No. 18A1165

In the Supreme Court of the United States
________________________________
LARRY HOUSEHOLDER, SPEAKER OF THE OHIO HOUSE OF
REPRESENTATIVES, LARRY OBHOF, PRESIDENT OF THE
OHIO SENATE, AND FRANK LAROSE, OHIO SECRETARY OF
STATE, IN THEIR OFFICIAL CAPACITIES,
Applicants,
v.
OHIO A. PHILIP RANDOLPH INSTITUTE, ET AL.,
Respondents.
__________________________________
ON APPLICATION FOR STAY FROM
THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF OHIO
___________________________________
REPLY IN SUPPORT OF EMERGENCY
APPLICATION FOR STAY PENDING RESOLUTION OF
DIRECT APPEAL TO THIS COURT
___________________________________
PHILLIP J. STRACH
MICHAEL MCKNIGHT
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
4208 Six Forks Road,
Suite 1100
Raleigh, NC 27609
919-787-9700
919-783-9412, fax
Counsel for Applicants
Householder & Obhof

DAVE YOST
Ohio Attorney General
BENJAMIN M. FLOWERS*
State Solicitor
*Counsel of Record
MICHAEL HENDERSHOT
Chief Deputy Solicitor
30 East Broad Street,
17th Floor
Columbus, Ohio 43215
614-466-8980
614-466-5087, fax
benjamin.flowers
@ohioattorneygeneral.gov
Counsel for Applicants

 TABLE OF CONTENTS
Page
TABLE OF CONTENTS ................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................... ii
ARGUMENT .................................................................................................................. 2
I.

Ohio is entitled to a stay if there is a “fair prospect” that this Court
will reverse the District Court. ................................................................ 3

II.

Ohio will be irreparably harmed if this Court denies a stay. ................. 5

III.

The balance of equities heavily favors a stay. ......................................... 7

IV.

The respondents’ defense of the District Court’s opinion highlights
its problems. ............................................................................................. 9

CONCLUSION............................................................................................................. 15

i

 TABLE OF AUTHORITIES
Page(s)
Cases
Abbott v. Perez,
138 S. Ct. 2305 (2018) .............................................................................................. 6
Bendix Autolite Corp. v. Midwesco Ents., Inc.,
486 U.S. 888 (1988) ................................................................................................ 13
City of Arlington v. FCC,
569 U.S. 290 (2013) ................................................................................................ 11
Concerned Citizens of S. Ohio, Inc. v. Pine Creek Conservancy Dist.,
429 U.S. 651 (1977) ................................................................................................ 15
Dep’t of Homeland Sec. v. MacLean,
135 S. Ct. 913 (2015) .............................................................................................. 14
Gill v. Whitford,
No. 16-1161 (U.S. May 22, 2017) ............................................................................. 5
Graves v. Barnes,
405 U.S. 1201 (1972) ................................................................................................ 4
Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) ................................................................................................ 15
Holland v. Florida,
560 U.S. 631 (2010) ................................................................................................ 15
Hollingsworth v. Perry,
558 U.S. 183 (2010) .............................................................................................. 2, 5
Maryland v. King,
133 S. Ct. 1 (2012) .................................................................................................... 6
Pace v. DiGuglielmo,
544 U.S. 408 (2005) ................................................................................................ 14
Rostker v. Goldberg,
448 U.S. 1306 (1980) ................................................................................................ 2
United States v. Mead Corp.,
533 U.S. 218 (2001) ................................................................................................ 10

ii

 Vieth v. Jubelirer,
541 U.S. 267 (2004) .........................................................................................passim
Wise v. Lipscomb,
437 U.S. 535 (1978) (cited at Opp.15 & App.294) ................................................... 8
Statutes, Rules, and Constitutional Provisions
Ohio Const., Art. II, § 22 ............................................................................................... 6
Ohio Rev. Code § 9.34(A) ............................................................................................... 6
Other Authorities
Stephanopoulos & McGhee, Partisan Gerrymandering and the
Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015) ....................................................... 14

iii

 TO THE HONORABLE SONIA SOTOMAYOR, ASSOCIATE JUSTICE OF THE SUPREME
COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SIXTH CIRCUIT:
The Court should stay the lower court’s judgment pending appeal.

