NO. 16-3537

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LIBERTARIAN PARTY OF OHIO; KEVIN KNEDLER; AARON HARRIS; CHARLIE EARL,

Plaintiffs-Appellants,

-vs-

JON HUSTED, Secretary of State,

Defendant-Appellee,

-and-

STATE OF OHIO; GREGORY FELSOCI,

Intervenor-Defendant-Appellees.

On Appeal from the United States District Court For the Southern District of Ohio, Eastern Division

BRIEF OF INTERVENING-DEFENDANT-APPELLEE GREGORY FELSOCI

Steven W. Tigges (0019288) John W. Zeiger (0010707) ZEIGER, TIGGES & LITTLE LLP 41 South High Street, Suite 3500 Columbus, Ohio 43215 (614) 365-9900 (614) 365-7900 (fax) tigges@litohio.com zeiger@litohio.com Attorneys for Intervening-Defendant- Appellee Gregory Felsoci

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations

and Financial Interest

Sixth Circuit Case Number: 16-3537 Case Name: Libertarian Party of Ohio, et al. v. Jon

Husted, et al. Name of counsel: Steven W. Tigges Pursuant to 6th Cir. R. 26.1,Gregory Felsoci

Name of Party

makes the following disclosure: 1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the

identity of the parent corporation or affiliate and the relationship between it and the named party:

No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest

in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:

No.

CERTIFICATE OF SERVICE

I certify that on July 7, 2016 the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record. s/Steven W. Tigges

This statement is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

i

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES .................................................................................... ii

STATEMENT OF THE CASE .................................................................................. 1

SUMMARY OF ARGUMENT ................................................................................. 3

ARGUMENT ............................................................................................................. 4

I. No State Action ..................................................................................... 4

A. The Ohio Republican Party Was Not A State Actor........................ 4

B. The Kasich Campaign Was Not A State Actor .............................. 10

C. Terry Casey Was Not A State Actor .............................................. 11

D. Matt Damschroder Was Not Part Of Any Conspiracy .................. 13

II. Fesloci’s Protest Did Not Proximately Cause Any Injury To Plaintiffs .............................................................................................. 18

III. LPO Has Not Been Deprived A Federally Protected Right ................ 25

A. There Is No Right To Ballot Access Unfettered From Regulation ...................................................................................... 25

B. There Is No Evidence Of Unconstitutional Discrimination ........... 28

1. No One Else Was Treated Differently ............................ 28

2. No Evidence Of Political Animus Against Libertarians ..................................................................... 29

CONCLUSION ........................................................................................................ 34

CERTIFICATE OF COMPLIANCE ....................................................................... 35

CERTIFICATE OF SERVICE ................................................................................ 35

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS ............. 36

ii

TABLE OF AUTHORITIES

Cases Page

Arnold v. IBM, 637 F.2d 1350 (9th Cir. 1981) .................................................. 18-20

Bah v. Attorney General, 610 Fed. Appx. 547 (6th Cir. 2015) ............................... 28

Banchy v. Republican Party of Hamilton County, 898 F.2d 1192 (6th Cir. 1990) ................................................................................................................... 6-7

Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008) ............................................. 11

Bishop v. Ohio Dep’t of Rehab. & Corr., 529 Fed. Appx. 685 (6th Cir. 2013) ...... 24

Burris v. Thorpe, 166 Fed. Appx. 799 (6th Cir. 2006) ............................................ 12

Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776 (6th Cir. 2007) .............. 3, 5

Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347 (3d Cir. 2014) ..... 9-10

Crane v. Mary Free Bed Rehab. Hosp., 634 F. App’x 518 (6th Cir. 2015), 2016 WL 1182442 (U.S. May 31, 2016) .............................................................. 25

Cunningham v. Sisk, 136 Fed. Appx. 771 (6th Cir. 2005) ....................................... 28

Federer v. Gephardt, 363 F.3d 754 (8th Cir. 2004) ................................................ 11

Fisk v. Letterman, 401 F. Supp. 2d 362 (S.D.N.Y. 2005) ....................................... 18

Gardenhire v. Schurbert, 205 F.3d 303 (6th Cir. 2000) .......................................... 28

In re Protest of Evans, 2006 WL 2590613 (Ohio App. 2006) ................................ 29

Jackson v. Metropolitan Edison, 419 U.S. 345 (1974) .............................................. 7

Johnson v. Suffolk University, 2002 WL 31426734 (D. Mass. 2002) ..................... 11

Libertarian Party of Ohio v. Husted, 751 F.3d 403 (6th Cir. 2014) .......................... 1

Loesel v. City of Frankenmuth, 692 F.3d 452 (6th Cir. 2012) ................................. 32

McDonald v. Village of Winnetka, 371 F.3d 992 (7th Cir.2004) ............................ 33

iii

McNeese v. Vandercook, 1999 WL 133266 (6th Cir. 1999) ................................... 12

Missere v. Gross, 826 F. Supp. 2d 542 (S.D.N.Y. 2011) ........................................ 16

Moore v. Paducah, 890 F.2d 831 (6th Cir. 1989) ................................................ 3, 13

Nader v. McAuliffe, 593 F. Supp. 2d 95 (D.D.C. 2009) .................................. 8-9, 18

Nader v. McAuliffe, 2009 WL 4250615 (D.C. Cir. Oct. 30, 2009) ........................... 9

Northern Kentucky Right to Life Committee, Inc. v. Kentucky Registry of Election Finance, 1998 WL 13405 (6th Cir. 1998) .................................... 3, 8, 18,

Romanelli v. DeWeese, 2011 WL 2149857 (M.D. Pa. 2011) ............................ 26-27

Schneller v. Philadelphia Newspapers Inc., 577 Fed. Appx. 139 (3d Cir. 2014) ..................................................................................................................... 11

Smith v. Allwright, 321 U.S. 649 (1944) ................................................................ 5, 7

State ex rel. Linnabary v. Husted, 138 Ohio St. 3d 535 (2014) ................................ 1

Staub v. Proctor Hospital, 562 U.S. 411 (2011) ............................................... 23-24

Taylor Acquisitions, L.L.C., v. City of Taylor, 313 Fed.Appx. 826 (6th Cir.2009) ............................................................................................................... 33

Terry v. Adams, 345 U.S. 461 (1953) ........................................................................ 6

Waters v. City of Morristown, Tenn., 242 F.3d 353 (6th Cir. 2001) ................. 11-12

Wilkerson v. Warner, 545 Fed. Appx. 413 (6th Cir. 2013) ..................................... 13

Ziss Bros. Constr. Co. v. City of Independence, Ohio, 439 Fed.Appx. 467 (6th Cir.2011) ....................................................................................................... 33

Statutes 42 U.S.C. § 1983 ...............................................................................................passim

Ohio Rev. Code § 3513.04 ....................................................................................... 15

Ohio Rev. Code § 3513.05 ................................................................................... 7, 15

iv

Ohio Rev. Code § 3513.041 ..................................................................................... 15

Ohio Rev. Code § 3501.38(E)(1) ......................................................................... 1, 28

1

STATEMENT OF THE CASE

In February 2014, Intervening Defendant-Appellee Gregory Felsoci filed an

election protest against the candidacy of Appellant Charles Earl, the Libertarian

Party of Ohio’s (“LPO”) candidate for governor. See Libertarian Party of Ohio v.

