Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 Apr 28 11:28 AM-20CV002381

IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
Ohioans for Raising the Wage, et al.,
Plaintiffs,
v.
Ohio Secretary of State Frank LaRose,
Defendant.

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Case No. 20 CV 2381

Judge David C. Young
Magistrate Mark Petrucci

Decision & Entry
I.

Introduction

This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction filed
March 30, 2020. Intervenors filed a Motion for Preliminary Injunction on March 31, 2020.
Defendant filed a combined Memorandum in Opposition to both motions on April 13, 2020. The
movants then filed two separate replies on April 20, 2020. The parties also filed several Notices
of Supplemental Authority.
A status conference was held by telephone on April 14, 2020. Counsel for all parties
appeared. At that time, the parties consented to submitting these motions on the briefings. Based
upon that consent, no hearing or oral argument was held.
II.

Background & Facts

Ohioans for Raising the Wage (“OFRW”) is the ballot issue committee assisting and
funding a petition effort for to put a proposed constitutional amendment titled “Raise the Wage
Ohio” (“the Petition”) on the November 2020 ballot. (Comp., ¶ 1, March 20, 2020.) Plaintiffs
Anthony A. Caldwell, James E. Hayes, David G. Latanick, and Pierrette M. Talley are OFRW
committee members. (Id. at ¶ 2-5.)

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Plaintiffs completed the initial procedural steps required for a citizen-initiated
constitutional amendment. (Id. at ¶ 9-12.) On February 28, 2020, Plaintiffs began circulating the
final version of the Petition. (Id. at ¶ 15.) To circulate the Petition, Plaintiffs contracted with
FieldWorks, LLC (“FieldWorks”), a petition circulation firm. (Id. at ¶ 13.) FieldWorks opened
six regional offices and recruited petition circulators for the purposes of circulating the Petition.
(Id. at ¶ 14, 16.) As of March 12, 2020, Plaintiffs had collected approximately 73,968 signatures
on the Petition. (Id. at ¶ 42.) This is about 16.7% of the required 442,958 signatures. (Id. at ¶ 29.)
Intervenors are Ohioans for Secure and Fair Elections (“Ohio-SAFE”), Darlene L. English,
Laura A. Gold, Hasan Kwame Jeffries, Isabel C. Robertson, Ebony Speakes-Hall, Paul Moke,
Andre Washington, Scott, Campbell, and Susan Zeigler. (See generally Int. Comp., March 31,
2020.) The individuals include all of Ohio-SAFE’s committee members and individuals who are
intended petition circulators and signatories. (Id. at ¶ 1.) Ohio-SAFE is also endeavoring to place
a proposed constitutional amendment on the November 2020 ballot. (Id. at ¶ 16.)
Ohio-SAFE filed an action in the Ohio Supreme Court seeking writs of mandamus against
Secretary of State LaRose, the Ohio Ballot Board, and Attorney General Dave Yost. It also
requested an extension of time to circulate the petitions. State ex rel. Ohioans for Secure & Fair
Elections v. LaRose, 2020-Ohio-1459, ¶ 1. The Ohio Supreme Court granted writs of mandamus
“directing the secretary of state to convene a meeting of the ballot board at the earliest possible
date” and “directing the ballot board to certify the Ohio-SAFE amendment as a single
amendment.” Id. at ¶ 23. The request for a writ of mandamus against the Attorney General Yost
was denied, and the request for an extension of time to collect signatures was denied. Id. at ¶
18-22.

