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Supreme Court of Ohio Clerk of Court - Filed October 23, 2018 - Case No.

2018-1523

IN THE SUPREME COURT OF OHIO

STATE EX REL. AFTAB PUREVAL, et al. : No. 2018-1523


:
Appellants/Relators, : Appeal as of Right Pursuant to
: S.Ct.Prac.R. 5.01(A)(3)
-v- :
: Tenth District Court of Appeals,
OHIO ELECTIONS COMMISSION : Franklin County, Case No. 18AP-789
:
Appellee/Respondent. :
:

APPELLANTS-RELATORS’ EMERGENCY MOTION FOR ALTERNATIVE WRIT


SETTING AN EXPEDITED RESPONSE SCHEDULE AND STAYING PROCEEDINGS
IN OHIO ELECTIONS COMMISSION CASE NO. 2018G-022 AND/OR FOR AN
INJUNCTION PENDING A FINAL DECISION
Donald J. McTigue (0022849)** Mark Landes (0027227)
**Counsel of Record mlandes@isaacwiles.com
Derek S. Clinger (0092075) Mark Weaver (0065769)
MCTIGUE & COLOMBO LLC mweaver@isaacwiles.com
545 East Town Street
Andrew N. Yosowitz (0075306)
Columbus, Ohio 43215
Phone: (614) 263-7000
ayosowitz@isaacwiles.com
Fax: (614) 263-7078 Isaac, Wiles, Burkholder & Teetor
dmctigue@electionlawgroup.com 2 Miranova Place, Suite 700
dclinger@electionlawgroup.com Columbus, Ohio 43215
Phone: (614) 221-2121
Peter J. O’Shea (0086560) Fax: (614) 365-9516
Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400 Counsel for Appellee-Respondent
Cincinnati, Ohio 45202
Tel: 513-977-3477
Fax: 513-762-0077
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*Motion for admission pro hac vice pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Appellants


IN THE SUPREME COURT OF OHIO

STATE EX REL. AFTAB PUREVAL, et al. : No. 2018-1523


:
Appellants/Relators, : Appeal as of Right Pursuant to
: S.Ct.Prac.R. 5.01(A)(3)
-v- :
: Tenth District Court of Appeals,
OHIO ELECTIONS COMMISSION : Franklin County, Case No. 18AP-789
:
Appellee/Respondent. :
:

APPELLANTS-RELATORS’ EMERGENCY MOTION FOR ALTERNATIVE WRIT


SETTING AN EXPEDITED RESPONSE SCHEDULE AND STAYING PROCEEDINGS
IN OHIO ELECTIONS COMMISSION CASE NO. 2018G-022 AND/OR FOR AN
INJUNCTION PENDING A FINAL DECISION

This is an original action in prohibition filed with the Tenth District Court of Appeals,

Franklin County, seeking to prohibit Appellee-Respondent Ohio Elections Commission from

adjudicating Ohio Elections Commission Case No. 2018G-022 on the basis that the Commission

lacks jurisdiction to adjudicate the matter. Concurrent with the filing of the Complaint, Appellants-

Relators filed an emergency motion for an alternative writ, injunction, or stay to temporarily enjoin

or stay Case No. 2018G-022 pending disposition of the prohibition action. On Monday, October

22, 2018, the Court of Appeals denied the motion. Appellants-Relators filed the instant appeal

earlier today.

For urgent reasons, Appellants-Relators respectfully move the Court for an alternative writ

setting an expedited response schedule and staying proceedings in Ohio Elections Commission

Case No. 2018G-0221 and/or for an injunction pending a final decision of Appellants-Relators’

appeal. A memorandum in support is attached for the Court’s consideration.

1
S.Ct.Prac.R. 12.05 provides that, for original actions, “[i[f an alternative writ is issued, the
Supreme Court will issue a schedule for the presentation of evidence and the filing and service of
briefs or other pleadings. Unless the Supreme Court orders otherwise, issuance of an alternative
Respectfully submitted,

/s/ Donald J. McTigue____________


Donald J. McTigue (0022849)**
**Counsel of Record
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com

Peter J. O’Shea (0086560)


Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
Tel: 513-977-3477
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*Motion for admission pro hac vice pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Appellants

writ in a prohibition case stays proceedings in the action sought to be prohibited until final
determination of the Supreme Court.” While the present case is an appeal of an original action first
filed in the Court of Appeals, this Court has authority to issue alternative writs in appeals of cases
seeking extraordinary writs. If successful on appeal, a writ of prohibition will issue.
MEMORANDUM IN SUPPORT

I. INTRODUCTION

The instant appeal involves a state agency—Appellee-Respondent Ohio Elections

Commission (the “Commission”)—rushing to adjudicate a complaint over which it patently and

unambiguously lacks jurisdiction. The matter is Ohio Elections Commission Case No. 2018G-022

(“Case No. 2018G-022”), and Appellants-Relators had moved the Commission to dismiss the

complaint for lack of jurisdiction. The Commission partially denied Appellants-Relators’ motion

to dismiss on Thursday, October 19, 2018. Four days later, on Monday, October 22, 2018,

Appellants-Relators filed an original action in prohibition with the Tenth District Court of Appeals

seeking to prohibit the Commission from adjudicating Case No. 2018G-022. Due to impending

discovery dates and the Commission’s schedule—discovery depositions begin on October 23,

2018 and the commission’s full adjudicatory hearing is scheduled for November 1, 2018—

Appellants-Relators filed an emergency motion for an alternative writ, injunction, or stay to

temporarily enjoin or stay the Commission’s proceedings pending disposition of the prohibition

action. The Commission filed a combined response and motion to dismiss, arguing solely that

Appellants-Relators could not prevail on the merits of their writ of prohibition action.

On October 22, 2018, the Court of Appeals, in a three-sentence entry, denied Appellants-

Relators’ emergency motion—not on likelihood of success on the merits, but rather on two issues

that the Commission had conceded and did not dispute.1 The entry states Relators did not show

1
The Court of Appeals' entry denying Appellants-Relators' emergency motion is a final appealable
order under R.C. 2502.02(B)(4). This statute provides that an order denying a provisional remedy,
such as a preliminary injunction or stay, is a final order if it "determines the action with respect to
the provisional remedy and prevents a judgment in the action in favor of the appealing party with
respect to the provisional remedy," and the party appealing demonstrates that they would not be
afforded a meaningful remedy following an appeal after final judgment in the action is entered.
R.C. 2502.02(B)(4). This case presents extraordinary circumstances, and without an immediate
1
that continued proceedings before the Commission will result in irreparable injury, and that an

injunction would serve the public interest. In the same entry, however, the Court of Appeals also

denied the Commission’s motion to dismiss. The following day, Appellants-Relators filed the

instant appeal.2

Appellants-Relators now respectfully request this Court to issue an alternative writ setting

an expedited response schedule and staying proceedings in Ohio Elections Commission Case No.

2018G-022 and/or for an injunction pending a final decision of Appellants-Relators’ appeal.

II. ARGUMENT

A. Standard for Issuance of Injunction or Stay

An alternative writ or injunction staying or enjoining the Commission’s proceedings is

necessary to preserve the status quo pending resolution of the instant appeal.

appeal of the Court of Appeals' decision, Appellants-Relators' underlying writ of prohibition action
will become moot. This is because the Commission is needlessly rushing to make a decision at its
hearing on November 1, 2018, just five days before the election. Absent an immediate appeal--
and absent immediate relief--the Commission will unlawfully exercise quasi-judicial power on
November 1. Even if the decision on November 1 is reversed on appeal, or even if it is contradicted
by the FEC’s separate resolution of the federal questions at the heart of the OEC Complaint, that
would happen too late to undo the damage done to Appellants-Relators at the November 6 election.
Moreover, even the hearing itself, regardless of the decision, would inevitably and irreversibly
influence the results of the federal election. The OEC Complainant has made clear that he seeks to
present public testimony, in full media glare, from the candidate, his campaign manager, and his
campaign treasurer. Thus, without an immediate appeal of the Court of Appeals' decision,
Appellants-Relators would not be afforded a meaningful and effective remedy. For these reasons,
the Court of Appeals' entry denying Appellants-Relators' emergency motion is a final appealable
order.
2
Attached hereto are the following exhibits from the writ of prohibition action in the Tenth
District: Exhibit A is a copy of the Notice of Appeal and the Court of Appeals’ Entry denying
Appellants-Relators’ motion. Exhibit B is the verified complaint, sans exhibits. Exhibit C is a copy
of Appellants-Relators’ emergency motion and memorandum in support. Exhibit D is a copy of
the Ohio Elections Commission’s combined response and motion to dismiss. Exhibit E is
Appellants-Relators’ reply in support of their motion.
2
The standards for issuing an injunction or stay are the same: (1) whether the appellant has

shown a strong or substantial likelihood of success on the merits; (2) whether appellant has shown

that it will suffer irreparable injury; (3) whether the issuance of a stay will cause harm to others;

and (4) whether the public interest would be served by granting a stay. See, e.g., Vanguard Transp.

Sys. v. Edwards Transfer & Storage Co. Gen. Commodities Div., 109 Ohio App. 3d 786, 790, 673

N.E.2d 182 (10th Dist. 1996) (setting forth the standard for the issuance of a preliminary

injunction); Prince-Paul v. Ohio Bd. of Nursing, 2015-Ohio-3984, 43 N.E.3d 13, ¶ 13 (10th Dist.)

(explaining that these factors are “logical considerations” in determining whether to stay an

administrative order pending appeal).

Balancing the considerations in the instant action favors granting an injunction or stay to

temporarily enjoin or stay Case No. 2018G-022 pending resolution of the instant appeal.

Appellants-Relators are likely to succeed on the merits of their appeal as the Court of Appeals

erred in denying the emergency motion. Further, Appellants-Relators will suffer irreparable injury

by an adverse decision of the Commission while issuance of an injunction or stay will not cause

harm to others. Moreover, the public interest would be served by granting an injunction or stay as

it will prevent state government interference with a federal election.

B. A Stay or Injunction Pending Appeal is Urgently Needed to Prevent Irreparable


Injury to Appellants-Relators’ First Amendment Rights.

The Court of Appeals erred in its three-sentence entry that Appellants-Relators failed to

show that continued proceedings before the Commission will result in irreparable injury to

Appellants-Relators.

The commencement of discovery on October 23, 2018 and a needlessly rushed decision by

the Commission on November 1 in Case No. 2018G-022, when the Commission is without

jurisdiction to adjudicate the matter, will irreparably impinge upon Appellants-Relators’ First

3
Amendment rights to associate with likeminded voters and the voters’ rights to associate together

to support Appellants-Relators. The First Amendment protection of the right of individuals to

associate for the advancement of political beliefs has long been recognized as one of “our most

precious freedoms.” Anderson v. Celebrezze, 460 U.S. 780, 787, (1983) quoting Williams v.

Rhodes, 393 U.S. 23, 30-31 (1968). And it is likewise well-settled that the “loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (emphasis added).

The impact of discovery and the November 1 proceeding upon Appellants-Relators’ First

Amendment rights is twofold. First, allowing Case No. 2018G-022 to continue—despite the Court

of Appeals seemingly agreeing that the Commission lacks jurisdiction to do so—will result in a

state-sanctioned proceeding against a candidate for federal office in which his political opponents,

in full media glare, will offer purported evidence and argument that he violated the law. This will

impinge upon Appellants-Relators’ and their supporters’ right to a free and fair election in which

a state agency does not exceed its lawful jurisdiction in a way that can only politically benefit their

electoral opponents. Second, Appellant-Relator Pureval’s reputation will be damaged by the

accusations leveled against him just days before the federal election, and voters’ decisions will

likewise be influenced. This will be the case regardless of the Commission’s ultimate disposition

on November 1, 2018, and it is damage that cannot be undone after the election.

As an additional concern, lacking an injunction or a stay, the Commission will reach a

decision at its November 1, 2018, thereby effectively rendering their writ of prohibition action

moot and subjecting them to a loss of First Amendment rights as discussed above. This is

because Appellants-Relators would no longer be able to prevent the Commission from unlawfully

exercising its quasi-judicial power.

4
These irreparable injuries were clearly set forth to the Court of Appeals by Appellants-

Relators (see, Exhibit C at 34-35), and the Commission had even conceded these points by failing

to contend otherwise. Thus, the Court of Appeals erred in its three-sentence entry that Appellants-

Relators failed to show that continued proceedings before the Commission will result in irreparable

injury to Appellants-Relators.

C. Issuing an Injunction Will Serve the Public Interest.

The Court of Appeals also erred in its entry that Appellants-Relators failed to show that

issuing an injunction will serve the public interest. Enjoining or staying the proceedings in Case

No. 2018G-022 while the instant appeal and the underlying writ of prohibition action are decided

will serve the public interest.

As an initial matter, the public interest is inherently served in restraining unauthorized

actions by state agencies, and the Court of Appeals seemed to agree with Appellants-Relators that

they are likely to succeed on the merits of their claim that the Commission is without jurisdiction

to adjudicate Case No. 2018G-022.3 This is apparent from the Court of Appeals’ denial of the

Commission’s motion to dismiss that contended otherwise. It is also apparent from the Court of

Appeals not finding that Appellants-Relators failed to show a likelihood of success on the merits

of their writ of prohibition action. Thus, if there is a substantial likelihood that the Commission’s

conduct will be deemed unauthorized by law, then the public interest will be served by restraining

this unauthorized conduct pending a decision on the merits. The public interest is further harmed

3
For Appellants-Relators to establish that they are entitled to a writ of prohibition they must
demonstrate, in part, that they lack an adequate remedy in the ordinary course of law. Appellants-
Relators lack an adequate remedy at law because they could not immediately appeal the
Commission’s partial denial of their motion to dismiss, and, further, because if they wait until the
full adjudication of the case, the loss of their First Amendment rights will have already occurred
and cannot be restored through an administrative appeal under R.C. 119.12. See, Exhibit C at 33-
34.
5
by permitting a state agency to continue to exercise jurisdiction to completion and effectively

mooting the writ of prohibition relief.

Enjoining or staying the proceedings Case No. 2018G-022 pending resolution of the instant

appeal and the underlying writ of prohibition action will also serve the public interest by preventing

the Commission from impacting the results of a federal election. A decision in Case No. 2018G-

022 on November 1, a mere five days before the federal election at which Appellant-Relator

Pureval is a candidate, will unquestionably benefit one of the candidates at the federal election. A

favorable decision for Appellant-Relator Pureval will help his candidacy and hurt his opponent’s

candidacy, while an unfavorable decision for Appellant-Relator Pureval will hurt his candidacy

and help his opponent’s candidacy. The impact of such a ruling on November 1 is unescapable

given the proximity of the November 6, 2018 election. However, by issuing an injunction or stay

pending resolution of the instant appeal and the underlying writ of prohibition action, the status

quo will be preserved and the public interest will be served by preventing a state agency from

impacting the outcome of a federal election, especially when Relators have shown a likelihood of

success in their prohibition action that the Commission lacks jurisdiction to proceed to adjudicate

the complaint pending before it.

