-appellee. On January 21, 2010, while the OEC’s motion to dismiss Krikorian’s appeal was
pending, Krikorian filed the instant action requesting declaratory and injunctive relicf. In his
Complaint and Motion for Preliminary Injunction, Krikorian raises many if not all of the same
arguments raised in his state court appeal.

On February 10, 2010, the Court of Common Pleas granted the OEC’s motion to dismiss
due to Krikorian’s failure to properly tame the OEC as an appellee. (Doc. 19, Hx. 7.) Krikerian
had the option to appeal that ruling to Ohio's Tenth District Court of Appeals, but chose to forgo
the appeal. (See Doc. 30.) After Krikorian filed in this action notice of his decision not to
pursue that appeal, Defendants filed a Motion to Dismiss the instant suit.
1s DEFENDANT’S MOTION TO DISMISS

Defendants move to dismiss Krikorian's-Complaint pursuant to Rule 12(b) of the Federal
Rules of Civil Procedure on the following four grounds: (1) the Court should abstain from
hearing this matter under Younger, 401 U.S. at 37, and its progeny; (2) the Court
lacks subject matter jurisdiction to hear this case under the Rooker-Feldman doctrine; (3) the
principles of preclusion operate to bar Plaintiff from bringing these claims in federal court; and
(4) this Court should decline to exercise its discretionary jurisdiction under the Declaratory
Judgment Act, 28 U.S.C. § 2201. Finally, Defandants also angus that the OEC should be
dismisced as a defendant because Eleventh Amendment immunity bars suits against the
OEC as an agency of the State of Ohio. As stated above, the Court finds Defendants? first
alleged basis for dismissal to be well-taken. The Court therefore declines to consider

Defendants’ alternative arguments for dismissal.


with those statements.

88° 11280032-890 E
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complaint filed with the OEC constitute speech protected by the First Amendment, rendering .

Defendants without the legal authority to enforce the Ohio Statute egainst him in connection

Jn addition to requesting a declaratory judgment, Krikorian also seeks to enjoin any i,
future enforcement of the Obio Statute against him to the extent he intends to engage in speech
protected by the First Amendment, including speech in the form of the nine statements

mentiewxd above, un the grannd that tie Ghio Statute is unconstitutional and federatly
preempted.

Defendants object to Plaintiff's Motion for Preliminary Injunction on the merits and on
the basis that the Court should abstain from exercising jurisdiction over Plaintiff's claims under
the doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971). Defendants also, by separate
motion, move to dismiss Plaintiff's claims under a number of procedural grounds, including the
Younger abstention doctrine. For the reasons that follow, the Court finds that Younger
abstention applies to the instant case and prevents this Court from reaching the merits of
Plaintiff's complaint, Accordingly, the Court GRANTS Defendant’s Defendants' Motion to
Dismiss and DENIES Plaintif's Motion for Preliminary Injunction.

L BACKGROUND

Plaintiff Krikorian twice in the past few years bas challenged incumbent Republican
Congresswoman Jean Schmidt to represent the second congressional district of Ohio. In 2008,
Krikorian ran as an Independent and lost in the general election, During the current, 2010
election, Krikorian once again ran for the congressional seat. Rather than running as an

Independent in the current election, he ran as a Democrat. Krikorian lost to another candidate



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they are “protected speech” would effectively sanction the further propagation of statements that
Krikorian knows are false. Accordingly, while Krikorian claims he only seeks prospective relief,
the relief that he ectually prays for in his Complaint is an order from a federal court overturning
the OEC’s findings and declaring that the allegations he has made against Schmidt are true.

As discussed below, Krikorian had an opportunity to appeal the ruling of the OEC in
state court. Rather than pursue that appeal, he chose to launch a collateral attack apainst the
OEC in'this forum, attempting to disguise it as a complaint for prospective rellef. The Court
finds that under the circumstances, it would be improper to exercise jurisdiction in this matter
and that the better caurse of action would be to abstain pursuant to the principles set forth in
Younger. See Walter v. Cincione, No, C-2-00-1070, 2000 WL 1505945, at *3 (S.D. Ohio Oct. 6,
2000) (finding, in a case factually similar to the instant case, that the Younger abstention doctrine

applied despite the plaintiffs’ claim that they were only seeking prospective relief).5

4 The Court recognizes that the OEC did not ultimately issue a ruling on all of the
statements addressed in the Complaint. However, all of the statements are intricately related and
the statements that Schmidt voluntarily dismissed are so similar to the statements that were ruled
upon that this Court could not issue a declaration as to the truth or falsity of any of the
voluntarily dismissed statements without affecting the OEC’s ruling.

5 In Walter, plaintiffs sough deolaratory and injunctive relief relating to a decision by the
OEC which fond that the plaintiffs’ use of the phrase “Indepentlent Democmt” in connection -
‘with a camprign for the U.S. House of Reprosentatives was false and therefore violated Ohio
Revised Code § 3517.21. Walter, No. C-2-00-1070, 2000 WL 1505945, at *1. By the time the
plaintiffs had filed their fedural suit, the OBC had already orally niled that plaintiffs had violated
the Ohio Statute. Id. Like in the instant case, the OEC decided not to refer the matter for
criminal prosecution. Id, In their federal suit, the plaintiffs argued that the court should not
abstain under Younger because they only sought to enjoin prospectively any further action on the
part of the OEC in connection with the use of the phrase “Independent Democrat.” Id. at *3.
The court rejected that argument, finding that:

This is the proverbial distinction without a difference. Obviously, enjoming

defendauts from taking action on plaintiffs’ use of the phrase “Indopendent

Democrat” bas the effeot af enjoiuing defendants from proceeting on the original

(] complaint and deaision. But for the [original] proceeding, there would be no

15




12-cv-00242-SJR Doc

Patented

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i Se HANG ege OE SE, PN ATES

Pe

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seek to enjoin the prior state administrative proceedings before the” OKC, but rather involves

claims for purely prospective relief. In Wooley, tlie plaintiff filed suit in federal court to
challenge two state Laws, the first of which required non-commercial vebicles to bear license
plates embossed with the state motto of “Live Free or Die,” and the second of which prohibited
the obscuring of figures or letters on a vehicle's license plate, Jd.at 707-08. Believing the state
motto to contlict with his religions belief’, the plaintiff covered the portion of his license plate
bearing the mnntto and as a result was cited for violating five secand challengett statute fhree times
in.as many months in late 1974 and early 1975. Jd. at 708. The plaintiff was fined for the first
two violations and then, after he refused to pay the fines, was sentenced to fifteen days in jail.
Id. Shortly thereafter, the plaintiff filed suit in federal court seeking to prevent any further
enforcement of the state statutes, insofar as they required the state motto to be displayed on his
@& license plate. Id.st 709.

‘The federal district court entered an order enjoining the state from arresting and
prosecuting the defendant and his wife at any time in the future for covering up the state motto
on their license plate. Jd. On appeal to the United States Supreme Court, the state argned that
the district court should have abstained from exercising jurisdiction under Younger. The
Supreme Court found thst Younger nstentian was not required under the circumstannes, despite
the fuat that the plaintiff hati mot exhausted bis state appellate remedies, because the relief sanght
by the plaintiff was “wholly prospective” and was not “designed to annul the results af a state”
proceeding. Id. at 711. ‘The Supreme Court fimther noted that there were exceptional
circumstances justifying injunctive relief in that case. Id. at 712. Particularly, the Court pointed
to the fact that the plaintiff had been prosecuted three separate times in the span of five weeks

13





Lae shania THT EP OOPS SIT Doc FE
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court,

The Sixth Circuit rejected Federal Express’ argument as follows:

In Zalman v, Armstrong, 802 F.2d 199, 204 (6th Cir, 1986), we held “that the
proper time of reference for determining the applicability of Younger abstention is
the time thet the federal complaint is filed.” Under this rule, if a state proceeding
is pending at the time the action is filed in federal court, the first criteria for
Younger abstention is satisfied. See Beltran v. California, 871 F.2d 777, 782 (9th
Cir. 1988). In the present case, state proceedings were ongving because
Federal Express’ petition for review in the Tennessee Court of Appeals was
pending on the date it filed the present action. Federal Express’ reliance on
Thomas is misplaced because in that case, tha plaintiff dismissed his state suit
before filing the federal action. Thomas, 807 F.2d at 457. Therefore, under the
day-o€-filing rule, Federal Express’ subsequent dismissal af its state court action
did not affect the abstention analysis. Federal Express’ reliance on the footnote in
Huffinan is misplaced because the Court stated that in those cases where
exhaustion had not been required, the state judicial process had not been initiated.
Huffinan, 420 U.S. at 609 n. 21. To the contrary, in the present case, Federal
Express had initiated state judicial proceedings, and we hold that the state court
proceedings were “ongoing” for purposes of Younger anslysis.

dd (emphasis adited).

Just as in Federal Express, it makes no difference in the instant case that Krikorian
choose not to appeal the common pleas court’s dismissal of his petitions for state court review of
the OEC rulings. The only relevant facts are that Krikorian opted to seck judicial review of the
OEC rulings through the state court prior to filing suit in federal court and his state court appeal
‘was pending on the day he filed the: present action. Applying the day-of-filing rule, the Court
concludes that in the context af a Younger abstention analysis, Krikorian’s state court appeal
constitutes an “ongoing judicial proceeding.”

2. Prospective Relief
Citing Wooley v. Maynard, 430 U.S. 592 (1975), Krikorian argues that the Court should

not abstain from hearing this matter because “this case does not involve or directly challenge or

12

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ce ue CASE: 1,12:6v-00242-SJD, Doc. #ide2 Filed: 02/26/12. Rage:.25.0f.27..RPAGEIDM Shinar

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3
- @) Limitation on contributions and expenditures, rounding Federal
& . candidates and political committees,

(©) The Act does not supersede State awe which provide fo the
(1) Manner of qualifying as a candidate or political party organization;
(2) Dates and places of elections;
(3) Voter registration;

(4) Prohibition of false registration, voting frand, theft of ballots, and
similar offenses;

(5) Candidate's personal financial disclosure; or

(© Application of State law to the funds nsed for the purchase or

construction of a State or local party office building to the extent

described in 11 CE.R. 300.35.
HZ. Baséd in part on that reguiation, the Sixth Circuit held in Bunning thet 2. U.S.C. § 453
preempted a Kentucky campaign financing statute and prevented the state Registry of Election
Finance from investigating polling expenditures made by a federel political committee registered
with the FEC. Bunning, 42 F.3d at 1012. Krikorian relies on Bunning to demonstrate that § 453

is broad in scope. However, Bunming in distinguishable from this case in that it involved a state
law related to campaign financing — an area in which FECA has often been found to preempt
state law. The instant case, in contrast, does not involve the area of campaign finance. Instead,
the state Jaw at insue herein is aimed at regulating false statements made during the course of an
election, Accordingly, Bunning is not dispositive of the issue before this Court.

