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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

THOMAS E. BRINKMAN, JR., et al., : Case No. 1:09-CV-00326

:
Plaintiffs, : Judge DLOTT
:
v. : Magistrate Judge ______________
:
ARMOND D. BUDISH, Speaker of the :
Ohio House of Representatives and :
Chairman of the Joint Legislative Ethics : PLAINTIFFS’ MOTION FOR A
Committee of the Ohio General : TEMPORARY RESTRIAING ORDER
Assembly, et al., : AND PRELIMINARY INJUNCTION
:
Defendants. :

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs hereby move for the

issuance of a temporary restraining order and preliminary injunction enjoining the enforcement of

section 102.03(A)(4) of the Ohio Revised Code (the “Statute”), which prohibits, inter alia, any former

member of the Ohio General Assembly from representing, or acting in any representative capacity, for

or on behalf of any person on any matter pending before the General Assembly, any committee of the

General Assembly or the Ohio State Controlling Board, regardless of whether such former member is

engaging in such activities for compensation or not, while still allowing such representative activities on

behalf of a state agency or political subdivision. Because the Statute impermissibly violates Plaintiffs’

rights under the First Amendment to the United States Constitution, including freedom of speech,

freedom of association and the right to petition the government for redress of grievances, as well denies

equal protection of the law, the unconstitutional Statute must be immediately enjoined less Plaintiffs

suffer and continue to suffer irreparable harm for which there is no adequate remedy at law. Pursuant to

Local Rule 7.2(a)(1), this motion is accompanied by the following memorandum in support. As the

requested temporary restraining order and preliminary injunction seek to protect and promote rights
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under the First Amendment, Plaintiffs request that the Court waive the requirement to give security

pursuant to Fed. R. Civ. P. 65(c).

MEMORANDUM IN SUPPORT

I. INTRODUCTION

Plaintiffs initiated this civil rights action today by filing a Verified Complaint challenging

section 102.03(A)(4) of the Ohio Revised Code (the “Statute”). The challenged Statute subjects core

First Amendment speech, petitioning and associational rights to burdensome and intrusive requirements

that impermissibly infringe such rights of the Plaintiffs. Furthermore, the challenged Statute violates the

Equal Protection Clause of the Fourteenth Amendment as, through its express terms, it has a direct,

through disproportionate and unconstituional, impact upon the fundamental rights of Plaintiffs.

A. Parties

1. Plaintiffs

Plaintiff Thomas E. Brinkman, Jr., is a citizen and taxpayer of the State of Ohio and is a member

and supporter of Plaintiff Coalition Opposed to Additional Spending & Taxes (“COAST”). (Verified

Complaint ¶1.) Furthermore, from January 2001 to December 2008, Plaintiff Brinkman was a member

of the Ohio House of Representatives, one of the two bodies comprising the Ohio General Assembly.

(Verified Complaint ¶1.) Historically, Plaintiff Brinkman has acted in the role of official “Spokesman”

for Plaintiff COAST, supplementing the Chairman of Plaintiff COAST in speaking to the news media

and civic organizations on issues of public importance. (Verified Complaint ¶25.)

Plaintiff Mark Miller is a citizen and taxpayer of the State of Ohio and is a member, supporter

and duly authorized agent of COAST. (Verified Complaint ¶4.) Specifically, Plaintiff Miller serves as

the treasurer of COAST. (Verified Complaint ¶4.) Furthermore, through Plaintiff Coalition Opposed to

Additional Spending & Taxes, Plaintiff Miller is able to join and associate with other individuals in

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order to collectively advocate and promote the political issues which Miller and such other individuals

support. (Verified Complaint ¶4.)

Founded in 1999 (by, inter alios, Plaintiff Brinkman, prior to his election to the Ohio House of

Representatives), Plaintiff Coalition Opposed to Additional Spending & Taxes (“COAST”) is an

unincorporated association of individuals organized as a political action committee under the laws of the

State of Ohio. (Verified Complaint ¶¶5 & 23.) Over the years, Plaintiff COAST has advocated on tax

and spending issues before the Ohio legislature, the Hamilton County Board of County Commissioners,

the Cincinnati City Council and many other administrative and legislative bodies. (Verified Complaint

¶24.) Plaintiff COAST is also active in advocating for the election or defeat of candidates on the ballot

each year, and on ballot issues throughout the State of Ohio. (Verified Complaint ¶24.) Plaintiff

COAST conducts its advocacy activities in a variety of ways, including without limitation sending an e-

mailed newsletter that is distributed to approximately 10,000 persons monthly, operating a web site

(www.gocoast.org) and blog (www.coast-usa.blogspot.com), sending direct mailings on issues of

importance and for fundraising purposes, sending press releases, holding press conferences, hosting

rallies, direct lobbying of various legislative bodies on issues of importance, as well as other events.

