NO. 14-3756 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Ohio State Conference of the National Association for the Advancement of Colored People, et al., Plaintiffs-Appellees, v. Jon Husted, et al., Defendants-Appellants. Appeal from the United States District Court for the Southern District of Ohio, Case No. 2:14-cv-00404 Brief of Appellant, The Ohio General Assembly Robert J. Tucker (Ohio 0082205) 65 East State Street, Suite 2100 Columbus, Ohio 43215 614-462-2680 / Fax: 614-462-2616 Email: [email protected]Patrick T. Lewis (Ohio 0078314) Lead Counsel BakerHostetler LLP 1900 East Ninth Street, Suite 3200 Cleveland, Ohio 44114-3485 216-621-0200 / Fax: 216-696-0740 Email: [email protected]E. Mark Braden (Ohio 0024987) Washington Square, Suite 1100 1050 Connecticut Avenue, NW Washington, D.C. 20036-5304 202-861-1500 / Fax: 216-861-1783 Email: [email protected]Special Counsel for Appellant, The Ohio General Assembly
Transcript
NO. 14-3756
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Ohio State Conference of the National Association for the Advancement of Colored People, et al.,
Plaintiffs-Appellees,
v.
Jon Husted, et al.,
Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Ohio, Case No. 2:14-cv-00404
Brief of Appellant, The Ohio General Assembly
Robert J. Tucker (Ohio 0082205) 65 East State Street, Suite 2100 Columbus, Ohio 43215 614-462-2680 / Fax: 614-462-2616 Email: [email protected]
Patrick T. Lewis (Ohio 0078314) Lead Counsel BakerHostetler LLP 1900 East Ninth Street, Suite 3200 Cleveland, Ohio 44114-3485 216-621-0200 / Fax: 216-696-0740 Email: [email protected] E. Mark Braden (Ohio 0024987) Washington Square, Suite 1100 1050 Connecticut Avenue, NW Washington, D.C. 20036-5304 202-861-1500 / Fax: 216-861-1783 Email: [email protected] Special Counsel for Appellant, The Ohio General Assembly
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TABLE OF CONTENTS
Table of Authorities .................................................................................................................... iii
Statement Regarding Oral Argument .................................................................................. iv
Statement of the Issues Presented For Review ................................................................ 1
A. Standard of Review ........................................................................................... 13
B. The District Court Abused Its Discretion By Denying The General Assembly’s Motion To Intervene Of Right On Timeliness Grounds .......................................................................................... 14
1. The General Assembly’s motion was timely filed. ................... 16
(a) This case had not made substantial progress at the time the General Assembly sought to intervene. ........ 17
(b) Plaintiffs failed to demonstrate any plausible prejudice that would flow from the General Assembly’s timely intervention in the proceedings. .. 21
(c) The district court inappropriately assigned “great weight” to the General Assembly’s two-month delay in intervening. ................................................................ 25
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(d) The General Assembly sought to intervene to vindicate its unique interest in defending legislation, like SB 238, that it enacts. .............................. 26
(e) Special circumstances exist that militate in favor of permitting the General Assembly to intervene. ...... 29
2. The General Assembly’s interest was not adequately represented by existing parties....................................................... 30
C. The District Court Abused Its Discretion When It Denied The General Assembly Permissive Intervention ........................................... 32
Meyer Goldberg, Inc. of Lorain v. Fisher Foods, Inc., 823 F.2d 159 (6th Cir. 1987) (unpublished) .............................................................. 2
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Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997) ................................................................................ 15, 32
Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999 (6th Cir. 2006) .................................................................... 12, 14, 27, 31
Obama for Am. v. Husted, 2012, 888 F.Supp.2d 897 (S.D. Ohio 2012) ................................................................ 19
Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012) ........................................................................................... 11
Purnell v. City of Akron, 925 F.2d 941 (6th Cir. 1991) .......................................................................... 1, 2, 15, 32
Reliastar Life Ins. Co. v. MKP Invest., No. 13-3926, 2014 WL 1674099 (6th Cir. Apr. 29, 2014) ..................................... 2
Serv. Employees Int’l Union Loc. 1 v. Husted, 515 Fed. Appx. 539 (6th Cir. 2013) ............................................................................... 20
Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987) ............................................................................................................... 2
United States v. Michigan, 424 F.3d 438 (6th Cir. 2005) ........................................................................................... 32
United States v. Tennessee, 260 F.3d 587 (6th Cir. 2001) ........................................................................................... 16
Rules
Fed. R. Civ. P. 24(a) ............................................................................................................. 14, 15
Fed. R. Civ. P. 24(a)(2) ................................................................................................. 1, 14, 23
Fed. R. Civ. P. 24(b)................................................................................................................ 1, 32
(same). See also Purnell, 925 F.2d at 951 (reviewing appeal from denial of
permissive intervention); Meyer Goldberg, Inc. of Lorain v. Fisher Foods, Inc.,
823 F.2d 159, 161 (6th Cir. 1987) (unpublished) (concluding that order
denying permissive intervention is appealable).
STATEMENT OF THE CASE
A. Factual Background
In 2005, Ohio enacted legislation to permit qualified electors to cast
votes in person at their local county board of elections prior to Election Day
without an excuse, a practice commonly known as early in-person (“EIP”)
voting. (Compl. at ¶¶ 21-23, RE 1, PageID #10-11). Previously, Ohio voters
could not vote prior to Election Day absent an excuse, such as illness or being
out of their home county on Election Day. Following these enactments,
qualified Ohio voters could begin EIP voting 35 days prior to Election Day. (Id.
at ¶ 24, RE 1, PageID #11). Because voter registration closed 30 days before
Election Day, the legislation created a five-day overlap where an elector could
both register to vote and cast a ballot on the same day at the board of
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elections. (Id. at ¶ 25, RE 1, PageID #11). This overlap period has been
dubiously referred to as “Golden Week.”
After years of prior legislative efforts to reform Ohio’s early voting laws,
on November 13, 2013, the Ohio Senate introduced SB 238, which amended
Ohio Rev. Code §§ 3509.01 and 3511.10 to establish that EIP absentee voting
begins on the first day after the close of voter registration before the election.