At least one other court has rafed that FECA does not preempt a state statute substantially
similar to the Ohio Statute that Krikorian challenges, albeit with only a brief analysis. See State
of Minn. v, Jude, 554.N.W.2d 750, 752-53 (1996) (finding that FECA does not preempt a state


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Ii. CONCLUSION

For the reasaus stated above, this Court must abstain under Younger from exercising
juisdiction over this matter. Accordingly, the Coust hereby DENIES Plaintiff's Motion for
Preliminary Injunction and GRANTS Defendants’ Motion to Dismiss.

ITIS SO ORDERED.

___8/Susan J, Dlott,
Chief Judge Susan J. Dlott
United States District Court





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federal court to grant injunctive relief.” Sun Refining & Mig. Co., 921 F.2d at 639. There are
limited circumstances under which a Court may exercise jurisdiction even where the three-part
Younger test has been met. See Younger, 401 U.S. at 53-54. However, the mere fact that a
plaintiff makes a claim of unconstitutionality or federal preemption does not justify federal
intervention where the Younger factors have been met. See id. at 53; New Orleans Pub. Serv.,
Inc. v. Council of City of New Orleans, 491 U.S. 350, 364-65 (1989) (stating that “it is clear that
the mere assertion of a substantial constitutional challenge to state action will not alone compel
the exercise of federal jurisdiction,” aud finding the same to be true with regard to preemption
challenges); Fed Express Carp. v. Tennessee Public Service Commission, 925 F.2d 962, 967
(6th Cir. 1991); Sun Refining & Mitg. Co., 921 F.2d at 640-41.

B. Ongoing State Judicial Proceedings

The Sixth Circuit has held and repeatedly affirmed that “the proper time of reference for

determining the applicability of Younger abstention is the time that the federal complaint is
“flea” Sun Refining & Mktg. Co., 921 F.2d at 639 (citing Carras v. Williams, 807 F.2d 1286,
1290 n. 7 (6th Cir. 1986)); see also Fed. Express Corp., 925 F.2d st 969; Zalman y. Armstrong,
802 F.2d 199, 204 (6th Cir. 1986). There is no dispute that the procecding before the OEC and
the subsequent appeal were judicial in nature. Nor is there any dispute that the appeal filed with
the Franklin County Coutt of Common Pleas was pending when Krikorian filed the present

action. Nonetheless, Krikorian argues that the first requirement of Younger abstention is not met .

in this case because: (1) there is no longer any ongoing judicial proceeding in this case dus to
Krikorian’s decision not to pursuc his slate court appeal to the Ohio Court of Appeals, and (2)

Krikorian is not seeking to challenge or enjoin any prior decision of the OEC, but rather secks

Zof25 PAGEID #19


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6. Since defeating Mr. Krikorian during the election held in November 2008, Jean Schmidt
has been involved in four complaints or lawsuits directly related to the 2008 campaign.

7. In each of these actions, Congresswoman Schmidt has been represented by lawyers
provided and paid by the Turkish American Legal Defense Fund (TALDF) or its alter ego of the
Turkish Coalition of America (TCA).

8. The TCA isa special interest group which advocates and lobbies in the United States in
support of and in order to advance the political interest of the Government of Turkey.

9. Asa result of the foregoing legal representation being provided for and on behalf of
Congresswoman Schmidt, the TALDF and/or the TCA paid for nearly $500,000 in legal service for
Congresswoman Schmidt in order to engage in a vindictive and retributive vendetta against a former
political opponent, ie., Mr. Krikorian.

10. Following an investigation, the House Ethics Committee concluded that, in accepting
legal services which were paid for by the TALDF and/or the TCA, Congresswoman Schmidt
received an impermissible gift of nearly $500,000.

11. Asaresult of the House Ethics Committee finding Congresswoman Schmidt had accept
an impermissible gift of nearly $500,000, the House Ethics Committee ordered or required
Congresswoman Schmidt to, amongst other things, pay from a permissible source the lawyers
associated with TALDF and/or the TCA for all legal services they performed for or on behalf of
Congresswoman Schmidt.

12. The House Ethics Committee authorized Congresswoman Schmidt to establish a legal
expense fund in order to raise funds to pay for the nearly $500,000 that she received in legal services

from the TALDF and/or the TCA.




Case: 1:12-cv-00 4S 1 of 25 PAGEID #j 1
a renee YEO.
SCHMIDT cm
-  PIOCT 13 Pit 4:06
for Cong OFFICE OF ccHcpay
October 7, 2011 CounseL PAL
er /, ‘WW W.JEANSCHMIDT.COM .
Federal Elections Commission :
Office of General Counsel
999 E St, NW 0//- D. oo
Washington, DC 20463 ta Ls
Dear Commissioners: .

Iam writing in my capacity as Treasurer of Jean Schmidt for Congress, Representative
Jean Schmidt’s principal campaign committee (“Committee”). I respectfully request an
advisory opinion from the Federal Election Commission (“Commission”) regarding the
payment of legal fees associated with an amicus brief submitted on Mrs. Schmidt's
behalf. .

Factual Background

In the final days of the 2008 general election campaign one of Representative Schmidt's
opponents distributed materials that accused her of accepting a $30,000 bribe from the
Government of Turkey in exchange for denying or covering up the genocide of
Armenians living in Turkey during World War I. ‘Fhe campaign materiala also calleid for
her immediate resignation from congress and/or her defeat in the 2008 general election.

In response ta his outrageous allegations, she filed two complaints with the Ohio
Elections Commission — which has jurisdiction over false campaign statements under
Ohio Law. She alleged that her opponent violated Ohio Revised Code §3517.21, which
prohibits persons from knowingly or recklessly publishing “a false statement concerning
acandidate . .. if the statement is designed to promote the election . . . or defeat of the
candidate.” She stated in the complaints that she was a candidate, und used her campaign
committee address in the caption.

In October 2009, the Ohio Elections Cammisaion ruled by.o clear and convincing
evidenoe standard that Mrs. Schmidt’s opponent had made false statements abaut her that
he knew were false and had made false statements about her with reckless disregard of
their truth or falsity. The Ohio Elections Commission found that her opponent had
violated Ohio law, and voted to publicly reprimand him. Mrs. Schmidt’s opponent filed
an appeal in Ohio state court seeking to overtum the Ohio Elections Commission’s-
decision. This appeal was denied.

Thus, on January 21, 2010, Mrs. Schmidt’s opponent filed a civil suit In federal court
challenging the constitutionality of Obio’s false statements statute and seeking: (1) a
declaration that her opponont had a constitutional right to make the statements for which

Exhibit A

Continuing a Tradition of Leadership and Character
[ Paid for by Schmidt for Congress Committee ]



Case: 1:12-cv-00242-SJD Doc #: 1 Filed: 03/26/12 Page: 3 of 7 PAGEID #: 3

13. However, the House Ethics Committee ruled that the proceeds of the legal expense fund
could not be used to pay expenses or fees associated with one of the four legal proceedings for which
the TALDF and/or the TCA had previously provided and paid for legal services for Congresswoman
Schmidt — the writing and submission of an amicus brief in a federal court litigation.

14. Thus, on or about October 7, 2011, Phil Greenberg, who is the treasurer of the Schmidt
for Congress Committee, wrote to the Defendant FEC requesting an advisory opinion from the FEC
about using campaign funds to pay the TALDF and/or the TCA for the legal services related to the
amicus brief and for which the House Ethics Committee mandated to be repaid but not through the
legal expense fund.

15. A true and accurate copy of the letter from Mr. Greenburg to the FEC, dated October 7,
2011, is attached hereto as Exhibit A. Said letter was received by the FEC on October 13, 2011.

16. Pursuant to 11 CFR 112.1(f), “[u]pon receipt by the Commission, each request which
qualifies as an advisory opinion request (AOR) under 11 CFR 112.1 shall be assigned an AOR.
number for reference purposes.”

17. Uponreceipt of the request for an advisory opinion from Mr. Greenburg, i.e., Exhibit A,
the FEC assigned AOR number 2011-20 to the request from Mr. Greenburg.

18. Thus, the request for an advisory opinion from Mr. Greenburg, i.e., Exhibit A, qualified
as an advisory opinion request under 11 CFR 112.1.

19. Pursuant to 11 CFR 112.2(a), “[aldvisory opinion requests which qualify under 11 CFR
112.1 shall be made public at the Commission promptly upon their receipt.”

20. Upon receipt of the request for an advisory opinion from Mr. Greenburg, i.e., Exhibit A,

and having assigned it AOR number 2011-20, the FEC caused AOR 2011-20 to be posted publicly

3e


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evidentiary hearing on both complaints. At the beginning of the hearing, the OEC announced
that it would bifurcate the allegations against Krikorian and that it would initially only consider
evidence as fo certain of the statements alleged to have violated the Ohio Statute. The OEC
ultimately determined that Krikorian violated § 3517.21 as to the following three statements:

(1) “Jean Schmidt has taken $30,000 in blood money from Turkish goverment
sponsored political action committees to deny the slaughter of 1.5 million
Armenian men, women, and children by the Ottoman Turkish Govemment during
World War I.” -(Doc. 19, Ex. 3 at 2.)

Q) = “This information is public record and can be found on the Federal Elections
Commission database at http://www.FEC. gov.” (as this statement references facts
that support the statements that Turkish government sponsored political action
committees donated $30,000) (d.)

@G) “Task the people of Ohio’s second congressional district to ask themselves if our
Representative should be taking money from a foreign government that is killing
our soldiers.” (Id. Bx. 4.)

