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January 28, 2016
  Citizens in Charge v. Husted -- Sixth Circuit
Case name: Citizens in Charge, Inc. v. Jon Husted

Headline: Secretary of State Maintains Qualified Immunity for Enforcing Law Despite Unconstitutionality

Area of law: Qualified Immunity; Enforcement

Issue presented: Does a Secretary of State's enforcement of a properly enacted and presumptively constitutional statute expose him to personal liability when the law is held to be unconstitutional?

Brief summary: Ohio, like many states, adopted an initiative process that permitted individuals or groups to propose new legislation and constitutional amendments to be placed on the ballot. But the law required that all signature gatherers be Ohio residents. A group of citizens challenged the residency requirement on First and Fourteenth Amendment grounds. The citizens also sought to enjoin enforcement of the new law and to hold Ohio's Secretary of State personally liable (for several thousand dollars) for enforcing it. The district court declared the law unconstitutional, enjoined enforcement of it, and denied the Secretary's qualified-immunity defense. The Secretary appealed, challenging the qualified-immunity ruling but not the injunction. The Sixth Circuit reversed, holding that the Secretary of State was entitled to qualified immunity because the Ohio Legislature made several changes to the statute's signature-gathering requirements since it was last addressed by the court and because the Secretary had no clearly established duty to decline enforcement of this properly enacted and presumptively constitutional statute.

Extended summary: The Ohio General Assembly enacted a provision in 2013 that said: "Except for a nominating petition for presidential electors, no person shall be entitled to circulate any petition unless the person is a resident of this state and is at least eighteen years of age." Ohio Rev. Code ยง 3503.06(C)(1)(a). Shortly after the provision took effect, counsel for three nonprofit organizations wrote to the Secretary of State, asking whether he planned to enforce the statute. The Secretary responded that although "a court may ultimately find this law unconstitutional, that determination is a decision for the judicial branch, not the Secretary of State. As a result, this office and county boards of election will implement this law like any other until such time as the legislature acts to make a statutory change or a court directs otherwise."

At that point, one of the nonprofit groups hired a firm to help gather signatures for an initiative petition, paying a higher-than-usual fee to ensure that the firm hired in-state signature gatherers. Then all three nonprofit organizations, along with one of their members, sued the Secretary of State in federal court. They sought a declaration that the petition-circulator residency requirement was unconstitutional, an injunction prohibiting its enforcement, and damages against the Secretary of State "as compensation for extra petition circulation charges." The Ohio Attorney General intervened to defend the law's constitutionality on behalf of the State, and the Secretary of State argued that qualified immunity protected him from the damages claim. The district court disagreed, granting the permanent injunction and denying the qualified-immunity motion. On appeal, the Secretary of State challenged the qualified-immunity ruling but not the injunction.

The Sixth Circuit explained that qualified immunity protects public officials from liability for money damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Public officials are eligible for qualified immunity if (1) they did not violate any constitutional guarantees or (2) the guarantee, even if violated, was not "clearly established" at the time of the alleged misconduct. Both inquiries, the court noted, are "objective," as they turn on what the law is today and whether it was clearly established at the time of the challenged action.

Looking to Supreme Court precedent, the Sixth Circuit pointed out that public officials should generally receive qualified immunity when enforcing properly enacted laws. Generally, "[t]he enactment of a law forecloses speculation by enforcement officers concerning its constitutionality - with the possible exception of a law so grossly and fragrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." In fact, the Supreme Court has never denied qualified immunity to a public official who enforced a properly enacted statute that no court had invalidated. The Sixth Circuit observed that it is not good practice to have public officials second-guess legislative decisions and that this particular election statute was not a "grossly and flagrantly unconstitutional" law.

The court also noted conflicting judicial opinions on the matter of residency requirements in the Tenth Circuit and the Eighth Circuit. The Sixth Circuit thus reasoned that since judges can reasonably disagree about the meaning of the Constitution, courts should not punish public officials for reasonably taking a position.

The citizens argued that the Sixth Circuit's decision in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008) was sufficient to place the Secretary of State on notice of the unconstitutionality of the Ohio statute because that decision invalidated residency and registration requirements of the same statute. But the Ohio General Assembly had amended those provisions in response to the Nader decision and passed the new version of the law in 2013. Thus, the Nader decision did not give the Secretary notice of the new statute's constitutional shortcomings.

While the citizens cited other out-of-circuit cases that had struck down petition-circulator residency requirements, these cases engaged in fact-intensive analyses to determine that the specific residency requirements at issue were unconstitutional. So they also did not put the Secretary of State on notice that Ohio's revised law was clearly invalid, especially when the Eighth and Tenth Circuits had issued conflicting decisions on the same issue.

Ultimately, at the time the Secretary of State acted, no court had declared this residency requirement unconstitutional, and he acted reasonably in saying he would enforce it. When public officials implement validly enacted state laws that no court has invalidated, their conduct typically is considered reasonable. Because the Secretary of State acted in the face of a duly enacted, presumptively constitutional law and had no on-point decision declaring it unconstitutional, he did not violate clearly established law or otherwise act unreasonably. Therefore, the Sixth Circuit reversed the district court's decision and remanded the case so that summary judgment could be granted to the Secretary of State based on qualified immunity.

Panel: Chief Judge R. Guy Cole; Circuit Judge, Jeffrey Sutton; and District Judge Robert Bell.

Date of issued opinion: 1/19/2016

Docket number: 15-3447

Decided: Reversed and remanded.

Counsel: ARGUED: Ryan L. Richardson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Maurice A. Thompson, 1851 CENTER FOR CONSTITUTIONAL LAW, Columbus, Ohio, for Appellees. ON BRIEF: Ryan L. Richardson, Tiffany L. Carwile, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Maurice A. Thompson, 1851 CENTER FOR CONSTITUTIONAL LAW, Columbus, Ohio, for Appellees.

Author of opinion: Circuit Judge Jeffrey Sutton

Case alert author: Luciana Viramontes

Case Alert circuit supervisor: Professor Mark Cooney

Link to the case:

    Posted By: Mark Cooney @ 01/28/2016 04:25 PM     6th Circuit  

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