Citizens for a Strong Ohio v. Marsh

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0004n.06
Filed: January 3, 2005

No. 04-3112

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CITIZENS FOR A STRONG OHIO; OHIO )
CHAMBER OF COMMERCE; JOHN DOE, a )
resident of the State of Ohio; ALPHA )
CORPORATION; OMEGA CORPORATION, )
) ON APPEAL FROM THE
Plaintiffs-Appellants, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHIO
)
BENJAMIN F. MARSH, et al., in their official ) OPINION
capacity as members of the Ohio Election )
Commission, et al. )
)
Defendants-Appellees. )

BEFORE: RYAN, COLE, and ROGERS, Circuit Judges.

R. GUY COLE, JR., Circuit Judge. Plaintiffs-Appellants Citizens for a Strong Ohio, the

Ohio Chamber of Commerce, and various anonymous parties seek a declaratory judgment against

Defendants-Appellees members of the Ohio Election Commission in their official capacity, arguing

that certain Ohio elections laws as applied by the Ohio courts and the Ohio Election Commission

violate the First Amendment of the United States Constitution. On a motion to dismiss, the district

court dismissed the case under Younger v. Harris, 401 U.S. 37 (1971) due to pending state action.

For the following reasons, we AFFIRM the dismissal of this case.

I. BACKGROUND
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Citizens for a Strong Ohio (“Citizens”) is a nonprofit political action committee that sponsors

a broad range of political activities, including, but not limited to, television advertising. The Ohio

Chamber of Commerce (“Ohio Chamber”) is a nonprofit corporation that pursues a broad range of

activities in Ohio to “support Ohio businesses and the overall economic climate in Ohio.” The Ohio

Chamber is a major contributor to Citizens. Anonymous parties John Doe, Alpha Corporation, and

Omega Corporation are, or wish to be, active in political issue activities, either by funding Citizens,

or by funding their own television ads.

During the 2000 election cycle, Citizens sponsored various television ads that attacked Ohio

Supreme Court Justice candidates Justice Alice Robie Resnick and then-Justice Timothy Black for

connections to various campaign donors. Common Cause/Ohio v. Ohio Elections Comm’n, 779

N.E.2d 766, 768 (Ohio Ct. App. 2002); Common Cause/Ohio v. United States Chamber of

Commerce, No. 2000E-058 (Ohio Election Comm’n Order of May 15, 2003). Such ads were

purported by Citizens to be “issue ads” as defined in Buckley v. Valeo, 424 U.S. 1 (1976), because

the ads did not contain any words “expressly exhorting particular electoral action,” such as “vote

for,” “vote against,” or “elect” a particular candidate.

On November 1, 2000, the Alliance for Democracy (“Alliance”) filed a complaint with the

Ohio Elections Commission (“OEC”), arguing that Citizens and other groups had violated Ohio

Revised Code §§ 3517.21 and 3599.03.1 Subsequently, the OEC dismissed the case for lack of

1
The relevant texts of the Ohio election statutes enforced by the OEC in the underlying case
are as follows:

(B) No person, during the course of any campaign for nomination or election to

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jurisdiction. After affirmance by the Franklin County Common Pleas Court, the Ohio Court of

public office or office of a political party, by means of campaign materials, including
sample ballots, an advertisement on radio or television or in a newspaper or
periodical, a public speech, press release, or otherwise, shall knowingly and with
intent to affect the outcome of such campaign do any of the following:

(9) Make a false statement concerning the voting record of a candidate or
public official;

(10) Post, publish, circulate, distribute, or otherwise disseminate a false
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. Code § 3517.21.

(A) Except to carry on activities specified in sections 3517.082 and 3599.031 of the
Revised Code and except as provided in divisions (D), (E), and (F) of this section,
no corporation, no nonprofit corporation, and no labor organization, directly or
indirectly, shall pay or use, or offer, advise, consent, or agree to pay or use, the
corporation's money or property, or the labor organization's money, including dues,
initiation fees, or other assessments paid by members, or property, for or in aid of or
opposition to a political party, a candidate for election or nomination to public office,
a political action committee, a legislative campaign fund, or any organization that
supports or opposes any such candidate, or for any partisan political purpose, shall
violate any law requiring the filing of an affidavit or statement respecting such use
of those funds, or shall pay or use the corporation's or labor organization's money for
the expenses of a social fund-raising event for its political action committee if an
employee's or labor organization member's right to attend such an event is predicated
on the employee's or member's contribution to the corporation's or labor
organization's political action committee.