(Atty. Gen.’s Supp. Mem. Contra Pls’ Mot. for P.I. at 3-4, RE 54-1, PageID
#1726-1727). SB 238 passed the Senate on November 20, 2013 and passed
the House on February 19, 2014. (Id. at 4, PageID #1727). SB 238 was signed
by the governor on February 21, 2014. (Id.).
B. Procedural History Prior to This Appeal.
Despite the fact that SB 238 passed the Senate in November 2013 and
was signed into law in February 2014, Plaintiffs did not file their Complaint
until May 1, 2014. (Compl. at 1, RE 1, PageID #1). Plaintiffs named Ohio
Secretary of State Jon Husted (“Secretary of State”) and Ohio Attorney General
Mike DeWine (“Attorney General”) as the only defendants; they did not name
the Ohio General Assembly – the legislative body that enacted the challenged
legislation, or the State of Ohio itself. (Id.). In their Complaint, Plaintiffs
claimed they would be seeking a preliminary injunction preventing the
implementation of the changes to Ohio’s early voting period, including the
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amendments to Ohio Rev. Code §§ 3509.01 and 3511.10. (Id. at ¶¶ 1, 6, RE 1,
PageID #1-2, 4). Plaintiffs, however, did not file their motion for a preliminary
injunction until two months later on June 30, 2014. (Mot. for Preliminary
Injunction at 1, RE 17, PageID #92). Additionally, Plaintiffs seek a permanent
injunction prohibiting any changes to Ohio’s early voting laws for an unstated
period of time (essentially arguing for a preclearance procedure resembling a
claim under Section 5 of the Voting Rights Act, to which Ohio is not subject),
which would severely burden the General Assembly’s constitutionally granted
authority to enact legislation relating to the conduct of elections in Ohio. (See
Id. at Request for Relief ¶ 4, RE 1, PageID #33).
On July 2, 2014, the district court issued a scheduling order that set a
briefing schedule for Appellees’ motion for a preliminary injunction, a
deadline to submit evidence relating to that motion, and a hearing on the
motion for August 11, 2014. (Scheduling Order, RE 22, PageID #577-78).
On July 11, 2014, the General Assembly moved to intervene in the
district court. (Mot. to Intervene, RE 29, PageID #664-65). In its supporting
memorandum, the General Assembly indicated that it anticipated filing its
opposition to Plaintiffs’ motion for a preliminary injunction in accordance
with the district court’s scheduling order. (Mem. in Supp. of Mot. to Intervene
at 3-4, RE 29-1, PageID #668-69). Plaintiffs filed their opposition to the
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General Assembly’s motion to intervene on July 18, 2014. (Opp. to Mot. to
Intervene, RE 33, PageID #695). Plaintiffs expressed concern about the
“prospect of delay” and that any postponement of the hearing might
jeopardize the relief they were seeking. (Id. at 5-6, RE 33, PageID #699-700).
The General Assembly replied to Plaintiffs’ opposition on July 21, 2014,
reiterating that it did not anticipate seeking a continuance of the August 11th
hearing, did not intend to serve any written discovery on Plaintiffs, and would
cooperate with scheduling remaining expert depositions. (Reply in Supp. of
Mot. to Intervene at 5, RE 35, PageID #709).
As the case progressed, Plaintiffs’ concerns about the “prospect” of
delay the General Assembly’s intervention would cause proved unfounded.
The General Assembly timely filed its opposition to Plaintiffs’ motion for a
preliminary injunction on July 23, 2014, in accordance with the district court’s
scheduling order—just as it said it would. (Gen. Assmbly’s Mem. in Opp., RE
40, PageID #722). The General Assembly’s opposition brief relied upon the
same expert reports submitted by the Secretary of State, albeit at times for
different reasons. (Id. at Exs. A, F & G, RE 40-1, 40-6, 40-7). Thus, Plaintiffs
would not need to take any additional discovery as a result of the General
Assembly’s intervention.
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The only additional evidence the General Assembly submitted with its
opposition brief (not also submitted by the Secretary of State) were two
record custodian declarations that authenticated certain legislative facts. (GA
Mem. in Opp. at Exs. B & C, RE 40-2, 40-3). Plaintiffs did not seek to depose
these records custodians. Additionally, while the General Assembly’s motion
to intervene was still pending, its counsel participated in the depositions of
two of defendants’ experts, and it cooperated with the parties regarding the
scheduling of and attendance at the remaining depositions.
The General Assembly’s brief in opposition to Plaintiffs’ motion for pa
preliminary injunction was the only submission that directly raised
arguments and evidence defending the constitutionality of SB 238 in the
district court. The Secretary of State only directly addressed issues related to
the directive he issued, also challenged by Plaintiffs, which set uniform hours
for EIP voting. (See generally Sec. of State’s Opp. to Mot. for Preliminary
Injunction, RE 41). The Attorney General simply adopted and incorporated the
Secretary of State’s and General Assembly’s briefs. (See Atty. Gen.’s Mem.
Contra Mot. for P.I., RE 42, PageID #1458).
On this record, the district court denied the General Assembly’s motion
to intervene on July 30, 2014 and struck its memorandum in opposition to
Plaintiffs’ motion for a preliminary injunction (“Order”). (Order at 5, RE 48,
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PageID #1478). The basis for the district court’s denial was that the General
Assembly’s motion was “untimely.” (Order at 3-4, RE 48, Page ID #1476-78).
Plaintiffs immediately capitalized on the district court’s ruling. In their
reply in support of their preliminary injunction motion, they insisted that the
General Assembly’s opposition was the only brief expressly defending SB
238—and, as the district court struck its brief, SB 238 was no longer
defended, and Defendants had “conced[ed] that preliminarily enjoining SB
238 is appropriate.” (Reply in Supp. of Mot. for P.I. at 1, RE 52, PageID #1514).