(Verified Complaint ¶26.) Plaintiff COAST also encourages its members and supporters to contact their

legislators on matters of importance, including pending legislation. (Verified Complaint ¶27.) This is

done through e-mailed Action Alerts to Plaintiff COAST’s e-mail distribution lists, physical mailings,

“virtual town hall meetings” and in-person contacts.1 (Verified Complaint ¶27.) Plaintiff COAST, on

behalf of its members, has also directly lobbied legislators through Plaintiff COAST’s leadership and by

testimony before legislative bodies. (Verified Complaint ¶28.) Plaintiff COAST intends to continue

this advocacy for many years into the future. (Verified Complaint ¶24.)

1
“Virtual town hall meetings” are conference calls among thousands of voters initiated by nearly-simultaneous
automated calls out to thousands of households. (Verified Complaint ¶27.)

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2. Defendants

Established by section 101.34 of the Ohio Revised Code, the Defendant Joint Legislative Ethics

Committee of the Ohio General Assembly (the “JLEC”) is composed of twelve members selected from

the Ohio General Assembly, with such membership evenly divided between the two major political

parties. (Verified Complaint ¶6.) The JLEC is the body responsible for governing, inter alios, former

members of the Ohio General Assembly with respect to the state ethics laws (Chapter 102 of the Ohio

Revised Code). (Verified Complaint ¶44.) The twelve members of the JLEC, in their official capacity,

together with the executive director of JLEC, are also named as defendants. (Verified Complaint ¶¶7-

19.)

Additionally, because the challenged Statute carries the potential for criminal investigation or

prosecution and Plaintiffs would face the potential for prosecution under the Statute if they engaged in

advocacy or lobbying which is prohibited under the Statute, Defendant Joesph Deters and Ron O’Brien,

as the prosecuting attorneys of the counties in which Plaintiffs would likely engage in such advocacy or

lobbying, as also named herein. (Verified Complaint ¶20.)

B. The Challenged Statute

As part of the state’s ethics law, the Ohio General Assembly has limited and restricted the ability

of its former members to lobby on behalf of others. Specifically, section 102.03(A)(4) of the Ohio

Revised Code (the “Statute”) provides that:

For a period of one year after the conclusion of employment or service as a member or
employee of the general assembly, no former member or employee of the general
assembly shall represent, or act in a representative capacity for, any person on any matter
before the general assembly, any committee of the general assembly, or the controlling
board. . . .

OHIO REVISED CODE §102.03(A)(4). As used in this restriction, the term “matter” is defined as

including “the proposal, consideration, or enactment of statutes, resolutions, or constitutional

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amendments” and “represent” includes “any formal or informal appearance before, or any written or oral

communication with, any public agency on behalf of any person.” OHIO REVISED CODE §102.03(A)(5).

Additionally, the term “person” includes “an individual, corporation, business trust, estate, trust,

partnership, and association,” OHIO REVISED CODE §1.59(C), though the Statute expressly excludes from

the term “person” “any state agency or political subdivision of the state.” OHIO REVISED CODE

§102.03(A)(4).

Thus, former members of the General Assembly, such as Plaintiff Brinkman, may not, for a

period of one year following their service in the General Assembly, “represent” any “person” on any

“matter” pending before the General Assembly, any committee thereof or the controlling board. Of

course, due to the explicit statutory exclusion from the definition of “person”, the former member may

still, during that same one-year period, “represent” a state agency or political subdivision on any

“matter” pending before the General Assembly, any committee thereof or the controlling board.

C. The Defendants’ Interpretation of the Statute

With respect to the enforcement or potential enforcement of the Statute relative to former

members of the Ohio General Assembly (including Mr. Brinkman), the Joint Legislative Ethics

Committee is the “appropriate ethics commission” as defined in section 102.01(F)(1) of the Ohio

Revised Code.2 Accordingly, the JLEC would be the body to receive or initiate complaints against Mr.