That the public interest would be served by issuing an injunction or stay was clearly set

forth to the Court of Appeals by Appellants-Relators (see, Exhibit C at 36), and the Commission

had even conceded this point by failing to contend otherwise. Thus, the Court of Appeals erred in

its three-sentence entry that Appellants-Relators failed to show that issuing an injunction would

serve the public interest.

6
D. Appellants-Relators’ Likelihood of Success on the Merits of their Writ of Prohibition
Action is Not at Issue in the Instant Appeal.

The Court of Appeals’ denial stated only the two reasons above for denying Appellants-

Relators’ emergency motion. The Court of Appeals did not rule that Appellants-Relators were

unlikely to succeed on the merits of their writ of prohibition action, in which Appellants-Relators

contend that the Commission’s exercise of quasi-judicial power is unauthorized by law because of

the following reasons: (1) The OEC Complaint failed to invoke the Commission’s jurisdiction by

failing to comply with the statutory requirement for individuals filing a complaint with the

Commission to do so by affidavit made on personal knowledge. See, R.C. 3517.153(A). Instead,

the key allegations that expenditures were made for the benefit of Appellant-Pureval’s federal

campaign were made on “information and belief,” which this Court has repeatedly explained does

not constitute “personal knowledge.” See, e.g., State ex rel. Hackworth v. Hughes, 97 Ohio St.3d

110, 2002-Ohio-5334, ¶ 24; State ex rel. Evans v. Blackwell, 111 Ohio St.3d 437, 2006-Ohio-5439,

¶ 32; State ex rel. Esarco v. Youngstown City Council, 116 Ohio St.3d 131, 2007-Ohio-5699, ¶ 14-

15; State ex rel. Commt. for the Charter Amendment for an Elected Law Dir. v. City of Bay Village,

115 Ohio St.3d 400, 2007-Ohio-5380, ¶ 13; State ex rel. Walker v. Husted, 144 Ohio St.3d, 2015-

Ohio-3749, ¶ 25. (2) The allegations raise questions of federal campaign finance law over which

the Federal Election has exclusive jurisdiction. And (3) the OEC Complaint failed to invoke the

Commission’s jurisdiction by failing to comply with the statutory requirement for complaints filed

by individuals to set forth fact that would constitute a prima facie violation of any statute within the

Commission’s jurisdiction. See, R.C. 3517.153(A). (See, Exhibit C at 10-33; Exhibit E).

Thus, Appellants-Relators’ likelihood of success on the merits of their writ of prohibition

action is not at issue in the instant appeal.

7
III. CONCLUSION

For the foregoing reasons, Appellants-Relators respectfully request the Court to issue an

alternative writ setting an expedited response schedule and staying proceedings in Ohio Elections

Commission Case No. 2018G-022 and/or for an injunction pending a final decision of Appellants-

Relators’ appeal. Doing so would preserve the status quo and aid the Courts in preserving their

original jurisdiction.

Respectfully submitted,

8
/s/ Donald J. McTigue____________
Donald J. McTigue (0022849)**
**Counsel of Record
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com

Peter J. O’Shea (0086560)


Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
Tel: 513-977-3477
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Appellants

9
CERTIFICATE OF SERVICE
I hereby certify that on October 23, 2018 a copy of the foregoing was sent by first class
mail and by electronic mail to the following:

Mark Landes
Mark Weaver
Andrew N. Yosowitz
Isaac, Wiles, Burkholder & Teetor
2 Miranova Place, Suite 700
Columbus, Ohio 43215
mlandes@isaacwiles.com
mweaver@isaacwiles.com
ayosowitz@isaacwiles.com

/s/ Donald J. McTigue________


Donald J. McTigue

10
Exhibit A
IN THE SUPREME COURT OF OHIO

STATE EX REL. AFTAB PUREVAL : No.


580 Walnut Street, Apt. 1302 :
Cincinnati, Ohio 45202 : Appeal as of Right Pursuant to
: S.Ct.Prac.R. 5.01(A)(3)
and :
: Tenth District Court of Appeals,
STATE EX REL. FRIENDS OF : Franklin County, Case No. 18AP-789
AFTAB PUREVAL :
580 Walnut Street, Apt. 1302 :
Cincinnati, Ohio 45202 :
:
and :
:
STATE EX REL. EVAN NOLAN, :
Treasurer, Friends of Aftab Pureval :
3850 Hyde Park Avenue :
Cincinnati, Ohio 45209 :
:
Appellants/Relators, :
:
-v- :
:
OHIO ELECTIONS :
COMMISSION :
77 South High Street, Suite 1850 :
Columbus, Ohio 43215 :
:
Appellee/Respondent. :

NOTICE OF APPEAL OF AFTAB PUREVAL, FRIENDS OF AFTAB PUREVAL, AND


EVAN NOLAN, TREASURER, FRIENDS OF AFTAB PUREVAL
Donald J. McTigue (0022849)** Mark Landes (0027227)
**Counsel of Record mlandes@isaacwiles.com
Derek S. Clinger (0092075) Mark Weaver (0065769)
MCTIGUE & COLOMBO LLC mweaver@isaacwiles.com
545 East Town Street Andrew N. Yosowitz (0075306)
Columbus, Ohio 43215 ayosowitz@isaacwiles.com
Phone: (614) 263-7000 Isaac, Wiles, Burkholder & Teetor
Fax: (614) 263-7078 2 Miranova Place, Suite 700
dmctigue@electionlawgroup.com Columbus, Ohio 43215
dclinger@electionlawgroup.com Phone: (614) 221-2121
Fax: (614) 365-9516
Peter J. O’Shea (0086560)
Katz Teller Brant & Hild Counsel for Ohio Elections Commission
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
Tel: 513-977-3477
Fax: 513-762-0077
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice pending
Perkins Coie
700 Thirteenth Street, N.W.,
Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Aftab Pureval, Friends of Aftab


Pureval, and Evan Nolan, Treasurer, Friends
of Aftab Pureval
IN THE SUPREME COURT OF OHIO

STATE EX REL. AFTAB PUREVAL, et al. : No.


:
Appellants/Relators, : Appeal as of Right Pursuant to
: S.Ct.Prac.R. 5.01(A)(3)
-v- :
: Tenth District Court of Appeals,
OHIO ELECTIONS COMMISSION : Franklin County, Case No. 18AP-789
:
Appellee/Respondent. :
:

NOTICE OF APPEAL OF AFTAB PUREVAL, FRIENDS OF AFTAB PUREVAL, AND


EVAN NOLAN, TREASURER, FRIENDS OF AFTAB PUREVAL

Appellants-Relators Aftab Pureval, Friends of Aftab Pureval, and Evan Nolan, Treasurer,

Friends of Aftab Pureval hereby give notice of appeal to the Supreme Court of Ohio from the

decision of the Tenth District Court of Appeals, Franklin County, entered on October 22, 2018 in

the matter of State ex rel. Aftab Pureval, et al. v. Ohio Elections Commission, Case Number 18AP-

789, denying Appellants-Relators’ Emergency Motion for an Alternative Writ, Injunction, or Stay

Temporarily Enjoining or Staying Ohio Elections Commission Case No. 2018G-022. A date-

stamped copy of the Court of Appeals’ entry is attached hereto pursuant to S.Ct.Prac.R. 6.01(B).

This case originated in the Court of Appeals as an original action in prohibition, and this

appeal is therefore of right pursuant to S.Ct.Prac.R. 5.01(A)(3).

Respectfully submitted,
/s/ Donald J. McTigue____________
Donald J. McTigue (0022849)**
**Counsel of Record
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com

Peter J. O’Shea (0086560)


Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
Tel: 513-977-3477
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Relators

CERTIFICATE OF SERVICE

I hereby certify that on October 23, 2018 a copy of this Notice of Appeal was sent by
ordinary US mail and by electronic mail to the following:

Mark Landes
Mark Weaver
Andrew N. Yosowitz
Isaac, Wiles, Burkholder & Teetor
2 Miranova Place, Suite 700
Columbus, Ohio 43215
mlandes@isaacwiles.com
mweaver@isaacwiles.com
ayosowitz@isaacwiles.com

/s/ Donald J. McTigue________


Donald J. McTigue
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 22 11:59 AM-18AP000789
Court Disposition

Case Number: 18AP000789

Case Style: STATE, EX REL AFTAB PUREVAL -VS- OHIO


ELECTIONS COMMISSION
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 22 11:59 AM-18AP000789

Motion Tie Off Information:


1. Motion CMS Document Id: 18AP0007892018-10-1899830000
Document Title: 10-18-2018-MOTION TO DISMISS - OHIO
ELECTIONS COMMISSION
Disposition: 3200
Exhibit B
IN THE TENTH DISTRICT COURT OF APPEALS

STATE EX REL. AFTAB : CASE NO.


PUREVAL :
580 Walnut Street, Apt. 1302 : ORIGINAL ACTION IN
Cincinnati, Ohio 45202 : PROHIBITION
:
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

and :
:
STATE EX REL. FRIENDS OF :
AFTAB PUREVAL :
580 Walnut Street, Apt. 1302 :
Cincinnati, Ohio 45202 :
:
and :
:
STATE EX REL. EVAN :
NOLAN, Treasurer :
Friends of Aftab Pureval :
3850 Hyde Park Avenue :
Cincinnati, Ohio 45209 :
:
Relators, :
-v- :
:
OHIO ELECTIONS :
COMMISSION :
77 South High Street, Suite 1850 :
Columbus, Ohio 43215 :
:
Respondent. :

RELATORS’ VERIFIED COMPLAINT IN ORIGINAL ACTION


FOR WRIT OF PROHIBITION
Donald J. McTigue (0022849)**
**Counsel of Record
Derek S. Clinger (0092075)
MCTIGUE & COLOMBO LLC
545 East Town Street
Columbus, Ohio 43215
Phone: (614) 263-7000
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

Fax: (614) 263-7078


dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com

Peter J. O’Shea (0086560)


Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
Tel: 513-977-3477
Fax: 513-762-0077
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice
pending
Perkins Coie
700 Thirteenth Street, N.W.,
Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Relators


Relators aver as follows:

1. This is an original action commenced pursuant to this Court’s

original jurisdiction under Section 3, Article IV of the Ohio Constitution.

2. Relators seek an Order, Judgment, and/or Writ from this Court


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

to prohibit Respondent Ohio Elections Commission from adjudicating

Ohio Elections Commission Case No. 2018G-022 (“Case No. 2018G-

022”) because the Commission lacks jurisdiction.

3. Relators also seek an alternative writ, injunction, or stay to

temporarily enjoin or stay the proceedings in Case No. 2018G-022

pending resolution of the instant case, thereby preserving the status quo

and aiding the Court’s original jurisdiction.

PARTIES

4. Relators Aftab Pureval, Friends of Aftab Pureval, and Evan

Nolan, Treasurer, Friends of Aftab Pureval, are the three named

respondents in Case No. 2018G-022.

5. Relator Aftab Pureval (“Relator Pureval”) is a resident of

Cincinnati, Ohio and is the Hamilton County Clerk of Courts, having been

elected to the office at the 2016 General Election.


1
6. Relator Friends of Aftab Pureval is the campaign committee

connected to Relator Pureval’s campaign for Hamilton County Clerk of

Courts (the “County Committee”).

7. Relator Evan Nolan, Treasurer, Friends of Aftab Pureval is a


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

resident of Cincinnati, Ohio and is the treasurer of the County Committee.

8. Respondent Ohio Elections Commission (“Respondent

Commission” or the “Commission”) is a seven-member commission

created by Ohio law to hear alleged violations of state campaign finance

law contained in Ohio Revised Code sections 3517.08 to 3517.13,

3517.17, 3517.18, 3517.20 to 3517.22, 3599.03, and 3599.031. The

Commission has the authority to find facts, make adjudications of

violations, and impose administrative fines.

FACTS

9. On January 31, 2018, Relator Pureval announced that he

would run as a Democrat for the United States House of Representatives

from the 1st Congressional District of Ohio at the 2018 General Election.

10. Relator Pureval registered a candidate committee in

connection with his federal campaign on January 29, 2018. The federal
2
committee is named “Aftab for Ohio” (hereinafter referred to as the

“Federal Committee”).

11. Relator Pureval won the Democratic nomination for the 1st

Congressional District of Ohio at the May 8, 2018 Primary Election, and


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

he is currently the Democratic nominee for the 1st Congressional District

of Ohio at the November 6, 2018 General Election.

12. On August 10, 2018, a complaint (the “OEC Complaint”) was

filed with the Commission against Relators by an individual named Mark

W. Miller (the “OEC Complainant”). A copy of the OEC Complaint is

attached hereto as Exhibit A.

13. The OEC Complaint broadly alleges that: (1) all contributions

received and reported by the County Committee from January 1, 2018 to

June 30, 2018 were allegedly intended for the benefit of Relator Pureval’s

federal campaign; (2) expenditures made and reported by the County

Committee, ranging in dates from August 14, 2017 to May 2, 2018, were

allegedly made for the benefit of Relator Pureval’s federal campaign; (3)

the County Committee allegedly failed to provide sufficient

documentation to verify reported expenditures; and (4) the County


3
Committee reported receiving two PAC contributions that the PACs did

not report making.

14. The OEC Complaint alleges that because contributions and

expenditures were allegedly in connection with Relator Pureval’s


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

campaign for federal office, the 2017 Annual and 2018 Semi-Annual

campaign finance reports filed by the County Committee are not accurate

in violation of R.C. 3517.13(D) and that for the same reason, the

expenditures also constitute “personal use” of campaign funds in violation

of R.C. 3517.13(O).

15. Respondent Commission assigned the OEC Complaint “Case

No. 2018G-022,” and, pursuant to O.A.C. 3517-1-11, scheduled a

preliminary review for OEC Case No. 2018G-022 before the full

Commission for September 20, 2018.

16. On September 13, 2018, Relators filed their response to the

OEC Complaint with Respondent Commission. A copy of this response

is attached hereto as Exhibit B.

4
17. On September 20, 2018, Respondent Commission held the

preliminary review of OEC Case No. 2018G-022 before the full

Commission.

18. At the conclusion of the preliminary review, Respondent


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

Commission voted to proceed with OEC Case No. 2018G-022, setting the

matter for a hearing by the full Commission, pursuant to O.A.C. 3517-1-

11(A)(3)(d).

19. This decision also initiated the discovery process under the

Commission’s administrative rules.

20. On September 27, 2018, the Commission’s Executive Director

notified counsel for the parties that the Commission would hear and

decide any motions filed by the parties at its regularly-scheduled October

11, 2018 meeting and would conduct a full evidentiary hearing before the

Commission at its regularly-scheduled November 1, 2018 meeting. A

copy of the notice from the Commission’s Executive Director is attached

hereto as Exhibit C.