The Attorney General’s incorporation of the General Assembly’s arguments by
references rendered Plaintiffs’ representation technically untrue, but the
rhetorical point remained.
The same day, the General Assembly filed an emergency motion for
reconsideration of the district court’s order denying its motion to intervene
and striking its memorandum in opposition. (Mot. for Reconsideration, RE 50,
PageID #1502). The General Assembly reiterated that it had fully complied
with the case schedule, and that Plaintiffs had not, and would not, suffer any
prejudice. (Mem. in Supp. of Mot. for Reconsideration at 1-3, RE 50-1, PageID
#1504-06). Plaintiffs filed their opposition to the General Assembly’s
emergency motion for reconsideration later that evening. (Pls’ Opp. to Mot.
for Reconsideration, RE 51, PageID #1509). As the General Assembly was
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filing its reply brief the next morning, the district court issued an order
denying reconsideration, but inviting the General Assembly to seek leave to
file an amicus brief to assert its interests. (Order on Mot. for Reconsideration,
RE 55, PageID #1950). The General Assembly’s reply brief was filed just one
minute later. (Reply in Supp. of Mot. for Reconsideration, RE 56, PageID
#1951). The General Assembly then filed the instant appeal on August 1,
2014. (RE 59).
C. Proceedings Subsequent To The Filing Of This Appeal.
While believing it should have been permitted to intervene as a party,
the General Assembly filed an amicus brief in support of the Secretary of
State’s and Attorney General’s opposition to Plaintiffs’ motion for a
preliminary injunction on August 8, 2014. (Gen. Assmbly. Amicus Br., RE 68-1,
PAGEID #5099). The district court held oral argument on Plaintiffs’ motion
for a preliminary injunction and, on September 4, 2014, rendered its
Memorandum Opinion and Order (“PI Order”) granting Plaintiffs’ motion for
a preliminary injunction. (RE 72, PAGEID #5848).
In its opinion, the district court “charged” the General Assembly “with
the responsibility of passing legislation consistent with this Memorandum
Opinion and Order.” (Id. at 71, PAGEID #5918) (citing McGhee v. Granville
Cnty, 860 F.2d 110, 115 (5th Cir. 1988) as standing for the proposition that it
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was “proper to give [the] appropriate legislative body the first opportunity to
devise an acceptable remedial plan”). This language suggests that the court
may consider action in the future that could constrain the General Assembly’s
ability to enact legislation.
The Secretary of State and Attorney General filed a notice of appeal of
the PI order on September 5, 2014 (“3877 Appeal”). (RE 73, PAGEID #5919).
That same day, the General Assembly moved again to intervene in the district
court for purposes of likewise appealing the PI Order. (RE 74, PAGEID
#5922). On September 8, 2014, the district court granted leave to intervene
for the sole purpose of appealing from the preliminary injunction. (Order of
Sep. 8, 2014, RE 75, PageID #5954). The General Assembly filed its notice of
appeal the same day (“3881 Appeal”) (RE 76, PAGEID #5955). The Attorney
General, Secretary of State and General Assembly filed their respective merits
briefs in the 3877 and 3881 appeals on September 15, 2014.
On September 11, 2014, this Court entered an order expediting the
briefing in the 3877 Appeal. The Court ordered that appellant’s brief in the
3877 Appeal was due September 15, 2014, appellee’s brief is due September
19, 2014, and appellant’s reply brief will be due September 22, 2014. A motion
to consolidate the 3877 and 3881 Appeals remains unopposed and pending.
In order to avoid disruption to the expedited briefing schedule, the General
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Assembly sought leave to file its briefs in those appeals on September 15,
2014 and September 22, 2014, respectively. (3877 Appeal ECF Nos. 28 & 41).
On September 24, 2013, this Court entered an order denying the General
Assembly’s motions for leave but filed its initial merit brief as an amicus brief.
(3877 Appeal ECF No. 42). The Sixth Circuit then rendered its decision
affirming the ruling of the district court later that day. (3877 Appeal ECF No.
43). The Secretary of State and Attorney General filed a petition for rehearing
en banc later that evening. (3877 Appeal ECF No. 46). The next day, the
General Assembly filed a petition for initial hearing en banc in this Court
(3881 Appeal ECF No. 17-1) and both the Secretary of State and Attorney
General, and the General Assembly sought an emergency stay of the PI Order
from the United States Supreme Court.
The above appeals, however, do not affect or mitigate the instant appeal
regarding the district court’s denial of the General Assembly’s right to
intervene in the case for purposes other than appealing the PI Order.
SUMMARY OF THE ARGUMENT
Plaintiffs commenced this action seeking to enjoin the State from
enforcing recently enacted legislation and a Secretary of State Directive that
set uniform early voting days and hours throughout the State of Ohio. The
General Assembly moved to intervene in this action to ensure that
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appropriate evidence to defend SB 238 was introduced in the record, as this
Court in Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012) found that
the same defendants to this case had not at that time introduced sufficient
evidence to justify prior amendments to Ohio’s early voting laws. The General
Assembly further sought intervention to protect its constitutional right to
prescribe the “times, places, and manner” of holding elections. See U.S. Const.,
Art. I, § 4.
Neither Plaintiffs nor the district court disputed the General Assembly’s
substantial legal interest in this litigation, nor the impairment of its interest in
the absence of intervention. Instead, the district court disallowed
intervention—both of right and by permission—on the basis that the General
Assembly’s motion was untimely, relying solely on the schedule for the
preliminary injunction proceedings, and failing to even consider the General
Assembly’s right to participate in any eventual trial on the merits in this case.
The district court abused its discretion in five distinct ways.
First, the district court erroneously concluded that the litigation had
made “substantial progress” in the two months and eleven days it had been
pending at the time of the General Assembly’s attempted intervention by
measuring the case’s “progress” only on the briefing schedule for Plaintiffs’
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preliminary injunction motion and failing to appropriately analyze the impact
of the General Assembly’s intervention on that schedule—which was none.