Brinkman for allegedly violating the Statute. OHIO REVISED CODE §102.06(A). And once a complaint

has been filed for a violation of the Statute, the JLEC is empower to investigate such complaints or

charges. OHIO REVISED CODE §102.06(B). If the JLEC determines by a preponderance of the evidence

2
In Ohio, there are three governmental bodies principally responsible for the enforcement of the state’s ethics laws:
(i) the Joint Legislative Ethics Committee of the General Assembly; (ii) the Board of Commissioners on Grievances and
Discipline of the Ohio Supreme Court; and (iii) the Ohio Ethics Commission. The Board of Commissioners on Grievances
and Discipline has jurisdiction over matters relating to judicial officers and employees, and candidates for judicial office.
Ohio Rev. Code §102.01(F)(2). The Ohio Ethics Commission has jurisdiction over matters relating to any individuals not
within the bailiwick of the Joint Legislative Ethics Committee or the Board of Commissioners on Grievances and Discipline.
Ohio Rev. Code §102.01(F)(3).

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that a violation of the Statute occurred, then such finding must be reported to the appropriate prosecuting

authority for prosecution of the violation. OHIO REVISED CODE §102.06(C)(1)(a).

As part of its duty to serve as an advisory body to the general assembly and to the general

assembly’s individual members, see OHIO REVISED CODE §101.34(B)(8), the JLEC, through its

executive director, issued a memorandum setting forth “a summary of the post employment/service

restrictions ‘revolving door law’ as set forth in the Revised Code and as interpreted by the Joint

Legislative Ethics Committee (JLEC).” (Verified Complaint ¶60 & Exh. A.) Within this

memorandum, the JLEC specifically addressed whether the “revolving door law” was applicable only to

situations where a former member received compensation.3 After referencing three previously issued

advisory opinions, the subject memorandum continued (with emphasis in the original):

Although the fact pattern in each [of the former] opinion[s] includes a
compensation component, please be advised that compensation IS NOT a required
element of the Revolving Door prohibition. The language found in §102.03(A)(4)
states: “no former member or employee of the general assembly shall represent, or act
in a representative capacity”. Thus, whether compensated or not, a former Member or
legislative employee is prohibited from engaging in direct communication with
legislators, legislative staff, or executive branch officials in regards to any matter
pending before the General Assembly on behalf of another person or entity.

The following are general guidelines to commonly asked questions:

...
• You are prohibited from advocating for your client, whether compensated or
not, by direct communication with legislators, legislative staff, or executive
branch officials on any legislative matter pending before the General
Assembly.
• Your client and its agents are prohibited from contact legislative staff and
executive agency officials on your behalf [for example, “Former Senator
_______ thought you should know”] for the purpose of advocating on pending
legislation.
...
• You may attend public hearings, but may not testify.

3
A copy of this memorandum has been published by the Joint Legislative Ethics Committee on its website
(http://www.jlec-olig.state.oh.us/Revolving%20Door%202009%20.pdf), and is attached to the Verified Complaint as Exhibit
A.

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(Verified Complaint Exh. A.) These same restrictions are highlighted on JLEC’s web site of the JLEC

(http://www.jlec-olig.state.oh.us/) under the section entitled “Ethics” and the subject of “Revolving

Door”. (Verified Complaint ¶62.)

D. Plaintiffs’ Desired Activities Risk Violation of the Statute and Have Chilled Plaintiff
Brinkman in Engaging in Any Discourse With Members of the Ohio General
Assembly

Plaintiff COAST, as principal, desires for Plaintiff Brinkman, as its agent, representative and

spokesperson, to advocate on its behalf on matters now and in the future pending before the Ohio

General Assembly by direct communication with legislators, legislative staff, and executive branch

officials. (Verified Complaint ¶31.) Of immediate concern to Plaintiff COAST is the biennial operating

budget currently working its way through the Ohio General Assembly.

As required by the Ohio Revised Code, every two years, the Governor submits a proposed

biennial operating budget to the General Assembly. (Verified Complaint ¶32.) This budget is for a

period of two years – a biennium – which begins on July 1 of odd-numbered years and ends 24 months

later on June 30. (Verified Complaint ¶33.) On April 29, 2009, by a vote of 53-45, the Ohio House of

Representatives passed its version of the biennial budget for fiscal years 2010 and 2011.4 (Verified

Complaint ¶34.) The next day, the Ohio State Senate commenced consideration of the biennial budget.

(Verified Complaint ¶35.)

Included within the proposed biennial budget are several matters which Plaintiffs oppose.