Husted, 751 F.3d 403 (6th Cir. 2014) (summarizing the factual background). The

protest was upheld and Earl was removed from the 2014 ballot because many of

his candidacy petitions violated the “circulator employer box” requirement of Ohio

Rev. Code § 3501.38(E)(1). Id.

Every judicial or quasi-judicial officer that has reviewed the merits of the

case (Hearing Officer Brad Smith, Secretary of State Husted, the United States

District Court, a unanimous panel of this Court, and a unanimous Ohio Supreme

Court1) came to the same conclusion that the removal of the LPO candidates was

proper and in accordance with Ohio law.

The short version of LPO’s claim is that an individual named Terry Casey

allegedly had unconstitutional political motivations when he arranged for the filing

of the protest by Felsoci. Casey is alleged to have conspired with the Ohio

Republican Party, Governor Kasich’s 2014 gubernatorial reelection campaign and

an individual named Matt Damschroder who works in the Secretary of State’s

1 The Ohio Supreme Court upheld the protest against the LPO candidate for Attorney General who had also been removed from the ballot for violating the circulator employer box statute. State ex rel. Linnabary v. Husted, 138 Ohio St. 3d 535 (2014).

2

office. But even if the Court were to accept LPO’s contorted portrayal of the

record evidence as though it were fact,2 there is still no evidence that any supposed

co-conspirator had any influence on the protest hearing officer’s report and

recommendation or Secretary Husted’s decision on the protest.

The District Court made four merits rulings on the claims involving Felsoci.

The District Court twice denied LPO injunctive relief because LPO failed to

demonstrate likelihood of success on the merits, [Opinion and Order, RE 80;

Opinion and Order, RE 260], and the District Court entered two summary

judgment decisions disposing of all claims in favor of Felsoci (only one of which is

being pursued by LPO in this appeal). [Opinion and Order, RE 336; Opinion and

Order, RE 369]

For the reasons explained below, the District Court’s judgment should be

AFFIRMED.

2 Let’s be clear: LPO’s statement of the record is far from accurate. For example, LPO contends that “[o]fficials in the Secretary’s Office … convinc[ed] the hearing officer to change his mind about the outcome” of the protest. [Appellants’ Brief, at pg. 8] But the hearing officer (Bradley Smith, former chairman of the Federal Elections Commission) could not have been more clear on this point: “No one attempted to influence me.” [Hearing Testimony (Smith), RE 252, Page Id. # 6755] After reviewing all of the testimony and documentary evidence, the District Court concluded that “[t]here is no evidence that [Hearing Officer] Smith’s final report and recommendation represented anything other than Smith’s independent findings and legal analysis.” [Opinion and Order, RE 260, Page Id. # 7090 (emphasis added)]

3

SUMMARY OF ARGUMENT

The only claim LPO is pursuing against Felsoci on this appeal is brought

under 42 U.S.C. § 1983. To succeed on its claim, LPO must establish that (i) a

state actor (ii) proximately caused (iii) deprivation of a federally protected right.

LPO’s claim fails on each element.

Since Felsoci is indisputably not a state actor, LPO’s claim against him fails

unless LPO can establish a basis for treating him as a state actor. Campbell v. PMI

Food Equip. Grp., Inc., 509 F.3d 776, 783-84 (6th Cir. 2007) (“As a general rule,

[s]ection 1983 does not ... prohibit the conduct of private parties acting in their

individual capacities.”) (quotation omitted); Moore v. Paducah, 890 F.2d 831, 833

(6th Cir. 1989) (“Section 1983 does not reach purely private conduct, but is aimed

at action taken under color of state law”). LPO asserts several conspiracy theories

in an effort to overcome the threshold requirement of proving state action, but, as

explained below, each theory fails as a matter of law.

Nor can LPO establish that Felsoci’s protest proximately caused any injury

to LPO or its candidates. Northern Kentucky Right to Life Committee, Inc. v.

Kentucky Registry of Election Finance, 1998 WL 13405 at *5 (6th Cir. 1998)

(“Simply filing a complaint with the Registry of Election Finance does not make

[the complainant] the proximate cause of any constitutional infringement.”).

4

Even if LPO could overcome these hurdles, LPO has not established that it

suffered deprivation of a federally protected right. It was LPO’s own failure to

comply with Ohio election law that caused Earl’s removal from the ballot. LPO’s

selective enforcement theory hinges on its assertion that Earl was singled out, and

discriminated against, because of his political affiliation. The evidence simply

does not support this assertion.

ARGUMENT

I. No State Action

A. The Ohio Republican Party Was Not A State Actor.

LPO first argues that the Ohio Republican Party was a state actor with which

Felsoci and Casey conspired. The crux of this argument is LPO’s blanket assertion

that major political parties “are governmental actors when they regulate the

electoral process,” [Appellants’ Brief, pg. 32], and therefore, according to LPO, the

Ohio Republican Party is necessarily a state actor for purposes of this case.

LPO overstates the law. It is true that under certain, limited circumstances –

specifically, where the state delegates to the political party the public function of

conducting a primary election – a political party could be considered a state actor,

but that does not mean that political parties are always state actors in the context of

elections as LPO asserts.

5

The Sixth Circuit “applies the three tests articulated by the Supreme Court

for determining the existence of state action under § 1983: (1) the public function

test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test.”

Campbell v. PMI Food, at 784 (quotation omitted). LPO’s state action cases (the

so-called “white primary cases”) relate to the public function test. The theory in

those cases was that a political party may be considered a state actor where the

state delegates to the political party the public function of conducting a primary

election.

The white primary cases on which LPO relies simply stand for the

proposition that where the State delegates an essential State duty to a private actor,

that person’s performance of that state function constitutes state action. Thus, in

Smith v. Allwright, 321 U.S. 649 (1944), the Court held that, because “fix[ing] the

qualifications of primary elections is delegation of a state function,” the

Democratic Party’s exclusion of non-whites from voting in its primary election

was considered state action. Id. at 660 (emphasis added). The Court explained:

We think that this statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the state in so far as it determines the participants in a primary election. The party takes its character as a state agency from the duties imposed on upon it by state statutes.