That

judgment coerces Ohio’s General Assembly to repeal and replace its current congressional map by June 14. The problem with that schedule is that this Court is
unlikely to issue its decisions in Rucho v. Common Cause, 18-422 and Lamone v.
Benisek, 18-726, until a couple of weeks later. It makes no sense to pressure the
General Assembly into repealing a validly enacted law mere weeks before this
Court will either declare the exercise unnecessary, or provide guidance regarding
what state legislatures must do to satisfy the Constitution. That is especially true
in light of the fact that this Court will likely either reverse the District Court’s decision (if Rucho or Lamone hold that partisan-gerrymandering claims fail as a matter
of law) or vacate and remand for further consideration (if Rucho and Lamone announce standards for adjudicating these claims). This Court has the final word on
the legality of Ohio’s congressional map, and Ohio should not be buffaloed into repealing its map before this Court can weigh in.
The respondents make no serious attempt to defend the June 14 deadline.
Nor do they really attempt to defend the lower court’s ruling. Instead, they describe
what the District Court did, and insist that its vague tests are perfectly manageable
for courts reviewing maps ex post, and easily satisfied by legislators drafting maps
ex ante. But their summary of the District Court’s analysis shows quite the opposite
to be true: each of the District Court’s tests requires considering the totality of the
circumstances and assessing the map’s legality in light of some undefined ideal—

 apparently proportionality, though the respondents insist, at times incoherently, see
Opp.5 n.2, that proportionality is not the goal.
At bottom, the respondents’ argument rests on an unsupported assumption
that this Court will affirm the District Court. After all, that is the only circumstance in which the remedial mapdrawing process will bear fruit, and so the only
circumstance in which a stay even arguably harms anyone. The State is happy to
mollify the respondents’ concerns: it hereby moves the Court to treat the stay-stage
briefing as satisfying the requirement for a jurisdictional statement. See Rule 18.
This will permit the Court to summarily resolve the State’s appeal immediately after Rucho and Lamone if that relief is appropriate, thereby allowing for the creation
of a new map (if necessary) well in advance of the 2020 election. If the Court instead decides to vacate and remand, or to accept this appeal for plenary consideration, then the remedial process will need to be aborted anyway, and so a stay pending appeal will harm no one.
ARGUMENT
Courts will stay a judgment pending a direct appeal to the Supreme Court
when there is “a reasonable probability” that the Court will note probable jurisdiction, “a fair prospect that a majority of the Court will vote to reverse the judgment
below,” and “a likelihood that irreparable harm will result from the denial of a
stay.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam); see also Rostker
v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers).
Ohio, in its opening brief, addressed each of these factors. First, and as the
respondents silently concede, the Court’s mandatory jurisdiction over this appeal
2

 creates a “reasonable probability” that it will either note probable jurisdiction or set
the jurisdictional issue for argument. Second, there is a “fair prospect” of reversal if
there is a “fair prospect” of rejecting the partisan-gerrymandering claims in Rucho
and Lamone. And there is a “fair prospect” that the State will win relief if there is a
“fair prospect” that this Court will vacate the District Court’s decision for reconsideration in light of Rucho and Lamone. Finally, because the District Court gave
Ohio until just June 14 to amend its congressional map, Ohio will be irreparably
harmed absent a stay. The General Assembly will be coerced into repealing and replacing a validly enacted state law in mid-June, all to remedy a supposed constitutional defect that this Court has never recognized and may reject just weeks later.
The respondents dispute all this in four principal ways. First, they challenge
the applicable standard of review. Second, they dispute that Ohio will be irreparably harmed by the June 14 deadline. Third, they claim the June 14 deadline is necessary to protect their interests and the interests of the public. Finally, they insist
that the District Court decided this case correctly. All four of these arguments fail.
I.

OHIO IS ENTITLED TO A STAY IF THERE IS A “FAIR
COURT WILL REVERSE THE DISTRICT COURT.