Whoever violates division (A) of this section shall be fined not less than five hundred
nor more than five thousand dollars.

Ohio Rev. Code § 3599.03.

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Appeals, Tenth District, reversed, finding that the OEC did have jurisdiction. See Common

Cause/Ohio, 779 N.E.2d at 771-72.

On remand, the OEC held Citizens’ arguments regarding Buckley’s limitations under the

First Amendment were not applicable to the conduct and television ads before the Commission. The

OEC then issued a subpoena to Citizens on September 3, 2003, seeking records of the direct donors

of Citizens, and indirect donors of Citizens through the Ohio Chamber. Citizens refused to comply

and Alliance brought enforcement proceedings in the Ohio courts. The Franklin County Court of

Common Pleas then issued an enforcement order, subjecting Citizens to a $25,000 per day fine for

failure to comply with the OEC subpoena, and ordered Citizens and the Ohio Chamber to produce

the donor records. Citizens and the Ohio Chamber have so far refused to comply with the subpoena

and enforcement order.

On July 3, 2003, the Plaintiffs-Appellants filed the instant suit in federal district court

seeking a judgment declaring that the OEC’s application of Ohio election laws violated the First

Amendment and Buckley. Plaintiffs-Appellants further allege that the OEC’s adverse decisions

interpreting Ohio election laws are preventing them from engaging in future political activity and

are having an adverse effect on fundraising. Defendant-Appellee OEC moved to dismiss under Fed.

R. Civ. P. 12(b)(1) & 12(b)(6), arguing that Younger v. Harris, 401 U.S. 37 (1971), required federal

court abstention. The district court granted the motion to dismiss on Younger grounds. Plaintiffs-

Appellants timely appealed.

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II. ANALYSIS

A. Jurisdiction

This Court has jurisdiction over a final judgment of a district court under 28 U.S.C. § 1291.

Subject matter jurisdiction for this case exists under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 &

2202.

B. Standard of Review

A district court decision to abstain under Younger is reviewed de novo. See Chippewa

Trading Co. v. Cox, 365 F.3d 538, 541 (6th Cir. 2004); Traughber v. Beuachane, 760 F.2d 673, 676

(6th Cir. 1985) (“Because theories of state and federal law, and expressions of federalism and

comity, are so interrelated in the decision to abstain such dispositions are elevated to a level of

importance dictating de novo appellate review.”).

As the district court dismissed this case on a Rule 12(b) motion to dismiss, this Court must

presume all factual allegations in the complaint are true, and draw all reasonable inferences in favor

of the non-moving party. See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993).

C. Younger Abstention

1. Law

Under the now familiar facts of Younger, various parties sought to enjoin the Los Angeles

County District Attorney from enforcing a California law that prevented the teaching of socialist or

communist doctrine. One of the parties had an indictment against him. After a three-judge panel

enjoined the District Attorney from enforcing the Act, the Supreme Court reversed, noting that such

actions violated public policy:

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The precise reasons for this longstanding public policy against federal court
interference with state court proceedings have never been specifically identified but
the primary sources of the policy are plain. One is the basic doctrine of equity
jurisprudence that courts of equity should not act, and particularly should not act to
restrain a criminal prosecution, when the moving party has an adequate remedy at
law and will not suffer irreparable injury if denied equitable relief . . . . This
underlying reason for restraining courts of equity from interfering with criminal
prosecutions is reinforced by an even more vital consideration, the notion of
‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the
entire country is made up of a Union of separate state governments, and a
continuance of the belief that the National Government will fare best if the States and
their institutions are left free to perform their separate functions in their separate
ways. This, perhaps for lack of a better and clearer way to describe it, is referred to
by many as ‘Our Federalism,’ and one familiar with the profound debates that
ushered our Federal Constitution into existence is bound to respect those who remain
loyal to the ideals and dreams of ‘Our Federalism.’

