IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO CIVIL DIVISION AIC yH-2 PROGRESSOHIO.ORG 172 E. STATE STREET, SUITE 203 : Case No. COLUMBUS, OHIO 43215 : AND Judge OHIO FEDERATION OF TEACHERS ‘On Behalf of Hundreds of Members 1251 E. BROAD STREET. COLUMBUS, OHIO 43205 AND TERESA FEDOR 778, HIGH STREET, 10TH FLOOR COLUMBUS, OHIO 43215 AND KATE L. KENNEDY 5658 TARA HILL DRIVE DUBLIN, OHIO 43017 AND : MARK BAUMGARTNER 28738 LINCOLN ROAD BAY VILLAGE, OHIO 44140 AND HAZEL HICKS 14920 GRANDVIEW TERRACE EAST CLEVELAND, OHIO 44112 PLAINTIFFS, vs. CAPITOL SQUARE REVIEW AND ADVISORY BOARD 2637RICHARD H. FINAN, CHAIRMAN 1 CAPITAL SQUARE COLUMBUS, OHIO 43215 OHIO DEPARTMENT OF PUBLIC SAFETY THOMAS P. CHARLES, DIRECTOR 1970 WEST BROAD STREET P.O. BOX 182081 COLUMBUS, OHIO 43218 AND DEFENDANTS. COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF i. INTRODUCTION 1. This is an action brought by Plaintiffs to vindicate their inalienable rights and rights of freedom of speech, the press, of people to peaceably assemble, and to petition the Government for a redress of grievances under the United States and Ohio Constitutions. Defendants violated Plaintiffs’ constitutional rights by denying them access on February 22, 2011, to the Ohio Capitol Building, which has been established as a public forum, Defendants’ actions were done in contravention of Plaintiffs’ clearly established rights under the First and Fourteenth Amendments of the United States Constitution and Article 1, §§1, 3, and 11 of the Ohio Constitution. Plaintiffs seek declaratory and injunctive relief as well as compensatory damages, nominal damages, attorneys’ fees, costs, and any additional remedies that the Court deems just. PARTIES 2. Plaintiff ProgressOhio.org (‘“ProgressOhio”) at all times relevant to this Complaint is a 501(c)(4) organization, recognized by the Internal Revenue Service, that was created to provide a progressive voice for Ohio citizens and to inform and educate the public about progressive ideals, value, and polities providing a more just and democratic society and has as one of its primary goals to ensure openness and transparency in-state government. ProgressOhio has 350,000 members statewide. ProgressOhio’s principle place of ‘business is located in Franklin County, Ohio. 3. Plaintiff Ohio Federation of Teachers (“OFT”) at all times relevant to this Complaint is a statewide federation of unions in Ohio, affiliated with the American Federation of Teachers, AFL-CIO, The OFT represents more than 20,000 members in 54 local unions.Its members include public education employees, higher education faculty and support staff, and public employees, Plaintiff Teresa Fedor (“Representative Fedor”) at all times relevant to this Complaint is a member of the Ohio House of Representatives from the 47" District, and resides in Toledo, Ohio. Fedor has an interest in allowing access to the Ohio Capitol Building to her constituents and stakeholders to pending legislation. She objected to the lockdown of the Ohio Capitol Building on February 22, 2011 and will continue to object to similar denial of access to the Ohio Capitol Building. Plaintiff Kate L. Kennedy (“Kennedy”) at all times relevant to this Complaint is a resident of Franklin County, Ohio and worked as an independent contractor for Precision ‘Media and Public Relations, which is a newspaper reporting firm, Plaintiff Mark Baumgartner (“Baumgartner”) at all times relevant to this Complaint is a Seventh Grade Teacher at Luis Munoz Marin School (K-8) in the Cleveland Metropolitan School District. Plaintiff Hazel Hicks (“Hicks”) at all times relevant to this Complaint is a retired teacher from East Cleveland, Ohio. Defendant Capitol Square Review and Advisory Board, Richard H. Finan, Chairman CCSRAB") at all times relevant to this Complaint is a public entity established, organized, and authorized by the laws of the State of Ohio, with the authority to sue and be sued. CSRAB operates the Ohio Capitol Building and grounds and has the authority to regulate all uses of the Capitol Square complex pursuant to R.C. §105.41E). CSRAB promulgates the policies, practices, and customs for operation of the Ohio Capitol Building. In fulfilling its duties, CSRAB acts by and through its various officers and administrators, including but not limited to the individual Board members and the Chairman. CSRAB was responsible for ensuring that its officers, agents, servants, and employees act in conformity with the United States and Ohio Constitutions. At all relevant times, CSRAB is a “person” acting under color of state law as that phrase is used in 42 U.S.C. §1983. CSRAB’s principle place of business is located in Franklin County, Ohio. Defendant Ohio Department of Public Safety, Thomas P. Charles, Director (“ODPS”) at all times relevant to