5
21. On September 28, 2018, Relators in the instant action filed a

Motion to Dismiss Case No. 2018G-022 with the Commission. A copy of

the Motion to Dismiss is attached hereto as Exhibit D.

22. In the Motion to Dismiss, Relators argued that the


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

Commission lacked jurisdiction to hear the OEC Complaint because the

linchpin allegations in the OEC Complaint were based on “information

and belief,” rather than personal knowledge as required by Ohio law and

the Commission’s rules. Relators also argued that that the OEC Complaint

had failed to set forth any claims upon which relief could be granted, and

that many of the allegations were based on federal law over which the

Commission has no jurisdiction.

23. Subsequent to the filing of the Motion to Dismiss, on October

1, 2018, a complaint was filed against Relator Pureval and the Federal

Committee with the Federal Election Commission (“FEC”) regarding

several of the same factual allegations as in Case No. 2018G-022. A copy

of the FEC complaint is attached hereto as Exhibit E.

24. On October 2, 2018, OEC Complainant’s counsel indicated to

Relators’ counsel that he plans to depose six individuals before the


6
Commission’s November 1 meeting, including Relators Pureval and

Nolan, as well as Relator Pureval’s mother. A copy of an email from OEC

Complainant’s counsel is attached hereto as Exhibit F.

25. Subsequently, OEC Complainant’s counsel served notices to


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take depositions duces tecum upon Relator Nolan for October 23, 2018

and Relator Pureval for October 26, 2018. The notices contain broad

requests for production of documents relating to expenditures made by the

County Committee. Copies of the notices to take deposition duces tecum

are attached hereto as Exhibit G.

26. On October 2, 2018, OEC Complainant’s counsel also filed a

request with the Commission to subpoena seven individuals, including

Relators Nolan and Pureval, as well as Relator Pureval’s mother, to attend

the Commission’s November 1 meeting. A copy of this request for

subpoenas is attached hereto as Exhibit H.

27. On October 4, 2018, OEC Complainant filed a Memorandum

in Opposition to the Motion to Dismiss. A copy of this Memorandum in

Opposition is attached hereto as Exhibit I.

7
28. Relators filed a Reply Brief in support of their Motion to

Dismiss on October 8, 2018. A copy of this Reply Brief is attached hereto

as Exhibit J.

29. On October 8, 2018, Relators also filed a Motion to Stay with


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

the Commission to temporarily stay Case No. 2018G-022 until the FEC

resolves the complaint filed with it regarding the same matters as Case

No. 2018G-022. A copy of Relators’ Motion to Stay is attached hereto as

Exhibit K.

30. On October 10, 2018, OEC Complainant filed a Memorandum

in Opposition to the Motion to Stay. A copy of this Memorandum in

Opposition is attached hereto as Exhibit M.

31. On October 11, 2018, Respondent Commission held its

hearing to decide the motions filed by Relators.

32. At the motion hearing, the OEC Complainant dismissed the

allegations regarding the two PAC contributions after counsel for Relators

pointed out that the PACs had in fact reported making the contributions

8
contrary to what the Complaint alleged. A transcript of the relevant

portions of the October 11 motion hearing is attached as Exhibit L.

33. At the conclusion of its hearing, Respondent Commission

granted Relators’ motion to dismiss with respect to the claims that all
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

contributions received and reported by the County Committee from

January 1, 2018 to June 30, 2018 were allegedly intended for the benefit

of Relator Pureval’s federal campaign and violated R.C. 3517.13(D).

However, Respondent Commission voted to move forward to a full

evidentiary hearing with respect to the claims that the expenditures made

and reported by the County Committee were allegedly made for the

benefit of Relator Pureval’s federal campaign and the claims that the

County Committee allegedly failed to provide sufficient documentation

to verify reported expenditures. Respondent Commission voted further to

deny Relators’ motion to stay the proceedings pending resolution of the

FEC Complaint. See, Exhibit L.

34. Respondent Commission has set the full evidentiary hearing

for November 1, 2018, which is five days before the federal election.

9
CLAIMS FOR RELIEF

First Claim
Respondent Commission lacks jurisdiction to adjudicate the claims
that expenditures were made for the benefit of Relator Pureval’s
federal campaign because the linchpin allegations in the OEC
Complaint were not made on personal knowledge.
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

35. Each and every allegation contained above is incorporated as

if fully rewritten herein.

36. The Commission is patently and unambiguously without

jurisdiction over the claims in Case No. 2018G-022 that the expenditures

were made for the benefit of Relator Pureval’s federal campaign because

the linchpin allegations that the expenditures were made for the benefit of

the federal campaign were not made on personal knowledge as required

by Ohio law and the Commission’s rules.

37. R.C. 3517.153(A) mandates that complaints filed by

individuals with the Commission “shall be made by affidavit of any

person, on personal knowledge, and subject to the penalties for perjury…”

(Emphasis added).

10
38. O.A.C. 3517-1-02(A)(1) also requires a complaint to be “[b]y

affidavit by an individual based on personal knowledge…” (Emphasis

added).

39. O.A.C. 3517-1-02(A)(1)(d) provides further that such a


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

complaint shall “[c]learly set forth the specific source or basis of the

personal knowledge…”

40. “Personal knowledge” is defined as knowledge gained through

firsthand observation or experience, as distinguished from a belief.

Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 95 Ohio

St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707 quoting Black’s Law

Dictionary (7th Ed.Rev.1999).

41. In the context of affidavits, “personal knowledge” is

“knowledge of the truth in regard to a particular fact or allegation, which

is original, and does not depend on information or hearsay.” Ocwen Loan

Servicing, LLC v. Graf, 10th Dist. Franklin No. 17AP-361, 2018-Ohio-

2411, ¶ 22 quoting Applegate v. N.W. Title Co., 10th Dist. No. 03AP-855,

2004-Ohio-1465, ¶ 33 (emphasis added).

11
42. This high bar of personal knowledge was required by the

General Assembly in order to prevent abuses of a state-created process,

like the filing of spurious claims intended to harass parties and/or deceive

electors close to an election.


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

43. Although the OEC Complainant’s affidavit formalistically

states in its final sentence “that the facts in the foregoing Complaint are

based upon my personal knowledge,” the statement is belied by the actual

internal allegations.

44. The allegations that the County Committee reported

expenditures that were allegedly made for the benefit of Mr. Pureval’s

federal campaign committee, in violation of R.C. 3517.13(D) and R.C.

3517.13(O), are in paragraphs 11-35, 42-56, 58-62, and 65-67 of the OEC

Complaint.

45. However, Paragraphs 19, 22, 29, 34, and 54-55 of the OEC

Complaint explicitly state that the linchpin allegations of these claims that

the expenditures were made in connection with federal election are based

on “information and belief,” not personal knowledge.

12
46. Courts have expressly held that “information and belief” is not

sufficient to establish personal knowledge. Young v. State, 10th Dist.

Franklin No. 17AP-272, 2018-Ohio-2604, ¶ 19-22; see also, State ex rel.

Commt. for the Charter Amendment for an Elected Law Dir. v. City of
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

Bay Village, 115 Ohio St.3d 400, 2007-Ohio-5380, 875 N.E.2d 574, ¶ 13

(holding that an affidavit based on an attorney’s “personal knowledge and

information” did not satisfy the Court’s personal knowledge requirement

for affidavits in support of original actions because it was not clear what

was based on personal knowledge and was based on information)

(emphasis added); see also, Alexander v. Kellog USA, Inc., 674 Fed. App

496, 499 (6th Cir. 2017) (holding that statements “based on mere

‘information and belief’…are not based on personal knowledge.”)

47. Paragraph 19 of the OEC Complaint, which refers to the

expenditures identified in paragraphs 11-18 of the OEC Complaint, states

as follows:

On information and belief, the “Travel”


expenditures set forth in paragraphs 11-18 were
made to support of Pureval’s efforts in his
campaign for Congress, and were not legitimate
and verifiable ordinary, and necessary, or
13
otherwise permissible expenditures for Friends of
Aftab Pureval, a campaign committee purporting
to support a putative candidate for re-election as
the Hamilton County Clerk of Courts, or the duties
of Clerk of Courts.
(Emphasis added).
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48. Paragraph 22 of the OEC Complaint, which refers to the

expenditure identified in paragraphs 20-30 of the OEC Complaint, states

as follows:

In fact, on information and belief, the “Media”


for which Friends of Aftab Pureval paid, was
photography services at Pureval’s congressional
campaign kickoff events…
(Emphasis added).
49. Paragraph 29 of the OEC Complaint, which also refers to the

expenditure identified in paragraphs 20-30 of the OEC Complaint, states

as follows:

On information and belief, the “Media”


expenditures set forth in paragraphs 20-22 were
made to support of Pureval’s efforts in his
campaign for Congress, and were not necessary,
legitimate, reasonable, or otherwise permissible
expenditures for Friends of Aftab Pureval, a
campaign committee purporting to support a
putative candidate for re-election as the Hamilton
County Clerk of Courts, or the duties of the Clerk
of Courts.

14
(Emphasis added).
50. Paragraph 34 of the OEC Complaint, which refers to the

expenditure identified in paragraphs 31-35 of the OEC Complaint, states

as follows:
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

On information and belief, the payment to GBA


Strategies was for polling and other services related
to Pureval’s campaign for Congress, and are not a
legitimate and verifiable ordinary, and necessary,
or otherwise permissible expenditures connected to
Pureval’s putative campaign for re-election as the
Hamilton County Clerk of Courts, or the duties of
the Clerk of Courts.
(Emphasis added).
51. Paragraph 54 of the OEC Complaint, which refers to the

expenditures identified in paragraphs 45-52 of the OEC Complaint, states

as follows:

On information and belief, the expenditures


referred to in paragraphs 45 and 52 were not a
legitimate and verifiable ordinary, and necessary,
or otherwise permissible expenditure related to
Aftab Pureval’s purported race for re-election as
the Hamilton County Clerk of Courts or the duties
as the Hamilton County Clerk of Courts.
(Emphasis added).

15
52. Paragraph 55 of the OEC Complaint, which also refers to the

expenditures identified in paragraphs 45-52 of the OEC Complaint, states

as follows:

On information and belief, the expenditures


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

listed in paragraphs 45 through 52 were related to


Aftab Pureval’s testing of the waters for a run for
Congress from either Ohio’s First or Second
Congressional District.
(Emphasis added).
53. Given that the linchpin allegations in the OEC Complaint are

not made on personal knowledge as required by Ohio law and the

Commission’s rules, the Commission, under Ohio law and the

Commission’s rules, lacks jurisdiction over the allegations contained in

the OEC Complaint that the expenditures were made for the benefit of

Relator Pureval’s federal campaign.

54. Despite a patent and unambiguous lack of jurisdiction over the

allegations in the OEC Complaint, Respondent Commission, at the

September 20, 2018 preliminary review and October 11, 2018 hearing on

the motions, has asserted jurisdiction to adjudicate these claims.

16
55. Respondent Commission’s decision to assert jurisdiction to

adjudicate Case No. 2018G-022 and to set the matter for a full hearing

before the Commission was a quasi-judicial act unauthorized by law.

56. Respondent Commission will exercise quasi-judicial power


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

unauthorized by law by conducting an evidentiary hearing and

adjudicating Case No. 2018G-022, presently scheduled to be held before

the full Commission on November 1, 2018.

57. Denying the requested writ of prohibition will result in injury

for which no other adequate remedy exists in the ordinary course of law.

58. Extraordinary circumstances exist to warrant issuing an

alternative writ or stay to temporarily stay Case No. 2018G-022 pending

resolution of the instant action, thereby preserving the status quo and

aiding the Court’s original jurisdiction.

59. Relators will suffer irreparable injury if the requested

alternative writ or stay is not issued.

60. Issuance of an alternative writ or stay will serve the public

interest and not cause harm to others.

17
Second Claim
Respondent Commission lacks jurisdiction over the allegations that
expenditures were made for the benefit of Relator Pureval’s federal
campaign because these allegations raise questions of federal law over
which the Federal Election Commission has exclusive jurisdiction.

61. Each and every allegation contained above is incorporated as


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

if fully rewritten herein.

62. Respondent Commission is patently and unambiguously

without jurisdiction to adjudicate the set of claims that expenditures were

made for a federal election because such allegations involve questions of

federal law beyond the Commission’s jurisdiction.

63. Instead, the issue is expressly reserved for interpretation and

enforcement by the Federal Election Commission (“FEC”).

64. To find that the expenditures made by the County Committee

were actually intended to support Relator Pureval’s federal campaign,

Respondent Commission must decide if the expenditures were made for

the purpose of influencing a federal election. See 52 U.S.C. § 30114(a).

Particularly because the expenditures, in any other context, would

represent prima facie lawful conduct under Ohio law, the finding of a

18
violation on these claims necessarily hinges on a finding of federal

expenditures.

65. Yet, to make such a finding is a matter expressly reserved to

the FEC, which has exclusive civil jurisdiction on these matters. See 52
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

U.S.C. § 30106(b).

66. Federal law clearly reserves for the FEC the power to

adjudicate cases over the disbursement of funds to engage in federal

election activity.

67. The Federal Election Campaign Act of 1974 (the “Act”), as

amended, states that the Act shall “supersede and preempt any provision

of State law with respect to election to Federal office.” 52 U.S.C. §

30143(a); see also 11 C.F.R. § 108.7(a). Specifically, federal law has such

effect with respect to any state law that purports to regulate the

“[d]isclosure of receipts and expenditures by Federal candidates and

political committees.” 11 C.F.R. § 108.7(b)(2).

68. The Act’s legislative history shows that Congress intended “to

make certain that the Federal law is construed to occupy the field with

respect to elections to Federal office and that the Federal law will be the
19
sole authority under which such elections will be regulated.” H.R. Rep.

No. 93-1239, 93rd Cong., 2d Sess. 10 (1974).

69. The Act establishes that “the power of the [Federal Election]

Commission to initiate civil actions . . . shall be the exclusive civil remedy


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

for the enforcement of the provisions of this Act.” 52 U.S.C. § 30107(e).

70. Courts, including the Sixth Circuit, have accordingly and

repeatedly intervened to guard the Commission’s exclusive civil

jurisdiction and prevent litigants from making an end run around the

federal process. See, e.g., Bunning v. Com. of Ky., 42 F.3d 1008, 1011–13

(6th Cir. 1994) (barring application of state campaign finance law to

polling expenditure incurred by federal candidate as “intrusion into []

federally regulated activity”); Stockman v. Fed. Election Comm’n, 138

F.3d 144, 154 (5th Cir. 1998) (preventing federal candidate from initiating

collateral litigation to thwart federal complaint); Republican Party of New

Mexico v. King, 850 F. Supp. 2d 1206, 1215–16 (D.N.M. 2012), aff’d, 741

F.3d 1089 (10th Cir. 2013) (finding that plaintiff was likely to succeed on

claim that federal law preempted state law limit on solicitation and receipt

of contributions to be used in federal campaigns).