(Verified Complaint ¶36.) For example, within the proposed budget is $3.1 million in an operating

subsidy for the failed National Underground Railroad Freedom Center – $1.55 million per year for the

next two years. (Verified Complaint ¶36.) When the Freedom Center was originally promoted, it

reportedly promised to bring one million visitors to Cincinnati from all over the world. (Verified

4
In Ohio, the fiscal year commences on July 1 and concludes on June 30 of the following year. The biennial
budget is currently before the General Assembly as Substitute H.B. No. 1 (“H.B. 1”).

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Complaint ¶37.) Today, the Center reportedly attracts fewer than 62,000 paying visitors. (Verified

Complaint ¶38.) When it was originally proposed and sought federal, state, county and city subsidies in

support of its $110 million construction cost, executives with the Freedom Center also reportedly

promised the taxpayers that the Center would not ever require any operating subsidy. (Verified

Complaint ¶39.) Then, three years ago, Freedom Center CEO John Pepper reportedly announced that

because the Freedom Center was not meeting its financial and attendance projections, it required

millions of tax dollars per year in perpetuity. (Verified Complaint ¶40.)

Just recently, on April 15 of this year, while the biennial budget was pending before the Ohio

House of Representatives, the Freedom Center reportedly hosted a cocktail reception at the offices of its

high-priced lobbyists in Columbus for state legislators. (Verified Complaint ¶41.) At the time, the

Freedom Center was reportedly seeking $3.75 million from the state budget, including an astounding

$1.4 million to relocate its front door.5 (Verified Complaint ¶41.)

As the Freedom Center reneges on its prior promise – to not require any governmental operating

subsidies – and seeks, instead, to continue to siphon taxpayers’ dollars for its operations, Plaintiff

COAST has sounded the trumpet of this abuse of the taxpayers. (Verified Complaint ¶42.) But time is

critical and the battle is already underway in the Ohio General Assembly. (Verified Complaint ¶42.)

Yet, the ability of COAST to advocate its position with state legislators is constrained by the Statute.

(Verified Complaint ¶42.)

5
A review of public records relating to campaign donations reveals that, over the past 3 years, executives and board
members of the Freedom Center have donated a total of more than $80,000 to the campaigns of Governor Strickland and key
members of the Ohio General Assembly. Within that amount, more than $45,000 alone was provided to Governor
Stickland’s campaign, including $20,000 alone from Mr. Pepper and his wife. Additionally officials with the Freedom
Center have given $6,300 to the campaign of State Senator Eric Kearney, who is the chief legislative champion for funding
this year; the Center went so far as to organize a Black Legislative Caucus bus tour of the Freedom Center all the way from
Columbus.

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II. ARGUMENT

A. Standards for Issuance of Temporary Restraining Order and Preliminary

Injunction

When considering whether a motion for temporary restraining order or preliminary injunction

should issue, a court generally evaluates four factors: (1) whether the movant has a strong likelihood of

success on the merits; (2) whether the movant would suffer irreparable injury if such relief is not

granted; (3) whether the granting of such relief would result in substantial harm to third parties; and (4)

whether the public interest would be served through such relief. McPherson v. Michigan High Sch.

Athletic Ass’n, 119 F.3d 453, 459 (6th Cir. 1997)(en banc). These four factors are to be balanced

against one another and should not be considered prerequisites to the issuance of a TRO or a preliminary

injunction. See United Food & Comm’l Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit

Auth., 163 F.3d 341, 347 (6th Cir. 1998). But the Sixth Circuit has “repeatedly noted that the first factor

is frequently dispositive in the First Amendment context.” Capobianco v. Summers, 377 F.3d 559, 561

(6th Cir. 2004).

B. Plaintiffs Satisfy Each of the Elements For the Issuance of a Temporary Restraining
Order and Preliminary Injunction To Enjoin Enforcement of the Statute

Plaintiff COAST seeks to exercise its political speech rights through the use of is preferred

representative to lobby and otherwise communicate with current members of the Ohio General

Assembly on various matters pending or anticipated to come before the General Assembly or any of its

committees. However, due to the Statute (including the attendant criminal penalties associated

therewith), Plaintiffs’ core First Amendment speech, petitioning and associational rights have

impermissible and unconstitutionally been infringed. As developed below, consideration of the four

factors necessary for the issuance of a temporary restraining order and injunctive relief demonstrates that

such immediate relief should be granted.