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Both parties seek a preliminary injunction based upon COVID-19, which has been declared
a global pandemic. On March 9, 2020, Governor Mike DeWine declared a state of emergency in
Ohio. (Governor’s Executive Order 2020-01D, March 9, 20201.) Dr. Amy Acton, Director of
Health for the Ohio Department of Health, issued a Stay at Home Order that went into effect at
11:59 p.m. on March 23, 2020. (Director’s Stay at Home Order, March 22, 20202.) That order
requires residents of Ohio to stay home, unless they are engaged in an essential work or activity.
(Id.) The Stay at Home Order was later amended to remain in full force and effect until 11:59 p.m.
on May 1, 2020. (Director’s Amended Stay at Home Order, April 2, 2020.3)
In the instant action, the movants do not challenge the preliminary procedure for proposed
constitutional amendments. That procedure was explained by the Ohio Supreme Court as follows:
The Ohio Constitution reserves to the people the right to propose
amendments to the Constitution by initiative petition. Ohio
Constitution, Article II, Section 1. The process for proposing a
constitutional amendment begins with the submission of a petition,
signed by at least 1,000 Ohio electors, to the Ohio attorney general,
along with a summary of the proposed amendment. R.C.
3519.01(A), paragraph two. Within ten days of receiving the
petition, the attorney general must determine whether the summary
is a fair and truthful summary of the proposed amendment. Id. If the
summary is fair and truthful, the attorney general must certify that
fact and then forward the petition to the ballot board. Id.
The ballot board consists of the secretary of state, who serves as
chairperson, and four appointed members, no more than two of
whom may be of the same political party. R.C.
3505.061(A) and (D). Within ten days after receiving a petition
from the attorney general under R.C. 3519.01, the board must
examine it "to determine whether it contains only one proposed * *
* constitutional amendment so as to enable the voters to vote on a
proposal separately." R.C. 3505.062(A). If the board so determines,
then the board will certify its approval to the attorney general, who
1

Publicly
available
at:
https://coronavirus.ohio.gov/wps/portal/gov/covid-19/resources/public-healthorders/executive-order-2020-01d
2
Publicly available at: https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf
3
Publicly available at: https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-At-Home-Order-Amended-0402-20.pdf

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will in turn file with the secretary of state a verified copy of the
proposed amendment, along with the summary and the attorney
general's certification. R.C. 3519.01(A); R.C. 3505.062(A). At that
point, the petitioners may begin circulating petitions to gather the
necessary signatures to qualify for the ballot.
However, if the board determines that the initiative petition contains
more than one proposed constitutional amendment, then the board
shall "divide the initiative petition into individual petitions
containing only one proposed * * * constitutional amendment so as
to enable the voters to vote on each proposal separately." R.C.
3505.062(A), paragraph two. The petitioners must then submit
separate summaries for each proposal to the attorney general for
approval, R.C. 3519.01(A); R.C. 3505.062(A), before they may
begin circulating petitions.
Ohioans for Secure & Fair Elections, 2020-Ohio-1459, at ¶ 2-4.
Instead, the movants challenge the signature gathering requirements contained in the next
step of the process set forth in the Ohio Constitution. The Ohio Constitution then requires that the
petition be filed with the Ohio Secretary of State not later than 125 days before the general election
to qualify for the ballot. Oh. Const. Art. II, § 1a. In order to qualify for the November
general-election ballot this year, petitions must be submitted on or before July 1, 2020. Ohioans
for Secure & Fair Elections at ¶ 5. It must contain signatures equal to at least 10 percent of the
total vote case for the office of governor in the last gubernatorial election. Oh. Const. Art. II, §
1a, 1g. Those signatures must be from at least 44 of Ohio’s 88 counties, and from within each of
the 44 counties, there must be signatures equal to at least five percent of the total vote case for
governor in the last gubernatorial election. Id. To be valid, each signature must be in ink, and it
must be the original signature of the elector, signed in their “own hand.” Ohio Const. Art. II, §
1g; R.C. 3501.011, 3501.38. Each part-petition must contain a statement from the circulator “that
he witnessed the affixing of every signature”. Oh. Const. Art. II, § 1g.

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III.

Preliminary Injunction Standard

The purpose of a preliminary injunction is to preserve the status quo pending a resolution
of the case on the merits.

Intralot, Inc. v. Blair, 10th Dist. Franklin No. 17AP-444,

2018-Ohio-3873, ¶ 31, quoting Proctor & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267,
747 N.E.2d 268 (1st Dist.2000). A court must consider four factors in determining whether to
grant a preliminary injunction:
1) whether there is a substantial likelihood that plaintiff will prevail
on the merits; 2) whether plaintiff will suffer irreparable injury if the
injunction is not granted; 3) whether third parties will be
unjustifiably harmed if the injunction is granted; and 4) whether the
public interest will be served by the injunction.
Intralot, 2018-Ohio-3873, at ¶ 31, quoting Youngstown City School Dist. Bd. of Edn. v. State, 10th
Dist. No. 15AP-941, 2017-Ohio-555, ¶ 50, quoting Vanguard Transp. Sys., Inc. v. Edwards
Transfer & Storage Co., 109 Ohio App.3d 786, 790, 673 N.E.2d 182 (10th Dist.1996). The party
seeking a preliminary injunction has the burden and must establish a right to the preliminary
injunction by demonstrating clear and convincing evidence of each factor.