20
71. Accordingly, Respondent Commission lacks jurisdiction to

decide claims of purported federal campaign finance violations.

Third Claim
Respondent Commission lacks jurisdiction over the allegations that
expenditures were made in violation of R.C. 3517.13(D) because the
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

OEC Complaint failed to set forth facts that would constitute a prima
facie violation of this statute.

72. Each and every allegation contained above is incorporated as

if fully rewritten herein.

73. The Commission patently lacks jurisdiction over the OEC

Complaint for the additional reason that the OEC Complaint fails to set

forth facts that would constitute a prima facie violation of any law over

which the Commission has jurisdiction.

74. R.C. 3517.153(A) mandates that complaints filed with the

Commission must “[set] forth a failure to comply with or a violation of

any provision in sections 3517.08 to 3517.13, 3517.17, 3517.18, 3517.20

to 3517.22, 3599.03, or 3599.031 of the Revised Code…”

75. O.A.C. 3517-1-02(A)(1)(f) requires complaints filed with the

Commission to “[c]learly set forth sufficient facts, supported by

affidavits, exhibits and/or other documents to constitute a prima facie


21
violation of Ohio election law over which the commission has

jurisdiction.”

76. Further, O.A.C. 3517-1-02(A)(1)(g) requires complaints filed

with the Commission to “[c]learly set forth each and every separate
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

alleged violation of Ohio election law over which the commission has

jurisdiction in a narrative form, cross-referenced to the relevant Revised

Code section(s).”

77. It is not sufficient to invoke the Commission’s jurisdiction by

merely asserting that something violates a statute over which the

Commission has jurisdiction.

78. The OEC Complaint, in paragraphs 57-62, alleges that the

County Committee violated R.C. 3517.13(D) by reporting six

expenditures that were allegedly intended for the benefit of Mr. Pureval’s

federal campaign.

79. R.C. 3517.13(D) provides that “[n]o campaign committee

shall fail to file a complete and accurate statement required under division

(A)(3) or (4) of section 3517.10 of the Revised Code.”

22
80. The OEC Complaint does not contend or allege that the

expenditures were not in fact received or made by the County Committee

or that the names, addresses, dates, or amounts reported are inaccurate.

81. Therefore, even if presuming that the allegations that the


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

expenditures were intended for the benefit of Relator Pureval’s federal

campaign, R.C. 3517.13(D) would still require the County Committee to

accurately report the expenditures regardless of the intended beneficiary.

82. Accordingly, the OEC Complaint fails to clearly set forth

sufficient facts that would constitute a prima facie violation of R.C.

3517.13(D) with respect to the identified expenditures, and the

Commission, therefore, lacks jurisdiction to adjudicate these claims.

Fourth Claim
Respondent Commission lacks jurisdiction over the allegations that
the County Committee allegedly failed to provide sufficient
documentation to verify reported expenditures in violation of R.C.
3517.10(D)(4) because the OEC Complaint failed to set forth facts
that would constitute a prima facie violation of this statute.

83. Each and every allegation contained above is incorporated as

if fully rewritten herein.

23
84. The OEC Complaint, in paragraph 63, also alleges that the

County Committee failed to provide sufficient documentation for certain

expenditures in violation of R.C. 3517.10(D)(4).

85. R.C. 3517.10(D)(4) provides, in relevant part, that “[e]very


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

expenditure in excess of twenty-five dollars shall be vouched for by a

receipted bill, stating the purpose of the expenditure, that shall be filed

with the statement of expenditures.”

86. Further, O.A.C. 111:2-4-13(D) provides:

The requirement of section 3517.10 of the Revised


Code that every expenditure in excess of twenty-
five dollars shall be vouched for, is satisfied by
providing an original or photocopy of any of the
following:
(1) A receipted bill; or
(2) A canceled check;
(3) An account statement, from the committee's
financial institution, which contains the name of
the payee, amount, date, and check number.

87. Despite alleging that the County Committee failed to provide

sufficient documentation for the identified expenditures, the OEC

24
Complaint had attached as part of its Exhibit 15 bank statements for the

County Committee that satisfied O.AC. 111:2-4-13(D).

88. Accordingly, the OEC Complaint fails to set forth facts that

would constitute prima facie violations of R.C. 3517.10(D)(4) with


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

respect to these expenditures, and, therefore, the Commission lacks

jurisdiction to adjudicate these claims.

PRAYER FOR RELIEF

WHEREFORE, Relators respectfully pray the Court to grant the

following relief:

A. Issue an Order, Judgment, Peremptory Writ of Prohibition, or Writ


of Prohibition prohibiting Respondent Commission from
adjudicating Case No. 2018G-022;

B. An alternative writ, injunction, or stay to temporarily enjoin or stay


the proceedings in Case No. 2018G-022 pending resolution of the
instant case, thereby preserving the status quo and aiding the Court’s
original jurisdiction;

C. Assess the costs of this action against Respondent Commission;

D. Award Relators’ their attorneys’ fees and expenses; and

E. Award such other relief as may be appropriate.

25
Respectfully submitted,

/s/ Donald J. McTigue____________


Donald J. McTigue (0022849)**
**Counsel of Record
Derek S. Clinger (0092075)
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

McTigue & Colombo LLC


545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
Fax: 614-263-7078
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com

Peter J. O’Shea (0086560)


Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
Tel: 513-977-3477
Fax: 513-762-0077
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice
pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Relators


26
Case No.

In the
Tenth District Court of Appeals
For the State of Ohio
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

STATE EX REL. AFTAB PUREVAL, et ah,


Relators,
v.

OHIO ELECTIONS COMMISSION,


Respondent.

Original Action in Prohibition

AFFIDAVIT OF EVAN NOLAN

Hamilton County
/ss
State of Ohio

I , Evan Nolan, having been duly swom and cautioned according to law, hereby state that I
am over the age of eighteen years and am competent to testify, and hereby state based on my
personal knowledge that:

1. I have read the facts set forth in the foregoing Complaint, and the facts as stated

therein are true.

2. I have personally read true copies of each of the exhibits referenced in the

Complaint.

3. I am one of the Relators in this action, and am a qualified elector of Cincinnati,

Ohio.

1
FURTHER AFFIANT SAYETH NAUGHT

Evan Nolan

Sworn to and subscribed before me this 15 day of October, 2018.


th
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

2
Exhibit C
IN THE TENTH DISTRICT COURT OF APPEALS

STATE EX REL. AFTAB : CASE NO.


PUREVAL, et al :
:
Relators, : ORIGINAL ACTION IN
: PROHIBITION
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

-v- :
:
OHIO ELECTIONS :
COMMISSION :
:
Respondent. :

RELATORS’ EMERGENCY MOTION FOR AN ALTERNATIVE


WRIT, INJUNCTION, OR STAY TEMPORARILY ENJOINING
OR STAYING OHIO ELECTIONS COMMISSION CASE NO.
2018G-022 AND TO SET AN EXPEDITED SCHEDULE FOR
RESPONSE TO THE MOTION AND REPLY IN SUPPORT

Relators hereby move the Court for an alternative writ, injunction,

or a stay to temporarily enjoin or stay Ohio Elections Commission Case

No. 2018G-022 pending resolution of the instant action. Relators contend

that Respondent Ohio Elections Commission is without jurisdiction to

adjudicate Case No. 2018G-022. Because of this, Relators respectfully

request that this Court grant their Motion to temporarily enjoying or stay

Case No. 2018G-022 until the Court has had an opportunity to address the

underlying question of Respondent Commission’s jurisdiction, thereby


maintaining the status quo and preserving the Court’s original

jurisdiction.

Extraordinary circumstances exist that warrant issuing an alternative

writ, injunction, or stay. Urgent action by the Court is needed to preserve


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

the status quo because the first discovery deposition is scheduled for

Tuesday, October 23, 2018, and the evidentiary hearing is set for

November 1, 2018, a mere five days before the November 6, 2018 General

Election. Failure to issue an alternative writ, injunction, or stay could

cause this case to become moot, thereby depriving Relators of their right

to challenge jurisdiction before being subjected to an evidentiary and

adjudicatory process that directly impinges on their First Amendment

rights.

Relators also move that the Court set an expedited response date to

the foregoing motion. Relators respectfully suggest a response date of

Wednesday, October 17, 2018 and a reply date of Thursday, October 18,

2018. Relators have served a copy of the Complaint and Motion filed

herein upon Respondent and Respondent’s legal counsel via electronic

mail.
A Memorandum in Support is attached for the Court’s

consideration.

Respectfully submitted,

/s/ Donald J. McTigue____________


Donald J. McTigue (0022849)**
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

**Counsel of Record
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com

Peter J. O’Shea (0086560)


Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
Tel: 513-977-3477
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice
pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Relators


MEMORANDUM IN SUPPORT

Relators filed this original action seeking a writ of prohibition to

prohibit Respondent Ohio Elections Commission (“Respondent

Commission” or the “Commission”) from exercising quasi-judicial


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

authority to adjudicate Ohio Elections Commission Case No. 2018G-022

(“Case No. 2018G-022”) because the Commission lacks jurisdiction.

Unless the Court issues either an alternative writ, injunction, or a stay to

temporarily enjoin or stay Case No. 2018G-022 pending resolution of the

instant action, Respondent Commission will conduct a full evidentiary

hearing and adjudication of the claims on November 1, 2018, resulting in

Relators suffering irreparable injury. For the reasons set forth herein,

Relators respectfully request the Court to issue either an alternative writ,

injunction, or a stay to temporarily stay the proceedings in Case No.

2018G-022 pending resolution of the instant action, thereby preserving

the status quo and aiding the Court in its original jurisdiction.

FACTUAL BACKGROUND

Relator Aftab Pureval is the Hamilton County Clerk of Courts,

having been elected to that office in 2018. He is also the Democratic


1
candidate for Ohio’s 1st Congressional District at the November 6, 2018

General Election. Relator Pureval has two campaign committees, one for

his county office, which is Relator Friends of Aftab Pureval (hereinafter

referred to as the “County Committee”), and one for his federal campaign,
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

named “Aftab for Ohio” (hereinafter referred to as the “Federal

Committee”). Relator Evan Nolan is the treasurer for both the County

Committee and the Federal Committee. The concurrent operation of these

two committees is expressly permitted under both federal and Ohio law.

See, Ohio Campaign Finance Handbook at 2-11, available at

https://www.sos.state.oh.us/globalassets/candidates/cfguide/chapters/cha

pter2.pdf.

On August 10, 2018, a complaint (the “OEC Complaint”) was filed

with the Commission against Relators by an individual named Mark W.

Miller (the “OEC Complainant”). See, Exhibit A to Relators’ Complaint.

The OEC Complaint broadly alleges that: (1) all contributions received

and reported by the County Committee from January 1, 2018 to June 30,

2018 were allegedly intended for the benefit of Relator Pureval’s federal

campaign; (2) expenditures made and reported by the County Committee,


2
ranging in dates from August 14, 2017 to May 2, 2018, were allegedly

made for the benefit of Relator Pureval’s federal campaign; (3) the County

Committee allegedly failed to provide sufficient documentation to verify

reported expenditures; and (4) the County Committee reported receiving


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

two PAC contributions that the PACs did not report making them. The

OEC Complaint alleges that because contributions and expenditures were

allegedly in connection with Relator Pureval’s campaign for federal

office, the 2017 Annual and 2018 Semi-Annual campaign finance reports

filed by the County Committee were inaccurate and violated R.C.

3517.13(D) and that for the same reason, the expenditures constituted

“personal use” of campaign funds in violation of R.C. 3517.13(O).

Respondent Commission assigned the OEC Complaint “Case No.

2018G-022,” and, pursuant to O.A.C. 3517-1-11, scheduled a preliminary

review of the case before the full commission for September 20, 2018. On

September 13, 2018, Relators filed their response to the OEC Complaint

with Respondent Commission. See, Exhibit B to Relators’ Complaint. At

the conclusion of the preliminary review, Respondent Commission voted

to proceed with OEC Case No. 2018G-022, setting the matter for a full
3
evidentiary and merits hearing before the commission, pursuant to O.A.C.

3517-1-11(A)(3)(d). This action also initiated the discovery process under

the Commission’s administrative rules.

On September 27, 2018, the Commission’s Executive Director


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

notified counsel for the parties that the Commission would hear and

decide any motions filed by the parties at its regularly-scheduled October

11, 2018 meeting and would conduct a full evidentiary hearing before the

Commission at its regularly-scheduled November 1, 2018 meeting. See,

Exhibit C to Relators’ Complaint. On September 28, 2018, Relators in

the instant action filed a Motion to Dismiss Case No. 2018G-022 with the

Commission. See, Exhibit D to Relators’ Complaint. In the Motion to

Dismiss, Relators argued that the Commission lacked jurisdiction to hear

the OEC Complaint because the linchpin allegations in the OEC

Complaint were based on “information and belief,” rather than personal

knowledge as required by Ohio law and the Commission’s rules. Relators

also argued that that the OEC Complaint failed to set forth any claims

upon which relief could be granted and made allegations that hinged on

federal law over which the Commission has no jurisdiction. On October


4
4, 2018, the OEC Complainant filed a Memorandum in Opposition to the

Motion to Dismiss. See, Exhibit E to Relators’ Complaint. Relators filed

a Reply Memorandum in support of their Motion to Dismiss on October

8, 2018. See, Exhibit J to Relators’ Complaint.


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

On October 1, 2018, after Relators filed the Motion to Dismiss, a

group called the Foundation for Accountability and Civic Trust filed a

complaint against Relator Pureval and others with the Federal Election

Commission (“FEC”) regarding several of the same factual allegations as

in Case No. 2018G-022. See, Exhibit E to Relators’ Complaint. On

October 8, 2018, Relators also filed a Motion to Stay with the Commission

to temporarily stay Case No. 2018G-022 until the FEC resolves the

complaint over the same matters. See, Exhibit K to Relators’ Complaint.

On October 2, 2018, the OEC Complainant’s counsel indicated to

Relators’ counsel that he plans to depose six individuals before the

Commission’s November 1 meeting, including Relators Pureval and

Nolan. See, Exhibit F to Relators’ Complaint. Later, the OEC

Complainant’s counsel served notices to take depositions duces tecum

upon Relator Nolan for October 23, 2018 and Relator Pureval for October
5
26, 2018. The notices contain broad requests for production of documents

relating to expenditures made by the County Committee. See, Exhibit G

to Relators’ Complaint.