[Id. at 663 (emphasis added)]

6

Accord: Terry v. Adams, 345 U.S. 461, 484 (1953) (extending Smith’s

holding to the primary of the Jaybird Democratic Association: “when a state

structures its electoral apparatus in a form which devolves upon a political

organization the uncontested choice of public officials, that organization itself, in

whatever disguise, takes on those attributes of government which draw the

Constitution’s safeguards in play”).

In fact, this Court has specifically addressed the white primary cases and

held that Smith v. Allwright, supra, and its progeny are limited to situations in

which a party is performing the state function of actually conducting an election.

In Banchy v. Republican Party of Hamilton County, 898 F.2d 1192 (6th Cir. 1990),

the plaintiffs brought a § 1983 action alleging that the Republican Party of

Hamilton County had engaged in state action by denying them the right to

participate in the election of the Party’s ward chairman. Like LPO in the instant

case, the plaintiffs in Banchy relied upon the white primary cases for their “state

action” theory. This Court not only rejected this argument, the Court held that the

plaintiffs’ state action theory was “groundless.” Id. at 1194, 1196. The Court

explained:

These [white primary] cases are easily distinguishable from the case before us. The Supreme Court did not assert that the Jaybirds had become a state actor for every purpose, only that the Jaybirds were state actors, acting under color of state law insofar as they had been assigned an “integral part” in the election process, a governmental function….

7

The primary election cases do not hold that a political party is

part of the state, or that any action by a political party other than conducting an election is state action…. The primary election cases merely hold that conducting an election is a governmental function and constitutes state action, no matter who actually conducts the election.

[Id. at 1196 (emphasis added)]

Here, unlike the white primary cases on which LPO relies, the State of Ohio

has not delegated a State duty to any particular person or entity by simply allowing

“any qualified elector” of a political party to bring a protest action. Ohio Rev.

Code § 3513.05. Instead, a protest results from a voluntary choice to protest the

candidacy of a political candidate.

The Supreme Court holds that the exercise of a private party’s voluntary

choice, even if authorized by state law, is not state action. In Jackson v.

Metropolitan Edison, 419 U.S. 345, 357 (1974), the Court found no state action

where a private utility company terminated customers’ electric service pursuant to

a procedure authorized and approved by the state utility commission. The Court

explained:

[T]he exercise of a choice allowed by state law where the initiative comes from [the private party to whom the choice has been given] and not the State, does not make [that private party’s] action in doing so “state action” for the purposes of the Fourteenth Amendment.

[Id. at 357 (emphasis added; footnote omitted)]

8

Accord: Northern Kentucky Right to Life Committee, Inc. v. Kentucky

Registry of Election Finance, 1998 WL 13405 at *5 (6th Cir. 1998) (holding that

plaintiff-appellant could not, as a matter of law, prove that chair of local

Democratic Party was a state actor because “[o]nly in very special cases may a

private person act under such authority, which does not exist when a private party

merely files a law suit or instigates a state administrative action”).

Following this reasoning, in Nader v. McAuliffe, 593 F. Supp. 2d 95

(D.D.C. 2009), a case with virtually identical facts as those here, the court rejected

the same argument LPO is making here. There, the plaintiffs brought claims under

§ 1983 against private supporters of the Kerry-Edwards 2004 presidential

campaign, claiming they had “conspired” with the Democratic Party to file ballot

eligibility complaints (i.e., protests) against Ralph Nader’s presidential candidacy.

As here, the plaintiffs argued that the Democratic Party was a state actor under the

Smith and Terry line of authorities. The court concluded that these cases were

irrelevant:

The plaintiffs make much of the fact that the act of conducting and regulating an election has been held to be an exclusively public function, … but because the allegedly unconstitutional conduct here consisted of filing challenges to eligibility for office rather than actually conducting or regulating an election, that authority is not on point.

[Id. at 102 n.5 (emphasis added)]

9

The court in Nader also concluded that even if the Democratic Party was

involved in a conspiracy to bring election protests, that conduct still did not

amount to state action because the filing of an election protest is not a state (or

public) function exclusively reserved to the State:

[I]t is well-settled that a public function is not simply one “traditionally employed by governments,” but rather one “traditionally exclusively reserved to the State.” … The plaintiffs offer no facts that plausibly suggest that filing ballot access challenges is a function “traditionally exclusively reserved to the States.”

Moreover, the fact that private citizens may file challenges

under the ballot access statutes is antithetical to the assertion that doing so is a function traditionally exclusively reserved to the States. As a result, the court rejects the plaintiffs’ assertion that the defendants engaged in an exclusively public function by filing challenges under the state ballot access statutes.

[Id. at 102 (emphasis added, citation omitted)]

LPO attempts to downplay the significance of Nader by implying that the

appellate court rejected the lower court’s reasoning. [Appellants’ Brief, at pg. 35

(“[t]he [Nader] Court of Appeals did not even embrace the District Court’s logic”)]

Actually, the appellate court issued a three-paragraph per curiam order summarily

affirming the trial court’s decision on statute of limitations grounds. Nader v.

McAuliffe, 2009 WL 4250615 (D.C. Cir. Oct. 30, 2009). The appellate court did

not in any way suggest the lower court’s analysis was incorrect. LPO also asserts

that Nader v. McAulliffe was “refuted” by Constitution Party of Pennsylvania v.

10

Aichele, 757 F.3d 347 (3d Cir. 2014). [Appellants’ Brief, at pg. 35] But even a

cursory review of Aichele demonstrates that the Third Circuit was not confronted

with a question of state action but, rather, was addressing whether the plaintiff had

standing to pursue its claims.

The reason LPO has gone to such lengths to downplay the Nader decision is

obvious. The Nader court’s reasoning is equally applicable here and fatal to

LPO’s state action theory. Even if the Ohio Republican Party was involved in the

filing of the election protest that resulted in the removal of Earl from the 2014

ballot, it would make no difference because the Ohio Republican Party is not a

state actor.

B. The Kasich Campaign Was Not A State Actor.

LPO also asserts (albeit in passing) that the Kasich Campaign was a state

actor because it was the agent of the Ohio Republican Party. [Appellants’ Brief, at

pg. 32] This state action theory fails for two straightforward reasons.

First, there is no evidence in the record that the Kasich Campaign was acting

as the agent for the Ohio Republican Party as it relates to the facts of this case.

LPO certainly does not cite any record evidence to in support of its conclusory

allegation that the Kasich campaign was the agent of the Ohio Republican Party.

Second, LPO does not cite any case law treating a candidate’s campaign as a

state actor, and the cases that have addressed this issue have concluded otherwise.

11

Schneller v. Philadelphia Newspapers Inc., 577 Fed. Appx. 139, 143 (3d Cir.