Second, the district court erroneously found that intervention would be
prejudicial based only on Plaintiffs’ self-serving, unsupported speculation
about a “prospect” of delay that would flow from intervention. Moreover,
neither Plaintiffs nor the district court demonstrated how that “prospect” of
delay flowed from the timing of the General Assembly’s intervention (as
required by Circuit law), rather than simply by virtue of the intervention itself.
Third, contrary to the district court’s holding, the General Assembly’s
unique, manifest interest in defending the constitutionality of the legislation it
enacts is not adequately represented by the Secretary of State and Attorney
General. See Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d
999, 1008 (6th Cir. 2006) (“NEOCH v. Blackwell”). In practice, the existing
defendants in the case did not directly address SB 238 in their opposition
briefs, leading Plaintiffs to argue, only hours after the district court denied
leave for the General Assembly to intervene and struck the General
Assembly’s brief from the record, that “Defendants…proffer no defense to SB
238 at all, thus conceding that preliminarily enjoining SB 238 is appropriate.”
(Pls’ Reply in Supp. of Mot. for Preliminary Injunction at 1, RE 52, PageID
#1514) (emphasis in original). While the Attorney General then adopted the
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General Assembly’s brief as his own in the district court, by denying leave to
intervene, the district court nevertheless prevented SB 238’s most significant
defender from supporting the statute.
Fourth, the district court failed to consider—at all—the unusual factors
in this litigation that militate in favor of intervention, including that the relief
sought by Plaintiffs in this case could significantly burden the General
Assembly’s right to enact laws governing Ohio’s elections in the future.
Fifth, the district court failed to grant permissive intervention.
Even though this Court cannot send the General Assembly back in time
to participate as a party in the preliminary injunction proceedings, it should at
the very least reverse the district court’s ruling to allow the General Assembly
to participate in this matter going forward, including in any trial on the merits
and determination of any remedial scheme that may ultimately be required.
For these reasons, the district court’s order denying the General Assembly’s
motion to intervene should be reversed.
ARGUMENT
A. Standard of Review
This Court reviews an order denying a motion for leave to intervene of
right de novo, except with respect to timeliness issues, which are reviewed for
abuse of discretion. Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir.1989) (citing
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Bradley v. Milliken, 828 F.2d 1186, 1191 (6th Cir.1987)); NEOCH, 467 F.3d at
1007 n.2. This Circuit reviews an order denying permissive intervention for
abuse of discretion. Stupak-Thrall v. Glickman, 226 F.3d 467, 472 (6th Cir.
2000).
In the intervention context, this Court recently described the abuse of
discretion standard as follows: “a district court abuses its discretion if it bases
its ruling on an erroneous view of the law or a clearly erroneous assessment
of the evidence.” Davis v. Lifetime Capital, Inc., 564 Fed. Appx. 477, 489 (6th
Cir. 2014) (citing Brown v. Raymond Corp., 432 F.3d 640, 647 (6th Cir. 2005)).
B. The District Court Abused Its Discretion By Denying The General Assembly’s Motion To Intervene Of Right On Timeliness Grounds
Rule 24(a)(2) provides, in pertinent part:
(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: ... (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
An applicant for intervention must satisfy four elements to intervene of
right under Fed. R. Civ. P. 24(a): “(1) timeliness of the application to intervene,
(2) the applicant's substantial legal interest in the case, (3) impairment of the
applicant's ability to protect that interest in the absence of intervention, and
(4) inadequate representation of that interest by parties already before the
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court.” Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997).
See also Triax Co. v. TRW, Inc., 724 F.2d 1224, 1227 (6th Cir. 1984).
Rule 24 should be “broadly construed in favor of potential intervenors.”
Purnell, 925 F.2d at 950. See also Stupak-Thrall v. Glickman, 226 F.3d 467, 472
(6th Cir. 2000). Pursuant to that policy in favor of intervention, “close cases
should be resolved in favor of recognizing an interest under Rule 24(a).”
The district court denied the General Assembly leave to intervene by
right, finding its motion to intervene untimely despite the motion being filed
just over two months into the case, eleven days after Plaintiffs moved for a
preliminary injunction, and nearly a year in advance of the proposed
discovery and dispositive motions deadlines. (Order at 3-4, RE 48, PageID
#1477-1478). In connection with its timeliness analysis, the district court also
considered the fourth intervention factor—to wit, whether the existing
defendants in this action adequately represent the General Assembly’s unique
interest in defending the constitutionality of the statutes it enacts—and
concluded, contrary to Circuit precedent, that other State officials adequately
represented the interest of the General Assembly. (See id. at 2, PageID #1476).
For the reasons that follow, however, the district court’s analysis on both
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points does not and cannot survive scrutiny under this Court’s case law, and
its Order denying intervention should be reversed.
1. The General Assembly’s motion was timely filed.
In this Circuit, “the determination of whether a motion to intervene is
timely should be evaluated in the context of all relevant circumstances…”
United States v. Tennessee, 260 F.3d 587, 592 (6th Cir. 2001) (quoting Jansen v.
City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990)). In determining
timeliness, courts generally weigh the following five factors:
(1) the point to which the suit has progressed;
(2) the purpose for which intervention is sought;
(3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case;
(4) the prejudice to the original parties due to the proposed intervenor's failure, after he or she knew or reasonably should have known of his interest in the case, to apply promptly for intervention; and
(5) the existence of unusual circumstances militating against or in favor of intervention.
Id. These five factors must be balanced, as “no one factor is determinative.”
Thrall, 226 F.3d at 472-473). In this case, the district court incorrectly
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analyzed the first four factors and failed to consider the fifth factor at all. (See
generally Order at 2-4, RE 48, PageID #1475-1477).
(a) This case had not made substantial progress at the time the General Assembly sought to intervene.
Evaluating the first intervention factor, the district court concluded that
the case had “progressed to a significant degree”—in only two months—to a
place where intervention was inappropriate. (Id. at 3, RE 48, PageID #1476).
That conclusion is unsupportable based on the record in this case.