On October 11, 2018, Respondent Commission held its hearing to


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

decide the motions filed by Relators. At the motion hearing, OEC

Complainant dismissed the allegations regarding the two PAC

contributions, after Relators pointed out that the PACs had in fact reported

making the contributions contrary to what the Complaint alleged. At the

end of the hearing, Respondent Commission granted Relators’ motion to

dismiss as to contributions received and reported by the County

Committee from January 1, 2018 to June 30, 2018, that allegedly violated

R.C. 3517.13(D). However, Respondent Commission voted to move

forward to a full evidentiary hearing with respect to the claims that the

expenditures made and reported by the County Committee were allegedly

made for the benefit of Relator Pureval’s federal campaign and the claims

that the County Committee allegedly failed to provide sufficient

documentation to verify reported expenditures. Respondent Commission

6
voted further to deny Relators’ motion to stay the proceedings pending

resolution of the FEC Complaint. See, Exhibit L to Relators’ Complaint.

Respondent Commission has set the full evidentiary hearing for

November 1, 2018, a mere five days before the federal election. Relator
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

Pureval’s next election for Hamilton County Clerk of Courts is scheduled

to occur in 2020.

ARGUMENT

I. Extraordinary Circumstances Exist to Warrant Issuing an


Alternative Writ

Extraordinary circumstances exist to warrant issuing an alternative

writ to temporarily enjoin or stay Case No. 2018G-022 pending resolution

of the instant action. See, Loc.R. 13(C) (requiring extraordinary

circumstances for the issuance of alternative writs). Respondent

Commission lacks jurisdiction to adjudicate Case No. 2018G-022 yet is

needlessly rushing to make a decision at its November 1, 2018 hearing.

This is precisely what the OEC Complainant hoped for, when taking

dubious federal law claims, and dressing them up as unsupported state law

claims. The OEC Complainant is using the Commission’s machinery to

7
obtain a public hearing five days before the election, which would make

it impossible for this Court to review and redress the Commission’s lack

of jurisdiction.

An adverse decision at the November 1 hearing would effectively


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

moot the instant action, thereby eliminating Relators’ ability to seek relief

from the Commission’s unlawful exercise of quasi-judicial power in the

form of a writ of prohibition. Even if the decision is reversed on appeal,

or even if it is contradicted by the FEC’s separate resolution of the federal

questions at the heart of the OEC Complaint, that would happen too late

to undo the damage done to Relators at the November 6 election.

Even the hearing itself, regardless of the decision, would inevitably

and irreversibly influence the results of the federal election. The OEC

Complainant has made clear that he seeks to present public testimony, in

full media glare, from the candidate, his campaign manager, and even his

mother. See, Exhibit _ to Relators’ Complaint. For these reasons,

extraordinary circumstances exist to warrant the Court issuing an

alternative writ to temporarily enjoin or stay the proceedings of Case No.

2018G-022 while this action is resolved.


8
II. Standard for Issuance of Injunction or Stay

The filing of the writ of prohibition action does not automatically

enjoin or stay Case No. 2018G-022. Therefore, an injunction or stay of

the proceedings is necessary to preserve the status quo pending resolution


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

of the instant action and to aid the Court in its original jurisdiction. The

standards for issuing an injunction or stay are the same: (1) whether the

appellant has shown a strong or substantial likelihood of success on the

merits; (2) whether appellant has shown that it will suffer irreparable

injury; (3) whether the issuance of a stay will cause harm to others; and

(4) whether the public interest would be served by granting a stay. See,

e.g., Vanguard Transp. Sys. v. Edwards Transfer & Storage Co. Gen.

Commodities Div., 109 Ohio App. 3d 786, 790, 673 N.E.2d 182 (10th

Dist. 1996) (setting forth the standard for the issuance of a preliminary

injunction); Prince-Paul v. Ohio Bd. of Nursing, 2015-Ohio-3984, 43

N.E.3d 13, ¶ 13 (10th Dist.) (explaining that these factors are “logical

considerations” in determining whether to stay an administrative order

pending appeal). This Court has explained further that these factors are

“not prerequisites that must be met but are interrelated considerations that
9
must be balanced together.” Prince-Paul v. Ohio Bd. of Nursing, 2015-

Ohio-3984 at ¶ 13.

Balancing the considerations in the instant action favors granting an

alternative writ, injunction, or stay to temporarily enjoin or stay Case No.


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

2018G-022 pending resolution of the instant action. Relators are likely to

succeed on the merits of their writ of prohibition claim as Respondent

Commission is patently and unambiguously without jurisdiction to

adjudicate Case No. 2018G-022. Further, Relators will suffer irreparable

injury by an adverse decision of the Commission while issuance of an

injunction or stay will not cause harm to others. Moreover, the public

interest would be served by granting an injunction or stay as it will prevent

state government interference with a federal election.

III. Relators are Likely to Succeed on the Merits of their Writ of


Prohibition Claim

Relators are likely to succeed on the merits of their claim for a writ

of prohibition. To obtain a writ of prohibition, Relators must show that (1)

Respondent Commission exercised or is about to exercise quasi-judicial

power, (2) the exercise of that power is unauthorized by law, and (3) that

10
the denial of the writ will result in injury for which no other adequate

remedy exists in the ordinary course of law. See, e.g., State ex rel. Hunter

v. Summit County Human Resource Comm’n, 81 Ohio St.3d 450, 451, 692

N.E.2d 185 (1998). The last requirement is waived, however, “if the lack
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

of jurisdiction is patent and unambiguous.” State ex rel. Durrani v.

Ruehlman, 147 Ohio St.3d 478, 2016-Ohio-7740, 67 N.E.3d 769, ¶ 13,

citing Chesapeake Exploration, L.L.C. v. Oil & Gas Comm'n, 135 Ohio St.

3d 204, 2013-Ohio-224, 985 N.E.2d 480, ¶ 11. Here, Respondent

Commission is patently and unambiguously without jurisdiction to

adjudicate Case No. 2018G-022, and Relators are entitled to a writ of

prohibition to prohibit the Commission from adjudicating the matter.

A. Respondent Commission Exercised or is about to Exercise


Quasi-Judicial Power.

Respondent Commission unquestionably exercised quasi-judicial

power in deciding to adjudicate Case No. 2018G following the September

20, 2018 preliminary review and the October 11, 2018 hearing on

motions. Further, Respondent Commission will continue to exercise

11
quasi-judicial power at the full evidentiary hearing on November 1, 2018,

just five days before the federal election.

B. Respondent Commission’s Exercise of Power is Unauthorized


by Law.
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

In OEC Case No. 2018G-022, Respondent Commission is

proceeding on two of the original four sets of claims. One set of claims is

that a group of expenditures made by the County Committee violate R.C.

3517.13(D) and/or R.C. 3517.13(O) on the basis of a speculative

allegation that the expenditures were made in connection with a federal

election. The other claim is that the County Committee violated R.C.

3517.10(D)(4) by allegedly providing inadequate documentation to verify

certain expenditures. Respondent Commission lacks jurisdiction to

adjudicate both sets of claims.

1. Respondent Commission lacks jurisdiction to adjudicate the


set of claims that Relators allegedly made expenditures in
connection with a federal election.

For three independent reasons, Respondent Commission lacks

jurisdiction to adjudicate the set of claims that the expenditures made by

the County Committee violate R.C. 3517.13(D) and/or R.C. 3517.13(O).

12
First, the OEC Complaint’s linchpin allegations are not made on personal

knowledge. Second, the allegations raise questions of federal law over

which the Federal Election Commission has exclusive jurisdiction. Third,

the OEC Complainant failed to properly invoke the Commission’s


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

jurisdiction by failing to set forth facts that would constitute prima facie

violations of any statute over which the Commission has jurisdiction.

a. The OEC Complaint’s linchpin allegations are not made


on personal knowledge.

Respondent Commission’s jurisdiction over complaints filed by

individuals is statutorily limited to complaints made on personal

knowledge. This high bar of personal knowledge was required by the

General Assembly in order to prevent abuses of a state-created process,

like the filing of facially spurious claims intended to harass parties and/or

deceive electors close to an election.

R.C. 3517.153 mandates that complaints filed by individuals with

the Commission “shall be made by affidavit of any person, on personal

knowledge, and subject to the penalties for perjury…” (Emphasis added).

O.A.C. 3517-1-02(A)(1) also requires a complaint to be “[b]y affidavit by

13
an individual based on personal knowledge…” (Emphasis added). O.A.C.

3517-1-02(A)(1)(d) provides further that such a complaint shall “[c]learly

set forth the specific source or basis of the personal knowledge…”

“Personal knowledge” is defined as knowledge gained through


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

firsthand observation or experience, as distinguished from a belief.

Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 95 Ohio

St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707 quoting Black’s Law

Dictionary (7th Ed.Rev.1999). In the context of affidavits, “personal

knowledge” is “knowledge of the truth in regard to a particular fact or

allegation, which is original, and does not depend on information or

hearsay.” Ocwen Loan Servicing, LLC v. Graf, 10th Dist. Franklin No.

17AP-361, 2018-Ohio-2411, ¶ 22 quoting Applegate v. N.W. Title Co.,

10th Dist. No. 03AP-855, 2004-Ohio-1465, ¶ 33 (emphasis added).

The Ohio Supreme Court has long held that bases other than

“personal knowledge,” like “information and belief,” will not satisfy a

personal knowledge requirement. The Supreme Court’s familiarity with

personal knowledge requirements stems from the Supreme Court’s own

Rules of Practice, which require complaints for original actions to be


14
supported by an affidavit made on personal knowledge specifying the

details of the claim. See, Sup.Ct.Prac.R. 12.02(B)(2). For instance, in

State ex rel. Hackworth v. Hughes, 97 Ohio St.3d 110, 2002-Ohio-5334,

¶ 24, the Court held that an affidavit in which the alleged facts were “true
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

and accurate to the best of her knowledge and belief” did not satisfy the

personal knowledge requirement. In State ex rel. Evans v. Blackwell, 111

Ohio St.3d 437, 2006-Ohio-5439, ¶ 32, the Court similarly held that an

affidavit in which the alleged facts were “true and correct to the best of

his personal knowledge” did not satisfy the personal knowledge

requirement. In State ex rel. Esarco v. Youngstown City Council, 116 Ohio

St.3d 131, 2007-Ohio-5699, ¶ 14-15, the Court held that although an

affidavit initially stated that the relator had “personal knowledge of the

matters set forth herein,” the affidavit subsequently stated that the facts

were made “to the best of my knowledge, information, and belief”;

therefore, the affidavit did not satisfy the personal knowledge

requirement. In State ex rel. Commt. for the Charter Amendment for an

Elected Law Dir. v. City of Bay Village, 115 Ohio St.3d 400, 2007-Ohio-

5380, ¶ 13, the Court rejected an affidavit in which the alleged facts were
15
“true and correct” based on the attorney’s “personal knowledge and

information,” explaining that it was not clear which allegations were

based on personal knowledge and which were based on simply on

information. In State ex rel. Walker v. Husted, 144 Ohio St.3d, 2015-


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

Ohio-3749, ¶ 25, the Court held that ten affidavits in which the alleged

facts were made to “the best of my knowledge, information, and belief”

did not satisfy the personal knowledge requirement.

These holdings are controlling in the instant action because the

Supreme Court’s personal knowledge requirement is the same as the

Commission’s personal knowledge requirement. In both cases, the

purpose of this requirement is clear: to avoid abuses of state processes, by

placing controls on the quality of the evidence that can be used.

Although the OEC Complaint’s notary block states “that the facts in

the foregoing Complaint are based upon [the Complainant’s]…personal

knowledge” (OEC Complaint at 12), the rest of the OEC Complaint

explicitly says that this is not the case. The linchpin allegations in the OEC

Complaint that expenditures were made by the County Committee

allegedly for the benefit of Mr. Pureval’s federal campaign, in violation


16
of R.C. 3517.13(D) and/or R.C. 3517.13(O), all state that they are “based

on information and belief” rather than personal knowledge. Because these

allegations are not made on personal knowledge, the Commission lacks

jurisdiction to adjudicate them. To review these allegations in turn:


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

First, paragraphs 11-18 and 59-61 of the OEC Complaint allege that

the County Committee reported four travel expenditures that were

allegedly made for the benefit of Mr. Pureval’s federal campaign in

violation of R.C. 3517.13(D). Additionally, paragraph 65 of the OEC

Complaint alleges that two of these expenditures, because they were

allegedly made for the benefit of Mr. Pureval’s federal campaign

committee, also violated R.C. 3517.13(O). The Complaint lists the

expenditures as contained on the County Committee’s reports but does

not set forth a single fact tying any of the expenditures to the federal race.

Further, paragraph 19 of the OEC Complaint explicitly states that the key

allegation that the expenditures in paragraphs 11-18 were made in

17
connection with a federal election is based on “information and belief”

rather than personal knowledge.1

Second, paragraphs 20-22 and 58 of the OEC Complaint allege that

the County Committee reported a media expenditure that was allegedly


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

made for the benefit of Mr. Pureval’s federal campaign in violation of

R.C. 3517.13(D). However, paragraphs 22 and 29 of the OEC Complaint

explicitly state that the key allegation that the expenditure identified in

paragraphs 20-22 was made in connection with a federal election is based

on “information and belief” rather than personal knowledge.2

Third, paragraphs 31-33 and 62 of the OEC Complaint allege that

the County Committee reported a consulting expenditure that was

allegedly made for the benefit of Mr. Pureval’s federal campaign in

1
Paragraph 19 of the OEC Complaint states: “On information and belief, the ‘Travel’ expenditures set forth in
paragraphs 11-18 were made to support of Pureval’s efforts in his campaign for Congress, and were not legitimate
and verifiable ordinary, and necessary, or otherwise permissible expenditures for Friends of Aftab Pureval, a campaign
committee purporting to support a putative candidate for re-election as the Hamilton County Clerk of Courts, or the
duties of Clerk of Courts.” (Emphasis added).
2
Paragraph 22 of the Complaint states in relevant part: “In fact, on information and belief, the ‘Media’ for which
Friends of Aftab Pureval paid, was photography services at Pureval’s congressional campaign kickoff events…”
(Emphasis added).
Paragraph 29 of the Complaint states: “On information and belief, the ‘Media’ expenditures set forth in paragraphs
20-22 were made to support of Pureval’s efforts in his campaign for Congress, and were not necessary, legitimate,
reasonable, or otherwise permissible expenditures for Friends of Aftab Pureval, a campaign committee purporting to
support a putative candidate for re-election as the Hamilton County Clerk of Courts, or the duties of the Clerk of
Courts.” (Emphasis added).