2014) (affirming dismissal of § 1983 claim against campaign committee and others

relating to challenge to plaintiff’s nomination papers because there was no state

action); Federer v. Gephardt, 363 F.3d 754, 759 (8th Cir. 2004) (defendants who

“acted on behalf of [congressman] as a political candidate and private person”

were not state actors) (emphasis added); Johnson v. Suffolk University, 2002 WL

31426734 at *1 (D. Mass. 2002) (state treasurer’s participation in debate “as a

candidate” held insufficient “to confer state action status”) (emphasis added);

Berg v. Obama, 574 F. Supp. 2d 509, 523 n.14 (E.D. Pa. 2008) (“We have found

no cases where a presidential candidate has been treated as a state actor merely for

running for office. To the contrary, the few cases that we have found suggest that

presidential candidates are not state actors or engaged in state action for

purposes of § 1983.”) (emphasis added).

C. Terry Casey Was Not A State Actor.

LPO next asserts that Casey was a state actor because his day job is serving

as Ohio’s chairman of the State Personnel Board of Review. But the mere fact that

Casey was a state employee is irrelevant in the absence of evidence that he acted in

his state employee capacity. Waters v. City of Morristown, Tenn., 242 F.3d 353,

359 (6th Cir. 2001) (“[N]ot every action undertaken by a person who happens to be

a state actor is attributable to the state…. [T]he acts of state officials in the ambit

12

of their personal pursuits do not constitute state action….”); McNeese v.

Vandercook, 1999 WL 133266 at *2 (6th Cir. 1999) (“A person acts under color of

state law when he exercises power possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of the state”).

LPO offered no evidence that Casey was acting in his official capacity when

he took any action relating to Felsoci’s protest. Casey repeatedly testified, without

rebuttal by LPO, that he became involved in this matter because he is a “political

junkie” who has a “substantial interest in electoral issues and election

administration issues.” [Casey Deposition, RE 335-2, Page Id. # 8388] [Hearing

Testimony (Casey), RE 247, Page Id. # 6548] But Casey’s longstanding personal

interest in politics, without proof of a nexus between his state office and his actions

in this case, is not enough to establish state action. As this Court held in Waters,

supra at 539: “[T]here can be no pretense of acting under color of state law if the

challenged conduct is not related in some meaningful way either to the actor’s

government status or to the performance of his duties.” Accord: Burris v. Thorpe,

166 Fed. Appx. 799, 802 (6th Cir. 2006) (“a defendant’s private conduct, outside

the course or scope of his duties and unaided by any indicia of actual or ostensible

state authority, is not conduct occurring under color of state law”).

Nor did LPO offer any evidence to tie Casey’s involvement with Felsoci’s

protest to his state office. Instead, LPO suggests (again, without any evidentiary

13

support) that the “aura” of Casey’s position as chairman of the State Personnel

Board of Review allowed him to influence “classified employees” of the Secretary

of State’s office. [Appellants’ Brief, at pg. 37] But this is complete conjecture;

LPO offered no evidence of any “classified employee” who was allegedly

influenced by Casey’s “aura,” much less a “classified employee” who did anything

specifically with respect to Felscoi’s protest because of Casey’s “aura.” And, in

any event, even under LPO’s “aura” theory, Casey could not and did not influence

the two “unclassified” decision-makers who decided the protest – Secretary Husted

and Hearing Officer Smith.

It was LPO’s burden to show that Casey’s actions regarding Felsoci’s protest

were meaningfully related to his state office, as opposed to his personal avocation

as a “political junkie,” but LPO offered nothing to meet this burden.

D. Matt Damschroder Was Not Part Of Any Conspiracy.

This Court applies the test for “civil conspiracy” to determine whether a

private actor has acted in concert with a state actor. Moore, supra at 833;

Wilkerson v. Warner, 545 Fed. Appx. 413, 421 (6th Cir. 2013). “A civil conspiracy

is an agreement between two or more persons to injure another by unlawful

action.” Moore, supra at 834. In order to prove a civil conspiracy, LPO must

prove “that there was a single plan, that the alleged co-conspirator shared in the

14

general conspiratorial objective, and that an overt act was committed in furtherance

of the conspiracy that caused injury to the complainant.” Id.

LPO identifies three “overt acts” that supposedly demonstrate Damschroder

was part of a supposed conspiracy: (1) his email instructing staff to accept for

filing protests that were delivered after the statutory deadline; (2) “his investigation

of [petition circulator Oscar] Hatchett;” and (3) “his successful effort to have the

hearing officer (Smith) change his mind” on the protest report and

recommendation. [Appellants’ Brief, at pg. 40]

Damschroder’s email to his staff to accept belatedly filed protests is not the

nefarious act LPO makes it out to be. All Damschroder did was instruct staff

members to accept whatever was filed even if after the 4:00PM deadline “so a

determination could be made whether it’s timely or not.” [Damschroder

Deposition, RE 227-1, Page Id. # 5299] By taking custody of a time-stamped

copy of a late filing, the Secretary of State’s office would have objective evidence

that establishes whether a filing was timely. If the staff members did not time-

stamp a late filing, there would be a potential “our word against their word” issue

of whether a document was presented for filing on time (3:59PM for example) or

too late (4:01PM). All Damschroder did was instruct his staff to create and

preserve objective evidence that could be used to determine whether or not a filing

15

was timely.3 This is hardly an overt act in furtherance of a conspiracy – and it

certainly did not cause LPO any injury inasmuch as the protest was indisputably

filed before the 4:00PM deadline.

As for Damschroder’s supposed investigation of Hatchett, the evidence does

not support LPO’s mischaracterization of the record. The actual evidence in the

record is that a staff member, Brandi Seskes, ran Google searches of the various

individuals identified in the protest and, in doing so, came across criminal records

relating to Hatchett. [Hearing Testimony (Seskes), RE 247, Page Id. # 6597]

Damschroder testified that he did not instruct her to do this. [Hearing Testimony

(Damschroder), RE 247, Page Id. # 6627] Seskes confirmed that no one asked her

to run these internet searches. [Hearing Testimony (Seskes), RE 247, Page Id. #

6596]

As for Hearing Officer Smith’s decision, there is simply no evidence that

anyone influenced Smith’s decision. Smith’s testimony on this point is

3 Damschroder testified that there was an additional reason for his instruction to accept late filings, albeit a slightly esoteric election law explanation. He testified that “in elections there are things that where the law tells the Board of Elections or the Secretary of State whether to reject something for filing or whether to accept it and then decide later on whether it’s valid or not….” [Hearing Testimony (Damschroder), RE 247, Page Id. # 6612-13; see also Damschroder Deposition, RE 227-1, Page Id. # 5299 (“unless I’ve been instructed to not accept something that comes in, then we would accept it”)] While several Ohio election statutes require the Secretary of State’s office to reject certain filings (see, e.g., Ohio Rev. Code §§ 3513.04 (“[t]he secretary of state shall not accept for filing ….”), 3513.041 (same)), but the statute authorizing the protest against Earl’s candidacy does not contain such a prohibition. See § 3513.05.