The OEC allowed Schmidt to withdraw her complaint as to five similar statements in which
Krikorian accused Schmidt of denying the “Armenian Genocide,” the “Christian Armenian
Genocide,” or the “Genocide of Christi Ammenians.” ({d. Ex. 3.) Finally, the OC
administratively dismissed one statement and found no violation of the statement, “[t]his
information is public record and can be found on the Federal Elections Commission database at
ttpu/wwe.FEC gov" but only as the statement related to facts supporting the statement that

“Turkish people donated $30,000.” (d.) As to the three statements found to have violated §



Case:1:12-cv-00242-SJDDoc#:2Filed:03/27/12Page:1of2PAGEID#:69

AO 440 (Rev. 12/09) Summons in 2 Civil Action

UNITED STATES DISTRICT COURT

for the 2IZAPR-& Pri 2:29
SOUTHERN DISTRICT OF OHIO
OFFICE oF
MARK W. MILLER COLT:
Plaintify
Vv. Civil Action No. 1:12-CV-242

FEDERAL ELECTIONS COMMISSION

Defendant

SUMMONS IN A CIVIL ACTION

To: (Defendant s name and address) FEDERAL ELECTIONS COMMISSION
999 E Street, NW
Washington, DC 20463

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff s attomey,
whose name and address are:

Curt C. Hartman, Esq.

The Law Firm of Curt C. Hartman
3749 Fox Point Court

Amelia, OH 45102

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

Date: 3/27/12



Case: 1:12-cv-00242-SJD Doc #: 1-2 Filed: 03/26/12 Page: 4 of 27 PAGEID #: 36

he was sanctioned by the Ohio Elections Commission; and, (2) an injunction against the
Ohio Elections Commission from enforcing Chio’s false campaign statement law against
him in the future.

Her opponent's federal court action named the Ohio Elections Commission and its
members as parties, but did not name her or her campaign committee as a party.
However, her attorneys were allowed to file amicus briefs on her behalf.

Discussion .

Under the Federal Election Campaign Act of 1971, as amended, categories of permissible
uses of campaign funds include otherwise authorized expenditures in connection with a
candidate's campaign for Federal office; and, ordinary and necessary expenses incurred
in comnection with a Federal ufficehelder’s duties, among others. 2 U.S.C. 439a(a).

The Act prahtbits the conversion af campnign funds ta personal use. Both the Act and
Commission regulations define personal use as “any use of funds in a campaign account
ofa present or former candidate to fulfill a commitment, obligation or expense of any
person that would exist irrespective of the candidate’s election campaign or duties as a
Federal officeholder.” 11 CFR 113.1(g).

The Commission determines whether the use of cantpaign funds for the payment of legal
fees and expenses constitutes personal use on a case-by-case basis. The Commission has
recognized that when a candidate “can reasonably show that the expenses at issue
resulted fom campaign or offleeholder activicies, the Commission will nat consider the
use to be personal uso.” 1995 Personal Use E&J at 7,847. It has eoncluded that the use
of campaign funds for legal fees and expenses does not constitute personal use when the
legal proceedings involve allegations directly relating to the candidate’s campaign ar
duties as a Federal officeholder. Advisory Opinions 2009-10, 2009-20, 2008-07, 2006-
35, 2003-17, among others.

While neither Mrs. Schmidt nor her campaign were named parties to the federal court
action, it is quite clear that legal proceedings directly related to her campaign or duties as
a Federal officeholder. Her opponent was clearly attempting to use the federal court to
improperly attack her victory at the Ohio Elections Commission. In deciding this case,
Judge Diott agreed with the amicus brief filed on her behalf that the federal case was
simply an improper attempt to relitigate the Ohio Elections Commission ease in federal
court. In her opinion (attached) Judge Dlott writes, “However, the plain language af his
complaint belies the true basis of this suit. Krikorian essentially seeks an order from this
Court overturning, or annulling, the findings of the OEC with regard to specific
statements he made regarding Schmldt's position on the Armenian genocide.”
Additionally, it is my understanding that Mrs. Schmidt would have had standing to
intervene in the federal action if she believed that an amicus bricf would not have
adequately protected her interests in this case.




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on its website. Specifically, the FEC posted the request for an advisory opinion from Mr. Greenburg,
i.e., Exhibit A, on its website on October 18, 2011.

21. Pursuant to 11 CFR 112.3(a), “[a]ny interested person may submit written comments
concerning advisory opinion requests made public at the Commission.”

22, Pursuant to 11 CFR 112.3(b), “[t]he written comments shall be submitted within 10
calendar days following the date the request is made public at the Commission. . . . Additional time
for submission of written comments may be granted upon written request for an extension by the
person who wishes to submit comments or may be granted by the Commission without an extension
request.”

23. Pursuant to 11 CFR 112.4(a), “[w]ithin 60 calendar days after receiving an advisory
opinion request that qualifies under 11 CFR 112.1, the [FEC] shall issue to the requesting person a
written advisory opinion or shall issue a written response stating that the Commission was unable to
approve an advisory opinion by the required affirmative vote of 4 members.”

24. Notwithstanding the fact that AOR 2011-20 was received by the FEC over 60-days ago,
the FEC has failed to issue a written advisory opinion in response the advisory opinion requested by
Mr. Greenburg, i.e., Exhibit A.

25. Notwithstanding the fact that AOR 201 1-20 was received by the FEC over 60 days ago,
the FEC has failed to issue a written response to the advisory opinion requested by Mr. Greenburg,
te., Exhibit A, wherein the FEC stated that it was unable to approve an advisory opinion by the
required affirmative vote of 4 members of the FEC.

26. Instead, approximately one week after AOR 201 1-20 was posted on the website of the

FEC, the FEC without explanation removed AOR 201 1-20 from its website.

—4—


ay
g

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‘The Sixth Circuit rejected Federal Express’ argument as follows:

In Zalman v, Armstrong, 802 F.2d 199, 204 (6th Cir. 1986), we held “that the
proper time of reference for determining the applicability of Younger abstention is
the time that the federal complaint is filed.” Under this mule, if a state proceeding
is pending at the time the action is filed in federal court, the first criteria for
Younger abstention is satisfied. See Beltran v. California, 871 F.2d 777, 782 (9th
Cir. 1988). 20 the present case, state proceedings were ongoing because
Federal Express’ petition for review in the Tennessee Court of Appeals was
pending on the date it filed the present action. Federal Express’ reliance on
Thomas is misplaced because in that case, the plaintiff dismissed his state suit
before filing the federal action. Thomas, 807 F.2d nt 457. Therefore, under the
day-of-filing rule, Fedéral Express’ subsequent dismissal af its state court action
did not affect the abstention analysis. Federal Express’ reliance on the footnote in
Huffnan is misplaced because the Court stated that in those cases where
exhaustion had not been required, the state judicial process had not been initiated.
Huffman, 420 US. at 609 n. 21. To the contrary, in the present case, Federal
Express had initiated state judicial proceedings, and we hold that the state court
Proceedings were “ongoing” for purposes of Younger annfysis.

+ Hd (emphasis adited),

Just as in Federal Express, it makes no difference in the instant case that Krikorian
choose not to appeal the common pleas court’s dismissal of his petitions for state court review of
the OBC rulings, The only relevant facts are that Krikorian opted to seek judicial review of the
OEC rolings through the state court prior to filing suit in federal court and his state cout appeal
‘was pending on the day he filed thr present action. Applying the day-of-filing rule, the Comt
concludes that in the context af a Younger abstention enalysis, Krikorian’s state court appeal
constitutes an “ongoing judicial proceeding.” Pye nee eam tae oe ann am i

2 Prospective Relief :
- . Citing Wooley v. Maynard, 430 U.S. 592 (1975), Krikorian exguss that the Court should
not abstain from hearing this matter because “this case does not involve or directly challenge or

12





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complaint.on abstention grounds. Jd. The court applied the day-of-filing rule to determine that
Federal Express’ petition for review in the Tennessee Court of Appeals constituted an ongoing

* state judicial proceeding. Jd. On appeal to the Sixth Circuit, Federal Express argued that there,
in fact, was no ongoing state proceeding which it sought to enjoin. Jd. at 969, Federal Express
relied on two cases in support of that assertion. First, Federal Express cited a Fifth Circuit case,

- Thomas v. Texas State Bd. of Medical Examiners, 807 F.2d 453, 456-57 (5th Cir. 1987, in which
the court held that for the purpose of determining whether a federal court should abstain on
Younger grounds, there is no requirement that a plaintiff exhbust state remedies as a prerequisite
to seeking the aid of a federal court to enforce federal constitutional rights and that once an
administrative proceeding has concluded, a plaintiff may opt to raise constitutional challenges in
federal court rather than initiate a state court review of an administrative decision. Quoting
language from Thomas, Federal Express argued that “[djeference to a state proceeding is not due
when the ‘administrative proceedings have ended,’ and.where ‘no state trial has taken place and
no injunction against a pending state proceeding is sought.” Fed. Express Corp., 925 F.2d at
969 (quoting Thomas v, Fexas State Bd. of Med. Examiners, 807 F.2d at 456). In addition to
citing Thomas, Federal Express also relied on an earlier Supreme Court case, Huffman v. Pursue,
Ltd, 420 U.S. 592, 609 n. 21 (1975), for the proposition that a party aggrieved by a state
adrainistrative proceeding need not exhaust state judicial remedies as a condition to secking
judicial relief for his constitutional claims in a federal court. Fed. Express Corp., 925 B.2d at
969. Based on Thomas and Huffman, Federal Express argued that abstention was improper
because its decision to voluntarily withdraw its appeal after filing suit in federal court was no

different from deciding to seek judicial relief in federal court in lieu of filing an appeal in state

iW

eee a


Case: 1:12-cv-00242-SJD Doc #: 1-2 Filed: 03/26/12 Page: 5 of 27 PAGEID #: 37

Conclusion
Based on the foregoing, I respectfully request that the Commission confirm that it would
be permissible for the campaign committee te pay legal fees and expenses associated
with the filing of the above-cited amicus briefs.

Please contact me if you have any questions or need additional information regarding this
request. :

Sincgegly,

Phil Greenberg,

lo



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purely prospective relief. The Court finds both arguments problematic.

L Decision to Forego Further State Appellate Review
Krikorian suggests that it would be improper for the Court to abstain under Younger in

light of the fact that his state court appeal was dismissed shortly after he filed suit in federal
court and he opted to forego appealing the common pleas court’s decision to Ohio’s Tenth
District Court of Appeals. However, the Sixth Circuit previously rejected a similar argument in
- Fed. Express Corp., 925 F.2d at 969. In that case, the Tennessee Public Service Commission
(“TPSC”) directed Federal Express to show cause why it should not be subject to a Tennessee
law—the Tennessee Motor Carrier Act — that would require it to apply far a certificate of ,
convenience and necessity from the TPSC. Jd. at 964. Following a hearing on the matter, an
administrative law judge (“ALY held that Federal Express was subject to the law in question.