Id., quoting

Youngstown at ¶ 50. None of the four preliminary injunction factors is dispositive. Id., quoting
Youngstown at ¶ 50. In determining whether to grant injunctive relief, a court should balance the
factors. Id., quoting Youngstown at ¶ 50.
"Courts should take particular caution * * * in granting injunctions,
especially in cases affecting a public interest where the court is
asked to interfere with or suspend the operation of important works
or control the action of another department of government."
Id. at ¶ 32, quoting Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d
590, 604, 1995-Ohio-301, 653 N.E.2d 646 (1995).

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i.

Likelihood of Success on the Merits

Common pleas courts are established by the Ohio Constitution. Oh. Const. Art. IV, § 4.
“The courts of common pleas and divisions thereof shall have such original jurisdiction over all
justiciable matters and such powers of review of proceedings of administrative officers and
agencies as may be provided by law.” Oh. Const. Art. IV, § 4(B).
A common pleas court is a “court of general jurisdiction, with subject-matter jurisdiction
that extends to ‘all matters at law and in equity that are not denied to it.’” Ohio High School Ath.
Assn. v. Ruehlman, 157 Ohio St.3d 296, 2019-Ohio-2845, 136 N.E.3d 436, ¶ 7, quoting Bank of
Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 20, quoting Saxton
v. Seiberling, 48 Ohio St. 554, 558-559, 29 N.E. 179 (1891). The Ohio Supreme Court has
“interpreted Article IV’s mandate that the courts of common pleas have jurisdiction ‘as may be
provided by law’ to mean that ‘[t]he general subject matter jurisdiction of Ohio courts of common
pleas is defined entirely by statute[.]’” (Emphasis in original.) Id., quoting State v. Wilson, 73
Ohio St.3d 40, 42, 1995-Ohio-217, 652 N.E.2d 196 (1995). As to civil cases, subject-matter
jurisdiction over “all civil cases in which the sum or matter in dispute exceeds the exclusive
original jurisdiction of county courts and appellate jurisdiction from the decisions of boards of
county commissioners” has been granted by statute4. R.C. 2305.01.
The Ohio Constitution, by its plain language, reserves to the people the right to amend any
of its provisions for the people. Oh. Const. Art. II, § 1. It states:
The legislative power of the state shall be vested in a general
assembly consisting of a senate and house of representatives but the
people reserve to themselves the power to propose to the general
assembly laws and amendments to the constitution, and to adopt or
reject the same at the polls on a referendum vote as hereinafter
provided. They also reserve the power to adopt or reject any law,
section of any law or any item in any law appropriating money
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Limited exceptions apply, none of which are applicable in the instant case.

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passed by the general assembly, except as hereinafter provided; and
independent of the general assembly to propose amendments to the
constitution and to adopt or reject the same at the polls.
(Emphasis added.) Id. The Ohio Supreme Court has explained as follows:
The purpose of our written constitution is to define and limit the
powers of government and secure the rights of the people. It controls
as written unless changed by the people themselves through the
amendment procedures established by Article XVI of the Ohio
Constitution. The Ohio Constitution is the paramount law of this
state, and we recognize that the framers chose its language carefully
and deliberately, employed words in their natural sense, and
intended what they said[.]
(Emphasis added.) City of Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d
466, ¶ 16.
The relief and remedies sought by the movants through preliminary injunction would create
an exception in the Ohio Constitution, where one does not otherwise exist. It is well-established
that the plain language of an enacted text is the best indicator of intent. Id. at ¶ 17, quoting Nixon
v. United States, 506 U.S. 224, 232, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993). The plain language of
the statute sets forth the requirements for ballot access. The ability to change those requirements
is reserved only to the people.
The undersigned is mindful that the current public health pandemic creates an extremely
unique situation.