16

unequivocal: “No one attempted to influence me.” [Hearing Testimony (Smith),

RE 252, Page Id. # 6755] He was clear: “I never had any sense that anybody was

trying to influence me. In fact, … one of the things I think was fairly remarkable

was the scrupulosity of the folks in the Secretary of State’s office.” [Id. at 6750-

51] After reviewing all of the testimony and documentary evidence, the District

Court concluded that “[t]here is no evidence that [Hearing Officer] Smith’s

final report and recommendation represented anything other than Smith’s

independent findings and legal analysis.” [Opinion and Order, RE 260, Page Id.

# 7090 (emphasis added)]

Trying to refute the District Court’s conclusion, LPO makes much of the fact

that there were several communications between Casey and Damschroder. But,

“mere communications, even regular ones, between a private and a state actor,

without facts supporting a concerted effort or plan between the parties, are

insufficient to make the private party a state actor.” Missere v. Gross, 826 F. Supp.

2d 542, 569 n.18 (S.D.N.Y. 2011) (emphasis added).

LPO also emphasizes the communications between Damschroder and in-

house attorney Jack Christopher during the protest hearing as evidence of a

conspiracy. The District Court correctly reasoned that “[i]t is hardly realistic to

expect public employees to abandon their political views or interest in politics. The

real issue is whether those views and interests rendered the process at issue unfair.”

17

[Opinion and Order, RE 260, Page Id. # 7091] Damschroder and Christopher may

have exchanged communications while they were on the sidelines of the protest

process, but that is irrelevant inasmuch as the decision-makers reached their own

independent decisions free of outside influence.

Finally, LPO makes much of the fact that Casey and others received

information and public records from Damschroder. As the District Court

recognized, it is unsurprising that Damschroder provided information to those who

asked since that was part of his job, and he would provide information to

whomever asked:

[W]hile Damschroder was helpful to Casey during the protest process, there is no indication that he would not have been equally helpful to anyone seeking information about election related procedures, including [LPO]. In fact, the LPO’s political director, Robert Bridges, sought assistance from Damschroder on at least two occasions and described his experience working with Secretary Husted’s office to have been “[f]or the most part pleasurable.”

[Opinion and Order, RE 260, Page Id. # 7091 (emphasis added)]

LPO’s Political Director also testified that Damschroder has “always been

willing to help me with whatever information that I desired.” [Bridges Deposition,

RE 201, Page Id. # 4047] The simple fact of the matter is that Damschroder was

helpful to anyone who sought assistance. The fact that he answered Casey’s

requests for information is not evidence of a conspiracy.

18

II. Felsoci’s Protest Did Not Proximately Cause Any Injury To Plaintiffs.

In addition to establishing a conspiracy involving state action, LPO was also

required proof the alleged conspiracy proximately caused LPO’s

injuries. Northern Kentucky Right to Life Committee, Inc.v. Kentucky Registry of

Election Finance, 1998 WL 13405 at *5 (6th Cir. 1998) (“a valid § 1983 claim

requires that the defendant be the proximate cause of some constitutional injury”);

Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (“[t]he causation requirement

of section[] 1983 … is not satisfied by a showing of mere causation in fact” but

“[r]ather, the plaintiff must establish proximate or legal causation”).

To meet this burden, LPO had to show more than the mere fact that Felsoci

initiated a legal process. Northern Kentucky Right to Life Committee, supra at *5

(“[s]imply filing a complaint … does not make [complainant] the proximate cause

of any constitutional infringement”). Accord: Fisk v. Letterman, 401 F. Supp. 2d

362, 378 (S.D.N.Y. 2005) (“the mere institution of [legal] proceedings by private

citizens, without more, is not the proximate cause of a violation of due process

during [such] proceedings”); see also Arnold, supra at 1355 (when a litigant

challenges judicial action under § 1983 as resulting in injury to constitutionally

protected rights, “the proximate cause of the plaintiff’s injury would ordinarily be

the court order, and not the various steps preliminary to the court order”).

19

Instead, in order to satisfy the proximate cause element of their claim, LPO

must prove that Felsoci (or Casey or someone allegedly conspiring with them)

“exerted control over the decision making” of the state actor. Id. at 1357

(emphasis added). See also Nader, supra at 102 (“merely filing, and winning, a

lawsuit does not give rise to a constitutional claim unless the plaintiff alleges that

the judge presiding over the lawsuit was a co-conspirator or a joint actor with a

private party.”).

Arnold v. IBM, supra, illustrates the difference between a private actor’s

initiation or involvement in a legal proceeding, on the one hand, and control over

the decision making in the proceedings, on the other. There, IBM initiated a legal

process that prompted the creation of a police task force that ultimately resulted in

the allegedly unconstitutional arrest and indictment of plaintiff Arnold. While the

court noted that IBM had “involvement” in initiating and facilitating the

investigation – indeed, “[t]he Task Force would not have existed but for IBM,”

“[a]n IBM employee … was a member of the Task Force[;]” the Task Force relied

heavily, if not exclusively, on information that IBM supplied, and IBM even rented

a plane for the Task Force’s use – both the District Court and the Ninth Circuit

agreed that Arnold’s § 1983 claims could not survive summary judgment because

“[t]here [was] nothing in the record, however, to indicate that [IBM] exerted

any control over the decision making of the Task Force.” Id. at 1357 (emphasis

20

added). Nor were there “any facts to show” that “IBM in fact influenced the

decision[s]” of the Task Force. Id. (emphasis added). Instead, the undisputed

evidence was that “the decision to arrest Arnold was made solely by the police”

and that the district attorney “had made the decision to take the case to the grand

jury based on his professional judgment.” Id. (emphasis added). Thus, despite

IBM’s high level of involvement, “[t]he undisputed facts concerning [IBM’s]

involvement in the arrest and indictment of Arnold … established that

[IBM’s] involvement with the Task Force did not proximately cause Arnold’s

injuries.” Id. (emphasis added).

In the instant case, there is no evidence to support LPO’s assertion that

Hearing Officer Smith’s or Secretary Husted’s decisions were somehow influenced

by any of the alleged co-conspirators. Professor Smith testified:

Q. Did anyone at the Secretary of State’s office tell you how to decide this case?

A. No. Q. Did anyone at the Secretary of State’s office try to influence

you or your decision? A. I can’t speak to any motives anybody else had but I never had

any sense that anybody was trying to influence me. In fact, … one of the things I think was fairly remarkable was the scrupulosity of the folks in the Secretary of State’s office. And Mr. Christopher in particular was always, it’s up to you, whatever you want to do. He was very, very scrupulous about making suggestions even on procedural matters.