Jd. The TPSC reviewed the ALJ’s decision, heard oral argument, and then issued an order on

June 9, 1987, requiring Federal Express to apply for a certificate of convenience and necessity
within a certain period of time. Jd. On July 9, 1987, Federal Express filed with the Tennessee
Court of Appeals a petition for review of the TPSC’s order. Id. Approximately one month later,
on August 7, 1987, while the petition for state appellate court review was pending, Federal
Express filed suit im federal court, seeking declaratory and injunctive relief against TPSC. Id. at
964-65. Then, on September 9, 1987, prior the fedeml district oourt’s hearing an Federal
Express’ motian for a preliminary injunction, Federal Express filed a motion to voluntarily
dismiss its petition for review in the Tennessee Court of Appeals. Jd. at 965. The motion for
voluntary dismissal was granted shortly thereafter.

Based on Younger, the federal district court ultimately dismissed Federal Express’ federal

10



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‘lush, § 453 appears to have an exceedingly broad scope, courts have not interpreted in that
manner, Rather, courts have recognized that § 453 is ambiguous and have “‘given [§] 453 2
narrow preemptive effect in light of its legislative history.’” Karl Rove & Co. v. Thornburgh, 39
R34 1273, 2280 (Sth Cit, 1994) (quoting Stern, General Rlec. Co, 924 F-24472, 475 n.3 2d

Cir. 1991)); see also Weber, 995 F.2d at 875. Indeed, courts recognize in this area “a ‘strong
presumption’ . . . egainst preemption.” Karl Rove & Co,, 39 F.3d at 1280 (quoting Weber, 995
F.2d at 875), To determine whether the scope of § 453 is broad enough to preclude enforcement
of Ohio Rev. Code § 3517.21(B){10), the Court must “identify the domain expressly
pre-empted” by 2 U.S.C. § 453. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996).

Section 453 incorporates by reference “rules prescribed under” FECA. With the 1974
amendments to FECA, Congress created the Federal Election Commission (“FEC”) and

&® “vest{ed] in it primary and substantial responsibility for administering and enforeing the Act,”

delegating to the agency “extensive rulemaking and adjudicative powers.” BucHey v. Valeo, 424
US. 1, 109 (1976). The FEC has issued a regulation interpreting the scope of § 453 in
accordance with the statute's plain language end it's legislative history. See 11 CFR. § 108.7.
‘That regulation identifies specific areas which are and are not superceded:

(@) The provisions of the Fedoral Election Campaign Act of 1971, as amended,

and rules and regulations issued thereunder, supersede and preempt any provision

of State law with respect to election to Federal office.

(b) Federal law supersedes State law conceming the—

(1) Organization and registration of political committees supporting
Federal candidates;

(2) Disclosure of receipts and expenditures by Federal candidates and.
political committees; and

“Be

yw





“erect EY FTI DOZEZSID Doc #: 1-1 Filed 03/26/12 Page: 4 of 25"PAGEID # af

Case: 1:10-cv-00103-SJD Doc #: 38 Filed: 10/19/10 Page: 1 of 22 PAGEID # 659

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
DAVID KRIKORIAN, : Case No. 1:10CV103
Plaintiff, : Chief Judge Susan J. Diott
wo : ORDER DENYING PLAINTIFF'S
: MOTION FOR PRELIMINARY
OHIO ELECTIONS COMMISSION, etal, : INJUNCTION AND GRANTING
: : DEFENDANTS’ MOTION TO
Defendants, : DISMISS

This matter comes before the Court on Plaintiffs Motion for Preliminary Injunction
(oc. 2) and Defendants’ Motion to Dismiss (Dos. 32). This case involves a challenge to an
Ohio statute prohibiting certain “unfair political campaign activities,” such as knowingly making
false statements with the intent to affect the outcame of a campaign. Ohio Rev. Code §-3517.21
(sometimes referred to hereafter as “the Ohio Statute”). Plaintiff David Krikorian, a past
candidate for the United States congressional seat in Ohio’s second district, alleges that §
3517.21 violates the First Amendment of the United States Constitution and is preempted by the
Federal Election Campaign Act of 1971 (“FECA”). Plaintiffs claims relate to a decision of the
Ohio Elections Commission (““OEC”) finding that certain statements Plaintiff made during the
course of a prior campaign violated § 3517.21. ,

Krikorian seeks a judgment declaring tha “legal rights and privileges of the Plaintiff as it
relates to the enforcement or threatened enforcement of the [Ohio] Statute against him,
including, without limitation, a declaration that, with respect to any election to federal office, the
Statute has been preempted by the Federal Blection Campaign Act” (Doc. 1 62.) Krikorian

also requests that the judgment declare that the nine statements that formed the subject of the



sv estan PASE: AL 26V-00242-SID. Doe tt, 1-2 Filed: 03/26/12 Page. 15.0f 27. PAGEID #47...”

a

Case: 1:10-cv-00103-SJD Doc #: 38 Filed: 10/19/10 Page: 10 of 22 PAGEID #: 668

purely prospective relief. The Court finds both arguments problematic.
L Decision to Forego Further State Appellate Review
Krikorian suggests that it would be improper for the Court to abstain under Younger in
light of the fact that his state court appeal was dismissed shortly after he filed suit in federal
court and he opted to forego appealing the common pleas court’s decision to Ohio’s Tenth
District Court of Appeals. However, the Sixth Circuit previously rejected a similar argument in

- Fed, Express Corp., 925 F.2d et 969. In that case, the Tennessee Public Service Commission

(°TPSC’) directed Federal Express to show cause why it should not be subject te a Tennessee
law—the Tennessee Motor Carrier Act — that would require it to apply far a certificate of :
convenience and necessity from the TPSC. Jd. at 964. Following a hearing on the matter, an
axiministative lew judge (‘ALT*) held that Federal Express was subject to the law in question.
dd, The TPSC reviewed the ALJ's decision, heard oral argoment, and then issued an order on
June 9, 1987, requiring Federal Express to apply for e certificate of convenience and necessity
‘within a cetsin period of time. Id. On July 9, 1987, Federal Express filed with the Tennessee
Cout of Appeals a petition for review of the TPSC’s order. Id. Approximately one month later,
on August 7, 1987, while the petition for state appellate court review was pending, Federal
Express filed suit in federal court, seeking declaratory and injunctive relief against TPSC. Jd. at
964-65. Then, on September 9, 1987, pnior the federal district oowrt’s hearing an Federal
‘Express’ motion for a preliminary injunction, Federal Express filed a mation to voluntarily --
dismiss its petition for review in the Tennessee Court of Appeals. Jd, st 965, The motion for
voluntary dismissal was granted shortly thereafter.

Based on Younger, the federal distict court ultimately dismissed Federal Express’ federal

10



ys

4

®

Case: 1:10-cv-00103-SJD Doc #: 38 Filed: 10/19/10 Page: 17 of 22 PAGEID #: 675

v. Brennan, 921 F.2d at 641. Accordingly, the Court finds that Krikorian had an adequate
opportunity to raise claims of unconstitutionality and federal preemption in state court.

E Younger Exceptions

‘The Younger Court recognized that there may be some cases in which abstention may be
improper even where the Younger criteria are met, such as in cases where the plaintiff can
demonstrate bad fsith, harasement, or flagrant unconstitutionality. Younger, 401 US. at 43-44,
48-50; see also Dombrowski v. Pfister, 380 U.S. 479, 482-85 (1965) (federal intervention proper
where the plaintifiz made substantial allegations that state officials had made thraate to enficce
particular statutes against them “without having any real expectation of securing valid
convictions, but rather [as] pert of a plan to employ arrests, seizures, and threats of prosecution
under color of the statutes to harass [the plaintiffs] and discourage them and their supporters
from asserting and attempting to vindicate the constitutional rights of‘ Negro citizens of
Louisiana.”); New Orleans Pub, Serv., Inc., 491 U.S. at 367 (suggesting in dicta that a facially
conclusive claim of federal preemption may be sufficient to render abstention inappropriate).
None of those exceptions are present in the instant case.

Kiikorian fails to show that the Ohio Statue is Sagrantly unconstitutional. ‘The portion
of the statute at isme here regulates only false statements made with knowledge of or with
reckless disregasd for the falsity of the statements. That narrow category of speech, as discussed
shove, is not protected by the Flsst Amendment See Garrison, 379 U.S. at 74 (1964); N.Y.
Times Co., 376 US. at 279-80. Indeed, Plaintiff very Likely would not prevail on his current
First Amendment challenge to the Ohio Statute.

In his Motion for Preliminary Injunction, Krikorian also argues that the Ohio Statute and

17



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, the OEC’s enforcement of the statute violates his due process and equal protection rights. The
Court doubts whether Krikorian adequately raised those challenges in his Complaint — the
Complaint makes no mention of an equal protection violation and only briefly addresses due
process in one paragraph of the portion of the Complaint describing factual and legal allegations.
Nevertheless, the Court finds neither challenge to be so persuasive as to suggest a flagrant
violation of constitutional law.

Finally, as to Plaintiff's federal preemption claim, the Court finds that the preemption
question is not facially conclusive. Krikorian argues that FECA, 2 U.S.C. § 431 et seq.,
preempts Ohio Rev. Code § 3517.21 to the extent that this case involves the regulation of a
federal election. Defendants respond that FECA has been interpreted narrowly and that it does
not purport to preempt every state law that may touch on a federal election. As discussed below,
FECA includes an express preemption clause, but there are differing opinions as to the scope of
that clause.