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1. Plaintiffs Have a Strong Likelihood of Success on the Merits

Few activities so perfectly combine the essential foundational concern of the First Amendment

as does the exercise of the right of the people to join together in a unified effort to influence the

decisions made by governmental officials, in general, and by legislative bodies, in particular. For such

efforts involves the communication of ideas and positions to the government and the individual

members thereof whose job it is to represent the citizenry and whose decisions have a direct impact

upon our lives. See Gonzalez v. Raich, 545 U.S. 1, 33 (2005) (rejecting commerce clause challenge and

suggesting resort to “the democratic process, in which the voices of voters allied with these respondents

may one day be heard in the halls of Congress”); see also Daniel v. Family Sec. Life Ins. Co., 336 U.S.

220, 224 (1949) (rejecting due process challenge and holding that the “forum for the correction of ill-

considered legislation is a responsive legislature”); Buckley v. Valeo, 424 U.S. 1, 15 (1976)(“[t]he

constitution right of association stemmed from the Court’s recognition that effective advocacy of both

public and private points of view, particularly controversial ones, is undeniably enhanced by group

association”). Thus, in Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 186-87 (1999),

the Supreme Court acknowledged that “interactive communication concerning political change” is “core

political speech” and that “First Amendment protection for such interaction . . . is ‘at its zenith’.” Id. at

186-87 (quoting Meyer v. Grant, 486 U.S. 414, 422, 425 (1988).

The First Amendment to the United States Constitutions mandates that “Congress shall make no

law . . . abridging the freedom of speech, . . . or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.” U.S. CONST., amend. I. Recently, the Supreme

Court, while admonishing that this seemly flat prohibition was not an absolute, did indicate that it was

“worth recalling the language we are applying.” Federal Elec. Comm’n v. Wisconsin Right to Life, Inc.,

551 U.S. 449, ___, 127 S.Ct. 2652, 2674 (2007). For ‘there is practically universal agreement that a

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major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77 (1978)(quoting Mills v. Alabama, 384 U.S.

214, 218 (1966)); accord Randall v. Sorrell, 548 U.S. 230, 266 (2006)(J. Thomas, concurring)

(describing “political speech” as being “the core of the First Amendment”); see also Time, Inc. v.

Firestone, 424 U.S. 448, 470 n.8 (1976)(“[e]ven those who would narrowly confine the central meaning

of the First Amendment to ‘explicitly political speech’ recognize that this must extend to all speech

‘concerned with governmental behavior, policy or personnel, whether the governmental unit involved is

executive, legislative, judicial or administrative’ (quoting Bork, Neutral Principles and Some First

Amendment Problems, 47 IND. L.J. 1, 27-28 (1971)). And while the First Amendment expressly

protects speech and assembling in order to petition the government, its core protections also extend to

“expressive association”, i.e., “associate[ing] for the purpose of engaging in those activities protected by

the First Amendment – speech, assembly, petition for the redress of grievances.” Roberts v. United

States Jaycees, 468 U.S. 609, 618 (1984).

Lobbying activities involve political speech that is at the core of the First Amendment.

Donaggio v. Arlington County, Va., 880 F.Supp. 446, 455-56 (E.D. Va. 1995)(“[l]obbying is an activity

at the core of the First Amendment, involving the rights to ‘freedom of speech’ and to ‘petition the

Government for a redress of grievances’”); Regan v. Taxation With Representation of Wash., 461 U.S.

552 (1983)(J. Blackmun, concurring)(“ lobbying is protected by the First Amendment”); see also Smith

v. Arkansas State Highway Emp., Local 1315, 441 U.S. 463 (1979)(“[t]he First Amendment protects the

right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his

government for redress of grievances. And it protects the right of associations to engage in advocacy on

behalf of their members”). Furthermore, “the First Amendment protects [the] right not only to advocate

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[one’s] cause but also to select what [one] believes to be the most effective means of doing so.” Meyer,

486 U.S. at 424.

Plaintiffs’ First Amendment rights are being unduly and unconstitutionally restricted and

infringed because the Statute:

• prohibits (under pain of potential criminal liability) Plaintiff Brinkman and Plaintiff COAST
from associating with one another in order to mutually engage in politically advocacy and
lobbying to the Ohio General Assembly, the committees thereof, including to individual state
legislators;

• prohibits (under pain of potential criminal liability) Plaintiff COAST from selecting the means,
i.e., the particular person, who it believes would be most effective in advocating, lobbying and
advancing its cause before the Ohio General Assembly, the committees thereof, as well as to
individual state legislators;

a. The Statute Does Not Survive Examination Under the Strict Scrutiny Test

In light of the critical importance that lobbying serves and promotes our democratic institutions

and processes, it should be beyond cavil that the Statute has a direct and immediate impact upon the

Plaintiffs’ First Amendment rights. Regardless, though, “[f]reedoms such as these are protected not

only against heavy-handed frontal attack, but also from being stifled by more subtle governmental

interference.” Bates v. Little Rock, 361 U.S. 516, 523 (1960). For the “rights of free speech and free

association are fundamental and highly prized, and ‘need breathing space to survive.’” Gibson v.