PROSPECT” THAT THIS

The respondents’ argument begins by charging the State with seeking a stay
under the wrong standard. According to them, the “fair prospect” standard set out
above is “the standard for a stay in a discretionary, rather than direct, appeal.”
Opp.11 n.3. The standard in the direct-appeal context, they say, permits courts to
award relief only if it is likely that the decision below will be held “erroneous,” only
if the applicant will be irreparably harmed absent a stay, and only after considering
3

 the “balance of equities” between the parties and the public at large. Opp.11 (citations omitted).
The respondents’ distinction between direct and discretionary appeals is puzzling: the standard they propose is pieced together with isolated words from a
number of cases, only one of which involved a direct appeal. And that one case does
not say what the respondents say it does. In Graves v. Barnes, 405 U.S. 1201 (1972)
(Powell, J., in chambers), Justice Powell issued an in-chambers order denying a stay
application. His opinion notes that a “party seeking a stay of [a] judgment bears the
burden of showing that the decision below was erroneous and that the implementation of the judgment pending appeal will lead to irreparable harm.” Id. at 1203.
The short decision does not elaborate on this requirement at all. It does not, for example, say whether the applicant must establish the decision below is “likely” erroneous or has a “fair prospect” of being deemed erroneous. And the opinion does not
explain whether a lower court’s decision is “erroneous” in the relevant sense if it
will likely have to be vacated for reconsideration in light of some intervening decision. It certainly does not require any balancing of the equities—a requirement
that the respondents extract from a stay decision from this court’s discretionary
docket. Opp.11 (citing Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080,
2087 (2017)).
Even if the respondents had identified the correct standard, they failed to explain why the distinction between their standard and the fair-prospect standard
matters. In recent years, partisan-gerrymandering defendants have consistently

4

 sought to stay the lower courts’ decisions pending appeal, they have consistently invoked the “fair prospect” standard from Hollingsworth, and this Court has consistently granted relief. See Emergency Application for Stay Pending Resolution of Direct Appeal, at 11, Rucho v. Common Cause, No. 17A745 (U.S. Jan 12, 2018); Application for Stay Pending Resolution of Direct Appeal, at 11, Gill v. Whitford, No. 161161 (U.S. May 22, 2017). That indicates either that the applicants briefed the correct standard, or that any difference between the standards is immaterial.
In sum, the respondents’ argument leads off by asserting an error that it never establishes.
II.

OHIO WILL BE IRREPARABLY HARMED IF THIS COURT DENIES A STAY.
The respondents next contend that Ohio will not be irreparably harmed by

the District Court’s order. Specifically, they deny that the June 14 deadline threatens irreparable injury to Ohio. The District Court, according to the respondents,
“imposed no requirement that the State take any further action”; it simply allowed
the State time to “exercise an entirely voluntary option to develop and submit a remedial map” to the District Court. Opp.14 (emphasis in original). “Being given an
option to act is no injury at all, much less an irreparable one.” Opp.14.
This argument ignores the coercive nature of the District Court’s order.
While the District Court did not threaten the General Assembly with contempt if it
fails to act, it did threaten to invalidate and replace the 2011 map if the General
Assembly fails to repeal and replace the map before June 14. In so doing, it threatened irreparable injury. After all, this Court has held that a State always suffers a
form of irreparable injury when it is enjoined from enforcing its validly enacted
5

 laws. See Abbott v. Perez, 138 S. Ct. 2305, 2324 & n.17 (2018); accord Maryland v.
King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers). It follows that the State is
also irreparably harmed if it is made to repeal a validly enacted law on threat of judicial intervention. The injury is especially great if the intervention turns out to
have been improper. In those circumstances, the “voluntary option,” Opp.11, would
include only the chance to take an unwanted step to avoid an unauthorized punishment.
Even though all this is enough to establish an irreparable injury, it is worth
emphasizing the resources the General Assembly would have to expend in even attempting to enact a new congressional map. These resources will have been wasted
if this Court declares the exercise to have been unnecessary, or if the District Court
rejects the revised map. Every minute and dollar spent drawing a new map is a
minute and dollar not spent enacting a state budget (which the General Assembly
has a constitutional duty to pass by July 1, see Ohio Const., Art. II, § 22 and Ohio
Rev. Code § 9.34(A)); considering major education reforms, see 133rd General Assembly, Senate Bill Number 110; addressing the opioid epidemic, see 133rd General
Assembly, Senate Bill Number 51; or developing responses to any number of other
pressing issues facing Ohio. The respondents belittle these concerns, dismissing the
effort that a new map would take as a mere “inconvenience.” Opp.15 (citation omitted).

The Ohio voters who elected representatives and senators to address the

State’s many pressing issues—and who already ratified a constitutional amendment

6

 to reform the redistricting process beginning in the 2022 election—would likely see
things differently.
III.