Congress originally passed FECA in 1971 and amended it in 1974. Weber v. Heaney,
995 F.2d 872 (8th Cir. 1993). The Act “sets forth comprehensive rules regarding campaigns for

, federal office.” Bunning v. Commonwealth of Ky., 42 F.3d 1008, 1011 (6th Cir. 1994),
Specifically, it “imposes limits and restrictions on contributions; provides for the formation and
registration of political committees; and mandates reporting and disclosure of receipts and
disbursements made by such committees.” id (citing 2 U.S.C. §§ 432-434). With the 1974
amendments to FECA, Congress provided an explicit preemption clause stating that “the
provisions of this Act, and of rules prescribed under this Act, supersede and preempt any

provision of State law with respect to election to Federal office.” 2 U.S.C. § 453. While at first

18


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blush, § 453 appears to have an exceedingly broad scope, courts have not interpreted in that
manger. Rather, courts have recognized that § 453 is ambiguous and have “given [§] 453 a
nastow preemptive effect in light of its legislative history."” Karl Rove & Co. v. Thornburgh, 39
F.3d 1273, 1280 (Sth Cir. 1994) (quoting Stern v. General Elec. Co., 924 F.2d 472, 475 n. 3 (2d
Cir. 1991)); see also Weber, 995 F.2d at 875. Indeed, courts recognize in this area “a ‘strong
presumption’ . . . against preemption.” Karl Rove & Co., 39 F.3d at 1280 (quoting Weber, 995
F.2d at 875). To determine whether the scope of § 453 is broad enough to preclude enforcement
of Obio Rev. Code § 3517.21(B)(10), the Court must “identify the domain expressly
pre-empted” by 2 U.S.C. § 453. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996).

Section 453 incorporates by reference “ules prescribed under” FECA. With the 1974
amendments to FECA, Congress created the Federal Election Commission (“FEC”) and
“vest[ed] in it primary and substantial responsibility for administering and enforcing the Act,”
delegating to the agency “extensive rulemaking and adjudicative powers.” Buckley v. Valeo, 424
US. 1, 109 (1976). The FEC has issued a regulation interpreting the scope of § 453 in
accordance with the statute’s plain language and it’s legislative history. See 11 CFR. § 108.7.
That regulation identifies specific areas which are and are not superceded:

{@) The provisions of the Federal Election Campaign Act of 1971, as amended,

and rules and regulations issued thereunder, supersede and preempt any provision

of State law with respect to election to Federal office,

(b) Federal law supersedes State law conceming the--

(1) Organization and registration of political committees supporting
Federal candidates;

(2) Disclosure of receipts and expemditures by Federal candidates and
political committees; and

19



Frees

7

sag

Case: 1:10-cv-00163-SJD Doc #: 38 Filed: 10/19/10 Page: 6 of 22 PAGEID # 664

. Revised Code § 119.12. Rather than naming the OEC, Krikorian had named Schmidt as the

+ sparty-appellee. On January 21, 2010, while the OEC’s motion to dismiss Krikorian’s appeal was

pending, Krikorian filed the instant action requesting declaratory and injunctive relief. Ta his
Complaint and Motion for Preliminary Injunction, Krikorian raises many if not all of the same
arguments raised in his state court appeal.

On February 10, 2010, the Court of Common Pleas granted the ORC’s motion to dismiss
due to Krikorian's failure to properly name the OBC as an appellee. (Doc. 19, Hx. 7.) Krikerian
had the option to appeal that ruling to Ohio’s Tenth District Court of Appeals, but chose to forgo
the appeal. (See Doc. 30.) Aster Krikorian filed in this action notice of his decision nat to
pursue that appeal, Defendants filed a Motion to Dismiss the instant suit.

I. DEFENDANT'S MOTION TO DISMISS

Defendants move to dismiss Krikorian's Complaint pursuant to Rule 12(b) af the Federal
Rules of Civil Procedure on the following four grounds; (1) the Court should ebstain from
hearing this matter under Younger, 401 U.S. at 37, and its progeny; (2) the Court
lacks subject matter jurisdiction to hear this case under the Rooker-Feldman doctrine; (3) the
principles of prechuston operate to ber Plaintiff from bringing these claims in federal cour; and
(4) this Court should decline to exercise its discretionary jurisdiction under the Declaratory
Judgment Act, 28 U.S.C. § 2201. Finally, Defendants also argua that the ORC should be
dismisced ase defendant because Bleventh Amendment immunity bars suits ageinst the
OBC es an agency of the State of Obio, As stuted shove, the Court finds Defendants’ frst
alleged basis for dismissal to be well-taken. The Court therefore declines to consider
Defendants’ alternative arguments for dismissal.

3/26/12 Page: 11 of 27 PAGEID #: 43

RAED VASE



Case: 1:10-cv-00103-SJD Doc #: 38 Filed: 10/19/10 Page: 7 of 22 PAGEID #: 665

A. Younger and Its Progeny

In Younger, 401 U.S, at 38-39, several individuals asked a federal district court to enjoin
the Los Angeles County District Attomey from enforcing the California Criminal Syndicalism
Act (the “California Act”), a law that prevented the teaching of socialist or commmunist doctrine. :
The main plaintiff, Jobn Hartis, Jr.,? was indicted under the California Act in state court and
then, while the eriminal case was pending, filed a complaint in the United States District Court
for the Central Distriot of Califomia to etjoin his prosecution. Jd. et 39. Harris argued that the
mare presence of the California Ant inhibited him in the exercise of his First Amendmant rights.
The district court held that it had jurisdiction and power to restrain the district attomey ftom
enforcing the California Act, found that the Act was void for vagueness and overbreadth, and
enjoined Harris’s prosecution. The district attorney appealed and the Supreme Court reversed
the judgment of the district court on public policy grounds, holding that the injunction violated
the “national policy forbidding federal courts to stay or enjoin pending state court proceedings
except under special circumstances.” Jd. at 41. The Supreme Court also held in a footnote that
declaratory relief would similarly be improper under that policy. Jd. at 41 n. 2.

Describing 2 longstanding policy of federal abstention when asked to enjoin pending
criminal proceedings in state court, the Younger Court found thkt intervention would be
appropriate only under extraordinary circumstances;

[jn view of the fundamental policy against federal interference with state

3 After Harris filed suit, three other individuals intervened as plaintiffs, claiming that
Harris’s prosecution would inhibit their First Amendment freedoms by casting a chill over
protected speech. Jd, at 39-40. The Sepremo Court bald that the intervening plaintiffs lacked
standing, noting that they sought intervention solely on the basis of “feel{ing] inhibited” and did

not claim that they had “ever been threatened with prosecution, that a prosecution [was] likely,
or even that a prosecution was remotely possible.” Jd. at 42.

7

“v.00242SID Doc #: 1-1 Filed: 03/26/12 Page: 10 of 25 PAGEID #17"


Case: 1:10-cv-00103-SJD Doc #: 38 Fited: 10/29/10 Page: 9 of 22. PAGEID #: 667

federal court to grant injunctive relic” Sun Refining & Mitg. Co., 921 F-2d at 639. ‘There are
limited ciroumastanoes under which a Coutt may exercise jurisdiction even where the three-part
Younger test has been met. See Younger, 401 U.S. at 53-54. However, the mere fact that a
plaintiff makes a claim of unconstitutionslity or federal preemption does not justify federal
intervention where the Younger factors have been met, See id. at 53; New Orleans Pub, Serv.,
Inc. v. Council of City of New Orleans, 491 U.S. 350, 364-65 (1989) (stating that “it is clear that
the mere assertion of a substantial constitutional challenge to state action will not alone compel
‘thn exercise of fedural jurisdiction,” antl finding the same to be trus with regard to preemptian
challenges); Fed. Express Carp, v. Tennessee Public Service Commission, 925 F.2d 962, 967
(6th Cir. 1991); Sun Refining & Mitg. Co., 921 F.2d at 640-41.

B. Ongoing State Judicial Proceedings

‘The Sixth Circuit has held and repeatedly affirmed that “the proper tine of reference for
determining the applicability of Younger abstention is the time that the federal complaint is

filed.” Sun Refining & Mig. Co., 921 F.2d at 639 (citing Carras v. Williams, 807 F.2d 1286,
1290 n. 7 (6th Cit. 1986)); see also Fed. Express Corp.,925 F.2d at 969; Zalman, Armstrong,
802 F.2d 199, 204 (6th Cir. 1986). ‘There is no dispute that the proceeding before the OBC and
the subsequent appeal were judicial in nature. Nor is there any dispute that the appeal filed with
the Franklin County Coutt of Common Pleas wes panding when Krikorian fited the preset

action. Nonetheless, Krikorian argues that the first requirement of Younger abstention is not met .

in this case because: (1) there is no longer any angoing judicial proceeding in this case due to
Krikorian’s decision not to pursue his state court appeal to the Ohio Court of Appeals, and (2)
Krikorian is not seeking to challenge or enjoin any prior decision of the OBC, but rather seeks

~CV-00242-SJD Doc #: 1-2 Filed: 03/26/12 Rage:.14 of 27. PAGEID #:.46.


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. the OBC’s enforcement of the statute violates his due process and equal protection rights. The
Court doubts whether Krikorian adequately raised those challenges in his Complaint —the
Complaint makes no mention of an equal protection violation and only briefly addresses due

process in one paragraph of the portion of the Complaint describing factual and legal allegations.

‘Nevertheless, the Court finds neither challenge o be so persuasive as to suggest a flagrant
violation of constitutional law.

Finally, as to Plaintiff's federal preemption claim, the Court finds that the preemption
question is not facially conclusive. Krikorian argues that FECA, 2 U.S.C. § 431 et seg.,
preempts Ohio Rev. Code § 3517.21 to the extent that this case involves the regulation ofa
federal election. Defendants respond thet FECA has been interpreted narrowly and that it does
not purport to preempt every state law that may touch on a federal election. As discussed below,
FECA includes an express preemption clause, but there are differing opinions as to the scope of
that clause.

Congress originally passed FECA in 1971 sind amended it in 1974, Weber v, Heaney,
995 F.2d 872 (8th Cir. 1993), The Act “sets forth comprehensive rules regarding campaigns for
‘federal office.” Bunning v. Commonwealth of Ky., 42 F.3d 1008, 1011 (6th Cir. 1994).
Specifically, it “inmposes limits and restrictions on contributions; provides for the formation and
registuation of political committees; and mandates reporting and disclosure of receipts and
disbursements made by such committees.” "Id ‘(citing 2 U.S.C. §§°432°434)> Wit he1974
amendments to FECA, Congress provided an explicit preemption clause stating that “the
provisions of this Act, and of rules prescribed under this Act, supersede and preempt any
provision of State law with respect to election to Federal office.” 2. U.S.C. § 453, While at first

18

1-2 Filed: 03/26/12 Page: 23 of 27 PAGEID #: 55





Case: —.. | 3 of 27 PAGEID #: 35 .
RECEIVED

SCHMIDT

for Conuress

October 7, 2011
'WWWJEANSCHMIDT.COM

Federal Elections Commission

FEDER Ale
STON
201 OCT 13 PH he26

OFFICE o¢ ie
COUNS, seh

Office of General Counsel
999 E St, NW / —_ (2. -
Washington, DC 20463

Dear Conimissioners:

I am writing in my capacity as Treasurer of Jean Schmidt for Congress, Representative
Jean Schmidt's principal campaign committee (“Committee”). I respectfully request an
advisory opinion from the Federal Election Commission (“Commission”) regarding the
payment of legal fees associated with an amicus brief: submitted o on Mrs. Schmidt's

behalf.