However, the constitutional language does not include an exception for

extraordinary circumstances or public health emergencies.
[I]t is very clear that we have no power to amend the constitution,
under the color of construction, by interpolating provisions not
suggested by the language of any part of it. We cannot supply all
omissions, which we may believe have arisen from inadvertence on
the part of the constitutional convention.

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Walker v. Cincinnati, 21 Ohio St. 14, 53 (1871). This Court does not have the power to order an
exception or remedy that was not contemplated or intended by the plain language of the Ohio
Constitution.
Further, the case law provided by movants regarding the Court’s authority was
unpersuasive. Those cases are distinguishable and do not demonstrate that this Court has the
authority to issue the relief sought.
Based on the foregoing, the Court finds that there is little likelihood that movants will
prevail on the merits, and this factor weighs in favor of denying injunction relief.
Moreover, even if the Court had authority, Plaintiffs and Intervenors failed to establish by
clear and convincing evidence that there is a substantial likelihood of success on the merits. The
precedent cited in support of their constitutional arguments was not persuasive. Many of the cases
dealt with voting statutes, rather than state constitutional provisions.
ii.

Irreparable Harm

Irreparable harm “must be ‘both certain and immediate, rather than speculative or
theoretical.’” Ohio Contrs. Assn. v. City of Akron, N.D.Ohio No. 5:14CV0923, 2014 U.S. Dist.
LEXIS 61313, at *19 (May 1, 2014), quoting Welch v. Brown, 551 F. App'x 804, 2014 U.S. App.
LEXIS 131, 2014 WL 25641, at *8 (6th Cir. 2014), quoting NACCO Materials Handling Grp. v.
Toyota Material Handling USA, Inc., 246 F. App'x 929, 943 (6th Cir. 2007). Alleging only a
possibility of irreparable harm does not suffice and undermines the characterization of a
preliminary injunction as an extraordinary remedy. Id. Further, monetary damages do not,
generally, constitute irreparable harm. Id. at *21; Franks v. Rankin, 10th Dist. Franklin No.
11AP-962, 2012-Ohio-1920, ¶ 36.

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Because there is a low likelihood of success on the merits, a presumption of irreparable
harm does not arise based upon the parties’ alleged constitutional violations. Irreparable harm
may be presumed if a claim is based upon a violation of a plaintiff’s constitutional rights. Id. “If,
however, it is ‘unlikely’ that plaintiff can demonstrate ‘a cognizable constitutional claim[,]’ the
court need not presume irreparable harm based on the alleged constitutional violation.” Id. at
*21-22, quoting Overstreet v. Lexington-Fayette Urban Cty. Govt., 305 F.3d 566, 578 (6th
Cir.2002).
The only harm alleged in this action is speculative and theoretical.

Plaintiffs and

Intervenors do not yet know if they will have the required number of signatures by the deadline
and otherwise meet the constitutional requirements. There is also no way to know if they would
have been able to collect the necessary signatures regardless of the stay at home order. At this
time, there is a possibility of harm, but nothing more.
Both Plaintiffs and Intervenors have contracted with companies or otherwise invested
money in their efforts to get on the ballot. However, the monetary investments made in the petition
process do not constitute irreparable harm sufficient to justify a preliminary injunction.
Based on the foregoing, this factor weighs in favor of denying the requests for preliminary
injunction.
iii.

Harm to Third Parties

The moving parties have established that third parties will not be unjustifiably harmed if
an injunction is issued. This factor weighs in favor of granting an injunction. Still, the Court must
be mindful that court orders impacting elections may result in voter confusion. Purcell v.
Gonzalez, 549 U.S. 1, 4-5, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006). The closer an election draws, the
more that risk will increase. Id. at 5.

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iv.

Public Interest

The Intervenors and Plaintiffs have pointed to strong interests in favor of the preliminary
injunction, such as ballot access. The right to vote and ballot access are incredibly important public
interests. However, those interests must be balanced against the public interest in seeing the Ohio
Constitution enforced as adopted by the people. See Maryland v. King, 567 U.S. 1301, 133 S.Ct.
1, 3, 183 L.Ed.2d 667 (2012), quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434
U.S. 1345, 1351, 98 S. Ct. 359, 54 L. Ed. 2d 439 (1977) (Rehnquist, J., in chambers) ("[A]ny time
a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it
suffers a form of irreparable injury.")
Because there are vitally important public interests on both sides, this factor neither weighs
in favor nor against the granting of a preliminary injunction.
v.