Florida Leg. Investigative Comm., 372 U.S. 539, 544 (1963)(quoting NAACP v. Button, 371 U.S. 415,

433 (1963)). In light of the impact and restriction placed upon the Plaintiffs’ First Amendment rights,

the Statute is subjected to strict scrutiny.

Strict scrutiny is truly demanding. The Supreme Court has summarized this standard as follows:

strict scrutiny means that the [legislation] is not entitled to the usual presumption of
validity, that the State rather than the complainants must carry a heavy burden of
justification, that the State must demonstrate its [legislation] has been structured with
precision and is tailored to serve legitimate objectives and that it has selected the less
drastic means for effectuating its objectives.

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San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16 (1973). “A key consequence of applying strict

scrutiny is that the burden of proof shifts from the plaintiffs to the defendants.” League of United Latin

Am. Citizens v. Bredesen, 500 F.3d 523, 538 (6th Cir. 2007)(J. Gilman, dissenting); accord Wisconsin

Right to Life, Inc., 551 U.S. at ___, 127 S.Ct. at 2664 (“[u]nder strict scrutiny, the Government must

prove that applying [the challenged statute] to [political advertisements] furthers a compelling interest

and is narrowly tailored to achieve that interest” (emphasis in original)); First Nat’l Bank of Boston v.

Bellotti, 435 U. S. 765, 774 (1978)(“[e]specially where, as here, a prohibition is directed at speech itself,

and the speech is intimately related to the process of governing, . . . ‘the burden is on the government to

show the existence of [a compelling] interest’”); compare Midkiff v. Adams County Reg'l Water Dist.,

409 F.3d 758, 770 (6th Cir. 2005) (“[u]nder rational basis review, a plaintiff faces a severe burden and

must negate all possible rational justifications for the distinction”) with Middleton v. City of Flint, 92

F.3d 396, 404 (6th Cir. 1996)(“[u]nder [strict scrutiny], [the defendant] must prove that it had a

compelling state interest when it enacted its plan, and that the plan is narrowly tailored to further that

compelling state interest”); see also Johnson v. California, 543 U.S. 499, 505 (2005)(“[u]nder strict

scrutiny, the government [defending the constitutionality of the law] has the burden of proving that

racial classifications are narrowly tailored measures that further compelling governmental interests”).

In this case, the Defendants, i.e., the governmental agents responsible for the enforcement of the

Statute, cannot sufficiently justify the restriction imposed upon Plaintiffs’ core political rights. In the

only state court decision addressing a prior version of the “revolving door” restrictions comparable to

the Statute, the court in State v. Nipps, 66 Ohio App.2d 17 (1979), explained that the purposes behind

such restrictions were “to place certain restrictions on public officials and employees with respect to the

relationship that may exist between a public official or employee, and the government, and the private

sector.” Id. at 20. But “even regulations aimed at proper governmental concerns can restrict unduly the

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exercise of rights protected by the First Amendment.” Minneapolis Star & Tribune Co. v. Minnesota

Comm'r of Revenue, 460 U.S. 575, 592 (1983). But in order for the government officials to meet its

burden of upholding the Statute under strict scrutiny, “speculation and conjuecture” will not do, and,

instead, “a governmental body seeking to restrain a restriction . . . must demonstrate that the harms it

recites are real and that its restriction will, in fact, alleviate them to a material degree.” Greater New

Orleans Broadcasting Ass’n v. United States, 527 U.S. 173, 188 (1999); accord Libertarian Party of

Ohio v. Blackwell, 462 F.3d 579, 593 (6th Cir. 2006)(“[r]eliance on suppositions and speculative

interests is not sufficient to justify a severe burden on First Amendment rights”). In this case, the ability

of Plaintiffs to fully and meaningful engage in political speech and advocacy, to freely associate and to

petition the government for redress of grievances has been and continues to be infringed, restricted and,

actually, prohibited, by the Statute. It is hard to fathom that the Defendants would be able to

demonstrate, with appropriate evidence, that the restrictions and prohibitions imposed by the Statute can

be justified under strict scrutiny or otherwise. For it is beyond cavil that burdens on speech subject to

strict scrutiny analysis rarely survive constitutional challenge. See Midwest Media Prop., L.L.C. v.