Factual Background

In the final days of the 2008 general election campaign one of Representative Schmidt's
opponents distributed materials that accused her of accepting a $30,000 bribe from the
Government of Turkey in exchange for denying or covering up the genocide of
Armenians living in Turkey during World War I. The campaign materiala also called for
her inunediate resignation from congress and/or her defeat jn the 2008 general election.

In response to his outrageous allegations, she filed two complaints with the Ohio
Elections Commission — which has jurisdiction over false campaign statements under
Ohio Law. She alleged that her opponent violated Chio Revised Code §3517.21, which
prohibits persons from knowingly or recklessly publishing ‘‘a false statement concerning
acandidate ... if the staterient is designed to promote the election . . . or defeat of the
candidate.” She stated In the complaints that she was a candidate, and used her campaign

committee address in the caption.

CONF tigeh CTION

In October 2009, the Ohio Elections Conimisaion ruled by .n clear and convincing __ .
evidence standard that Mrs. Schmidt's opponent had made false statements abaut her that _
he knew were false and had. made false statements about her with reckless disregard of
their truth or falsity. The Ohio Elections Commission found that her opponent had
violated Ohio Jaw, and voted to publicly reprimand him. Mrs. Schmidt's opponent filed
an appeal in Ohio state court secking to overturn the Ohio Elections Commission's

decision. This sppeal was denied,

Thus, on January 21, 2010, Mrs.’Schmidt’s opponent filed a civil suit In federal cout
challenging the constitutionality of Ohio’s false statements statute and seeking: (1) n
declaration that her opponont had a constitulional right to make the statements for which

Continuing a Tradition of Leadership and Character

[ Paid for by Belunidt for Congress Commitice |



Case: 1:12-cv-00242-SJD Doc #: 1-2 Filed: 03/26/12 Page: 1 of 27 PAGEID #: 33

Mark W. Miller
3630 Zumstein Avenue
Cincinnati, Ohio 45208
Day Telephone Number: (513) 533-3525
Email Address: mmiller@mepdq.com
November 23, 2011

Chief FOIA Officer

Federal Election Commission
999 E Street, N.W.
Washington D.C. 20463
FOIA@fec.20v

Re: FREEDOM OF INFORMATION ACT REQUEST
Dear Chief FOIA Officer:

Pursuant to 2 U.S.C. § 552 and [1 GFR 4.7, I hereby submit this request under the
Freedom of Information Act.

Specifically, | request that you provide me with copies of all records received, produced,
maintained, or kept by the Federal Elections Commission pertaining to a letter sent to
Commission by Phil Greenberg on behalf of Schmidt for Congress Committee (“Greenberg
Letter"). The Greenberg Letter was received by the Comntission on or about October 13, 2011
at 4:26 P.M. and had been styled as AOR 2011-20 by the Commission.' I do not request a copy
of the Greenberg Letter, nor do | request a copy of the public comment letter submitted by David
Krikorian received by the Commission on October 26, at approximately 3:20 p.m.

I prefer that you comply with my request by providing the requested information in both
paper and a commonly used electronic format (e.g- Adobe Acrobat PDF format).

I am willing to pay all applicable fees, however, { do request a waiver {rom such fees, as I
believe that the documents requested should be maintained on the FEC website because The
Greenberg Letter had been styled AOR 20] 1-20 and was posted on the FEC website for
approximately-one week prior td being removed from the website without explanation. Further, 4
do not intend to resell this information

Thank you in advance for your timely compliance with this request.

Sincgtely,

Requestor

' To assist you in complying with this request, a copy of the Greenberg Letter is attached as
Exhibit “A”.

Exhibit B


Case: 1:12-cy-00242-SID Doe. #: 1:2 Filed; 03/26/12 Page: 26 of 27 PAGEID #: 58 a.

np cheer earrtnteo

Case: 1:10-cv-00103-SJD Doc #: 38 Filed: 10/19/10 Page: 21 of 22 PAGEID #: 679

law regulating false campaign advertising and other false statements in the course ofa

campaign); see also Friends of Phil Gramm v. Americans for Phil Gramm in 84, 587 F. Supp.
769, 776 (B.D. Vir. 1984) (noting that because the “Federal Election Act . .. nowhere
specifically addresses the problem of fraud in political advertising,” “Congress obviously did not
intend completely to preclude state regulation in this area, thus giving political organizations
license to mislead,” and finding as a result that “[t]ke only reasonable conclusion is that
Congyess intendad to leave regulation of fraud in political advertising to the states, except where
such regulation conflicts with the Act’s specific provisions.”)

Onits face, the Ohio Statute at issue here does not fit neatly into any of the categories
listed under 11 C.F-R. § 108.7. The question of whether the statute is federally preempted is far
from clear and would require this Court to engage in a detailed analysis of state and federal law.
e@ Accordingly, the Court finds that the issue of federal preemption in this case is not facially
conclusive. See Fed. Express Corp., 925 F.2d at 968 (holding that abstention was proper where
the question of federal preemption was not clear and the state court had concurrent jurisdiction to
address preemption issues).

2



Case: 1:12-cv-00242-SJD Doc #: 1 Filed: 03/26/12 Page: 6 of 7 PAGEID #: 6

33. To date, the FEC has denied Plaintiff access to the records sought pursuant to the
Plaintiff's FOIA request but has not provided any reason for the denial or delay in providing such
records.

34. Pursuant to 11 CFR 4.8(a), “[a]ny person . . . who has received no response within ten
working days . . . after the request has been received by the [FEC], may appeal . . . the failure to
respond by requesting the [FEC] to direct that the record be made available.”

35. Thus, on January 9, 2012, Mr. Miller submitted an appeal of the failure of the FEC to
respond to his FOIA request and requested that the FEC direct that the requested records be made
available.

36. Attached hereto as Exhibit C is a true and accurate copy of the appeal letter of Mr.
Miller (but without the original request, i.e., Exhibit B, attached thereto).

37. In order to clarify his contact information, Mr. Miller re-submitted, on February 14,
2012, an appeal of the failure of the FEC to respond to his FOIA request and requested that the FEC
direct that the requested records be made available.

38. Attached hereto as Exhibit D is a true and accurate copy of the clarifying appeal letter
of Mr. Miller (but without the original request, ie., Exhibit B, or the initial appeal, i.e., Exhibit C,
attached thereto).

39, Pursuant to 11 CFR 4.8(f), the FEC “will make a determination with respect to any
appeal within twenty days (excluding Saturdays, Sundays and legal holidays) after receipt of the
appeal (or within such extended period as is permitted under Sec. 4.7(c) of this part).”

40. Twenty working days after January 9, 2012, was February 7, 2012.


mann ASE:, 1:12-CV-00242-SID Doc #:

-2 Filed: 03/26/12 Page: 13 of 27, PAGEID #: 45_

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' cziminel prosecutions, even irreparable injury is insufficient unless it is both great
@ and immediate. Certain types of injury, in particular, the eost, amtiety, and !
inconvenience of having to defend against s single criminal prosecutien, could . :
not by themselves be considered “irreparahle” in the special legal sense tif that
term. Instead, the threat tn the plaintiff's federelly protectad rights must ba one
thit camnot be eliminated by his defense aguinst « single criminal prosecution.
Jd, ot 46 (intemal citation and quotation marks omitted),
‘Though Younger arose in the context of a state criminal proceeding, the Supreme Court
subsequently applied the doctrine in cases involving certain state court civil actians and state
count administrative proceedings. Huffman y. Pursue, Ltd,, 420 U.S. 592, 603-05 (1975); Ohio
Civil Rights Comm'n v. Dayton Cirristian Schs., Inc., 477 U.S. 619, 620 (1986), Several federal
district courts, including this district, have applied the doctrine when considering cases involving
hearings before state and local elections boards or commissions, See Citizens for a Strong Ohio
v. Marsh, 123 F. App'x 630, 633-34 (6th Cir. 2005) (citing Chamber of Commerce of the United
EB States v. Ohiq Elections Comm'n, 135 ¥. Supp. 2d 857 (S.D. Ohio 2001)); Walter v. Cincione,
No. C-2-00-1070, 2000 WL 1505945 (SD. Ohio Oct. 6, 2000); Scolaro v. Distriet of Columbia ;
, Ba. of Elections & Ethics, 104 F. Supp. 2d 18, 23-24 (D.D.C. 2000); Wis. Mjrs. & Commerce v.
Wis, Elections Bd., 978 F. Supp. 1200, 1211 (WD. Wis. 1997)).
The Sixth Circuit has held that, pursuant to Younger, a federal court must abstain from.
considering a case an the merits under the following circumstances: “(1) there must be on-going
State judicial proceadings; (2) those proceedings smust implicate important state interests; and @)
ere must bean adequate opportunity inte tate proceedings to reise constitutional
challenges,” Sun Refining & Mktg. Co. v. Brennan, 921 F.2d 635, 639 (6th Cir. 1990); see also
Citizens for a Strong Ohio, 123 F. App’x at 634. “[UJolike other forms of abstention, when é

case is properly within the Younger category of cases, there is no discretion on the part of the



omptrenanon OE P Doc #122 Filed: 03/26/12 Page:.19,08,27, PAGEID.H: 51. .
: Case: 1:10-cv-00103-SJD Doc #: 38 Filed: 10/19/10 Page: 14 at 22 PAGEID #: 672

and noted that the case was quite different from a case in which a prosecution is threatened for

the firsttime. #4.

‘There is no such threat of repeated prosecutions or ORC enforcement actions present in
the instant case. More importantly, Krikorian is not seeking relief that is wholly prospective.
Krikorian argues that he is simply seeking to prevent future enforcement of Ohio Rev. Code §
3517.21 against him in connection with his desired speech. However, the plain language of his
Complaint belies the true basis of this suit. Krikorian essentially seeks an order from this Court
overturning, or aunniling, the findings of the OFC with regard to the specific statements he made
regarding Schmidt's position on the Armenian genocide. Specifically, Krikerim seeks a
declaratory judgment that the nine statements forming the basis of Schmidt’s OEC complaint
“constitute speech protected by the First Amendment and that Defendants lack the legal

Ee anthority to enforce the Statute against Plaintiff for making such statement.” Krikorian seeks
injunctive relief on the same basis that would enjoin the OEC from taking aty further action
against him in the event he contimes to make those statements.