THE BALANCE OF EQUITIES HEAVILY FAVORS A STAY.
The respondents next insist that the balance of equities requires denying the

stay. Denying the stay, they claim, “would simply mean that remedial proceedings
may commence, to ensure that a remedy can be installed before the State’s asserted
deadline of September 20, 2019.” Opp.17. In contrast, they say, granting a stay
“has the real potential to cause irreparable harm to Plaintiffs, by creating a situation in which, once remedial proceedings re-commence, the State will insist that
there is insufficient time to implement a remedial map.” Opp.17. Thus, according
to the respondents, there is no balancing to be done: all of the equities militate
against the stay.
The respondents get both sides of the balance wrong. First, as just explained,
the State will be irreparably harmed in the absence of a stay. In contrast, entering
a stay exposes the respondents to no serious risk of injury—at least, not an injury
they can fairly complain about. For one thing, the only reason this case is pressing
up against the September deadline is that the plaintiffs waited until May of 2018 to
sue. Having sat on their rights, they cannot reasonably complain about the risk
that the case might not be resolved as quickly as they would like.
More fundamentally, the release of Rucho and Lamone will eliminate any
risk of harm. If those cases require reversing or vacating the decision below, or if
they justify plenary review in this Court, then the “remedial process” is going to be
cut short anyway. In those circumstances, a stay would harm neither the respond7

 ents nor the public. To the contrary, the respondents would be spared the wasted
effort of a never-to-be-completed remedial process, and the public would be spared
the confusion that an aborted mapdrawing effort would likely cause. If, on the other hand, the decisions in Rucho and Lamone require summarily affirming the District Court, then this Court can either vacate its stay or summarily dispose of this
appeal. Indeed, Ohio already asked that the Court treat its stay application as a
Rule 18 jurisdictional statement, which would expedite this appeal’s resolution. Either way, the remedial process could resume in late June or early July. There is no
evidence at all that this would meaningfully hinder the District Court’s ability to
wrap up the process by September.
The respondents’ defense of the June 14 due date is particularly odd given
their acknowledgment that it is “appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by
adopting a substitute measure rather than for the federal court to devise and order
into effect its own plan.”

Wise v. Lipscomb, 437 U.S. 535, 540 (1978) (cited at

Opp.15 & App.294). Here, the District Court’s order denies Ohio’s General Assembly a “reasonable opportunity . . . to meet constitutional requirements,” since it requires the General Assembly to act just two to three weeks before this Court is likely to say definitively what those requirements are, and months before the September deadline for completing the mapdrawing process. Neither the District Court nor
the respondents have given any reason why the deadline for legislative action must
be June 14 instead of, say, July 14 or August 1.

8

 IV.

THE

RESPONDENTS’

DEFENSE

OF

THE

DISTRICT

COURT’S

OPINION

HIGHLIGHTS ITS PROBLEMS.

The District Court erred in concluding that the respondents claims were justiciable, and it erred by failing to find those claims barred by the laches doctrine.
The respondents defend both aspects of the District Court’s decision, to no avail.
A.

Justiciability.

The State’s stay application highlighted some of the

many flaws with the District Court’s approach to partisan-gerrymandering claims.
The heart of the problem with the District Court’s approach is this: the District
Court did not identify any judicially manageable standards for partisangerrymandering claims—“rules to limit and confine judicial intervention”—which is
what it would take for these claims to be deemed justiciable. Vieth v. Jubelirer, 541
U.S. 267, 307 (2004) (Kennedy, J., concurring in the judgment). Instead, it proposed
a three-part test for vote-dilution claims that asks whether a congressional map: (1)
results from some unquantifiable amount of partisan intent; (2) causes some ineffable degree of partisan effect, and (3) is not justified by some undefined class of “legitimate” state interests. App.167. And it proposed an associational-rights framework that requires courts to “weigh the burden imposed on a group of voters’ association rights against the precise interest put forward by the State as justifications
for the burden imposed by the challenged map.” App.269. Because both tests require courts to conduct a vague balancing after considering all of the evidence, neither test limits or confines anything, and neither can fairly be called a rule. To the
contrary, each amounts to “that test most beloved by a court unwilling to be held to
rules (and most feared by litigants who want to know what to expect): th’ ol’ ‘totali9