Symmes Twp., Ohio, 503 F.3d 456, 476 (6th Cir. 2007)(“[t]he Supreme Court has recognized that ‘it is

the rare case in which . . . a law survives strict scrutiny’” (quoting Burson v. Freeman, 504 U.S. 191,

211 (1992)).

b. The Statute Also Denies Plaintiffs the Equal Protection of the Law

While the Statute forbids a former member of the General Assembly, such as Mr. Brinkman,

from representing any “person” on any matter pending before the General Assembly or a committee

thereof for a one-year period (regardless of whether such representation is for compensation or gratis),

the Statute carves out an unjustifiable and unconstitutional exception to this prohibition. Specifically, by

declaring that the definition of “person” does not include “any state agency or political subdivision of

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the state”, the Statute allows former members of the General Assembly to represent governmental

entities on any matter before the General Assembly, its committees, etc., during the one-year period

(even for compensation), but precludes private individuals and entities from being represented by

similarly situated former members (even if not for compensation) even on those exact same matters.

This distinction – in favor of governmental lobbying and hostile to non-governmental lobbying –

violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The Fourteenth Amendment’s guarantee of equal protection is designed to ensure that persons

similarly situated are treated equally in terms of benefits conferred or duties imposed. See TriHealth,

Inc. v. Board of Commissioners, Hamilton Cty., Ohio, 430 F.3d 783, 788 (6th Cir. 2005). The

traditional standard of review employed by the courts is whether the law in question is wholly arbitrary

or without a rational basis. Robinson v. Board of Regents of Eastern Ky. Univ., 475 F.2d 707, 711 (6th

Cir. 1973). But “[a] statute challenged on equal protection grounds will be subject to strict scrutiny

when the statute involves a ‘suspect’ classification or has an impact on a ‘fundamental’ right.” Lac

Vieux Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397, 410

(6th Cir.1999); accord XXL of Ohio v. City of Broadview Heights, 341 F.Supp.2d 765, 810 (N.D. Ohio

2004)(“[a] statute challenged for allegedly violating the equal protection clause of the Fourteenth

Amendment is subject to strict scrutiny when the statute has an impact on a constitutionally-protected

‘fundamental’ right”).

Strict scrutiny is appropriate in this case because the Statute directly restricts the Plaintiffs’ First

Amendment rights by denying Plaintiff COAST the ability to have a former member of the General

Assembly (such as Plaintiff Brinkman) lobby the General Assembly, its committees, etc., in order to

advocate and advance its viewpoint, while, at the same time, the Statute enables state agencies and

political subdivisions to utilize the services of a former member of the General Assembly for the

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purpose of lobbying the General Assembly, its committees, etc. In other words, the Statute does not

prohibit Plaintiff Brinkman (or any former member of the General Assembly) from lobbying the General

Assembly, its committees, etc., on behalf of governmental agencies and bodies (in order to advance

those entities’ legislative agenda which is, presumptively, to advocate more governmental programs and

spending), but the Statute clearly prohibits Plaintiff Brinkman (or any former member of the General

Assembly) from lobbying the General Assembly, its committees, etc., on behalf of Plaintiff COAST or

any other private individual, group or entity, for such individual’s, group’s or entity’s legislative agenda

(which, in the case of Plaintiff COAST, is often time the opposite position of governmental agencies and

bodies, i.e., Plaintiff COAST generally seeks to restrain or limit governmental programs and spending).

In other words, the Statute gives governmental lobbying a preferred and favored status to the detriment

of Plaintiffs’ efforts at lobbying even on the same subject or issues. But such status cannot stand up to

constitutional scrutiny.

As explained above, under strict scrutiny, the governmental officials seeking to defend such a

discriminatory statute have the burden of establishing that the distinctions drawn in the Statute: (1)

achieve a compelling governmental interest; and (2) are the least restrictive means available while

leaving viable alternative means available. In this case, there can be no justifiable, let alone compelling,

reason for the discriminatory distinction drawn in the Statute -- a state agency or political subdivision is

free to have a former member of the Ohio General Assembly lobby on its behalf, while Plaintiff COAST

is expressly precluded from using that exact same individual to lobby on its behalf. Such a dichotomy

belays any claim that a compelling governmental interest is being serves or that the means chosen –

lobbying for one special interest group is acceptable, while for another group is verboten.