this Complaint is a public entity established, organized, and authorized by the laws of the State of Ohio, with the authority to sue and be sued, ODPS provides oversight to the Ohio Highway Patrol wiich supplies law enforcement services at the Ohio Capitol Building. In fulfilling its duties, ODPS-acts by and-through its various officers and administrators, including but not limited to its Director. ODPS was responsible for ensuring that its officers, agents, servants, and employees act in conformity with the United States and Ohio Constitutions. At all relevant times, ODPS ‘was a “person” acting under the color of state law as that phrase is used in 42 U $1983. ODPS’s principle place of business in located in Franklin County, Ohio.UL. - FACTS 10. The Ohio Capitol Building is Ohio’s primary building for legislative activity of the state govemment, located on Capitol Square in Columbus, Ohio, and bounded by Broad Street to the north, Third Street to the east, State Street to the south, and High Street to the west. 11. The Ohio Capito! Building is a public building which is accessible to the general public during normal, non-holiday business hours and when a legislative body or committee is in session, and for that reason is known as “the People’s House.” 12, The Ohio Capitol Building is open; it has the objective use and purposes of open public access and its use is eminently compatible with express activity; and it is a property which by history and tradition has been open and used for expressive activity. 13. The Ohio Capitol Building consists of the Statehouse itself, the Senate Annex, and the Atrium (the structure between the Statehouse and Senate Annex). The Ohio Capitol Building has several areas that are accessible to the general public. ‘These areas include the Statehouse rotunda, the crypt (which is directly below the rotunda), the Aitium, the Map Room (which is directly below the Atrium), the lobbies and hallways, and generally several hearing rooms, the cafeteria, museum education center, gift shop, and public restrooms. 14, The areas of the Ohio Capitol Building to which the general public is permitted unrestricted entry constitutes a public foram, 15. The Senate Insurance, Commerce, and Labor Committee is in the process of conducting hearings to consider and hear testimony regarding Senate Bill 5 (“S.B. 5”), which is a contentious piece of legislation that seeks to make drastic changes to Ohio’s collective bargaining laws, 16. S.B. 5 is attracting great public interest, and several thousand people from around the State have come to the Ohio Capitol Building to participate in, observe, monitor, and report on the legislative process, 17. On February 17, 2011, over 3,000 people came to the Ohio Capito! Building to either support or oppose S.B. 5. Prior to February 17, 2011, advocacy groups both in favor to and opposed to 8.B. 5 had circulated e-mails and other messages encouraging citizens to g0 the Ohio Capitol Building. An article in the Columbus Dispatch reported that “More than 3,000 enthusiastic supporters and opponents of the Senate's proposed collective bargaining overhaul enveloped the Statehouse this morning.” The crowd was peaceful 18. Another hearing was scheduled for S.B. 5 on February 22, 2011 at 4:00 pm. As had been done prior to February 17, 2011, advocacy groups both in favor of and opposed to S.B. 5 had circulated e-mails and messages to encouraging citizens to go to the Ohio Capitol Building.19. The Defendants stationed members of the Ohio Highway Patrol’s Strategic Response Team at or near the Ohio Capitol Building grounds. The Defendants had a “bear” vehicle—a form of armored personnel carrier—parked near the Ohio Capitol grounds. 20. Many of those who came to the Ohio Capitol Building on February 22, 2011 were denied access, 21. On February 22, 2011, Plaintiff ProgressOhio’s Executive Director Brian Rothenberg Rothenberg”) arrived at the Ohio Capitol Building at approximately 1:15 p.m, to monitor the activity regarding $.B. 5 so that he could report back to the members of his organization. ProgressOhio’s members were encouraged to attend the rally, and several members did attend and sought to be provided entry into the Ohio Capitol Building 22, Rothenberg was initially denied access to the Ohio Capitol Building by a member of the Ohio Highway Patrol, Rothenberg was eventually provided entry into the building at approximately 3:30 p.m., but only after he reached contacts at the Ohio House and Senate Democratic Caucus to intervene. 