21

* * * Q. Did you have at any time any communications with Terry

Casey? A. No. Q. Do you know Terry Casey? A. No, I do not.

* * * Q. Did anyone, not just Mr. Casey now, but anyone anywhere

attempt to influence you in any way in making your recommendation in this matter?

A. Outside of the hearing itself, no. Q. Certainly. The advocacy at the hearing itself? A. Yes. Q. But aside from the advocacy at the hearing itself, no one tried to

influence you, correct, sir? A. No. Q. Is that correct what I said? A. That is correct. No one attempted to influence me.

[Hearing Testimony (Smith),RE 252, Page Id. # 6750-51, 6754-55]

Secretary Husted was equally clear that the final decision on the protest was

his alone, and no one influenced him. He testified: “I don’t recall ever

communicating with … [Terry Casey] during … [the] period” of the protest.

22

[Husted Deposition, RE 203, Page Id. # 4205-06] He never spoke with Governor

Kasich about the protest. [Id. at Page Id. # 4243] He did not speak with any

members of the Kasich Campaign. [Id.] Secretary Husted further emphasized that

he – not the hearing officer and not his staff – was “the final decision-maker.” “I

am the decider. My staff, on the other hand, are not the deciders…. I am not

bound under the law to follow the recommendation of the hearing officer…. I, as

the Secretary of State, am in charge of making these decisions, not the hearing

officer, not my staff…. I make the decision on this. I’m the decider of the issue,

not the hearing officer. The hearing officer’s report is a guide, but I’m not bound

to it in any way.” [Id. at 4181, 4206, 4214-15, 4225] He also testified that there

was nothing inappropriate about his staff communicating with Casey or anyone

else regarding the protests and other public matters:

It is common that all parties communicate with the staff at the Secretary of State’s office about what the rules are, and it is our job to be helpful in explaining those rules, which they -- which would be appropriate for them to do.

* * *

It’s appropriate for my staff in our role in administering election law to explain the process, timelines, the rules to any and all who call and ask. It is the culture in our office to be helpful to people in making sure that they are complying with the election laws of the State of Ohio; so communicating with any and all parties on those matters is appropriate for my staff to do.

* * *

23

I know that my staff, including Mr. Christopher, were instructed to follow the rules and follow the law, and I told them that I was indifferent as to the outcome, and they were instructed that on numerous occasions.

[Husted Deposition, RE 203, Page Id. # 4207-08, 4222]

Secretary Husted could not have been more clear that he made an

independent, unbiased judgment based on the facts and the law: “I feel then, as I

do now, that I had the necessary information to make a sound judgment based on

the law and the facts, and I believe that’s exactly what I did.” [Id. at 4250]

Notably, immediately after Secretary Husted made this statement, LPO’s counsel

stated to him: “Of course, Mr. Secretary, we are not attempting to cast any

shadow of a doubt on your particular decision.” [Id. (emphasis added)]

In an attempt to overcome their complete lack of evidence of influence upon

Smith or Husted, LPO borrows from employment cases that utilize the so-called

“cat’s paw” theory described in Staub v. Proctor Hospital, 562 U.S. 411 (2011).

LPO’s reliance on Staub misses the mark for two reasons:

First, Staub is an employment case. While its reasoning has been applied in

employment cases under § 1983, LPO does not cite (and we cannot find) any cases

applying Staub to a judicial or quasi-judicial decision that occurred following an

election complaint filed by a person with an allegedly discriminatory purpose.

24

Second, the fundamental question under Staub is still whether the decision-

maker was influenced by someone. See Staub, at 417 (“[t]he problem we confront

arises when [the decision-maker] has no discriminatory animus but is influenced

by previous company action that is the product of a like animus in someone else”)

(emphasis added). Following Staub, this Court has held that, in employment

actions, “a causal nexus is lacking if the ultimate decision ‘was based on an

independent investigation’ and the … [plaintiff] ‘present[s] no evidence that the

supervisor’s discriminatory animus had influenced the decision.’” Bishop v. Ohio

Dep’t of Rehab. & Corr., 529 Fed. Appx. 685, 696 (6th Cir. 2013) (emphasis

added).

As the District Court observed, here “[t]here is no evidence that [Hearing

Officer] Smith’s final report and recommendation represented anything other than

Smith’s independent findings and legal analysis…. [T]here is no evidence that

political bias affected the outcome of the protests.” [Opinion and Order, RE 260,

Page Id. # 7090, 7092] As such, even if the “cat’s paw” theory applied, it does

nothing to advance LPO’s claim because Secretary Husted did not delegate the fact

finding role to Casey, Felsoci or any other supposed co-conspirator, nor did he

defer to their account of the facts. Secretary Husted appointed Hearing Officer

Smith as an independent fact-finder to weigh the testimony given by live witnesses

who were placed under oath and documentary evidence to make his own,

25

independent factual conclusions. Hearing Officer Smith did not rely on the version

of the facts as alleged in the protest – his independent factual findings span four

pages of single-spaced type [Hearing Exhibit (Report & Recommendation), RE 57-

3, Page Id. # 1085-89] – and the candidates had ample opportunity to cross-

examine the witnesses and present their own evidence. Compare Crane v. Mary

Free Bed Rehab. Hosp., 634 F. Appx. 518, 527 (6th Cir. 2015), cert. denied, 2016

WL 1182442 (U.S. May 31, 2016) (rejecting cat’s paw theory because “there is no

evidence in the record to support an inference that either [discriminatorily

motivated individuals] influenced [the decision maker’s] decision”) (emphasis

added).

On this record, there is a complete lack of proof of proximate cause. As

such, LPO’s claim against Felsoci fails for this reason alone.

III. LPO Has Not Been Deprived A Federally Protected Right.

A plaintiff asserting a § 1983 must establish that (i) a state actor (ii)

proximately caused (iii) deprivation of a federally protected right. As explained

above, LPO’s claim against Felsoci fails to establish the first two elements. Their

claim also fails because LPO has not been deprived of a federally protected right.

A. There Is No Right To Ballot Access Unfettered From Regulation.

When a candidate is removed from the ballot because of his own failure to

comply with a valid state election law, there is no deprivation of any federal right

26

of ballot access. Romanelli v. DeWeese, 2011 WL 2149857 at * 7 (M.D. Pa.

2011). In Romanelli, the plaintiff was a Green Party candidate whose ballot access

was challenged by persons connected with the Democratic Party. The candidate

contended that his ballot access was being challenged because the Democrats

“feared he would divert votes from the Democratic nominee….” Id. at *1. Several

political operatives and state employees worked around the clock – using state

resources – on the election challenge. Yet, not only did the Court find that these

allegations were insufficient for a § 1983 claim to survive a 12(b)(6) motion, the

Court concluded that “the complaint’s legal grounds are tenuous at best.” Id. at *9.

