1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SCHMITT, et al., 

Plaintiffs,

v. CASE NO.2:18-cv-966

Judge Edmund Sargus, Jr.

Magistrate Judge Elizabeth Deavers

LAROSE,1et al.,

Defendants.

____________________________________________________/

PLAINTIFFS' OPPOSITION TO DEFENDANTS'

MOTION FOR STAY UNDER RULE 62

INTRODUCTION

This is a prospective action (both facially and as-applied) under 42 U.S.C. § 1983 and the 

First and Fourteenth Amendments to the United States Constitution. Plaintiffs on August 28, 

2018, see Verified Complaint, Doc. No.1, challenged Ohio's "gatekeeper mechanism" for ballot 

initiatives as an unconstitutional prior restraint. See Opinion and Order, R. 22, at PAGEID # 162 

(describing Ohio's procedure codified in O.R.C. § 3501.11(K)(2), O.R.C. § 3501.38(M)(1)(a), 

and O.R.C. § 3501.39(A), as its "gatekeeper mechanism").

Ohio's gatekeeper mechanism for initiatives, Plaintiffs claimed, imposes an 

impermissible prior restraint on speech because it vests discretion in local election officials to 

select initiatives for ballots without providing timely and meaningful judicial review. See, e.g., 

 

1

Pursuant to Federal Rule of Civil Procedure 25(d), Frank LaRose, who assumed office as 

Ohio's Secretary of State in place of Jon Husted on or about January 12, 2019, is automatically 

substituted as Defendant in this official capacity action. 

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Freedman v. Maryland, 380 U.S. 51, 58-59 (1965) (holding that prior restraint on speech must 

incorporate procedural safeguards to satisfy First Amendment and due process). 

On September 19, 2018, following oral argument, this Court granted to Plaintiffs

temporary relief and directed Defendants to restore Plaintiffs' initiatives to two local Ohio ballots

in Windham and Garrettsville. Schmitt v. Husted, 341 F. Supp.3d 784, 792-93 (S.D. Ohio 2018); 

Order, Doc. No. 22, at PAGEID # 170. The Court explained: 

the Court finds no legitimate state interests in preventing an adequate legal remedy for 

petitioners denied ballot access by a board of elections. While the availability of 

mandamus relief is essentially a judicially imposed remedy when the law does not 

otherwise provide one, the high burden on petitioners to prove entitlement to an 

extraordinary remedy is no substitute for de novo review of the denial of a First 

Amendment right. For those reasons, the Court finds that Plaintiffs' have a high 

likelihood of success on the merits.

341 F. Supp.3d at 791; Order, Doc. No. 22, at PAGEID # 168. Consequently, the Court 

concluded:

Ohio's regulatory scheme unreasonably infringes on Plaintiffs' First Amendment rights by 

allowing an executive board to determine disputed legal and even constitutional issues, 

thereby potentially blocking initiatives from the ballot, and then denying rejected 

petitioners a right to review. No legitimate state interest is protected by a lack of 

appellate review. Similarly, Ohio voters are unlikely to suffer cognizable harm from 

Plaintiffs' access to the ballot.

341 F. Supp.3d at 792; Order, Doc. No. 22, at PAGEID # 169 (citation omitted).

On October 3, 2018, the Court extended its temporary restraining order another fourteen 

days until October 16, 2018. See Order, Doc. No. 26. Following a phone conference with 

counsel, and with the parties' consent, the Court on October 4, 2018 converted that temporary 

restraining order into a preliminary injunction, set to expire on November 7, 2018 (the day after 

the elections in Garrettsville and Windham). See Order, Doc. No. 28. The Court also, at 

Defendants' request, directed the parties to re-brief the case and appear for oral argument to 

address Plaintiffs' continuing claim to forward-looking relief. See id.

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On February 11, 2019, following oral argument, the Court converted its prior temporary 

and preliminary orders into permanent relief. The Court stated that it "REINSTATES and 

CONVERTS to permanent injunction the preliminary injunctive relief granted in its Opinion 

and Order issued on September 19, 2018." Schmitt v. Husted, 2019 WL 517666, *5 (S.D. Ohio 

2019); Opinion and Order, Doc. No. 37, at PAGEID # 293. The Court granted to Plaintiffs the 

permanent injunctive relief they requested, that is, "a permanent injunction under 42 U.S.C. § 

1983 prohibiting Defendants from enforcing or acting under O.R.C. § 3501.11(K), O.R.C. § 

3501.38(M)(1)(a), and O.R.C. § 3501.39(A), separately and/or collectively, as authoritatively 

construed by the Ohio Supreme Court to authorize local elections boards to act as 'gatekeepers' 

of initiatives." Verified Complaint, Doc. No. 1, at PAGEID # 16 ¶ D. 