23. Upon entry, Rothenberg observed that there was considerable open space within the Ohio Capitol Building especially on the ground floor which includes the Map Room and erypt. There was only limited activity on the ground floor including a press conference, At approximately 3:45 p.m., Rothenberg went to Defendant CSRAB’s office, which is located on the ground floor, to request that more ProgressOhio members be allowed entry into the building. The lights were out in the Director’s Office. Neither the Director nor the Assistant Director were available to meet with him. 24. One of Plaintiff ProgressOhio’s staff members, Sam Briggs (“Briggs”), attempted to gain access to the Ohio Capitol Building on February 22, 2011 at 3:45 pn. Briggs was at the Ohio Capitol Building for business unrelated to S.B. 5. Briggs sought to submit written testimony to a Senate committee which was set to consider gun legislation at a 4:30 pm, hearing. An Ohio Highway Patrol member denied Briggs entry into the building. Rothenberg had to once again reach a contact in the Ohio Senate Democratic Caucus to intervene so that Briggs could enter. Due to this intervening, Briggs was allowed to enter the Ohio Capito! Building shortly before 4:30 p.m, 25. Plaintiff ProgressOhio's Executive Director Rothenberg observed that the Ohio Highway Patrol allowed approximately 500 additional people into the Ohio Capitol Building at approximately 4:15 p.m. After that time, they allowed one person in the building for each person that left the building. 26. Plaintiff OFT disseminated information regarding 8.B. 5 and the rally to its union and members in the days leading up to February 22, 2011. OFT staff received reports throughout the day on February 22, 201! that OFT members were being denied access to the Ohio Capitol Building. OFT intends to continue to monitor $.B. 5 and disseminate information regarding future rallies to its members,27. On February 22, 2011, Plaintiff Fedor was serving in her role as a state representative, Fedor interacted with Ohio Highway Patrol officers to encourage them to allow more individuals into the Ohio Capitol Building so that they could monitor $.B. 5 proceedings. Fedor has an active interest in allowing people to enter the Ohio Capito! Building. Fedor objected to the lockouts of the Ohio Capitol Building, and will object in the future to such lockouts. 28. On February 22, 2011, Plaintiff Kennedy was serving in her role as an independent Contractor for Precision Media and Public Relations. She was present at the Ohio Capitol Building to obtain video footage of the crowds, hearing, and other activities relating to S.B. 5. Kennedy arrived at the Ohio Capitol Building at 10:00 a.m. and entered through the Ohio Capitol Building doors on Third Street. At the time, the doors were not locked. 29. It was Plaintiff Kennedy's understanding that all entrances were locked prior to 1:00 p.m. when public activities relating to 8.B. 5 were scheduled to begin. Kennedy observed that there were chairs set up in the Atrium. Some individuals were allowed to enter this area, Once the chairs were full, no further individuals were permitted to enter the Atrium. Kennedy estimates that there were approximately 2,000 individuals that remained outside the Ohio Capitol Building, most of which desired to enter. No one was permitted to enter the Ohio Capitol Building unless they could provide a business reason for why access was needed. Lobbyists and members of the media were permitted to enter the Ohio Capitol Building as well as those that had appointments that could be confirmed prior to their entry. Individuals who were there simply to view and attend the hearing on SB. 5 ‘were not permitted to enter the Ohio Capitol Building. 30. Plaintiff Kennedy observed that despite the large crowds outside, there were relatively few individuals inside the Ohio Capitol Building. The committee rooms, hallways, and crypt area were not crowded at all. Kennedy observed that there were far fewer individuals inside the Ohio Capitol Building compared to similar previous hearings. At approximately 5:00 p.m., Kennedy left the Ohio Capitol Building in order to retrieve additional video equipment from her vehicle, When Kennedy retumed, she was not able to enter the building through any of the Ohio Capitol Building’s entrances. After several unsuccessful attempts to enter the Ohio Capitol Building, Kennedy retumed to her vehicle. 