Even assuming state action, the court concluded there was no allegation of an

injury protected by § 1983:

… Romanelli has failed to allege the deprivation of any federal right. While ballot access is recognized as an important aspect of voting rights, … states have legitimate interest[s] in regulating the number of candidates on the ballot … to reduce ballot clutter…. Thus, there is no constitutional right to ballot access unfettered from all state regulation.

… Romanelli asserts a constitutional right under the First Amendment to “run for federal office in an unimpaired fashion.” As noted above, to the extent he claims a right to be free from Pennsylvania’s signature requirements, no such right exists. The Pennsylvania statutes provide for challenges to nomination papers when signatures do not comport with the statutory requirements. When the validity of the signatures is challenged in accordance with state procedure, and the signatures are found to be in some way insufficient, it does not violate any constitutional right to deny the potential candidate access to the ballot.…

27

The state courts found that Romanelli’s nomination paper failed to secure the required number of valid signatures.… That determination is conclusive in this suit.… Thus, because the rejection of his nomination paper was based on failure to meet a valid state signature requirement, Romanelli was not denied any federal right of ballot access.

[Id. at *7 (emphasis added)]

The Romanelli Court also rejected the exact same type of equal protection

theory advanced by LPO here (i.e., that Romanelli’s candidacy was protested so he

would not “divert votes from the Democratic nominee,” id. at *1):

[T]o the extent that Romanelli’s complaint might be construed to allege a violation of the Fourteenth Amendment, it also fails…. Although Romanelli does not allege any class-based discrimination, a plaintiff can proceed on a “class of one” theory by alleging that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment…. In light of the state court decisions [upholding the election protest], which are accorded preclusive effect, … Romanelli could not plausibly maintain that the defendants (assuming, without deciding, that they were state actors for § 1983 purposes) challenged his petition without a rational basis. The state courts found that Romanelli failed to secure the required number of valid signatures, and this failure provides a rational basis upon which the defendants successfully challenged the petition….

Because Romanelli fails to show that he was deprived of any federal right, his complaint must be dismissed….

[Id. at *7-8 (emphasis added)]

Here, as in Romanelli, Earl was not on the ballot because his petitions did

not comply with state law. Even if this Court assumes state action (as the court in

Romanelli did) and further assumes that the protest was brought so Earl would not

28

divert votes from another candidate (as the court in Romanelli also assumed),

LPO’s claim still fails because LPO failed to comply with Ohio election law.

Every judicial or quasi-judicial officer who has reviewed the protest – Hearing

Officer Smith, Secretary Husted, the District Court, a unanimous panel of this

Court, and a unanimous Ohio Supreme Court – has concluded that the employer

disclosure requirement in R.C. 3501.38(E)(1) is a valid state election law with

which LPO could have complied, but, for whatever reason, did not comply. LPO’s

failure to have its candidate on the 2014 ballot was the result of its own self-

inflicted wound – its failure to comply with a valid state election law – not any

deprivation of a federal right of ballot access.

B. There Is No Evidence Of Unconstitutional Discrimination.

In an effort to gloss over its self-inflicted failure to comply with Ohio’s

election laws, LPO counters that these laws supposedly were “selectively

enforced” against it. Once again, however, LPO’s argument is wholly lacking in

proof.

1. No One Else Was Treated Differently.

A claim of selective enforcement under § 1983 requires proof that “someone

similarly situated … was treated differently.” Bah v. Attorney General, 610 Fed.

Appx. 547, 554 (6th Cir. 2015). Accord: Cunningham v. Sisk, 136 Fed. Appx. 771,

774-75 (6th Cir. 2005); Gardenhire v. Schurbert, 205 F.3d 303, 319 (6th Cir. 2000)

29

(“[i]t is an absolute requirement that the plaintiff make at least a prima facie

showing that similarly situated persons outside [his] category were not

prosecuted”).

LPO did not offer any evidence below that there were other violations of the

circulator employer box statute that had been brought to the Secretary of State’s

attention that went unenforced. To the contrary, the only evidence on this issue is

that the circulator employer box had been enforced on two other occasions: (i) in

2006, with respect to the ballot petition that gave rise to In re Protest of Evans,

2006 WL 2590613 (Ohio App. 2006); and (ii) in 2011, when Secretary Husted’s

office advised a local elections board to invalidate petitions because “a paid

circulator failed to completely fill out the employer box on a petition form.”

[Hearing Testimony (Seskes), RE 247, Page Id. # 6605]

2. No Evidence Of Political Animus Against Libertarians.

Since LPO cannot establish someone similarly situated was treated

differently, LPO instead asserts that Earl was unconstitutionally singled out for

political reasons. LPO’s theory is that Casey and his supposed co-conspirators

arranged for the protest out of political animus towards Earl to discriminate against

him because he was a Libertarian.

Here again, the record does not support LPO’s theory. Casey repeatedly

testified that his motivation was not to discriminate against Libertarians but, rather,

30

to call attention to the clandestine efforts of Democratic interests who helped Earl

collect enough signatures to appear on the ballot:

Q. … Was your motive in supporting Mr. Felsoci in his protest of the Libertarian Party one related to embarrassing the Democrats?

A. That’s probably the first and foremost thing. It seemed at

multiple levels to have a lot of embarrassment to the Democrat Party and what they were doing and why and how they were involved….

Q. Did you have any objective at any time in these proceedings of

injuring the Libertarian Party? A. No. The main thing was about the Democrat Party. I’m a

Republican. Just like people who are Democrats, we like to keep an eye on each other and if we can prod and poke the other side, we like to do that. But it wasn’t motivated [by] anything negative on the Libertarian Party.

[Hearing Testimony (Casey), RE 247, Page Id. # 6587]

Q. [W]hy did you care…? A. It just kind of stuck in my mind it’s a little un-American.

Democrats being for Democrats and Republicans being for Republicans seem normal. But if the Democratic Party could have two candidates on the ballot, that didn’t seem to be right.

[Id. at Page Id. # 6551]

Q. So prior to talking to Mr. Felsoci you had learned in your

investigation that the Democratic Party had moved money to the Ohioans for Liberty which was then being used to pay Ian James, a Democrat, to undertake solicitation of Libertarian candidate petitions?

31

A. That, plus also the involvement of Don McTigue’s law partner. Don McTigue is the legal counsel for the Democrat Party, and there were other people involved.