18
violation of R.C. 3517.13(D). The Complaint lists the expenditure as

contained on the County Committee’s report but does not set forth a single

fact tying it to the federal race. Further, paragraph 34 of the OEC

Complaint explicitly states that the key allegation that the expenditure was
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

made in connection with a federal election is based on “information and

belief” rather than personal knowledge.3

Finally, paragraphs 45-52 and 67 of the OEC Complaint allege that

the County Committee reported ten travel and meeting expenditures

allegedly made for the benefit of Mr. Pureval’s federal campaign in

violation of R.C. 3517.13(O). The Complaint lists the expenditures as

contained on the County Committee’s reports but does not set forth a

single fact tying any of the expenditures to the federal race. Further,

Paragraphs 54-55 explicitly state that the key allegation that the

expenditure was made in connection with a federal election is based on

“information and belief” rather than personal knowledge.4

3
Paragraph 34 of the Complaint states: “On information and belief, the payment to GBA Strategies was for polling
and other services related to Pureval’s campaign for Congress, and are not [sic] a legitimate and verifiable ordinary,
and necessary, or otherwise permissible expenditure connected to Pureval’s putative campaign for re-election as the
Hamilton County Clerk of Courts, or the duties of the Clerk of Courts.” (Emphasis added).
4
Paragraph 54 of the Complaint states: “On information and belief, the expenditures referred to in paragraphs 45
and 52 were not a legitimate and verifiable ordinary, and necessary, or otherwise permissible expenditure related to

19
Thus, every one of the allegations on which the Commission is now

proceeding was impermissibly based solely on “information and belief,”

by the OEC Complainant’s own express admission, in contravention of

the statute’s plain requirement, and in excess of the Commission’s lawful


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

jurisdiction.

b. The allegations raise questions of federal law over which


the Federal Election Commission has exclusive
jurisdiction.

Respondent Commission is patently and unambiguously without

jurisdiction to adjudicate the set of claims that these expenditures were

made for a federal election for the additional reason that such allegations

involve questions of federal law beyond the Commission’s jurisdiction.

Instead, the issue is expressly reserved for interpretation and enforcement

by the Federal Election Commission (“FEC”).

To find that the expenditures made by the County Committee were

actually intended to support Relator Pureval’s federal campaign for

Aftab Pureval’s purported race for re-election as the Hamilton County Clerk of Courts or the duties as the Hamilton
County Clerk of Courts.”
Paragraph 55 of the Complaint states: “On information and belief, the expenditures listed in paragraphs 45 through
52 were related to Aftab Pureval’s testing of the waters for a run for Congress from either Ohio’s First or Second
Congressional District.”

20
Congress, Respondent Commission must decide if the expenditures were

made for the purpose of influencing a federal election. See 52 U.S.C. §

30101(9)(A)(i). Because the expenditures would otherwise represent

prima facie lawful conduct under Ohio law, finding a violation on these
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

claims necessarily requires a finding of federal expenditures. Yet, to make

such a finding is a matter expressly reserved to the FEC, which has

exclusive civil jurisdiction on these matters. See 52 U.S.C. § 30106(b)(1).

Federal law clearly reserves for the FEC the power to adjudicate

cases over the disbursement of funds to engage in federal election activity.

The Federal Election Campaign Act of 1974 (the “Act” or “FECA”), as

amended, states that the Act shall “supersede and preempt any provision

of State law with respect to election to Federal office.” 52 U.S.C. §

30143(a); see also 11 C.F.R. § 108.7. Specifically, federal law has such

effect with respect to any state law that purports to regulate the

“[d]isclosure of receipts and expenditures by Federal candidates and

political committees.” 11 C.F.R. § 108.7(b)(2). The Act’s legislative

history shows that Congress intended “to make certain that the Federal

law is construed to occupy the field with respect to elections to Federal


21
office and that the Federal law will be the sole authority under which such

elections will be regulated.” H.R. Rep. No. 93-1239, 93rd Cong., 2d Sess.

10 (1974). And, the Act establishes that—with one lone exception not

relevant here—“the power of the [Federal Election] Commission to


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

initiate civil actions . . . shall be the exclusive civil remedy for the

enforcement of the provisions of this Act.” 52 U.S.C. § 30107(e).5

Courts, including the Sixth Circuit, have accordingly and repeatedly

intervened to guard the Commission’s exclusive civil jurisdiction and

prevent litigants from making an end run around the federal process. See,

e.g., Bunning v. Com. of Ky., 42 F.3d 1008, 1011–13 (6th Cir. 1994)

(barring application of state campaign finance law to polling expenditure

incurred by federal candidate as “intrusion into [] federally regulated

activity”); Stockman v. Fed. Election Comm’n, 138 F.3d 144, 154 (5th

Cir. 1998) (preventing federal candidate from initiating collateral

5
That exception applies only when the U.S. District Court for the District of Columbia declares that the FEC has
unlawfully failed to act on a complaint, when the FEC fails to conform with the court’s declaration, and when the
court authorizes the complainant to bring a private right of action against the respondent. See 52 U.S.C. § 30109(a)(8).
See also, e.g., Citizens for Responsibility and Ethics in Washington v. FEC, Civ. No. 16-259 (BAH) (D.D.C. Aug. 3,
2018). The narrowness of this lone exception from the FEC’s exclusive civil jurisdiction, and the rarity with which it
has been deployed, shows how seriously Congress and the FEC have treated the exclusiveness of the FEC’s
jurisdiction. It shows also the OEC Complainant’s audacity in leap-frogging the federal process and going to a state
administrative agency to get a hearing five days before an election.

22
litigation to thwart federal complaint); Republican Party of New Mexico

v. King, 850 F. Supp. 2d 1206, 1215–16 (D.N.M. 2012), aff’d, 741 F.3d

1089 (10th Cir. 2013) (finding that plaintiff was likely to succeed on claim

that federal law preempted state law limit on solicitation and receipt of
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

contributions to be used in federal campaigns).

Federal preemption is especially important now that an actual FEC

complaint has been filed over the issues before the Commission in Case

No. 2018G-022. A rush to judgment by Respondent Commission in Case

No. 2018G-022 could be counter-productive and not serve Ohio’s

interests because the factual and legal questions necessary to resolving the

state law allegations depend at least in part on resolving the FEC

complaint. While the OEC ultimately decides whether Ohio law is

violated, in a case like this, the underlying federal determinations are

required to be made by the FEC. The fact that the OEC Complainant filed

his complaint with the OEC instead of the FEC given his factual premise

that the contributions and expenditures were for a federal election, itself

demonstrates the sort of forum-shopping that the Act’s preemption and

23
exclusive jurisdiction provisions were designed to thwart.6 As other courts

have done previously, this Court should prevent Respondent Commission

from asserting jurisdiction it does not have to decide claims of purported

federal campaign and to prevent the OEC Complainant’s end run around
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

the federal process.

c. Respondent Commission lacks jurisdiction to adjudicate


complaints filed by individuals that do not set forth facts
that would constitute a prima facie violation of any statute
within the Commission’s jurisdiction.

Respondent Commission lacks jurisdiction to adjudicate the

expenditure claims for the additional reason that the OEC Complaint

failed to properly invoke the Commission’s jurisdiction by failing to set

forth facts that would constitute a prima facie violation of any Ohio

election law over which the Commission has jurisdiction. R.C.

3517.153(A) mandates that complaints filed with the Commission must

“[set] forth a failure to comply with or a violation of any provision in

6
OEC Complainant might well have known that, had he gone to the FEC as he was supposed to, he would not have
prevailed. See, e.g., Statement of Reasons of Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter
and Donald F, McGahn, MUR 6225 (Dec. 1, 2010), at 4 (refusing to open an investigation over claims that a newly
re-elected nonfederal officeholder impermissibly used state PAC funds to pay for a poll in connection with a potential
U.S. Senate race, on the grounds that “Commission regulations clearly allow committees to evenly split the costs
associated with a poll …”).

24
sections 3517.08 to 3517.13, 3517.17, 3517.18, 3517.20 to 3517.22,

3599.03, or 3599.031 of the Revised Code…” O.A.C. 3517-1-02(A)(1)(f)

requires complaints filed with the Commission to “[c]learly set forth

sufficient facts, supported by affidavits, exhibits and/or other documents


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

to constitute a prima facie violation of Ohio election law over which the

commission has jurisdiction.” Further, O.A.C. 3517-1-02(A)(1)(g)

requires complaints filed with the Commission to “[c]learly set forth each

and every separate alleged violation of Ohio election law over which the

commission has jurisdiction in a narrative form, cross-referenced to the

relevant Revised Code section(s).”

Paragraphs 58-62 of the OEC Complaint allege that the County

Committee violated R.C. 3517.13(D) by reporting six expenditures,

identified in paragraphs 11-33 of the OEC Complaint, that were allegedly

intended for the benefit of Respondent Pureval’s federal campaign

committee. R.C. 3517.13(D) requires campaign committees to file

complete and accurate annual and semiannual campaign finance reports.

Even if presuming that the expenditures were made for the benefit of the

federal campaign, R.C. 3517.13(D) would still require the County


25
Committee to report all expenditures made regardless of the intended

beneficiary. In other words, it would only be a violation of R.C.

3517.13(D) if the county committee failed to accurately report the

expenditures. Here, the OEC Complaint does not contend that the County
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

Committee did not actually make the six expenditures, nor that the payees,

addresses, dates, or amounts reported by the committee are inaccurate.

The OEC Complaint offers nothing besides “information and belief” to

question the “legitimate and verifiable” character of any of the

ependitures.

For these reasons, the OEC Complaint, with respect to the six

expenditures identified in paragraphs 11-33, fails to set forth sufficient

facts that would constitute a prima facie violation of R.C. 3517.13(D),

thereby failing to properly invoke Respondent Commission’s jurisdiction.

Accordingly, Respondent Commission lacks jurisdiction to adjudicate the

claims in paragraphs 58-62 of the OEC Complaint that the County

Committee violated R.C. 3517.13(D) by reporting the six expenditures.

26
2. Respondent Commission is Patently and Unambiguously
Without Jurisdiction to Adjudicate the Set of Claims that
Relators Violated R.C. 3517.10(D)(4).

Respondent Commission is patently and unambiguously without

jurisdiction to adjudicate the claim that the County Committee violated


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

R.C. 3517.10(D)(4) because the OEC Complaint fails to set forth

sufficient facts that would constitute a prima facie violation of this statute.

Indeed, the OEC Complaint actually acknowledges that the County

Committee provided the very expenditure verification documents

required by law.

R.C. 3517.10(D)(4) states, in relevant part that “[e]very expenditure

in excess of twenty-five dollars shall be vouched for by a receipted bill,

stating the purpose of the expenditure, that shall be filed with the

statement of expenditures.” Further, O.A.C. 111:2-4-13(D) provides:

The requirement of section 3517.10 of the Revised


Code that every expenditure in excess of twenty-
five dollars shall be vouched for, is satisfied by
providing an original or photocopy of any of the
following:
(1) A receipted bill; or
(2) A canceled check;

27
(3) An account statement, from the committee's
financial institution, which contains the name of
the payee, amount, date, and check number.

Paragraph 63 of the OEC Complaint alleges that Relators failed to

document the expenditures identified in the Complaint. However, for ten


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

of the seventeen identified expenditures—identified below—the OEC

Complaint itself acknowledges that Relators provided either bank account

summaries or a copy of a canceled check showing the name of the payee,

amount, and date of the expenditure, which O.A.C. 111:2-4-13(D)(2)-(3)

permit filers to provide to satisfy R.C. 3517.10(D)(4)’s expenditure

verification requirement. For the seven other expenditures—also

identified below—the OEC Complaint alleges that Relators failed to

provide any supporting documentation, but this allegation is belied by the

Complaint’s own exhibits, which contain the supporting documentation.

a. For ten expenditures, the OEC Complaint acknowledges


that sufficient documentation was provided.

For the ten expenditures referred to in paragraphs 12, 14, 16, 18, 21,

32, 37, and 53 of the OEC Complaint, the allegations actually

acknowledge that the County Committee provided bank account

28
summaries or copies of cancelled checks to verify the expenditures. Under

O.A.C. 111:2-4-13(D), bank account summaries or copies of cancelled

checks are sufficient to verify expenditures.

The ten expenditures, with the corresponding admissions, are as


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

follows:

 Paragraph 12 of the OEC Complaint alleges that Friends of Aftab


Pureval provided “only a bank account summary showing that a
debit card payment in the amount of $2,884.00 using VENMO”
to verify the $2,884 travel expense identified in Paragraph 11.
(Emphasis added).

 Paragraph 14 of the Complaint alleges that Friends of Aftab


Pureval provided “only a bank account summary showing that a
debit card payment in the amount of $300.60 was made to Delta
using a debit card” in reference to the $300.60 travel expense
identified in Paragraph 13. (Emphasis added).

 Paragraph 16 of the OEC Complaint alleges that Friends of Aftab


Pureval provided “only a bank account summary showing that a
debit card payment in the amount of $412.00 was made using
VENMO” in reference to the $412 travel expense identified in
Paragraph 15. (Emphasis added).

 Paragraph 18 of the OEC Complaint alleges that Friends of Aftab


Pureval provided “only a bank account summary showing that a
debit card payment in the amount of $139.30 was made to Delta
using a debit card” in reference to the $139.30 travel expense
identified in Paragraph 17. (Emphasis added).

29
 Paragraph 21 of the OEC Complaint alleges that Friends of Aftab
Pureval provided “only a bank account summary showing that a
debit card payment in the amount of $360.50 was made using
VENMO” in reference to the $360.50 expense identified in
Paragraph 20. (Emphasis added).

 Paragraph 32 of the OEC Complain alleges that Friends of Aftab


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

Pureval provided “a copy of check 1061” in reference to check


used to pay GBA Strategies for the expenditure identified in
Paragraph 31.

 Paragraph 37 of the OEC Complaint alleges that Friends of Aftab


Pureval provided “only a bank account summary showing that a
debit card payment in the amount of $2,884.00 [sic] was made
using VENMO” presumably in reference to the $257.50 expense
identified in Paragraph 36. (Emphasis added).

 Paragraphs 53 of the OEC Complaint allege that Friends of Aftab


Pureval provided only “a bank statement showing debit charges
in those amounts to American Airlines on that date” in reference
to the three $188.40 expenses identified in Paragraph 47.
(Emphasis added).

Because the OEC Complaint alleges that the County Committee

provided bank account summaries showing the payee, the amount, and

date of the expenditures for the ten expenditures referred to in paragraphs

12, 14, 16, 18, 21, 32, 37, and 53, the OEC Complaint does not set forth

facts that the documentation provided for these expenditures fails to

comply with R.C. 3517.10(D)(4). The OEC Complaint, therefore, fails to

30
comply with R.C. 3517.153(A) and O.A.C. 3517-1-02(A)(1)(f)-(g),

which require that in order to properly to invoke the Commission’s

jurisdiction, complaints filed by individuals must set forth facts that would

establish a prima facie violation of a statute within the Commission’s


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

jurisdiction. For this reason, Respondent Commission lacks jurisdiction

to adjudicate these alleged violations of R.C. 3517.10(D)(4).

b. For seven other expenditures, the OEC Complaint’s


allegations that sufficient documentation was not provided
are belied by the OEC Complaint’s own exhibits which
contain the documentation.

