Background

The Ohio Coalition to End Qualified Immunity (OCTEQI) has been actively working to place a constitutional amendment on the Ohio ballot to end qualified immunity for government officials. This summer their efforts have faced significant legal hurdles, primarily centered around the case of Cynthia Brown vs. Dave Yost, the Ohio Attorney General. Brown is director for the OCTEQI, her leadership inspired by her 30-year-old nephew Kareem Ali Nadir Jones who in 2017 was approached by Columbus police for no good reason, shot in the back and killed.

The Petition Process

To get their proposed amendment on the ballot, OCTEQI needed to submit a summary of the amendment along with one thousand supporting signatures to the Ohio Attorney General (AG)  certification. This certification process is crucial as it ensures the summary is a fair and truthful statement of the proposed amendment.

Repeated Rejections

Attorney General Dave Yost declined to certify the plaintiffs’ summary on at least eight occasions. Each rejection cited various deficiencies in the summary, which Yost argued did not accurately reflect the proposed amendment. These repeated denials have been a significant obstacle for OCTEQI, delaying their efforts to move forward with the ballot initiative.

Legal Battle

After the most recent denial, Cynthia Brown and other plaintiffs sought review from the Supreme Court of Ohio, which declined to grant expedited review. Frustrated by the lack of progress, the plaintiffs filed a complaint in federal district court, alleging that the AG’s enforcement of the certification requirement violated their First and Fourteenth Amendment rights. They argued the repeated rejections created an unconstitutional obstacle to their ballot access and their ability to advocate for their proposed amendment.

District Court Decision

The district court denied the plaintiffs’ motion for preliminary injunctive relief, which would have allowed them to proceed with their petition despite the Attorney General’s rejections. The court’s decision was a setback for OCTEQI, as it meant they could not move forward with their ballot initiative without overcoming the certification hurdle.

Appeal to the Sixth Circuit

Undeterred, the plaintiffs appealed to the United States Court of Appeals for the Sixth Circuit. In a significant victory for OCTEQI, the appellate court reversed the district court’s decision. The Sixth Circuit found the plaintiffs had standing to bring their claims and were not barred by sovereign immunity. The court also determined the certification requirement imposed a severe burden on the plaintiffs’ core political speech and the state had not shown that the requirement was narrowly tailored to its interests. As a result, the court granted the plaintiffs’ motion for preliminary injunctive relief, enjoining the Attorney General from enforcing the certification requirement against them.

En Banc Hearing

Despite the victory at the appellate level, the case is far from over. The Sixth Circuit has scheduled an en banc hearing for October 30, 2024. This hearing, which will be held before a panel of 16 judges, is one of the largest in the country and promises to be a landmark event. The en banc court has the power to either affirm or reverse the previous decision, and its ruling will have significant implications for OCTEQI’s efforts and for the broader issue of ballot access and political speech.

Broader Implications

The case of Cynthia Brown vs. Dave Yost highlights the broader challenges faced by grassroots organizations seeking to effect change through ballot initiatives. The repeated rejections by the Attorney General have underscored the difficulties of navigating the legal and bureaucratic hurdles that can impede such efforts. Moreover, the case has brought attention to the issue of qualified immunity and the broader movement to hold government officials accountable for their actions.

The Role of Amici Curiae

Several amici curiae, including Direct Democracy Scholars and Citizens in Charge, have filed briefs supporting the plaintiffs and advocating for reversal. Their involvement underscores the broader significance of this case and the potential impact of the en banc court’s decision on future ballot initiatives and political speech.

New title for the OCTEQI’s constitutional amendment:

“Civil action for deprivation of rights by government actors, without governmental immunities”

The en banc court may affirm the previous decision (upholding it) or reverse it (overturning it).

The original decision was in favor of the appellant, affirmance means the appellant’s victory stands. Reversal means the appellee prevails.

The original decision favored the appellee, affirmance would mean the appellee’s win remains, while reversal would benefit the appellants 

Clarification or Modification

The en banc court might clarify legal principles, address ambiguities, or modify existing precedents.

This can impact future cases and provide guidance to lower courts.

Split Decision

In some cases, the en banc court may issue a split decision, where not all judges agree.

This could lead to separate concurring and dissenting opinions.

New Precedent

En banc decisions can establish new legal precedents that lower courts must follow. These precedents shape future interpretations of the law.

The en banc court has the power to either affirm or reverse the previous decision. If the original ruling favored the appellant, affirmance would uphold their victory, while reversal would benefit the appellee. Conversely, if the appellee won initially, affirmance would maintain their win, and reversal would favor the appellant.

Beyond the immediate case, the court might clarify legal principles, address ambiguities, or modify existing precedents. Such actions can significantly impact future cases and provide essential guidance to lower courts.

The Potential for a Split Decision

Given the large panel, a split decision is possible, where not all judges agree. This could result in separate concurring and dissenting opinions, adding layers of complexity to the final ruling.

Establishing New Precedents

En banc decisions often set new legal precedents that lower courts must follow. These precedents shape future interpretations of the law and can have far-reaching implications.

The Call to Pack the Court

The phrase “Pack the Court” reflects a growing movement to address perceived imbalances in the judiciary. Advocates argue that expanding the number of judges can ensure more diverse and representative decision-making, particularly in cases involving critical issues like qualified immunity, wrongful convictions, and First Amendment rights.

Impacted Families and Political Speech

This case also highlights the real-world impact on families affected by wrongful convictions and the broader implications for political speech and First Amendment rights. The outcome could set important precedents for how these issues are addressed in the future.

Fun fact about Sidley Austin LLP, law firm representing the OCETQI

“We’re 158 years old – we’ve been around for a while!” partner and chair of the firm’s management committee, Yvette Ostolaza, has told the OCETI. “We’ve got an interesting past too. We represented Mary Todd Lincoln, and Michelle and Barack Obama famously met at our firm.” She’s right too – Sidley’s storied past is a fascinating deep dive, and it’s been at the forefront of numerous historical events. When asked what sets Sidley apart from the other firms, Michael Schmidtberger, chair of the executive committee, adds: “We’re distinguished by the depth and breadth of our regulatory practice across industries, but building that kind of depth and breadth takes history, and Sidley has been building that for some time.” “When there’s an issue that comes up, we don’t just have people who’ve seen it before. We have people who have written the rules on it,” he said.

The en banc hearing in Cincinnati is more than just a legal proceeding; it is a crucial moment in the fight for judicial reform. Whether the court affirms or reverses the previous decision, the implications will be profound, shaping the landscape of American jurisprudence for years to come.

Are you planning to attend the hearing or follow the updates closely?

The upcoming en banc hearing in Cincinnati is a pivotal moment in the ongoing battle for judicial reform and ballot access. Whether the court affirms or reverses the previous decision, the implications will be profound, shaping the landscape of American jurisprudence for years to come. For OCTEQI and other grassroots organizations, the outcome of this case will determine not only the future of their specific initiative but also the broader fight for political speech and the right to petition the government