Younger, 401 U.S. at 43-44.

Younger has been extended to certain state court civil actions. See Huffman v. Pursue, Ltd.,

420 U.S. 592, 603-05 (1975) (applying Younger abstention to state court civil nuisance action

against an adult theater). The Supreme Court has also applied Younger to state court administrative

proceedings. Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 620, 627-28

(1986) (holding Younger applies to a sex discrimination claim in religious schools before the Ohio

Civil Rights Commission); Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.

423, 432-34 (1982) (holding Younger applies to New Jersey bar ethics proceedings against a lawyer

for criticizing a state court judge).

More specifically, several federal district courts, including two in this circuit, have applied

Younger abstention to hearings before various state or local elections board or commissions.

Chamber of Commerce of the United States v. Ohio Elections Comm’n, 135 F. Supp. 2d 857 (S.D.

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Ohio 2001); Walter v. Cincione, No. C-2-00-1070, 2000 WL 1505945 (S.D. Ohio Oct. 6, 2000); see

also Scolaro v. District of Columbia Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 23-24 (D.D.C.

2000) (holding Younger abstention applicable in local election board hearing regarding voter

intimidation claims against losing candidate); Wisc. Mfrs. & Commerce v. Wisc. Elections Bd., 978

F. Supp. 1200, 1211 (W.D. Wisc. 1997) (holding Younger abstention applicable in state board of

elections proceeding against a chamber of commerce for various political issue advertisements

sponsored by corporations).

Under Younger and progeny, a federal court must abstain under the following three-part test.

First, this Court must determine whether there are “ongoing state judicial proceedings.” Fieger v.

Thomas, 74 F.3d 740, 744 (6th Cir. 1996). Second, a court “must find that the state has an important

interest in regulating the subject matter of the claim.” Id. at 745. Third, there must be “an adequate

opportunity in the state proceedings to raise constitutional challenges.” Id.

2. Citizens and the Ohio Chamber

Applying these principles to the instant case, Citizens and the Ohio Chamber do not dispute

that they are subject to ongoing hearings before the OEC. Indeed, both Citizens and the Ohio

Chamber are subject to a subpoena from the OEC and a related enforcement proceeding in state

court. Nor is it disputed that the OEC hearings are judicial in nature. See Middlesex County Ethics

Comm’n, 457 U.S. at 433 (noting that state administrative proceedings must be “judicial in nature”

for the purposes of Younger abstention). OEC hearings are initiated by a complaint, parties may

present and cross-examine evidence, and a decision or opinion is issued, often with an explanation.

Furthermore, unsuccessful parties may appeal the OEC’s decision in the Franklin County Court of

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Common Pleas, and if unsuccessful there, may seek further review in Ohio appellate courts. See

Ohio Rev. Code § 119.12.

Regarding the second prong, Ohio and the OEC’s oversight of state and local elections is

clearly an important state interest.

Regarding the third prong, litigants before the OEC have an adequate opportunity to raise

constitutional claims. Citizens and the Ohio Chamber do not contend that the OEC has neither the

power or expertise necessary to review First Amendment or other federal constitutional arguments.

Indeed, the OEC has previously addressed and rejected constitutional claims identical to the

arguments raised here, in related litigation. See Common Cause/Ohio v. United States Chamber of

Commerce, No. 2000E-058 (Ohio Election Comm’n Order of May 15, 2003).

Accordingly, the district court properly dismissed Citizens and the Ohio Chamber.

3. Anonymous Plaintiffs-Appellants

In response, Plaintiffs-Appellants claim that Younger is inapplicable because anonymous

corporate and individual appellants are not parties to the OEC proceedings. Plaintiffs-Appellants

argue that Younger abstention does not apply to parties who are not subject to pending state court

proceedings. See Gottfried v. Med. Planning Servs., 142 F.3d 326, 329 (6th Cir. 1998) (holding that

where a litigant is not a subject to a pending prosecution or civil enforcement action, Younger

abstention does not apply). Plaintiffs-Appellants note that such a rule extends even where litigants

have a “common set of issues and concerns.” As support, Plaintiffs-Appellants cite Doran v. Salem

Inn, Inc., 422 U.S. 922, 928-29 (1975), which states:

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While there plainly may be some circumstances in which legally distinct parties are
so closely related that they should all be subject to Younger considerations which
govern any one of them, this is not such a case; --while respondents are represented
by common counsel, and have similar business activities and problems, they are
apparently unrelated in terms of ownership, control, and management. We thus think
that each of these respondents should be placed in the position required by our cases
as if that respondent stood alone.