The “progress” of a case at the time of a proposed intervention should
be measured by how far the case progressed against the district court’s “case-
management plan.” Davis, 560 Fed. Appx. at 490. Thus, this Court has affirmed
findings of untimeliness where substantial progress in the case has been made
pursuant to a firm case-management plan. Id. (citing Stupak-Thrall, 226 F.3d
at 473-474) (concluding that the suit had made extensive progress, weighing
against intervention, where the case was seven months old, the discovery
period had concluded ten weeks prior, and expert witnesses were identified
five weeks earlier); Clarke v. Baptist Memorial Healthcare Corp., 427 Fed. Appx.
431, 437 (6th Cir. 2011) (identifying extensive progress in suit where party
waited “many months until after the close of class-certification discovery and
a decision on the merits of certification before seeking to intervene”).
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The district court held that “substantial progress” had been made in this
case in the two months and eleven days between the filing of the Complaint on
May 1, 2014 and when the General Assembly’s moved to intervene on July 11,
2014. (Order at 3-4, RE 48, PageID #1476-1477). The district court defined
that substantial progress as the filing of the motion for preliminary injunction
and “the start of an expedited discovery period leading to a hearing less than
six weeks in the future….” (Id. at 3, RE 48, PageID #1476).1 In measuring the
progress of the case as it did, the district court erred for two reasons.
First, the court measured the case’s “progress” using only its
preliminary injunction scheduling order as its yard-sick, rather than the case
management plan contemplated in Davis. See Davis, 560 Fed. Appx. at 490. In
this case, the district court had not even yet conducted a case management
conference by the time the General Assembly moved to intervene. However,
the parties’ Rule 26(f) report, filed on June 25, 2014, recommended May 15,
2015 as a discovery completion date and June 12, 2015 as the dispositive
motion deadline. (Rule 26(f) Rep. at 3, RE 16, PageID #90). Seeking to
intervene 11 months in advance of the proposed dispositive motion deadline
1 The scheduling order did not expressly authorize discovery to commence. However, since the district court characterized the July 1-11 period as “includ[ing] the start of an expedited discovery period,” (Order at 3, RE 48, PageID #1476) it appears the court treated the order as having that effect.
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would seem timely, as the district court itself acknowledged. (Order at 3, RE
48, PageID #1476) (conceding that “…two months may seem insignificant
given that the Parties have proposed a dispositive motion deadline of June
2015…”).
The district court instead relied on its preliminary injunction scheduling
order as the yard-stick to measure the case’s progress. Measuring from that
abbreviated timeline, rather than from a full case management plan as Davis
contemplates, the district court concluded that substantial progress had been
made at the time of intervention simply because the motion had been filed
and a hearing was scheduled for a month after the General Assembly moved to
intervene. (See id.). Had the district court evaluated the progress of the case as
a whole, it would have concluded that little, rather than “substantial progress,”
had been made at the time the General Assembly moved to intervene.2
Second, even assuming the degree of progress is properly measured
using the preliminary injunction hearing schedule, the district court’s analysis
2 The district court suggested that the preliminary injunction hearing “could as a practical matter resolve the merits of the litigation.” (Order at 3, RE 48, PageID #1476). But that is not always true in election litigation, which can take years to resolve. For example, Obama for Am. v. Husted, a similar case over which the district court also presides, had nearly two years of proceedings between the entry of the preliminary injunction on August 31, 2012, 888 F. Supp. 2d 897 (S.D. Ohio 2012) and the entry of a permanent injunction on June 11, 2014. See 2014 WL 2611316 (S.D. Ohio June 11, 2014).
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improperly conflated the commencement of the schedule with its completion.
When the General Assembly moved to intervene, the proceedings in
connection with Plaintiffs’ preliminary injunction motion had just begun.
Opposition briefs were not due for twelve more days, and the parties had until
August 7 to submit their depositions, affidavits, exhibits, and witness lists in
advance of the August 11th hearing. (Order of July 2, 2014, RE 22, PageID
#577). The General Assembly timely filed its opposition brief on July 23rd and
cooperated with the existing expert witness deposition schedule.
Thus, this case is distinguishable from this Circuit’s case law which finds
“substantial progress” to be made in cases where substantial briefing and
discovery periods had concluded by the time the party sought intervention.
See, e.g., Stupak-Thrall, 226 F.3d at 473-474; Clarke, 427 Fed. Appx. at 437. See
also Johnson v. City of Memphis, 73 Fed. Appx. 123, 132 (6th Cir. 2003) (finding
“extensive progress” made in a suit where, in the year prior to appellant’s
motion to intervene, “all witnesses had been identified, expert witnesses had
submitted their reports and testified in court, depositions had been taken, and
Plaintiffs’ motion for partial summary judgment had been granted”); Serv.
Employees Int’l Union Loc. 1 v. Husted, 515 Fed. Appx. 539, 541 (6th Cir. 2013)
(finding substantial progress where intervention was sought two weeks after
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the completion of briefing on the motion for preliminary injunction and only
one business day before the hearing).
But this Court has not hesitated to find intervention to be timely where
significant case milestones had not yet been completed. In Jansen, for example,
this Court reversed the denial of intervention, where the proposed intervenor
sought to intervene after “only half of the 12 month discovery period had
elapsed” and only a few weeks after an opposition brief had been filed to a
motion for summary judgment. Jansen, 904 F.2d at 341. Likewise, in Davis,
this Court reversed the denial of intervention, despite the fact the case was
two years old at the time of intervention, because “the receiver had much
more to do in the years that followed” the filing of the motion to intervene.
Davis, 450 Fed. Appx. at 491.
As such, the district court abused its discretion when it concluded that
significant progress had been made in this case at the time the General
Assembly moved to intervene.
(b) Plaintiffs failed to demonstrate any plausible prejudice that would flow from the General Assembly’s timely intervention in the proceedings.
The district court’s erroneous conclusion about the case’s progress is
compounded by its finding, contrary to the evidence and record in this case,
that the timing of the General Assembly’s intervention would prejudice
22
Plaintiffs. (See Order 3-4, RE 48, PageID #1476-1477). The district court
concluded Plaintiffs would suffer prejudice due to speculation about “delay” in
the preliminary injunction hearing that could result “if the General Assembly
were permitted to intervene and submit new evidence.” (Id. at 4, RE 48,
PageID #1477).