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2. Plaintiffs Will Suffer Irreparable Harm if the Statute is Not Enjoined

The Supreme Court has repeatedly held that “[t]he loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,

373 (1976). Furthermore, as noted above, satisfaction of the first prong of the preliminary injunction

standard – demonstrating a strong likelihood of success on the merits – also satisfies the irreparable

injury standard. Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998)(finding that

“when a party seeks a preliminary injunction on the basis of the potential violation of the First

Amendment, the likelihood of success on the merits often will be the determinative factor”).

Plaintiffs have demonstrated a substantial likelihood of success on the merits. Because the

merits demonstrate the impact upon Plaintiffs’ First Amendment rights due to, inter alia, the potential

criminal aspects of the Statute together with the impact the Statute has already had on Plaintiffs’

exercise of those rights, they have and will continue to suffer irreparable harm if the Statute is not

immediately enjoined.

3. Defendants Will Not Suffer Harm and the Public Interest Will Be Served, If
an Injunction is Issued Temporarily Enjoining Enforcement of the Statute
Against Plaintiffs

Finally, Defendants will not suffer any harm if they are enjoined from enforcing the

unconstitutional Statute against the Plaintiffs. The unconstitutional character of the Statute leaves the

Defendants with no legitimate interest in its continued application. Plaintiffs, on the other hand, desire

to engage in political speech, their right to associate with one another, as well as to petition the

government for redress. Unless the Statute is immediately enjoined, Plaintiffs will continue to suffer the

injury of having their First Amendment rights infringed. Furthermore, it is in the public interest to

enjoin the enforcement of the Statute, as the protection and promotion of constitutional rights – and, in

particular, First Amendment rights – is always in the public interest. G&V Lounge, Inc. v. Michigan

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Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)(“it is always in the public interest to

prevent the violation of a party’s constitutional rights”); see Machesky v. Bizzell, 414 F.2d 283, 288-90

(5th Cir. 1969)(“First Amendment rights are not private rights . . . so much as they are rights of the

general public”).

IV. CONCLUSION

As the foregoing demonstrates, Plaintiffs have clearly demonstrated the unconstitutional aspects

of the Statute. Accordingly, Plaintiffs request that the Court forthwith issue a Temporary Restraining

Order and Preliminary/Permanent Injunction enjoining the Defendants from taking any actions to

investigate any alleged violations of or to enforce the Statute against Plaintiffs or others similar situated.

Respectfully submitted

_/s/ Christopher P. Finney____________

Christopher P. Finney (0038998)
FINNEY, STAGNARO, SABA & PATTERSON CO., LPA
2623 Erie Avenue
Cincinnati, Ohio 45208
Telephone: (513) 533-2980
Facsimile: (513) 533-2990
Email: cfinney@fssp-law.com

Curt C. Hartman (0064242)

THE LAW FIRM OF CURT C. HARTMAN
3749 Fox Point Court
Amelia, Ohio 45102
Telephone: (513) 752-8800
Facsimile: (513) 752-6621
Email: hartmanlawfirm@fuse.net

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Motion for a Temporary Restraining Order and Preliminary

Injunction, together with a copy of the Complaint, will be served on the 11th day of May 2009, upon the

following via e-mail and via fax:

Pete Russell Rob O’Brien,

prussell@jlec-olig.state.oh.us c/o Nicholas Soulas, Chief Civil
General Counsel, Assistant Prosecuting Attorney
Office of the Legislative Inspector General nasoulas@franklincountyohio.gov
50 West Broad Street 373 South High Street, 14th Floor
Suite 1308 Columbus, OH 43215
Columbus, OH 43215 Fax: 614-462-6012
Fax: (614) 728-5074
Richard Cordray, Ohio Attorney General
Joseph P. Deters c/o Robert Eskridge III,
c/o Jim Harper, Chief Civil Assistant Attorney General
Assistant Prosecuting Attorney robert.eskridge@ohioattorneygeneral.gov
James.Harper@hcpros.org 30 East Broad Street, 16th Floor
Office of the Hamilton County Prosecutor Columbus, OH 43215
230 E. Ninth Street, Suite 4000 Fax: (614) 466-5087
Cincinnati, OH 45202
Fax: (513) 946-3100

_/s/ Curt C. Hartman______________

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