[Id. at Page Id. # 6553-544]

In fact, Casey testified, and stated in his contemporaneous emails, that he did

not know whether the protest would help or hurt Kasich vis-à-vis the Libertarian

vote, but that did not matter to him, because exposing the Democrats was his true

objective. For example, on February 28, 2014, a reporter asked Casey: “Will it be

good news for Kasich’s re-election if there is no Libertarian on the ballot?” Casey

responded: “Don’t know if it’s good or bad for Governor Kasich.” [2/28/14

Email, RE 335-3, Page Id. # 8475 (emphasis added)] Casey testified to the same

effect:

Q. Do you expect Kasich to benefit by Charlie Earl not being on the ballot?

A. I’ve heard different opinions, from different sources, who it benefits. So I haven’t studied it in detail, scientifically, to know for certain.

Q. What is your opinion? I know you’re a seasoned political consultant. In your professional opinion, what do you think?

A. I’d have to go back, and I don’t know whether Quinnipiac ever did a poll that looked at Charlie Earl and then looked at the

4 [See also Casey Deposition, RE 335-2, Page Id. # 8368 (discussing the “sizeable question on the legalities of how the Democratic Party was involved”); at 8380 (“part of the motivation on my end was the involvement of the Democratic Party”); at 8388 (“[a]nd, of course, the thing that shocked me was the Democrats trying to hide the money that went into the Libertarian Party”); at 8391 (describing how his “interest and motivation was about McTigue and the Democratic Party”).]

32

cross-tabs to see how much he drew [from] Republican, Democrat or Independent. So I got to – normally people ask me that question, I’d rather have polling data and then look at it and look at the cross-tabs in order to give a more scientific answer.

[Casey Deposition, RE 241-1, Page Id. # 6354-55]

Q. And you wanted to help John Kasich’s campaign; is that correct?

A. No. The main reason was that it seemed fishy why the

Democrats were so involved….

[Casey Deposition, RE 335-2, Page Id. # 8349-50]

On this record, there is no evidence to support the type of discriminatory

animus that LPO must show to establish selective enforcement under § 1983. In

“class-of-one” equal protection cases, where a plaintiff may offer evidence of

improper animus to rebut the presumption that the defendant acted with a rational

basis, this Court requires proof that the “animus had to be directed against the

… [plaintiff] to be relevant.” Loesel v. City of Frankenmuth, 692 F.3d 452, 467

(6th Cir. 2012) (emphasis added).

In Loesel, plaintiffs, developers who sought to build a Walmart store,

challenged the defendant city’s actions taken to prevent the Walmart development.

This Court rejected plaintiffs’ argument that they could prevail simply by showing

the city’s ill-will toward Walmart: “Although the Loesels presented abundant

evidence showing that certain city officials … strongly opposed having a Walmart

33

supercenter in Frankenmuth, the animus had to be directed against the Loesels

to be relevant to their claim.” Id. at 467 (emphasis added).5

So too here, the most LPO has shown is that Casey was motivated to support

Felsoci’s protest because of its potential to embarrass the Ohio Democratic Party

and its Democrat allies. Earl may have been caught in the crossfire between

Republicans and Democrats, but that is no different than the collateral damage that

befell the real estate developers in Loesel when they were caught in the crossfire

between the City of Frankenmuth and Walmart. LPO has offered no evidence that

Casey (or, for that matter, anyone else) took any action for the purpose of

discriminating against Earl because he was a Libertarian that would not have been

taken if Earl had a different political affiliation. For that reason alone, LPO’s

selective enforcement claim fails as a matter of law.

5 See also Taylor Acquisitions, L.L.C., v. City of Taylor, 313 Fed. Appx. 826, 838 (6th Cir.2009) (holding that the plaintiff had to show in its class-of-one equal protection claim that government officials expressed animus against the plaintiff, not against the development it was proposing); Ziss Bros. Constr. Co. v. City of Independence, Ohio, 439 Fed. Appx. 467, 479 (6th Cir.2011) (concluding that the plaintiff failed to allege an equal protection violation based on animus where the plaintiff alleged that the animus of the defendant-city was directed at the plaintiff’s proposed development plan and not at the plaintiff itself); McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir.2004) (holding that a class-of-one claim may be established by showing that there “is a totally illegitimate animus toward the plaintiff by the defendant”) (emphasis added).

34

CONCLUSION

For all of these reasons, the judgment of the District Court should be

AFFIRMED.

Respectfully submitted, /s/ Steven W. Tigges Steven W. Tigges (0019288)

John W. Zeiger (0010707) ZEIGER, TIGGES & LITTLE LLP 41 South High Street, Suite 3500 Columbus, Ohio 43215 (614) 365-9900 (614) 365-7900 Facsimile tigges@litohio.com

zeiger@litohio.com Attorneys for Intervening Defendant Appellee Gregory Felsoci

35

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that the foregoing brief complies with the

typeface requirements of Fed. R. App. P. 32(a)(5), the type style requirements of

Fed. R. App. P. 32(a)(6), and the type-volume limitations of Fed. R. App. P.

32(a)(7)(B). This brief is proportionately spaced, has a typeface of 14 points using

MS Word 2010 in Times New Roman, and contains 8,748 words excluding the

corporate disclosure statement, table of contents, table of authorities, this

certificate, the certificate of service and the designation of relevant district court

documents.

/s/ Steven W. Tigges Steven W. Tigges (0019288)

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of July, 2016, the foregoing document

was filed electronically with the Clerk of Court using the CM/ECF system, and

notice of this filing will be sent to all attorneys of record by operation of the

Court’s electronic filing system.

/s/ Steven W. Tigges Steven W. Tigges (0019288)

36

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS

(6 Cir. R. 30(g))

Appellee Felsoci joins in Secretary Husted’s Designation of Relevant

District Court Documents. Felsoci additionally designates the following:

RE 57-3 Smith Report & Recommendation (Ex. 3 to 3d Motion for P. I.) [Page

Id. # 1085-89]

RE 244 Intervenor-Defendant Felsoci’s Answer to Plaintiffs’ Third Amended Complaint [Page Id. # 6452-6465]

RE 255 Post-Hearing Brief of Intervening Defendant Gregory Felsoci [Page Id. # 6961-6990]

RE 271 Reply of Intervening Defendant Gregory Felsoci in Support of His Cross-Motion for Summary Judgment on Counts Six, Seven, Eight and Nine of Plaintiffs’ Third Amended Complaint [Page Id. # 7318-7326]

RE 335-3

2/28/14 Email [Page Id. # 8437-8502]

RE 345 Renewed Cross-Motion of Intervening Defendant Gregory Felsoci for Summary Judgment on Count Seven of Plaintiffs’ Third Amended Complaint [Page Id. # 8765-8766]

RE 351 Reply Memorandum in Support of Renewed Cross-Motion of Intervening Defendant Felsoci for Summary Judgment [Page Id. # 8825-8834]

RE 374 Order (denying motion to stay judgment) [Page Id. # 8971-8973]