The First Amendment does not protect speech that is made with knowledge of or reckless
disregard of its falsity. See Garrison v, State of La., 319 US. 64, 74-75 (1964) ({TThe
knowingly false statement and the false statement made with reckless disregard of the truth, da
not enjoy constitutions protection.”); N.¥. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
With that principle in mind, this Court could not declare that the nine statements reade by”
Krikorian about Schmicit’s position on the Armenian Genocide constitute protected speech and
enjoin the state from regulating that speech without finding that those statements are, in fact,
true, That is because to the extent that the Court finds the statements false, any declaration that

4



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41. Atno time has the FEC notified Mr. Miller that additional time would be required in
order to process Mr. Miller’s appeal of the failure of the FEC to respond to his FOIA request.

42. Mr. Miller has complied with the requirements of the Freedom of Information Act and
is entitled to the immediate production of the records sought via his FOLA request.

43. Mr. Miller is entitled to a declaratory judgment declaring that the FEC has failed to
comply with its legal obligations and duties under the Freedom of Information Act.

44. Mr. Miller is entitled to the issuance of an injunction compelling the FEC to
immediately produce all records response to his FOJA request, together with an award of attorney
fees and costs. WHEREFORE, Mr. Miller prays and requests that this Court:

(0) declare that Defendant’s failure to respond to the Plaintiff's FOJA request is
unlawful under FOIA;

(ii) declare that Defendant’s failure to respond to the Plaintiff's appeal of the
failure of the FEC to respond to his FOJA request is unlawful under FOJA;

(iii) order and enjoin the Defendant to make the records requested immediately
available to Plaintiff without any fee or charge;

(iv) award Mr. Miller costs and reasonable attorney fees, pursuant to 5 U.S.C.

§552(a)(4)(E); and
(v) grant Plaintiff such other relief to which he may be entitled, in law or in
equity.
Respectfully submitted,
/s/ Curt C. Hartman

Christopher P. Finney (0038998) Curt C. Hartman (0064242)
FINNEY, STAGNARO, SABA & PATTERSONCO., LPA_ The Law Firm of Curt C. Hartman
2623 Erie Avenue 3749 Fox Point Court
Cincinnati, Ohio 45208 Amelia, Ohio 45102
Telephone: (513) 533-2980 (513) 752-8800
Facsimile: (513) 533-2990 hartmanlawfirm@fuse.net
cfinney@fssp-law.com Attorneys for Plaintiff Mark W. Miller


Case:1:12-cv-00242-SJDDoc#:2Filed:03/27/12Page:20f2PAGEID#:70

AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)
Civil Action No. 1:12-CV-242

PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 ())

This summons for (name of individual and title, if any)

was received by me on (date)

C1 I personally served the summons on the individual at (place)

on (date) 3 or

G Tleft the summons at the individual s residence or usual place of abode with (name)

, 4 person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual s last known address; or

G I served the summons on (name of individual) » Who is

designated by law to accept service of process on behalf of (name of organization)

‘on (date) 5 or
GC Iretumed the summons unexecuted because 3 Or
CG Other (specify):
My fees are $ for travel and $ for services, for a total of $ 0.00 .

I declare under penalty of perjury that this information is true.

Date:

Server s signature

Printed name and title

Server s address

Additional information regarding attempted service, ete:


fone en acta

*Caser T13-cv002A2 SID Bor # 1

°f Filed: 03/36/12 Page: 20 of 25 PAGEID #: 37°"
Case: 1:10-cv-00163-SJD Dac #: 38 Filed: 10/19/10 Page: 17 of 22 PAGEID #: 675

v. Brennan, 921 F.2d at 641. Accordingly, the Court finds that Krikorian had an adequate
opportunity to raise claims of unconstitutionality and federal preemption in state court.

E. Younger Exceptions

The Younger Court recognized that there may be some cases in which abstention may be
improper even where the Younger criteria are met, such as in cases where the plaintiff can
demonstrate bad faith, harassment, or flagrant unconstitutionality. Younger, 401 U.S. at 43-44,
48-50; see also Dombrowski v. Pfister, 380 U.S. 479, 482-85 (1965) (federal intervention proper
where the plaintiffs made substantial allegations that state officials had made throats to enfarce
particular statutes against them “without having any real expectation of securing valid
convictions, but rather [as] part of a plan to employ arrests, seizures, and threats of prosecution
under color of the statutes to harass [the plaintiffs] and discourage them and their supporters
from asserting and attempting to vindicate the constitutional rights of Negro citizens of
Louisiana.”); New Orleans Pub, Serv., Inc,, 491 U.S. at 367 (suggesting in dicta that a facially
conclusive claim of federal preemption may be sufficient to render abstention inappropriate).
None of those exceptions are present in the instant case.

Krikorian fails to show that the Ohio Statute is flagrantly unconstitutional. The portion
of the statute at issne here regulates only false statemants made with knowledge of or with
reckless disregasd for the filaity of the statements. That narrow category of speech, as discussed
above, is not protected by the Fisst Amendment. See Garrison, 379 U.S. at 74 (1964); N.Y.
Times Co., 376 U.S. at 279-80. Indeed, Plaintiff very likely would not prevail on his curcent
First Amendment challenge to the Ohio Statute.

In his Motion for Preliminary Injunction, Krikorian also argues that the Ohio Statute and

17


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3517.21, the OBC ruled in two separate orders that it would not refer the matter for further
prosecution, but would instead issue letters of ‘public reprimand. (Gee Doc. 19, Exs. 3, 4.)

On November 27, 2009, shortly after the OEC issued its ruling, Krikorian appealed the
OEC’s rulings to the Franklin County, Ohio Court of Common Pleas.” (Doc. 19, Exs. 5, 6)

" ‘Through his appeal, Krikorian alleged that the OC's decisions were not supported by reliable,
probative, and substantial evidence, and were not made in accordance with law, for the following
reasons: (a) FECA preempts application of Ohio Rev. Code § 3517.21(B\(10) regulate _
political speech in a campaign for federal office; (b) § 3517.21(B)(10), on its face and as applied
to Mr. Krikorian’s conduct, violates the First Amendment to the U.S. Constitution, (c) §
3517.21(8)(10), on its face and as applied to Mr. Krikorian’s conduct, violates the procedural
and due process guarantees of the Fourteenth Amendment to the U.S. Constitution; and (d) the
OEC’s arder is unjust, contrary to law, and is not supported by reliable, probative, and
substantial evidence prevented at the hearing and contained in the official record. (See Doc. 19,
Exs. 5 & 6.) On the basis of those arguments, Krikorian asked the Court of Common Pleas to
reverse, vacate, or modify the OEC’s decisions, declare § 3517.21(B)(10) unconstitutional,
enjoin the OEC from enforving the Ohio Statute, and award any other legal or equitable relief.
(ia)

On January 8, 2010, the OBC moved to intervene in Kxikotian’s appeal and filed a
motion to dismiss, arguing that Krikorian failed to properly invoke the jurisdiction of the

common pleas court because he failed to name the OEC as a party-appellee pursuant to Ohio

? Because the OEC issued two separate rulings, Krikorian filed two separate notices of
appeal. Those appellate actions were eventually consolidated and dismissed in a single order.
Accordingly, from this point forward, the Court refers to the separate actions collectively as a
siogle “appeal.” .

AGEID #°15 °





ervenmoann AS hAt-IN242- SIN. ROC #; 1-2 Filed; 93/26/12 Page: 6 of 27 PAGEID #: 38

ee
&

a

Case; 1:10-cv-00103-SID Doc #: 38 Filed: 10/19/10 Page: 1 of 22. PAGEID #: 659

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OFO

WESTERN DIVISION
DAVID KRIKORIAN, Case No. 1:10CV103
Plaintiff, : Chief Judge Susan J. Dlott
wo : ORDER DENYING PLAINTIFF'S
: MOTION FOR PRELIMINARY
OHIO ELECTIONS COMMISSION, et al, INJUNCTION AND GRANTING
; : DEFENDANTS’ MOTION TO
Defendant. : DISMISS

This matter comes bofore the Court on Plaintiff's Motion fer Preliminary Injunction
(oc. 2) and Defendants’ Motion to Dismiss (Doc. 32). This case involves a challenge to an
Ohio statute prohibiting certain “unfair political campaign activities,” such as knowingly making
false statements with the intent to affect the outcome of a campaign. Ohio Rev. Code §-3517.21
(sometimes refurred to hereafter as “the Ohio Statute”). Plaintiff David Krikorian, a past
candidate for the United States congressional seat in Ohio's second district, alleges that §
3517.21 violates the First Amendment of the United States Constitution and is preempted by the
Federal Election Campaign Act of 1971 (“FECA”). Plaintiff's claims relate to a decision of the
Ohio Elections Commission (“OBC”) finding that certain statements Plaintiff made during the
course of a prior campaign violated § 3517.21. :

Kelkorian seeks «judgment declaring the “Legal xghts and privileges of the Plactff as it
relates to the enforcement or thireateited enforcement of the [Ohio] Statute against him,
including, without limitation, a declaration that, with respect to any electian to federal office, the
Statute has been preempted by the Federal Blection Campaign Act” (Doc. 1 62.) Krikorian
also requests that the judgment declare that the nine statements that formed the subject of the

tae

eset



eB

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seek to enjoin the prior state administrative proceedings before the” OEC, but rather involves
claims for purely Prospective relief In Wooley, the plaintiff filed suit in federal court to
challenge two state laws, the first of which required non-commercial vehicles to bear license
plates embossed with the state motto of “Live Free or Die,” and the second of which prohibited
the obscuring of figures or letters on a vehicle's license plate. Id..at 707-08. Believing the state
motto to conflict with his religions beliefs, the plaintiff covered the portion of his license plate
bearing the mntto and as a result was cited for violating tie secund challenged statute ihree times
in as many months in late 1974 and early 1975, Jd. at 708. The plaintiff was fined for the first
two violations and then, after he refused to pay the fines, was sentenced to fifteen days in jail.
dd. Shortly thereafter, the plaintiff filed suit in federal court seeking to prevent any further
enforcement of the state statutes, insofar as they required the state motto to be displayed on his
license plate, Jd. at 709.