But the district court did not articulate why intervention was likely to
result in delay. (See id.) There was no reason to believe the General
Assembly’s intervention would cause delay. The General Assembly
represented it did not plan to seek an extension of the hearing or briefing
schedule or serve Plaintiffs with discovery requests. (Reply in Supp. of Mot. to
Intervene at 5, R.E. 35, PageID #709). Both the district court and Plaintiffs
represented that they “took” the word of the General Assembly in this respect.
(Order at 4, RE 48, PageID #1477; Pls’ Opp. to Mot. to Reconsider at 2, RE 51,
PageID #1510).
Likewise, Plaintiffs did not provide any reasons why delay would result
from the General Assembly’s intervention. Instead, Plaintiffs only made the
vague assertion that “intervention at this point would substantially prejudice
Plaintiffs’ rights due to the foreseeable, if not inevitable, prospect of delay” in
the hearing. (Pls. Resp. to Mot. to Intervene at 5, RE 33, PageID #699). The
23
district court erred by relying on Plaintiffs’ self-serving, unsupported
conjecture about “prejudice” as a basis to deny leave to intervene.
Furthermore, the district court did not tie any alleged “prejudice” to the
timing of intervention, as Circuit law requires. In Davis, this Court held that
the “only prejudice relevant to the timeliness determination is incremental
prejudice from a would-be intervenor’s delay in intervening, not prejudice
from the intervention in and of itself.” 560 Fed. Appx. at 493. A court may not
deny intervention simply because intervention may inconvenience Plaintiffs.
Id. See also Clark v. Putnam Cnty., 168 F.3d 458, 462 (11th Cir. 1999) (finding
any inconvenience caused to existing parties by intervention “irrelevant,”
because “Rule 24(a)(2) does not take into account the convenience of the
parties”). Indeed, Plaintiffs argued that their prejudice stemmed from having
to “engage with a new party while they engage furiously with the existing
Defendants...”, not in the timeliness of the General Assembly’s intervention.
(Pls’ Opp. to Mot. for Reconsideration at 3, RE 51, PageID #1511).
Any burden that the General Assembly’s intervention would impose on
Plaintiffs would exist regardless of when intervention was sought, because the
General Assembly agreed to comply, and in fact complied, with the existing
schedule. Even if the General Assembly intervened the day after this case was
filed, its opposition to the preliminary injunction motion would still have been
24
due July 23; its experts (the same as the Secretary of State’s) would still have
been deposed on the same schedule; and, to the extent not filed with its July
23 brief, its evidence would still have been submitted by August 7.
In Davis, this Court held that the lower court erroneously found
prejudice where the burden to the parties would have been the same even if
the proposed intervenor had sought intervention earlier. 560 Fed. Appx. at
494. The district court erred for the same reason in this case.
The district court also failed to consider the General Assembly’s conduct
in the case while its motion to intervene was pending. A proposed
intervenor’s filings while its motion to intervene is pending are relevant to the
prejudice question. Jansen, 904 F.2d at 341. In this case, by the time the
district court denied the General Assembly’s motion to intervene on July 30,
2013, the General Assembly had timely filed its opposition to Plaintiffs’
motion for a preliminary injunction. And, as Plaintiffs admitted to the district
court, they had prepared a timely reply to the General Assembly’s brief. (Pls’
Opp. to Mot. for Reconsideration at 3, RE 51, PageID #1511). The district court
erred by finding “prejudice” based on speculation about what might happen
when the record of the General Assembly’s actual conduct demonstrated that
the speculation was unfounded.
25
Finally, since the preliminary injunction proceedings have concluded in
the district court, and the Sixth Circuit has affirmed that order, there is no
prejudice to allowing the General Assembly to intervene for purposes of
participating in any eventual trial on the merits in the district court. The
district court utterly failed to address how or why permitting the General
Assembly to intervene not only for the preliminary injunction proceedings,
but for any post-preliminary injunction hearings, including any trial on the
merits or hearings to determine remedial measures (if required) would
prejudice Plaintiffs. It will not.
(c) The district court inappropriately assigned “great weight” to the General Assembly’s two-month delay in intervening.
In considering Jansen’s third timeliness factor, the district court gave
“great weight” to the two-month delay between when the Complaint was filed
and the date the General Assembly moved to intervene. (Order at 4, RE 48,
PageID #1477). The district court reasoned that there was a five-month
window between the filing of the complaint and the start of early voting, and
the General Assembly’s “over two month delay in moving to intervene
represents 40% of the available time to resolve [preliminary injunctive
issues], issues which may ultimately resolve the merits of the entire case.”
(Id.).
26
First, and again, the district court only considered intervention for
purposes of the preliminary injunction proceeding, and not for the case as a
whole. When analyzed in that context, the General Assembly’s alleged “delay”
in moving to intervene should not have been given great weight.
Second, the district court’s conclusion is erroneous because Plaintiffs
did not move for a preliminary injunction until June 30, 2014, after the same
two months had elapsed. Moreover, Plaintiffs did not serve discovery requests
until July 3, 2014. (Pls’ Opp. to Mot. to Intervene at 2, RE 33, PageID #697).
The “two months” in question could not have been helpful to “resolve” issues
related to a motion that had not yet been filed and discovery that had not yet
been served. Only eleven days elapsed between when the motion for
preliminary injunction was filed and when the General Assembly moved to
intervene, not two months, and the district court’s failure to consider the most
relevant time frame is erroneous. See Stupak-Thrall, 226 F.3d at 475 (“The
absolute measure of time between the filing of complaint and the motion to
intervene is one of the least important…circumstances” to consider).
(d) The General Assembly sought to intervene to vindicate its unique interest in defending legislation, like SB 238, that it enacts.