 ty of the circumstances’ test.” United States v. Mead Corp., 533 U.S. 218, 241 (2001)
(Scalia, J., dissenting) (emphasis added).
The respondents have no answer to any of this. To be sure, they recite the
District Court’s totality-of-the-circumstances tests and insist these tests are judicially manageable. Opp.20–26. But they do not support those assertions with arguments.
To illustrate, consider the respondents’ discussion of justiciability. The respondents concede that the fundamental question regarding this issue is whether
there

are

“judicially

manageable”

standards

for

adjudicating

partisan-

gerrymandering claims. Opp.21. And they repeat the District Court’s assertion
“that standards to address partisan gerrymandering claims are judicially manageable, as illustrated by the unanimous judgment of four three-judge panels in recent
cases.” Opp.21. But they never defend that assertion—they never argue that the
standards are as manageable as the “four three-judge panels in recent cases” insist.
In fact, the respondents’ discussion of the District Court’s analysis shows just
how unworkable it is. For example, they emphasize that “statistical metrics serve
as evidence of the elements of the underlying claims,” as opposed to tests in and of
themselves. Opp.22 (emphasis in original). But statistics cannot “limit and confine” judicial discretion, Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the
judgment), unless it is clear what they are supposed to be measuring. On that
score, the respondents, just like every litigant and court to come before them, have
nothing useful to say. They allude to the fact that achieving “a rough approxima-

10

 tion of the statewide political strengths of the Democratic and Republican parties”
is relevant, Opp.16 (citation omitted), but elsewhere they insists that “[p]artisan bias is a proportionality-agnostic measure,” Opp.5 n.2. Perhaps the degree of support
the map received from the out-of-power party might be relevant. Then again, the
respondents (following the District Court’s lead) discount the fact that the 2011
plan passed with bipartisan, supermajority support: they speculate that the out-ofpower party must have gone along “in exchange for small, parochial concessions to
their individual districts.” Opp.8; accord App.248–49. In other words, party-line
votes indicate partisan bias, but so do the votes of bipartisan supermajorities. The
fact that the District Court’s approach can facilitate this heads-I-win-tails-you-lose
outcome is a good sign there is something wrong with it.
Without any guidance on what factors are relevant and what considerations
matter, the District Court’s test begins to look less like a “rule,” Vieth, 541 U.S. at
307 (Kennedy, J., concurring in the judgment), and more like “an invitation to make
an ad hoc judgment.” City of Arlington v. FCC, 569 U.S. 290, 307 (2013).
The respondents’ discussion of the evidence further bolsters this impression.
For example, they claim that the “mapmakers characterized the ‘downtown’ Democratic area in Columbus, in Franklin County, as ‘dog meat’ voting territory.”
Opp.7–8. In fact, the “dog meat” quote comes not from a “mapmaker,” but from an
out-of-state Republican with no official role in the mapdrawing process. See App.12,
183. The District Court deemed the evidence relevant nonetheless, presumably because he was a “Republican operative”—an undefined, sinister-sounding term that

11

 the District Court used twelve separate times, and that the respondents repeat
here. Opp.7; App.3, 8, 11, 12, 14, 18, 179, 180, 246. Again, any test that permits
consideration of emails with so little connection to the mapdrawing process is incapable of “limit[ing] and confin[ing]” judicial intervention. Vieth, 541 U.S. at 307
(Kennedy, J., concurring in the judgment). It does, however turn courts into a useful political weapon—since everything is relevant, there is no telling what discovery
might turn up.
Notwithstanding all this, the respondents insist that “[n]ot drawing a partisan gerrymander is straightforward.” Opp.16. “So long as” a map is drawn without
“improper intent, it [will] pass muster.” Opp.16. But what is improper intent?
Surely a legislature—a political body made up of human beings who have to compromise to get anything done—cannot be expected to completely disregard all political considerations. So the question will be how much partisan intent is too much.
The respondents claim the District Court solved this when it “adopted” the “‘predominant-purpose standard’ from this Court’s racial gerrymandering case law.”
Opp.23 (citing App.169–70). As an initial matter, this is not even what the District
Court did; it assumed that the predominant-purpose standard applied, but never
ruled out the possibility that partisan intent might be established whenever partisanship is a “motivating factor.” App.168–70. In any event, the fundamental distinction between the racial-gerrymandering and partisan-gerrymandering contexts
is that a legislature can easily avoid racial prejudice, but it cannot avoid considering
partisan interests. Indeed, it would be well-nigh impossible to win bipartisan sup-