Since the anonymous parties are legally unrelated entities, without shared ownership or control,

Plaintiffs-Appellants argue that Younger abstention is inappropriate.

By contrast, the OEC argues that Younger abstention applies to non-parties to a state court

proceeding where the interests are inextricably intertwined with those of litigants who are parties

in state court. As support, the OEC cites to Hicks v. Miranda, 422 U.S. 332 (1975). Hicks involved

a showing of the adult movie “Deep Throat.” Id. at 334. In state court, employees of the theater

showing the film were charged with violating state obscenity laws. Id. at 335. The owner of the

theater then brought a federal suit seeking relief. The Supreme Court held that “[the owner and

holding company’s] interests and those of their employees were intertwined” to the extent that the

district court should have abstained under Younger. Id. at 348. The Court also considered it an

important factor that “the federal action sought to interfere with the pending state prosecution.” Id.

at 349.

Doran and Hicks were synthesized into a broader principle in Spargo v. N.Y. State Comm’n

on Judicial Conduct, 351 F.3d 65 (2d Cir. 2003). In that case, a judicial candidate was subject to

a state disciplinary hearing for violations of judicial ethics rules during his campaign. Id. at 68-69.

Two political supporters brought suit in federal court seeking to declare those rules unconstitutional,

effectively preventing the state disciplinary hearing. Id. at 70. The Second Circuit held that

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Younger required federal abstention. The Spargo Court noted that while Doran and Hicks “arguably

focus on the fact of joint ownership and control, neither decision limits the applicability of Younger

to cases where the parties are financially related or linked by mutual management.” Id. at 82.

Rather, Younger abstention may also be appropriate for non-parties to the state action when

“[s]uccess on the merits . . . is entirely derivative” of the rights of the state action parties. Id. at 83

(internal quotes and citation omitted). Furthermore, non-parties to the state action must “seek to

directly interfere with the pending disciplinary proceeding.” Id. at 85. Since the speech rights of

the political supporters of the judicial candidate were completely derivative of the judicial candidate

himself, and the political supporters sought to interfere with the state disciplinary proceedings, the

Second Circuit held Younger abstention applicable. Id.

The application of Younger abstention to anonymous, legally distinct entities seeking to

contribute to a political action committee is not unknown in the federal courts. Indeed, at least one

district court dealt with an essentially identical case in Wisconsin Manufacturer & Commerce v.

Wisconsin Elections Board, 978 F. Supp. 1200 (W.D. Wisc. 1997). There, the Wisconsin Board

of Elections prohibited various organizations from sponsoring attack ads against certain legislators.

See id. at 1203. A chamber of commerce, an affiliated political action committee, and two

anonymous corporations sought a declaratory judgment that the state board of elections had violated

the First Amendment and Buckley. The district court dismissed the case under Younger. In so

holding, the district court noted that the two anonymous corporations, ABC Corp. and XYZ Corp.,

were donors of the lead plaintiff – a trade organization. See id. Though the anonymous

corporations were not parties to the hearing before the Wisconsin Elections Board, the district court

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held that their interests were inextricably intertwined with a trade organization which was before

the Board, and Younger therefore applied. See id. at 1211.

In their complaint in the instant case, Plaintiffs-Appellants alleged that “[d]uring 2000, Alpha

Corporation chose to contribute to [Citizens] in order to support its issue advocacy efforts. Alpha

Corporation and Omega Corporation desire to support [Citizens], and other issue advocacy efforts,

in the future.” Therefore, the rights of Alpha Corporation and Omega Corporation, vis-a-vis this

lawsuit, are merely derivative of the rights of Citizens and the Ohio Chamber to engage in the

political activity complained of in the state action. Furthermore, Alpha Corporation and Omega

Corporation are clearly seeking to interfere with the pending state action. Although Plaintiffs-

Appellants did not seek an injunction against the enforcement of the subpoena against Citizens and

Ohio Chamber, the effect of the declaration would be to prevent the enforcement of that subpoena

and interfere directly with the pending state proceedings.