Turning to the second timeliness factor, the district court found that the
purpose for the General Assembly’s intervention also weighed against
27
intervention. (Order at 3, RE 48, PageID #1476). The General Assembly sought
intervention to ensure that the constitutionality of SB 238 was adequately
defended—since the existing defendants’ “duties to administer and enforce
the laws are distinct from the duties of the General Assembly in enacting
laws…,” and to place additional argument and evidence before the district
court in support of the constitutionality of the statute it enacted. (Mem. in
Supp. of Mot. to Intervene at 2-3, RE 29-1, PageID #667-668). The General
Assembly expressed concern that its interest in defending SB 238 was not
shared by the existing defendants. (Id.).
The district court rejected that argument, finding that “the General
Assembly has not persuaded this Court that the Attorney General, the State’s
chief legal representative, cannot adequately represent its interests.” (Order
at 3, RE 48, PageID #1476). For the reasons set forth in Section (B)(2) infra,
the district court’s holding in this regard is inconsistent with this Court’s
holding in NEOCH that the State and General Assembly had unique interests,
distinct from those of the Secretary of State, sufficient to warrant intervention
in election cases. 467 F.3d at 1008.
But the district court’s conclusion is also undermined because the
record developed while the General Assembly’s motion to intervene was
pending demonstrated a divergence of interest. On July 23, 2014, the
28
Secretary of State filed its opposition to Plaintiffs’ motion for a preliminary
injunction that did not directly address SB 238; it only addressed Directive
2014-17. (See generally Sec. of State’s Opp. to Mot. for Preliminary Injunction,
RE 41). The Attorney General’s opposition merely adopted and incorporated
the Secretary of State’s and General Assembly’s briefs by reference. (See Ohio
Atty. Gen.’s Mem. Contra Mot. for Preliminary Injunction, RE 42, PageID
#1458).
The district court denied the General Assembly leave to intervene, and
struck the General Assembly’s brief, on the day Plaintiffs’ reply brief was due.
Plaintiffs immediately seized the opportunity to proclaim, in the first
paragraph of their reply brief that: “Defendants’ opposition briefs…proffer no
defense to SB 238 at all, thus conceding that preliminarily enjoining SB 238 is
appropriate.” (Pls’ Reply in Supp. of Mot. for Preliminary Injunction at 1, RE
52, PageID #1514) (emphasis in original). This history demonstrates that the
Attorney General and Secretary of State may not have the same interests to
vigorously defend SB 238 as the General Assembly does.
Under these circumstances, the district court clearly erred by excluding
from the proceedings the primary advocate in defense of the very statute
Plaintiffs seek to preliminarily enjoin, and its judgment should be reversed.
29
(e) Special circumstances exist that militate in favor of permitting the General Assembly to intervene.
Finally, the district court failed to consider the existence of any “unusual
circumstances militating against or in favor of intervention” in its timeliness
analysis. Jansen, 904 F.2d at 340. Its failure to do so was erroneous, as there
are special circumstances favoring intervention.
In this case, Plaintiffs seek a permanent injunction prohibiting the State
of Ohio from making any changes to any voting qualifications or “standard,
practice, or procedure with respect to voting” without judicial authorization.
(See Compl. at Request for Relief ¶ 4, RE 1, PageID #33). Such relief is
tantamount to the imposition of a preclearance procedure applicable to claims
under Section 5 of the Voting Rights Act, which does not apply to Ohio.
Plaintiffs’ requested relief would enjoin and prohibit the General Assembly
from exercising its constitutionally granted power to enact legislation relating
to the conduct of elections in Ohio. But the district court’s denial of the
General Assembly’s motion to intervene prohibits the General Assembly from
protecting that right.
Indeed, the district court’s PI Order stated that “the Ohio General
assembly is charged with the responsibility of passing legislation consistent
with this Memorandum Opinion and Order.” (PI Order, RE 72, PAGEID
30
#5910). Thus, even after the General Assembly argued to the district court
that Plaintiffs were seeking relief that could affect the General Assembly, it
denied the General Assembly’s request to intervene, but then “charged” the
General Assembly with the “responsibility” to take action—language that
amounts to a “last chance” offer to the General Assembly to pass remedial
legislation on its own before the district court imposes its own remedy on the
State. Given these circumstances, the General Assembly faces the prospect of
serious prejudice should it be excluded from participation in this important
election case.
The district court’s failure to consider these special factors is erroneous
and likewise warrants reversal.
2. The General Assembly’s interest was not adequately represented by existing parties.
In addition to finding that the General Assembly’s motion was untimely,
the district court also erroneously concluded that the General Assembly’s
interest in this case was adequately represented by other parties. Not so.
It is settled that a proposed intervenor need not prove beyond doubt
that existing parties do not represent its interest; rather, “proposed
intervenors need only show that there is a potential for inadequate
representation.” Stupak-Thrall, 226 F.3d at 472 (quoting Grutter, 188 F.3d at
31
400) (emphasis in original). In Blackwell, an election case, this Court held that
the Secretary of State did not adequately represent the State and the General
Assembly’s interest, thereby permitting the State to intervene. 467 F.3d at
1008. This Court rejected the argument that an elected official (there, the
Secretary of State) represents the General Assembly’s interest simply because
the official sought the same result, focusing on the Secretary of State’s distinct
role in Ohio’s government: “the Secretary's primary interest is in ensuring the
smooth administration of the election, while the State and General Assembly
have an independent interest in defending the validity of Ohio laws and
ensuring that those laws are enforced.” Id.
The General Assembly’s concerns about the adequacy of the existing
defendants’ representation of its interests has been borne out by the Secretary
of State and Attorney General’s opposition briefs during the preliminary
injunction proceedings. The Secretary of State only addressed Plaintiffs’ attack
on the directive he issued, and the Attorney General relied on the General
Assembly to supply his argument. These facts suggest the General Assembly’s
interest when this case proceeds to any trial on the merits may not be
adequately represented. The district court erred by finding adequacy of
representation on this record and its order denying intervention should be
reversed.
32
C. The District Court Abused Its Discretion When It Denied The General Assembly Permissive Intervention
Finally, the district court abused its discretion when it also denied the
General Assembly permissive intervention. Fed. R. Civ. P. 24(b) governs
permissive intervention provides, in pertinent part, that:
(1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact.