For the seven expenditures referred to in paragraphs 45-46 and 48-

52, the OEC Complaint’s allegations that the County Committee failed to

provide sufficient documentation are belied by the OEC Complaint’s own

exhibits which include bank account summaries verifying each expense.

Again, under O.A.C. 111:2-4-13(D), bank account summaries are

sufficient to verify expenditures.

The expenditures referred to in paragraphs 45-46 and 48-52 were all

made from August 2017 to December 2017.7 They are as follows: a

7
Relator Pureval did not become a federal candidate until 2018.

31
$595.99 expenditure on August 14, 2017 to Ellis Hotel for lodging (OEC

Compl. ¶ 45); a $25.67 expenditure on August 14, 2017 to Meehans’

Public House for a meeting expense (Id. ¶ 46); a $64.47 expenditure on

November 7, 2017 to Reserve Bar for a meeting expense (Id. ¶ 48); a


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

$229.73 expenditure on November 29, 2017 to Minted, LLC for a meeting

expense (Id. ¶ 49); a $336.27 expenditure on December 5, 2017 to

Murphin Ridge Inn for lodging (Id. ¶ 50); a $150 expenditure on

December 5, 2017 to White Star for a meeting expense (Id. ¶ 51); and a

$195.80 expenditure on December 8, 2017 to Anderson Pub & Grill for a

meeting expense (Id. ¶ 52).

Contradicting the OEC Complaint’s allegation that the County

Committee failed to provide any expenditure verification documentation

for these expenditures is Exhibit 15 to the OEC Complaint, which is a

copy of the committee’s 2017 Annual Report. Attached to the 2017

Annual Report are bank statements for August 2017 through December

2017, and these contain the information required by O.A.C. 111:2-4-

13(D)(3) for these seven expenditures.

32
Because the OEC Complaint’s allegation that the County

Committee failed to provide sufficient documentation for these seven

expenditures is disproven by the OEC Complaint’s own exhibits, the OEC

Complaint does not set forth facts that the County Committee violated
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

R.C. 3517.10(D)(4) with respect to the seven expenditures identified in

paragraphs 45-46 and 48-52. Accordingly, Respondent Commission lacks

jurisdiction to adjudicate these alleged violations of R.C. 3517.10(D)(4).

C. Relators Lack an Adequate Remedy in the Ordinary Course of


Law.

As an initial matter, Relators do not need to demonstrate that they

lack an adequate remedy in the ordinary course of law because

Respondent Commission is patently and unambiguously without

jurisdiction to adjudicate Case No. 2018G-022. Ruehlman, ¶ 13 (stating

that the requirement to demonstrate the lack of adequate remedy at law

“is waived if the lack of jurisdiction is patent and unambiguous.”).

Despite this, Relators do indeed lack an adequate remedy in the

ordinary course of law. Relators cannot immediately appeal Respondent

Commission’s denial of their motion to dismiss as the denial is not a final

33
order and, under R.C. 119.12, only the Commission’s final orders are

appealable. Further, waiting for a final order to appeal would not be

adequate because, as set forth below, Relators will suffer irreparable

injury if they are subjected to Respondent Commission’s unlawful


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

exercise of quasi-judicial power.

IV. Relators Will Suffer Irreparable Injury if an Alternative Writ,


Injunction, or Stay is Not Issued

Relators will suffer irreparable injury if Case No. 2018G-022 is not

enjoined or stayed pending the resolution of the instant action for three

independent reasons. First, lacking an injunction or stay, Respondent

Commission will reach a decision at its November 1, 2018 evidentiary

hearing. This would effectively moot the instant action, thereby

eliminating Relators’ ability to seek relief from the Commission’s

unlawful exercise of quasi-judicial power.

Second, a decision by Respondent Commission on November 1—

just five days before the federal election at which Relator Pureval is a

candidate—will, at the very least, result in a state-sanctioned proceeding

against the federal candidate in which his political opponents, in full

34
media glare, will offer purported evidence and argument that he violated

the law. An adverse decision by Respondent Commission, which patently

and unambiguously lacks jurisdiction to adjudicate Case No. 2018G and

has no jurisdiction or oversight with respect to elections for federal office,


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

could irreparably—and unnecessarily—harm Relator Pureval’s

reputation just before the federal election at which he is a candidate.

Voters would inevitably be influenced on how they vote in a close federal

election, and the damage could not be undone after the election.

Third, a needlessly rushed decision by the Commission on

November 1, when it lacks jurisdiction to do so, would impinge upon

Relators’ First Amendment rights to associate with likeminded citizens.

See, Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First

Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury”). Relator Pureval and his supporters are

entitled to a free and fair election, in which a state agency does not exceed

its lawful jurisdiction in a way that can only politically benefit their

electoral opponents. For these reasons, Relators will suffer irreparable

injury if an alternative writ, injunction, or stay is not issued.


35
V. Issuance of an Alternative Writ, Injunction, or Stay Will Serve
the Public Interest and Not Cause Harm to Others

Granting an alternative writ, injunction, or stay would serve the

public interest and not cause harm to others. Conversely, a decision in


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

Case No. 2018G-022 by Respondent Commission while this action is

pending could negatively—and potentially wrongfully—impact the

results of a federal election for one candidate in the federal election while

benefitting the other. This is true regardless of whether Respondent

Commission finds in favor of the OEC Complainant or Relators.

However, by granting an injunction or stay, the Court would maintain the

status quo pending resolution of the instant action, thereby preventing

Respondent Commission from benefitting one candidate over the other

and impacting the outcome of a federal election.

CONCLUSION

For the foregoing reasons, Relators respectfully request the Court to

grant an alternative writ, injunction, or a stay to temporarily enjoin or stay

the proceedings in Case No. 2018G-022 pending resolution of the instant

36
action, thereby preserving the status quo and aiding the Court in its

original jurisdiction.

Respectfully submitted,
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

37
/s/ Donald J. McTigue____________
Donald J. McTigue (0022849)**
**Counsel of Record
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com

Peter J. O’Shea (0086560)


Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
Tel: 513-977-3477
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*Motion to appear pro hac vice
pending
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Relators

38
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Motion and

Memorandum in Support were served via email on October 15, 2018 upon

the following:
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 15 5:48 PM-18AP000789

Philip Richter
Executive Director and Staff Attorney
Ohio Elections Commission
77 South High Street, Suite 1850
Columbus, Ohio 43215
Phone: 614-466-3205
philip.richter@elc.state.oh.us

Damian Sikora
Assistant Attorney General
Office of the Ohio Attorney General
30 E. Broad Street, 17th Floor
Columbus, Ohio 43215
Phone: 614-466-4320
damian.sikora@ohioattorneygeneral.gov

Counsel for Respondent

/s/ Donald J. McTigue________


Donald J. McTigue

39
Exhibit D
IN THE TENTH DISTRICT COURT OF APPEALS

State Ex Rel. Pureval, et. al., :


:
Relators, : Case No. 18AP-789
:
vs. :
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

:
Ohio Elections Commission, :
:
Respondent. :

RESPONDENT’S COMBINED MOTION TO DISMISS


RELATORS’ COMPLAINT FOR A WRIT OF PROHIBITION
AND RESPONSE IN OPPOSITION TO RELATORS’
EMERGENCY MOTION FOR AN ALTERNATIVE WRIT,
INJUNCTION OR STAY

Donald J. McTigue (0022849) Mark Landes (0027227)


Derek S. Clinger (0092075) mlandes@isaacwiles.com
McTigue & Colombo LLC Mark Weaver (0065769)
545 East Town Street mweaver@isaacwiles.com
Columbus, Ohio 43215 Andrew N. Yosowitz (0075306)
614-263-7000; Fax: 614-263-7078 Isaac, Wiles, Burkholder & Teetor
dmctigue@electionlawgroup.com 2 Miranova Place, Suite 700
dclinger@electionlawgroup.com Columbus, Ohio 43215
614-221-2121; Fax: 614-365-9516
Peter J. O’Shea (0086560) Attorneys for Respondent Ohio
Katz, Teller, Brant & Hild Elections Commission
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
513-977-3477; Fax 513-762-0077
poshea@katzteller.com
Brian G. Svoboda
David Lazarus
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
202-654-6200; Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

Counsel for Relators

2
Relators admit in their Complaint that the Ohio Elections
Commission has subject matter jurisdiction to adjudicate alleged
violations of State campaign finance law (Complaint, ¶ 8). That is exactly
what the Commission is trying to do—adjudicate alleged violations of
State campaign finance laws. Relators were sanguine with the
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

Commission’s process until their motion to dismiss was partially denied


and discovery was scheduled to begin. Now, facing those substantive
deadlines, Relators attempt to morph their concerns about the
Commission’s handling of the underlying complaint into purported
jurisdictional hurdles for the Commission.
In this case, a complaint was filed with the Commission alleging that
Relators violated Ohio Revised Code §§ 3517.10 and 3517.13—alleged
violations that Relators admit that the Commission has clear subject
matter jurisdiction to investigate and adjudicate. The complaint alleges
improper spending by a state-regulated campaign committee, for which
the Commission is duty-bound to investigate. Why the spending was
improper cannot divest the Commission from jurisdiction. It could be that
drinks or photographs or baseball tickets were purchased, unrelated to a
state campaign committee’s purpose. The object of the spending may give
other regulatory agencies cause for interest, but if the spending itself is
not permissible under state election law, that mandates the Commission
to act.

3
Relators argue that the underlying complaint is deficient in form and
substance, but a complaint’s failure to state a cause of action or
insufficiency of evidence is procedural in nature, not jurisdictional. In
other words, such alleged failings, even if true, do not deprive the
Commission of jurisdiction.
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

As stated in the Memorandum below, the Commission has statutory


authority to exercise jurisdiction over the types of claims alleged in the
underlying complaint. Relators’ attempt to use a writ of prohibition to test
the sufficiency of a complaint is inappropriate and must be denied.

/s/ Mark Landes


Mark Landes (0027227)
mlandes@isaacwiles.com
Mark Weaver (0065769)
mweaver@isaacwiles.com
Andrew N. Yosowitz (0075306)
Isaac, Wiles, Burkholder & Teetor
2 Miranova Place, Suite 700
Columbus, Ohio 43215
614-221-2121; Fax: 614-365-9516
Attorneys for Respondent Ohio
Elections Commission

4
MEMORANDUM IN SUPPORT

I. RELEVANT FACTS 1

A. A COMPLAINT ALLEGING VIOLATIONS OF


VARIOUS CAMPAIGN FINANCE AND REPORTING
REQUIREMENTS IS FILED AGAINST RELATORS
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

The essential facts of this case are not disputed. On August 10, 2018,

Mark Miller filed a complaint (hereinafter “OEC Complaint”) with the

Commission alleging that Aftab Pureval, Friends of Aftab Pureval and

Evan Nolan violated R.C. §§ 3517.13(D), 3517.10(D)(4) and 3517.13(O).

(Complaint, ¶ 12, OEC Complaint attached to Relators’ Complaint as

Exhibit A, at ¶¶ 57-67).

The OEC Complaint alleges that 19 separate expenses or

contributions violated either R.C. § 3517.13(D) (Failure to file a complete

and accurate statement of campaign contributions and expenditures), R.C.

1
For purposes of this Motion to Dismiss, Respondents presume all factual
allegations in the Complaint as true; however, statements of law and legal
conclusions need not be accepted as true. Morrow v. Reminger and
Reminger Co., LPA, 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d
696, ¶ 7. By narrowing the issues for the Court in this Motion, the
Commission does not intend to waive any other defenses that could later
be stated in an Answer.

5
§ 3517.10(D)(4) (Requiring every expenditure greater than $25.00 to be

vouched for by a receipt stating the purpose of the expenditure which shall

be filed with the statement of expenditures) and/or R.C. § 3517.13(O)

(Prohibiting beneficiary of campaign fund from converting or giving


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

anything of value from the fund for personal use). (Complaint, ¶¶ 13-14,

Exhibit A, generally; see also Exhibit J attached to Relators’ Complaint

entitled “Overview of Allegations in Complaint”).

The OEC Complaint was supported by an affidavit with numerous

exhibits. (Complaint, ¶ 43, Exhibit A). The affidavit was signed and

notarized and states “that the facts in the foregoing Complaint are based

upon my personal knowledge.” (Id.). Six of the sixty-seven paragraphs

use the phrase “information and belief.” (Complaint ¶ 45, Exhibit A).

B. PROCEEDINGS BEFORE THE COMMISSION

The Commission is a seven-member commission created by Ohio

law to hear alleged violations of state campaign finance law contained in

Ohio Revised Code sections 3517.08 to 3517.13, 3517.17, 3517.18,

3517.20 to 3517.22, 3599.03 and 3599.031. (Id. at ¶ 8). The Commission

6
has the authority to find facts, make adjudications of violations, and

impose administrative fines. (Id.).

The Commission assigned the OEC Complaint “Case No. 2018G-

022,” and, pursuant to O.A.C. § 3517-1-11, scheduled a preliminary


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

review before the full Commission on September 20, 2018. (Id. at ¶ 15).

At the preliminary review, the Commission voted to proceed with the case

and set the matter for a hearing. (Complaint, ¶ 18). A motion hearing was

scheduled for October 11, 2018 and a full evidentiary hearing was

scheduled for November 1, 2018. (Id. at ¶ 20).

On October 11, 2018, the Commission dismissed some of the claims

in the OEC Complaint but voted to move forward with claims regarding

alleged unlawful expenditures. (Id. at ¶¶ 32-33, Exhibit L). Relators’

Complaint for a Writ of Prohibition followed four days later.

II. RELATORS ARE NOT ENTITLED TO A WRIT OF


PROHIBITION

By design, writs of prohibition are to be used sparingly. A writ of

prohibition is “an extraordinary remedy that is granted in limited

circumstances with great caution and restraint.” Salloum v. Falkowski,

7
151 Ohio St.3d 531, 2017-Ohio-8722, 90 N.E.3d 918, at ¶ 7, citing State

ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 2001 Ohio 15, 740 N.E.2d

265 (2001). Relators are entitled to the writ only upon a showing that (1)

the Commission is about to exercise judicial power, (2) its exercise of that
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

power is unauthorized by law, and (3) denying the writ would result in

injury for which no other adequate remedy exists in the ordinary course

of the law. Id., citing State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114,

2012-Ohio-54, 961 N.E.2d 181, ¶ 18. Prohibition will not lie unless it

clearly appears that the Commission has no jurisdiction over the cause

that it is attempting to adjudicate, or the Commission is about to exceed

its jurisdiction. Broderick v. Paris, 8th Dist. No. 106987, 2018-Ohio-2123,

at ¶ 7, citing State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d

571 (1941), paragraph three of the syllabus. “The writ will not issue to

prevent an erroneous judgment, or to serve the purpose of appeal, or to

correct mistakes of the lower court in deciding questions within its

jurisdiction.” Id., citing State ex rel. Sparto v. Juvenile Court of Darke

Cty., 153 Ohio St. 64, 65, 90 N.E.2d 598 (1950).