In reinstating and converting its prior preliminary Orders into a permanent injunction, the 

Court on February 11, 2019 explained:

the Court finds no legitimate state interests in withholding an adequate legal remedy for 

petitioners denied ballot access by a board of elections. “Although a state has a wide 

scope in regulating the franchise, it is not permitted to adopt any standard it desires, but it 

is limited by the strictures of the federal and state constitutions....” Given the availability 

of mandamus relief is extraordinary and only exercised when the law does not otherwise 

provide an adequate remedy, the high burden on petitioners to prove entitlement to an 

extraordinary remedy is no substitute for de novo review of the denial of a 

constitutionally protected liberty interest. Therefore, the Court finds Plaintiffs prevail on 

their constitutional challenge to Ohio’s ballot initiative process. 

Id.; Opinion and Order, Doc. No. 37, at PAGEID # 292 (emphasis added).

Defendants on February 25, 2019 moved for reconsideration and clarification of the 

Court's February 11, 2019 Opinion and Order. See Defendants' Motion for Reconsideration, 

Doc. No. 39. Plaintiffs opposed that Motion on March 11, 2019. See Plaintiffs' Opposition to 

Motion, Doc. No. 40. The following day, on March 12, 2019, Defendants lodged their Notice of 

Appeal, see Doc. No. 41, and filed the instant motion to stay the Court's permanent injunction. 

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See Defendants' Motion for Stay, Doc. No. 42. Plaintiffs OPPOSE that Motion for the reasons 

that follow.

ARGUMENT

Rule 62 of the Federal Rules of Civil Procedure authorizes a District Court to stay its

final judgment awarding injunctive relief during the pendency of an appeal. Whether to do so is 

left to the discretion of the District Court and is largely a function of four factors:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on 

the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether 

issuance of the stay will substantially injure the other parties interested in the proceeding; 

and (4) where the public interest lies.

Hilton v. Braunskill, 481 U.S. 770, 776 (1987).

As noted by one well-respected treatise, "[t]here is, of course, considerable reluctance in 

granting an injunction pending appeal when to do so, in effect, is to give the appellant the 

ultimate relief being sought. Thus, to succeed in obtaining an injunction in these circumstances, 

the appellant will be required to show a great likelihood that he will prevail when the case finally 

comes to be heard on the merits and that a denial of interim relief will result in irreparable 

injury." 11 CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE § 2904 (2012) 

(emphasis added and footnotes omitted).

This Court in Dugas v. Wittrup, 2015 WL 3823264, *1 (S.D. Ohio 2015), observed that 

"[t]he party seeking a stay of proceedings bears the burden of establishing the 'pressing need 

for delay' and 'that neither the other party nor the public will suffer harm from entry of the 

order.'” (Emphasis added) (quoting Ohio Envtl. Council v. United States District Court, Southern 

District of Ohio, Eastern Division, 565 F.2d 393, 396 (6th Cir.1977)). The Court “'must tread 

carefully in granting a stay of proceedings, since a party has a right to a determination of its 

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rights and liabilities without undue delay.'” Id. at *2 (quoting Ohio Envtl. Council, 565 F.2d at 

396).

In United States v. Prather, 2003 WL 23770599, *1 (S.D. Ohio), this Court added that 

"[i]n order for the Court to adequately consider these factors, the movant must address each 

factor, regardless of its relative strength, providing specific facts and affidavits supporting 

assertions that these factors exist.” (Citation omitted and emphasis added). The burden is 

therefore not only on Defendants here to demonstrate a "pressing need" for a stay pending 

appeal, a "great likelihood" of success on appeal, irreparable injury, and little potential harm to 

the successful Plaintiffs and/or public, but also to "provide specific facts and affidavits" 

supporting its assertions. They have not done so.

I. Defendants Have Proved No "Pressing Need" for a Stay Pending Appeal.

Defendants waited 28 days following the entry of this Court's final judgment to seek their

stay. Delay of this length strongly suggests that there is no "pressing need" for delay or a stay. 

Defendants have offered no supporting facts or affidavits to demonstrate why or how their need 

for a stay has after 28 days become pressing.