It is undisputed that the General Assembly sought to intervene in the
case to assert defenses to SB 238 that share several “common question[s] of
law or fact” with Plaintiffs’ claims that SB 238 is unconstitutional and/or
violative of Section 2 of the VRA. United States v. Michigan, 424 F.3d 438, 445
(6th Cir. 2005) (citing Miller, 103 F.3d at 1248).
Rather, the district court denied permissive intervention on timeliness
grounds. (Order at 5, RE 48, PageID #1478). The district court was required to
consider “whether intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.” Purnell, 925 F.2d at 950. For
all the reasons set forth above, the district court abused its discretion when it
concluded that the General Assembly’s intervention in the case would cause
delay or prejudice to Plaintiffs’ rights or the litigation as a whole, and its
judgment should be reversed.
33
CONCLUSION
For the foregoing reasons, Proposed Intervenor-Appellant, The Ohio
General Assembly, respectfully requests that this Court reverse the order of
the district court denying its motion to intervene in the case.
Respectfully submitted,
OHIO ATTORNEY GENERAL
MICHAEL DEWINE
/s/ Patrick T. Lewis Patrick T. Lewis (Ohio Bar #0078314) Lead Counsel [email protected] BAKERHOSTETLER LLP 1900 E. Ninth Street, Suite 3200 Cleveland, Ohio 44114-1483 (216) 621-0200 / Fax (216) 696-0740 E. Mark Braden (Ohio Bar #0024987) [email protected] BAKERHOSTETLER LLP Washington Square, Suite 1100 1050 Connecticut Avenue, NW Washington, DC 20036-5304 (202) 861-1500 / Fax (216) 861-1783 Robert J. Tucker (Ohio Bar #0082205) [email protected] BAKERHOSTETLER LLP 65 East State Street, Suite 2100 Columbus, Ohio 43215 (614) 462-2680 / Fax (614) 462-2616 Special Counsel for Appellant, The Ohio General Assembly
34
CERTIFICATE OF SERVICE
I certify that the foregoing was filed electronically on the Court’s
electronic case filing system on September 25, 2014. Notice will be served by
operation of the Court’s filing system. Copies of the filing are available on the
Court’s system.
/s/ Patrick T. Lewis ________________ Patrick T. Lewis
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitations of Fed. R.
App. P. 32(a)(7)(B) because, excluding the parts of the brief exempted by Fed. R.
App. P. 32(a)(7)(B)(iii), the brief has 7,261 words. The brief is written using
Microsoft Word 2010 and utilizes a 14-point Cambria typeface, a proportionally
spaced typeface which meets the typeface and type-style requirements of Fed. R.
App. P. 32(a)(5) and 32(a)(6).
/s/ Patrick T. Lewis ________________ Patrick T. Lewis
35
ADDENDUM A – DESIGNATION OF THE RECORD
The Ohio General Assembly respectfully designates the following items for
inclusion in the record on appeal in accordance with 6 Cir R. 30(g):
Preliminary Injunction and Memorandum in Support of Motion, together with Exhibits
0092-0562
22 07/02/2014 Order (Scheduling Hearing) 0577-0578 29 07/11/2014 Motion to Intervene by
Proposed Intervenor, Ohio General Assembly, together with Memorandum in Support (RE 29-1) and Proposed Answer (RE 29-2)
0664-0687
33 07/18/2014 Plaintiffs’ Memorandum in Opposition to Proposed Intervenor Ohio General Assembly’s Motion to Intervene
0695-0702
35 07/21/2014 Reply of Ohio General Assembly in Support of Motion to Intervene
0705-0711
40 07/23/2014 Memorandum of Ohio General Assembly in Opposition to Plaintiffs’ Motion for Preliminary Injunction (w/ Exhibits A-G)
0722-0954
41 07/23/2014 Defendant Secretary of State Jon Husted’s Opposition to Plaintiffs’ Motion for Preliminary Injunction (w/ Exhibits A-W)
0955-1457
36
Record Entry No.
Date Filed Description of Document Page ID #
42 07/23/2014 Defendant Attorney General Michael DeWine’s Opposition to Plaintiffs’ Motion for Preliminary Injunction
1458-1459
48 07/30/2014 Order Denying Motion to Intervene
1474-1478
50 07/30/2014 Ohio General Assembly’s Emergency Motion for Reconsideration
1502-1508
51 07/30/2014 Plaintiffs’ Opposition to Ohio General Assembly’s Emergency Motion for Reconsideration
1509-1513
52 07/30/2014 Plaintiffs’ Reply in Support of Motion for Preliminary Injunction (w/ Exhibits)
1514-1713
54 07/31/2014 Defendant Attorney General Mike DeWine’s Supplemental Memorandum in Opposition to Plaintiffs’ Motion for Preliminary Injunction, together with Exhibits
1714-1949
55 07/31/2014 Order Denying Emergency Motion for Reconsideration
1950
56 07/31/2014 Ohio General Assembly’s Reply in Support of Emergency Motion for Reconsideration
1951-1956
59 08/01/2014 General Assembly Notice of Appeal from Order Denying Leave to Intervene (Case No. 14-3756)
2203-2204
68 08/08/2014 Motion for Leave to File Amicus Brief by Ohio General Assembly, together with Exhibits
5096-5593
72 09/04/2014 Opinion and Order Granting Plaintiffs’ Motion for Preliminary Injunction
5848-5918
37
Record Entry No.
Date Filed Description of Document Page ID #
73 09/05/2014 Defendant’s Notice of Appeal from Order Granting Preliminary Injunction (Case No. 14-3877)
5919-5921
75 09/08/2014 Order Granting Ohio General Assembly’s Motion to Intervene
5954
76 09/08/2014 General Assembly Notice of Appeal from Order Granting Preliminary Injunction (Case No. 14-3881)
5955-5956
/s/ Patrick T. Lewis ________________ Patrick T. Lewis