The federal district court entered an order enjoining the state from arresting and
prosecuting the defendant and his wife at any time in the future for covering up the state motto
on their license plate. Jd. On appeal to the United States Supreme Court, the state argued that
the district court shoutd have abstained from exercising jurisdiction under Younger. The
Supreme Court found tat Younger phstentian was not required under the circumstances, despite
the faot that the plaintiff hati mot exhausted his state appellate remedies, because fhe relief sought
by the plaintiff was “wholly prospective” and was not “designed to annul the results of a state”
proceeding, Jd. at 711, The Supreme Court further noted that there were exceptional
circumstances justifying injunctive relief in that case. Id. at712. Particularly, the Court pointed

to the fact that the plaintiff had been prosecuted three separate times in the span of five weeks

13



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Case: 1:10-cv-00102-SJD Doc #: 38 Filed: 10/19/10 Page: 22 of 22 PAGEID #: 680

I. CONCLUSION

For the reasons stated above, this Court must abstain under Younger from exercising
jurisdiction over this matter. Accordingly, the Court hereby DENIES Plaintiff's Motion for
Preliminary Injunction and GRANTS Defendants’ Motion to Dismiss,

IT IS SO ORDERED.

__s/Susan J. Dlott
Chief Judge Susan J. Diott
United States District Court


criminal prosecutions, even irreparable injury is insufficient unless it is both great

and immediate. Cortain types of injury, in particular, the eost, armtiety, and

inconvenience of having to defend against alsingle criminal prosecution, could

not hy themselves be considered “inreparehle” in thr special legal sense of that

term. Instead, the threat to the plaintiff's federally protectad rights must be one

that cannot be eliminated by his defense aguinst « single criminal prosecution.

Jd, of 46 (internal citation and quotation marks omitted). ;

Though Younger arose in the context of a state criminal proceeding, the Supreme Court
subsequently applied the doctrine in cases involving certain state court civil actions and state
coust administrative proceedings. Huffman y. Pursue, Ltd., 420 U.S. 592, 603-05 (1975); Ohio
Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 US. 619, 620 (1986). Several federal
district courts, including this district, have applied the doctrine when considering cases involving,
hearings before state and local elections boards or commissions. See Citizens for a Strong Ohio
v. Marsh, 123 F. App’x 630, 633-34 (6th Cir. 2005) (citing Chamber of Commerce of the United
States v. Ohia Elections Comm'n, 135 F. Supp. 2d 857 (S.D. Ohio 2001)); Walter v. Cincione,
No. C-2-00-1070, 2000 WL 1505945 (8.D. Ohio Oct. 6, 2000); Scolaro v, District of Columbia

, Bd. of Elections & Ethics, 104 F, Supp. 2d 18, 23-24 (D.D.C. 2000); Wis. Mfrs. & Commerce v.
Wis. Elections Bd., 978 F. Supp. 1200, 1211 (W.D. Wis. 1997).

The Sixth Circuit has held that, pursuant to Younger, a federal court must abstain from
considering a case on the merits under the following circumstances: “(1) there must be on-going
state judicial proceadings; (2) those proceedings soust implicate important atate interests; and (3)
there must be an adequate opportunity in the state proceedings to raise constitutional
challenges.” Sun Refining & Mktg. Co. v. Brennan, 921 F.2d 635, 639 (6th Cir. 1990); see also
Citizens for a Strong Ohio, 123 F. App’x at 634, “[UJplike other forms of abstention, when 4

case is properly within the Younger category of cases, there is no discretion on the part of the


Case: 1:12-cv-00242-SJD Doc #: 1 Filed: 03/26/12 Page: 5 of 7 PAGEID #5

27. Thus, via letter dated November 23, 2011, Plaintiff Mark Miller tendered a FOIA
request to the FEC seeking all records of the FEC relating to the request that Mr. Greenberg
submitted on behalf of the Schmidt for Congress Committee, i.e., Exhibit A, about using campaign
funds to pay for the attorneys which the TALDF or the TCA had previously provided and paid on
behalf of Congresswoman Schmidt.

28. A true and accurate copy of the FOIA request from Mr. Miller to the FEC, dated
November 23, 2011, is attached hereto as Exhibit B. Said letter was transmitted to the FEC via e-
mail on November 13, 2011, and, thus, would have been received by the FEC on that day.

29. Pursuant to 11 CFR 4.7(c), the FEC “shall determine within twenty working days after
receipt of a [FOIA] request . . . whether to comply with such request, unless in unusual
circumstances the time is extended... . In the event the time is extended, the requestor shall be
notified of the reasons for the extension and the date on which a determination is expected to be
made, but in no case shall the extended time exceed ten working days.”

30. Twenty working days after November 23, 2011, was December 23, 2011.

31. Atno time, let alone on or before the expiration of twenty working days after receipt of
Mr. Miller’s FOIA request, has the FEC notified Mr. Miller that additional time would be required in
order to determine whether the FEC would comply with Mr. Miller’s FOIA request.

32. Pursuantto 11 CFR 4.7(h), “[a]ny person denied access to records by the [FEC] shall be
notified immediately giving reasons therefore, and notified of the right of such person to appeal such

adverse determination to the Commission.”


.. CESS, 1:12,cv-00242-SID Doe # 1-2 Filed: 03/26/12 Page: 21 of 27 PAGEID #: 53

Case: 1:10-cv-00103-SJD Doc #: 36 Filed: 10/19/10 Page: 16 of 22 PAGEID #: 674

C. Important State Interest

There does nat appear to be any substantial dispute that the underlying OHC proceeding
involved an important state interest, namely, roaintaining truth in the electoral process. That
interest has been recognized as important by at Jeast one other court in a case dealing with the
same Ohio Statute at issue in this case. See Walter, No. C-2-00-1070, 2000 WL 1505945, at *3
Thus, the second Younger requirement is satisfied.

D. Adequate Opportunity to Raise Constitutional Challenges

As to the third Younger factor, the Court must “presume that the state courts are able to
protect the interests of the federal plaintiff.” Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir. 1995).
The burden of establishing the inadequacy of the state court proceedings lies with the plaintiff.
Mayers v. Franklin Cty. Ct. of Common Pleas, 23 B. App" 201, 205 (6th Cir. 2001). The Sixth
es Circuit has previously found that plaintiffs have an adequate opportunity to raise constitutional
challenges during OEC proceedings. Citizens for a Strong Ohio, 123 R. App’x at 634. Krikorian
challenges the expertise of the OEC members who presided over Schmidt's complaint.
However, Krikorian had the opportunity to avail himself of state appellate procedure, but chose
not to. There is no dispute that Krikorian could have raised his First Amendment and
preemption claims through the sthte appeal. The Sixth Circuit “has previously observed that
even where state edministrative pmecedings would net afford the opportunity to raise
constitutional claims, it is sufficient to satisfy this thind prong that constitutional claims may be
raised in stato court judictal review of the administrative proceeding.” Sun Refining & Mitg, Co.

future action. The instant lawsuit is a direct challenge to the Ohio Election
Commission's proceeding and decision on the [original] complaint.

— i
2®@

16



Case: 1:10-cv-00163-SJD Doc #: 38 Filed: 10/19/10 Page: 2 of 22 PAGEID #: 660

@ complaint filed with the OBC constitute speech protected by the First Amendment, rendering
‘ Defendants without the legal authority to enforce the Ohio Statute against him in connection
with those statements. ,

In addition to requesting a declaratory judgment, Krikorian also seeks to enjoin any
futore enforcement of the Ohio Statute against him fo the extent he intends to engage in speech
protected by the First Amendment, including speech in the form of the nine statements
mentiened above, un the ground that the Cihio Statute is unconstitutional and federatly
preempted.

Defendants object to Plaintiff's Motion for Preliminary Injunction on the merits and on
the basis that the Court should abstain fiom exercising jurisdiction over Plaintiff's claims under
the doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971). Defendants also, by separate
motion, move to dismiss Plaintiff's claims under a number of procedural grounds, including the

Younger abstention doctrine. For the reasons that follow, the Court finds that Younger
abstention applies to the instant case and prevents this Court from reaching the merits of
Plaintiffs complaint. Accordingly, the Court GRANTS Defendant's Defendants’ Motion to
Dismiss and DENIES Plaintiff's Motion for Preliminary Injunction.
L BACKGROUND

Plaintiff Kxikorian twice in the past few years has challenged incumbent Republican
Congresswoman Jean Schmidt to represent the second congressional district of Obio. Jn 2008,
Krikorian ran as an Independent and lost in the generel election. During the current, 2010
election, Krikorian once again ran for the congressional seat, Rather than running as an
Independent in the current election, he ran as a Democrat. Krikorian lost to smother candidate

O27. PAGED $39, cares



2, evidentiary hearing on both complaints. At the beginning of the hearing, the OBC announced.

that it would bifiurcate the allegations against Krikorian and that it would initially only consider

evidence as to certain of the statements alleged to have violated the Ohio Statute. The ORC

ultimately determined that Krikorian violated § 3517.21 as to the following three statements:

q@)

@

@

“Jean Schmidt has taken $30,000 in blood money from Turkish goversment
sponsored political action committees to deny the slaughter of 1.5 million
Armenian nen, women, and children by the Ottoman Turkish Govement during
World War I.” -(Doc. 19, Ex. 3 at 2.)

“This information is public record and can be found on the Federal Blections
Commission database at bttp://www-FEC. gov.” (as this statement references facts
that support the statements thet Turkish government sponsored political action
committees donated $30,000): (Id)

“I ask the people of Ohio's second congressional district to ask themselves if our
Representative should be taking money from a foreign government that is killing

our soldiers.” (Jd. Ex. 4.)

The OEC allowed Schmidt to withdraw her complaint as to five similar statements in which

Krikorian accused Schmidt of denying the “Armenian Genocide,” the “Christian Armenian

Genocide,” or the “Genocide of Christiam Armenians.” (id. Bx. 3.) Finally, the oZC

administratively dismissed one statement and found no violation of the statement, “[t]bis -

information is public record and can be found on the Federal Elections Commission database at

http://www.FEC.gov” but only as the statement related to facts supporting the statement that

“Turkish people donated $30,000." {id.) As to the three statements found to have violated §