Defendants' lone claim of potential harm is that the Court's injunction will somehow 

interfere with local elections boards' authority to "verify and count signatures on petitions, decide 

protests, and verify nominating petitions." Defendants' Motion for Stay, Doc. No. 42 at PAGEID 

# 309. This obviously is not true, as neither Plaintiffs' challenge nor the Court's injunction has 

anything to do with verifying/counting signatures and/or reviewing nominating petitions. The 

Court made clear in its February 11, 2018 Opinion and Order: 

As the Court mentioned during oral argument, the Boards of Elections in Ohio make 

many decisions that permit or deny ballot access to candidates and petitioners. The issues 

in this case do not involve whether the Boards of Elections may exercise such powers. 

The Court assumes that the Boards of Elections may exercise such powers as given by 

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the Ohio General Assembly. The sole issue in this case is whether a constitutionally 

adequate review is available to a party deprived of ballot access by a Board of Elections.

Schmitt v. Husted, 2019 WL 517666, *5 n.4 (S.D. Ohio 2019); Opinion and Order, Doc. No. 37

at PAGEID # 292-93 n.4.

In contrast to Defendants' lack of proof, Plaintiffs have submitted affidavits (along with 

their Verified Complaint) alleging that they intend to continue to circulate petitions for initiatives 

during the 2019 electoral cycle. See Declaration of Plaintiff-Schmitt, Doc. No. 32-1; Declaration 

of Plaintiff-Thompson, Doc. No. 32-2. Circulators across Ohio -- in the absence of the Court's 

injunction -- will be unconstitutionally forced to submit their initiatives for executive review 

under Ohio's gatekeeper mechanism as early as the May 7, 2019 election. Circulators and those 

who wish to offer support by signing their initiatives will suffer irreparable harm should the 

Court's injunction be lifted.

Ohio's voters will also suffer should the Court stay its injunction. Without the injunction, 

voters risk forfeiting the opportunity to vote for or against otherwise proper (and popular)

initiatives. Following this Court's temporary restraining order, for example, Plaintiffs' initiatives 

in Windham and Garrettsville were restored to those respective ballots and received tremendous

support in the voting booth. Windham's initiative passed by a vote of 237 to 206; Garrettsville's 

initiative narrowly failed by a vote of 515 to 471.2 In the absence of this Court's preliminary 

relief, voters in those communities would have forfeited their First and Fourteenth Amendment 

rights. As this Court observed in granting relief before the election, "the public is unlikely to 

suffer significant harm from the injunctive relief that Plaintiffs seek." Opinion and Order, R.22, 

 

2

See Portage County General Election, Nov. 6, 2018, Summary Report, 

(https://www.co.portage.oh.us/sites/portagecountyoh/files/uploads/final_unofficial_results.pdf) 

(last visited Nov. 7, 2018).

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at PAGEID # 170. Defendants, in contrast, have submitted no evidence suggesting that the 

presence of those initiatives caused any local inconvenience, let alone irreparable harm.

II. Defendants Have Failed to Show a "Great Likelihood" of Success on Appeal.

Defendants argue that they are certain to win on appeal. While their argument is not 

crystal clear, it appears Defendants believe the Court's reliance on the Fourteenth Amendment's

Due Process Clause to support its injunction, as well as the First Amendment, somehow confuses 

or diminishes the Court's rationale. "Plaintiffs pled, briefed, and argued that the challenged laws 

deprived them of their First Amendment rights. But Plaintiffs have failed to demonstrate that 

they have a protected liberty interest in placing their initiative on the ballot and there does not 

appear to be any authority supporting that contention." Defendants' Motion for Stay, Doc. No. 

42 at PAGEID # 311.

Defendants' charge falters out of the starting gate. As the Court explained in its initial 

order temporarily restraining Defendants' enforcement of Ohio's gatekeeper mechanism and 

again later in its Opinion and Order awarding permanent injunctive relief to Plaintiffs on 

February 11, 2019, Ohio's gatekeeper mechanism violates both the First Amendment and the 

Fourteenth Amendment.

The First Amendment's speech protections have (since 1937) been recognized as 

"implicit" in the meaning of Fourteenth Amendment "liberty." See Palko v. Connecticut, 302 

U.S. 319, 323 (1937). Free speech is necessarily a protected liberty interest. It is, as such, due 

both substantive First Amendment and procedural Fourteenth Amendment protections. The 

Court's discussion of the Fourteenth Amendment's Due Process Clause as one of the anchors to 

its decision is perfectly proper and correct.