12

 port for a congressional map without considering partisan interests. And because
partisan interests are so interwoven with the mapdrawing exercise, the question
whether partisan interests “predominated” or merely “motivated” will be more a
matter of characterization than of discernment.
Even if the predominant-purpose test made the intent prong of the votedilution analysis “straightforward” in this context, it would not make the District
Court’s associational-rights framework any clearer. The respondents never claim
otherwise, and rightfully so. To decide whether a congressional map violates the
First Amendment under this framework, a legislator or judge must ask whether
“the burden imposed on a group of voters’ association rights” outweighs “the precise
interest put forward by the State as justifications for the burden imposed by the
challenged map.” App.269. How can one weigh these abstract concepts in light of
infinite variables that bear on each? The inquiry is about as straightforward as the
question “whether a particular line is longer than a particular rock is heavy.” Bendix Autolite Corp. v. Midwesco Ents., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring in the judgment). It would seem that the only safe harbor would be perfect
proportionality, though the respondents insist that is not what they want. Opp.5
n.2.
What stands out most about the District Court’s decision, and the decisions of
the other “three-judge panels in recent cases,” Opp.21, is just how non-limiting and
non-confining their tests turn out to be. A few years ago, proponents of politicalgerrymandering claims attempted to fashion judicially manageable standards using

13

 mathematical formulas—the “efficiency gap,” for example. See Stephanopoulos &
McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831
(2015). The district courts have eschewed strict reliance on such formulas, likely
because they are arbitrary and have no basis in the Constitution’s text. Instead, the
district courts have retreated to vague tests like the ones offered below—precisely
the sort of tests that kept a majority of this Court in Vieth from holding that partisan-gerrymandering claims are justiciable. The lower courts have surrendered: after thirty years of effort, vague, totality-of-the-circumstances tests are the best anyone can do.
B. Laches. The respondents’ claims fail for the independent reason that
they are barred by laches. See Application at 17. Though Ohio passed the map in
2011, the respondents did not sue until May of 2018, just six months before the
fourth election cycle under the 2011 map. The respondents do not dispute that their
claims would be barred by laches normally. But they claim that the doctrine “does
not apply where there is a continuing constitutional violation.” Opp.26.
This supposed carve-out for continuing constitutional violations “happens to
fit this case precisely, but it needs more than that to recommend it.” Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913, 921 (2015). The respondents seek an injunction; an injunction is a form of equitable relief; and “[u]nder long-established principles,” a plaintiff’s “lack of diligence precludes equity’s operation.” Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005) (citing the laches doctrine as evidence of this principle). These principles apply even in constitutional cases. Indeed, equitable prin-

14

 ciples forbidding delay apply even to prisoners who claim they are being imprisoned
unconstitutionally. See Holland v. Florida, 560 U.S. 631, 653 (2010). There is no
basis for refusing to apply the same principles here. The respondents’ contrary argument rests on two cases. The first interprets a statute of limitations, and thus
has nothing to do with the equitable doctrine of laches. Havens Realty Corp. v.
Coleman, 455 U.S. 363, 380 (1982). The other ignores the timeliness issue altogether. Concerned Citizens of S. Ohio, Inc. v. Pine Creek Conservancy Dist., 429 U.S.
651, 653 (1977). Neither supports the just-so rule for which the respondents advocate.
CONCLUSION
The Court should stay the District Court’s decision pending the resolution of
the State’s appeal in this Court.
Respectfully submitted,
PHILLIP J. STRACH
MICHAEL MCKNIGHT
Ogletree, Deakins, Nash,
Smoak & Stewart, P.C.
4208 Six Forks Road,
Suite 1100
Raleigh, NC 27609
919-787-9700
919-783-9412, fax
Counsel for Applicants
Householder & Obhof

DAVE YOST
Ohio Attorney General
/s/ Benjamin M. Flowers
BENJAMIN M. FLOWERS*
State Solicitor
*Counsel of Record
MICHAEL HENDERSHOT
Chief Deputy Solicitor
30 East Broad Street,
17th Floor
Columbus, Ohio 43215
614-466-8980
614-466-5087, fax
benjamin.flowers@ohioattorneygeneral.gov
Counsel for Applicants

15