31. On February 22, 2011, Plaintiff Baumgartner traveled from Cleveland to Columbus by car after his work was complete for the day as a Seventh Grade English teacher at the Luis Munoz Martin School in the Cleveland Metropolitan School District. Baumgartner arrived at the Ohio Capitol Building at approximately 2:30 p.m. 32. Baumgartner observed that people were not being allowed to enter into the Ohio Capitol Building on the Third Street entrance. Baumgartner attempted a few times to gain entry at a side door, but two members of the Ohio Highway Patrol were stationed at the door and denied him access. Baumgartner waited near the Veteran’s Plaza on the Third Street side of the Ohio Capitol Building. Baumgartner was finally allowed entry into the building at approximately 6:00 p.m. Baumgartner entered on the High Street side of thebuilding, where the Ohio Highway Patrol was using a “one out, one in” system, Baumgartner estimates that there were still thousands of people outside, 33. Baumgartner observed relatively few people inside the Ohio Capitol Building in comparison to those outside the building, Baumgartner was not able to enter the Atrium as the Ohio Highway Patrol was utilizing a “one out, one in” system for letting people enter that portion of the building, Baumgartner listened to audio of the S.B. 5 hearing in the rotunda, 34. On February 22, 2011, Plaintiff Hicks (“Hicks”) traveled by bus from Cleveland and arrived at the Ohio Capitol Building at approximately 2:30 p.m. Hicks approached the building from the Third Street side and observed that crowds had already formed and ‘people were crowed on the stairs. Hicks moved toward the stairs, and people told her that no one was being let into the building. 35. Hicks walked around the Ohio Capitol Building to the west awn on the Broad Street side. She observed Ohio Highway Patrol officers at every entrance. Hicks continued walking around the Ohio Capitol Building and saw a long line of people assembled on the State Street side. Hicks got in line and waited in the cold. Hicks observed that people were moving very slowly and that only one person was allowed inside every time another person left. Hicks observed that people were not allowed to bring signs in the building, 36, Hicks was allowed into the Ohio Capitol Building at approximately 4:00 p.m. but could not get inside the rotunda which is where she wanted to go, The Ohio Highway Patrol officers were separating groups of people in the building. Hicks observed that the building was not very crowded. Hicks was allowed to go into a room near Room 114, There were very few people in the area, PLAINTIFFS’ FIRST CAUSE OF ACTION [VIOLATION OF PLAINTIFFS’ RIGHTS OF FREEDOM OF SPEECH, THE PRESS, TO PEACEABLY ASSEMBLE, AND PETITION THE GOVERNMENT AT A PUBLIC FORUM PURSUANT TO UNITED STATES CONSTITUTION] 37. Plaintifis hereby re-allege and incorporate by reference Paragraphs 1 through 36 of this Complaint. 38. As a direct and proximate result of the aforementioned acts engaged under the color of state law within the meaning of 42 US.C. §1983, Defendants have violated Plaintiffs’ rights. of freedom of speech, the press, to peaceably assemble, and petition the government at a public forum under the First and Fourteenth Amendments to the United States Constitution. Defendants’ actions were not reasonable time, place, or manner restrictions for a public forum.PLAINTIFFS’ SECOND CAUSE OF ACTION [VIOLATION OF PLAINTIFFS’ RIGHT TO ASSEMBLE, TO PETITION THE GENERAL ASSEMBLY, AND FREEDOM OF SPEECH AND PRESS AT A PUBLIC FORUM PURSUANT TO THE OHIO CONSTITUTION] 39. Plaintifis hereby re-allege and incorporate by reference Paragraphs 1 through 38 of this ‘Complaint, 40. As a ditect and proximate result of the aforementioned acts, Defendants have violated Plaintiffs’ rights to assemble together in a peaceable manner, to petition the general assembly for the redress of grievances, and the rights of freedom of speech and press under Article I, §§3 and 11 of the Ohio Constitution, Defendants’ actions were not reasonable time, place, or manner restrictions for a public forum, PRAYER FOR RELIEF WHEREFORE, the Plaintiffs pray for judgment against Defendants as follows: A Declare that Defendants’ actions, as alleged above, violate the Plaintiffs’ right to freedom of speech, the press, to peaceably assemble, and petition the government, in violation of the First and Fourteenth Amendmeats to the United States Constitution: Declare that Defendants? actions, as alleged above, violate the Plaintiffs" inalienable tights, right to assemble, to petition the General Assembly, and freedom of speech and press in violation of Article I, §§1, 3, and 11 of the Ohio Constitution; Issue a Temporary Restraining Order and Preliminary and Permanent injunctions ordering Defendants to not deny Plaintiffs access to the Ohio Capitol Building during normal, non-holiday business hours and when a legislative body or committee is in session; Award compensatory and nominal damages to Plaintiff; Award Plaintiffs their reasonable attorneys’ fees and costs of this action pursuant to 42 U.S.C. §1988; and Grant Plaintiffs any other relief deemed just and necessary. Respectfully submitted, (OH 0022849) nis (OH 0076275) Corey Colombo (OH 0072398)McTIGUE & MoGINNIS LLC 545 B. Town Street Columbus, OH 43215 Tel: (614) 263-7000 Fax: (614) 263-7078 dmetigue@electionlawgroup.com icginnis@electionlawsroup.com ceolombo@electionlaweroup.com Counsel for Plaintiffs