The Supreme Court's many prior restraint precedents make clear the connection between

the First and Fourteenth Amendments in the context of free speech. They firmly establish that 

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the procedural safeguards grounded in the Fourteenth Amendment's Due Process Clause have

been grafted onto the First Amendment's prior restraints jurisprudence. The Court in Board of 

Regents v. Roth, 408 U.S. 564, 575 n.14 (1972), explained this in the context of a lengthy 

discussion on the meaning of Fourteenth Amendment procedural due process: 

When a State would directly impinge upon interests in free speech or free press, this 

Court has on occasion held that opportunity for a fair adversary hearing must precede the 

action, whether or not the speech or press interest is clearly protected under substantive 

First Amendment standards. Thus, we have required fair notice and opportunity for an 

adversary hearing before an injunction is issued against the holding of rallies and public 

meetings. Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175 

(1969). Similarly, we have indicated the necessity of procedural safeguards before a State 

makes a large-scale seizure of a person's allegedly obscene books, magazines, and so 

forth. A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Bantum Books v. Sullivan, 

372 U.S. 58 (1961). See Freedman v. Maryland, 380 U.S. 51 (1965). See generally

Monaghan, First Amendment ‘Due Process', 83 Harv. L. Rev. 518 (1970).

All of the cases cited as examples by the Supreme Court in Roth involved prior restraints 

on speech. They prove that the First Amendment's doctrine against prior restraints incorporates 

not only substantive First Amendment norms, but also Fourteenth Amendment procedural due 

process protections. In Freedman v. Maryland, 380 U.S. 51, 58 (1965), for example, the 

Supreme Court explained its holding in both First Amendment and Fourteenth Amendment 

terms:

we hold that a noncriminal process which requires the prior submission of a film to a 

censor avoids constitutional infirmity only if it takes place under procedural safeguards

designed to obviate the dangers of a censorship system. First, the burden of proving that 

the film is unprotected expression must rest on the censor. As we said in Speiser v. 

Randall, 357 U.S. 513, 526, "Where the transcendent value of speech is 

involved, due process certainly requires * * * that the State bear the burden of persuasion 

.... 

(Emphasis added). 3

 

3

In his seminal and influential work on the First Amendment's procedural protections, Professor 

Monaghan observed: 

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The First Amendment, Freedman v. Maryland's procedural safeguards, and Ohio's lack

thereof, were the focal points of Plaintiffs' case. The Court correctly ruled that Ohio's faulty

procedures violated the First and Fourteenth Amendments.

4

The Court correctly enjoined

enforcement of Ohio's gatekeeper mechanism. Defendants have little likelihood of success on

appeal.

CONCLUSION

Defendants' Motion for Stay should be DENIED.

Respectfully submitted,

s/Mark R. Brown 

Mark R. Brown, Trial Counsel

Ohio Registration No. 81941

303 East Broad Street

Columbus, OH 43215

(614) 236-6590

(614) 236-6956 (fax)

mbrown@law.capital.edu

 

wherever first amendment claims are involved, sensitive procedural devices are necessary 

to insure that the Court is called upon to balance competing interests of state and citizen 

only when the judgment that conduct should be punished has been made in a setting 

which is designed to discriminate between protected and unprotected activity. The 

government, in other words, may regulate certain types of activity, but it must make sure, 

via proper procedural safeguards, that protected speech is not the loser.

Henry Paul Monaghan, First Amendment ‘Due Process', 83 Harv. L. Rev. 518, 519-20 (1970)

(footnotes omitted and emphasis added). The First Amendment's protection of speech and 

procedural due process have forever since gone hand in hand.

4 Defendants belatedly suggest that another mechanism in Ohio, that used for administrative 

review, might be available instead of mandamus. See Defendants' Motion for Stay, Doc. No. 42 

at PAGEID # 312 n.1. That suggestion is incorrect. As the court in State ex rel. Robinson-Bond 

v. Champaign County Board of Elections, 2011 WL 5925322 (Ohio Ct. App. 2011), observed, 

Chapter 2506's administrative appeal mechanism does not supply an adequate substitute for 

mandamus in the context of elections. It cannot replace mandamus for election reviews because 

it takes too long. Even if it included de novo review, its delay would cause it to fail the First and

Fourteenth Amendments' procedural safeguards.

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Mark G. Kafantaris

Ohio Registration No. 80392

625 City Park Avenue

Columbus, Ohio 43206

(614) 223-1444

(614) 300-5123(fax)

mark@kafantaris.com

CERTIFICATE OF SERVICE

I certify that this Motion was filed using the Court's electronic filing system and thereby 

will be served on all parties to this proceeding. 

s/Mark R. Brown 

Mark R. Brown

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