Accordingly, the district court properly dismissed Alpha Corporation and Omega

Corporation.

The anonymous individual party, John Doe, presents a more difficult case. Here, allegations

in the Complaint simply state that John Doe has contributed to issue advocacy organizations in the

past which publish political advertisements that do not expressly advocate the election or defeat of

a candidate. John Doe further wishes to continue contributing to such independent issue advocacy

organizations, but refuses to do so, given the OEC’s current request to subpoena the donor lists of

Citizens and the Ohio Chamber.

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A ruling by this court that abstention is not appropriate with respect to John Doe would

create an incentive to find “straw men” in future actions that seek to interfere with pending state

court proceedings. Simply by alleging very few facts about who John Doe is and what kind of

relationship he has to Citizens and Ohio Chamber, the plaintiffs could ensure that at least one claim

will go forward in federal court. We should be careful not to create such an easy way to circumvent

Younger.

John Doe has not alleged sufficient facts to be permitted to proceed with his claim. It is a

general rule that a complaint must state the names of the parties. Fed. R. Civ. P. 10(a). Plaintiffs

are permitted to proceed under pseudonyms only under certain circumstances that justify an

exception to this rule. Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004). When determining whether

such an exception is justified, a court may consider, among others, the following factors:

(1) whether the plaintiffs seeking anonymity are suing to challenge
governmental activity; (2) whether prosecution of the suit will
compel the plaintiffs to disclose information of the utmost intimacy;
(3) whether the litigation compels plaintiffs to disclose an intention
to violate the law, thereby risking criminal prosecution; and (4)
whether the plaintiffs are children.

Id. at 560 (internal quotes omitted). It is also relevant to consider whether the defendants are being

forced to proceed with insufficient information to present their arguments against the plaintiff’s case.

See id. at 561.

Ordinarily, a plaintiff wishing to proceed anonymously files a protective order that allows

him or her to proceed under a pseudonym. See id. at 560. In this case, however, the docket sheet

does not reflect any motion or proceeding dealing with whether the three anonymous plaintiffs could

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proceed under pseudonyms. Failure to seek permission to proceed under a pseudonym is fatal to an

anonymous plaintiff’s case, because, as the Tenth Circuit has held, “the federal courts lack

jurisdiction over the unnamed parties, as a case has not been commenced with respect to them.”

Nat’l Commodity & Barter Ass’n, Nat’l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir.

1989).

Accordingly, the district court did not err in dismissing John Doe.

4. Prospective Relief

Plaintiffs-Appellants also argue that Younger is not applicable, as they only seek prospective

relief. See Wooley v. Maynard, 430 U.S. 705, 710-12 (1977) (noting that since only prospective

relief was sought from criminal prosecutions of defacing New Hampshire state motto on license

plate, and all such criminal prosecutions were completed and not appealed, Younger abstention was

not applicable). Plaintiffs-Appellants assert that they do not seek an injunction preventing the

ongoing OEC action. Rather, Plaintiffs-Appellants claim that since the OEC has issued its decision,

they only simply seek relief from prospective, future activity.

This argument is without merit. It is well-settled that a declaration as to rights during the

pendency of state action has the same effect as an injunction enjoining state action. See Younger,

401 U.S. at 41 n.2 (noting “declaratory relief is also improper when a prosecution involving the

challenged statute is pending in state court at the time the federal suit is initiated”); Samuels v.

Mackell, 401 U.S. 66, 73 (1971) (noting that the “practical effect of the two forms of relief

[injunction or declaration] will be virtually identical”).

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Here, a declaration that the OEC violated the First Amendment in its application of Ohio

election laws will, of course, result in prospective relief for the Plaintiffs-Appellants. However, such

a declaration will also result in interference with the current OEC action against Citizens and the

Ohio Chamber. Such interference is clearly inappropriate under Younger and progeny.

III. CONCLUSION

For the foregoing reasons we AFFIRM the district court’s dismissal of this case.

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