Balancing of Factors

Upon a balancing of the factors, the Court finds that movants have failed to meet their
burden and preliminary injunctions are not appropriate. The likelihood of success on the merits is
the predominant concern, and the Court found a low likelihood of success on the merits in this
case. Ohio Contrs. Assn., 2014 U.S. Dist. LEXIS 61313, at *11. The COVID-19 pandemic has
presented an unusual, extraordinary circumstance. However, it is important to note that the Ohio
ballot access requirements are contained in the Ohio Constitution, not the Ohio Revised Code.
This Court does not have the authority to insert an exception or supply what it believes may have
been an omission because the plain language of the Ohio Constitution does suggest or support it.
Walker, 21 Ohio St. at 53; City of Cleveland v. State, 2019-Ohio-3820, at ¶ 16-17. Further, the
movants failed to meet their burden by demonstrating that they will suffer irreparable harm.

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The public interest factor neither weighs in favor nor against granting injunctive relief.
There are incredibly important public interests on both sides of this analysis, and these competing
interests offset each other.
While the movants did meet their burden in showing that no third parties will be
unjustifiably harmed if the injunction is granted, this factor alone is not enough to justify injunctive
relief.
vi.

Purpose of Preliminary Injunctions

Moreover, injunctive relief would disrupt, rather than preserve, the status quo. In general,
the purpose of a preliminary injunction is to preserve the status quo. Intralot, 2018-Ohio-3873, at
¶ 31.
Although "status quo" has apparently not been defined by the
General Assembly or by Ohio courts in the context of preliminary
injunctions, the Supreme Court of Illinois has held that "[t]he status
quo to be preserved by a preliminary injunction is the last, actual,
peaceable, uncontested status which preceded the pending
controversy." Postma v. Jack Brown Buick, Inc. (1993), 157 Ill.2d
391, 626 N.E.2d 199, 202, 193 Ill. Dec. 166. The holdings of cases
decided in Ohio courts evince a similar precedent for determining
the status quo. See Hootman, 2007-Ohio-5619, at P17 (finding that
the trial court was maintaining the status quo by ordering parties to
remove an obstruction from a drainage ditch pursuant to
a preliminary injunction order); Neamonitis v. Gilmour Academy,
8th Dist. No. 92452, 2009-Ohio-2023, PP11-12 (finding that the
trial court was maintaining the status quo by ordering a school, via
temporary restraining order, to reinstate a student it had expelled,
and then granting preliminary injunction indefinitely extending the
temporary
restraining
order);
but,
see, Neamonitis,
2009-Ohio-2023, at P22 (Kilbane, P.J., dissenting).
Obringer v. Wheeling & Lake Erie Ry., 3d Dist. Crawford No. 3-09-08, 2010-Ohio-601, ¶ 19.
IV.

Conclusion

The Court hereby DENIES the Motions for Preliminary Injunction filed by Plaintiffs and
Intervenors.
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IT IS SO ORDERED.
Copies electronically to counsel for all parties.

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Franklin County Court of Common Pleas

Date:

04-28-2020

Case Title:
Case Number:

OHIOANS FOR RAISING THE WAGE ET AL -VS- FRANK
LAROSE
20CV002381

Type:

DECISION/ENTRY

It Is So Ordered.

/s/ Judge David C. Young

Electronically signed on 2020-Apr-28

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Court Disposition
Case Number: 20CV002381
Case Style: OHIOANS FOR RAISING THE WAGE ET AL -VSFRANK LAROSE
Motion Tie Off Information:
1. Motion CMS Document Id: 20CV0023812020-03-3199950000
Document Title: 03-31-2020-MOTION FOR PRELIMINARY
INJUNCTION - NON-PARTY: OHIOANS FOR SECURE & FAIR
ELECTIONS
Disposition: MOTION DENIED
2. Motion CMS Document Id: 20CV0023812020-03-3099710000
Document Title: 03-30-2020-MOTION FOR PRELIMINARY
INJUNCTION - PLAINTIFF: OHIOANS FOR RAISING THE WAGE
Disposition: MOTION DENIED