8
The dispositive issue in this case is whether the Commission has

jurisdiction to adjudicate the Complaint before it. If so, Relators’

Complaint must be dismissed and their Emergency Motion for Alternative

Writ, Injunction or Stay must be denied.


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

A. THE COMMISSION HAS CLEAR JURISDICTION TO


ADJUDICATE THE OEC COMPLAINT

The undisputed facts in Relators’ Complaint illustrate the

Commission’s clear jurisdiction to adjudicate the OEC Complaint.

Subject-matter jurisdiction is a court's power over a type of case. It is

determined as a matter of law and, once conferred, it remains. Pratts v.

Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 34. Stated

another way, subject matter jurisdiction relates to the proper forum for an

entire class of cases, not the particular facts of an individual case. Subject

matter jurisdiction is present if the action brought before a court or

administrative agency alleges "any cause of action cognizable by the

forum." Avco Fin. Servs. Loan Inc. v. Hale, 36 Ohio App.3d 65, 67, 520

N.E.2d 378 (1987).

9
In this case, the OEC Complaint presents the “type of case” that the

Commission has the specific authority to preside over. The Commission

has jurisdiction to hear complaints “setting forth a failure to comply with

or a violation of any provision in sections 3517.08 to 3517.13, 3517.17,


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

3517.18, 3517.20 to 3517.22, 3599.03, or 3599.031 of the Revised Code.”

R.C. § 3517.153(A); see also Complaint, ¶ 8. The OEC Complaint at issue

in this case clearly alleged violations of R.C. §§ 3517.13(D),

3517.10(D)(4) and 3517.13(O). (Complaint, ¶¶ 13-14, Exhibit A,

generally and ¶¶ 57-67, Exhibit J (Overview of Allegations in

Complaint)). Whether the allegations are true, false or sufficient to state a

claim are immaterial to the determination of jurisdiction. The

Commission has jurisdiction to adjudicate the OEC Complaint and is not

exercising power unauthorized by law. Consequently, Relators have no

basis for a writ of prohibition.

10
B. RELATOR’S ARGUMENTS OPPOSING
JURISDICTION FAIL AS A MATTER OF LAW

Relators advance three arguments opposing the Commission’s

jurisdiction: (1) the Commission lacks jurisdiction because certain


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

allegations in the OEC Complaint were not made on personal knowledge,

(2) the OEC Complaint is preempted by federal law and (3) the OEC

Complaint fails to state a prima facie violation of the law. None of

Relators’ arguments has merit.

Relators’ first and third arguments can be easily disposed of. These

arguments allege that the OEC Complaint fails to state a claim. Whether

or not the OEC Complaint states an actionable violation is procedural, not

jurisdictional. State ex rel. Hanson v. Guernsey Cty. Bd. Of Comm’rs, 65

Ohio St.3d 545, 548, 605 N.E.2d 378 (1992) (holding that Rule 12 motion

to dismiss for failure to state a claim is procedural); Murray v. City of

Columbus, 10th Dist. No. 13AP-912, 2014-Ohio-2790, at ¶ 13 (same).

In addition, the Ohio Supreme Court has held that the complete

failure to file an affidavit which is required by statute is a procedural issue,

not a jurisdictional one. In Salemi v. Cleveland Metroparks, 145 Ohio

11
St.3d 408, 2016-Ohio-1192, 49 N.E.3d 1296, a mandamus complainant

failed to file a complaint with an affidavit as required by R.C. § 2731.04.

Id. at ¶ 3. The complainant later amended the complaint and included the

affidavit. Id. at ¶ 4. The Court held that “the statute’s requirement that the
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

complaint be verified by affidavit is not jurisdictional.” Id. at ¶ 15. Thus,

even if the OEC Complainant in this case completely failed to file an

affidavit—something which did not occur in this case—the Commission

would still have jurisdiction over the complaint.

Like a court acting pursuant to Civ. R. 12(b)(6), the Commission has

the legal authority to dismiss an insufficient complaint. 2 See O.A.C. §

3517-1-11(A)(3)(e)(i). Stated differently, the Commission has

jurisdiction to dismiss inadequate complaints. In fact, the Commission

exercised its legal authority to dismiss certain parts of the OEC Complaint

at issue in this case. (Complaint, ¶¶ 32-33). Relators cannot morph the

sufficiency of the form and substance of the OEC Complaint into a

2
The Rules of Civil Procedure, including Rule 12 apply to the
Commission’s proceedings. See e.g. O.A.C. §§ 3517-1-07(A), 3517-1-
08(B), and 3517-1-09 (C).

12
jurisdictional defect. The essence of Relators’ argument is that the

Commission erred when it did not dismiss the entire OEC Complaint.

Whether the Commission’s decision on Relators’ Motion to Dismiss was

correct or incorrect is of no import to jurisdiction. Where a court possesses


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

general subject-matter jurisdiction over a pending action, a writ of

prohibition will not issue to prevent an error of law. State ex rel. Bell v.

Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181; State ex rel.

Winnefeld v. Court of Common Pleas of Butler Cty., 159 Ohio St. 225,

112 N.E.2d 27 (1953).

Next, the courts in this District have specifically denied the

insufficient-affidavit argument that Relator makes in this case. In Stow

Munroe Falls Sch. Dist. Levy Cmte. V. Ohio Elections Comm’n, (Sept. 27,

2013), Franklin Cty. Common Pleas Case No. 11CVF-13362, 2013 Ohio

Misc. LEXIS 3134, the Court ruled that administrative agencies are not

bound by the strict rules of evidence applied in court. Id. at *16. The Court

rejected a requirement that affiants alleging violations before the

Commission personally observe the alleged wrongdoing. Id., citing

Athens Cty. Democratic Party v. Ohio Elections Commission, Franklin

13
Cty. Court of Common Pleas, Case No. 08CVF07-10699. In other words,

the rigors of the personal knowledge requirement are not as onerous in the

Commission’s administrative setting. Moreover, the cases cited by

Relators in their Motion, State ex rel. Hackworth v. Hughes, 97 Ohio St.3d


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

110, 2002-Ohio-5334, State ex rel. Evans v. Blackwell, 111 Ohio St.3d

437, 2006-Ohio-5439 and State ex rel. Escaro v. Youngstown City

Council, 116 Ohio St.3d 131, 2007-Ohio-5699 are inapposite. Hackworth

and Evans concerned attorneys providing affidavits of their client’s

purported knowledge. See Hackworth and Evans at ¶¶ 24 and 32,

respectively. In Escaro, the affiant did not even attempt to state that the

affidavit was based on personal knowledge. Escaro at ¶ 15. Such is not

the case here. In this case, the OEC Complaint was supported by an

affidavit with numerous exhibits. (Complaint, ¶ 43, Exhibit A). The

affidavit was signed and notarized and states “that the facts in the

foregoing Complaint are based upon my personal knowledge.” (Id.).

While six of the sixty-seven paragraphs use the phrase “information and

belief (Complaint ¶ 45, Exhibit A), that does not vitiate the entire affidavit

14
and its exhibits and, even if it did, it is not a jurisdictional issue, but, rather

a procedural one.

Relator’s argument that the claims in the OEC Complaint are

preempted by federal law also fails. As an initial matter, the Ohio Supreme
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

Court has broadly interpreted the Commission’s jurisdiction. R.C. §

3517.151(A) confers exclusive jurisdiction over complaints with respect

to acts or failures to act under the specified provisions on the Ohio

Elections Commission. State ex rel. Ohio Democratic Party v. Blackwell,

111 Ohio St.3d 246, 2006-Ohio-5202, 855 N.E.2d 1188, at ¶ 15. “The

General Assembly employed broad, sweeping language to confer the

exclusive initial jurisdiction to consider these alleged violations [the

violations listed in R.C. § 3517.153] on the Ohio Elections Commission.

Jurisdiction is conferred on courts in these matters only after the

commission has rendered a final determination [which has not occurred

in this case].” Id. at ¶ 16. In addition, it is well-settled that an

administrative or quasi-judicial body has the power to determine in the

first instance its own jurisdiction. State ex rel. Jean-Baptiste v. Kirsch,

134 Ohio St. 3d 421, 2012-Ohio-5697, ¶16, 983 N.E.2d 302 (a court with

15
general subject-matter jurisdiction may determine its own jurisdiction);

State ex rel. Canfield v. Civil Service Comm., (April 26, 1991), 7th Dist.

No. 91 C.A. 3, 1991 Ohio App. LEXIS 1896 at *5, 1991 WL 66198

(administrative agencies may determine their own jurisdiction); 67 Ohio


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

Jur.3d § 182 (Inferior tribunal may determine its own jurisdiction).

This case is not preempted by federal law. The OEC Complainant

alleges a violation of R.C. § 3517.13—a state law over which the

Commission has jurisdiction. The complaint alleges improper spending

from the account of a state campaign committee, and spending is exactly

what the Commission investigates.

Relator Aftab Pureval is seeking election to the U.S. House of

Representatives. (Complaint, ¶ 9). Under Ohio law, that is the only

election in which he is considered a “candidate” in 2018. See R.C. §

3501.01(H); R.C. § 3513.052(A)(4) (prohibiting a person’s candidacy for

a “federal office and a state or county office” at the same election). Even

though Relator Pureval is not a candidate for state office, he still has a

state campaign committee. Relator Friends of Aftab Pureval is the

campaign committee purporting to support Relator Aftab Pureval’s

16
campaign for Hamilton County Clerk of Courts. (Complaint, ¶ 6, Exhibit

A, ¶ 3). Under Ohio law, Aftab Pureval is considered a “beneficiary” of

the Friends of Aftab Pureval campaign committee. Relator Aftab Pureval

also has a separate campaign committee supporting his U.S.


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

Representative campaign. (Id., Exhibit A, ¶ 4). Two campaign committees

in this situation is allowed under Ohio law, but only one campaign

committee can be used to support a candidate during his candidacy.

Ohio law prohibits the (1) conversion of Ohio campaign committee

funds “for personal use” and (2) the provision of campaign funds to a

beneficiary of a campaign fund or any other person, for the beneficiary's

or any other person's personal use. See R.C. § 3517.13(O). In this case,

the OEC Complainant alleges that Relators made expenditures from the

Ohio Relators’ state campaign fund for illegitimate purposes. (OEC

Complaint, ¶¶ 11-12, 15-16, 36-37, 45-52, 65, 67). More specifically, the

OEC Complaint alleges that the state campaign expenditures were made

to support Relators’ U.S. Representative campaign. This is not

permissible under Ohio law. See R.C. § 3517.13(O)(3)(a) (stating that

Ohio campaign funds can only be used to support a candidate other than

17
the beneficiary (other than Pureval)). The question to the Commission is

this: was the state committee’s money used for a permissible purpose, or

not?

To hold for Relator here is to hold that the Commission can look at
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

some impermissible purposes listed in the statute, but not others. Relator

argues unpersuasively that “to find that the expenditures were actually

intended to support Relator Pureval’s federal campaign, Respondent

Commission must decide if the expenditures were made for the purpose

of influencing a federal election” which, allegedly, is a finding expressly

reserved to the FEC. (Complaint, ¶¶64-65). This is not true. Whether the

expenditures were made “for the purpose of influencing a federal

election” is not an element of R.C. § 3517.13(O). The issue for the

Commission is whether the expenditures from an Ohio campaign fund fall

within the legitimate expenditures listed in R.C. § 3517.13(O). The

expenditures may also be a violation of federal law, but that does not

prohibit the Commission from adjudicating alleged violations of Ohio law

as well.

18
For the foregoing reasons, the Commissions’ actions were not

unauthorized by law. Consequently, Relators’ Complaint for a Writ of

Prohibition should be dismissed and Relators’ Motion for Alternative

Writ, Injunction and Stay should be denied as moot.


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

Respectfully submitted,

/s/ Mark Landes


Mark Landes (0027227)
mlandes@isaacwiles.com
Mark Weaver (0065769)
mweaver@isaacwiles.com
Andrew N. Yosowitz (0075306)
Isaac, Wiles, Burkholder & Teetor
2 Miranova Place, Suite 700
Columbus, Ohio 43215
614-221-2121; Fax: 614-365-9516
Attorneys for Respondent Ohio
Elections Commission

19
CERTIFICATE OF SERVICE

I hereby certify that on October 18, 2018, a copy of the foregoing

was filed electronically. Notice of this filing will be sent to all parties by

operation of the Court’s electronic filing system. Parties may access this
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 18 4:48 PM-18AP000789

filing through the Court’s system.

Service was also made via electronic mail to the following:

dmctigue@electionlawgroup.com,
dclinger@electionlawgroup.com
poshea@katzteller.com
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

/s/ Mark Landes


Mark Landes (0027227)

4839-9654-2841.1

20
Exhibit E
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT

STATE EX REL. AFTAB : NO. 18AP-789


PUREVAL, et al :
:
Relators, : ORIGINAL ACTION IN
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

: PROHIBITION
-v- :
:
OHIO ELECTIONS :
COMMISSION :
:
Respondent. :

REPLY IN SUPPORT OF RELATORS’ EMERGENCY MOTION


FOR AN ALTERNATIVE WRIT, INJUNCTION, OR STAY
TEMPORARILY ENJOINING OR STAYING OHIO ELECTIONS
COMMISSION CASE NO. 2018G-022
Donald J. McTigue (0022849)** Mark Landes (0027227)
**Counsel of Record mlandes@isaacwiles.com
Derek S. Clinger (0092075) Mark Weaver (0065769)
MCTIGUE & COLOMBO LLC mweaver@isaacwiles.com
545 East Town Street Andrew N. Yosowitz (0075306)
Columbus, Ohio 43215 ayosowitz@isaacwiles.com
Phone: (614) 263-7000 Isaac, Wiles, Burkholder &
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

Fax: (614) 263-7078 Teetor


dmctigue@electionlawgroup.com 2 Miranova Place, Suite 700
dclinger@electionlawgroup.com Columbus, Ohio 43215
Phone: (614) 221-2121
Peter J. O’Shea (0086560) Fax: (614) 365-9516
Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400 Counsel for Respondent
Cincinnati, Ohio 45202
Tel: 513-977-3477
Fax: 513-762-0077
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*Admitted pro hac vice
Perkins Coie
700 Thirteenth Street, N.W.,
Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Relators


INTRODUCTION

Respondent Commission’s Motion to Dismiss and Response in

Opposition (“Response”) focuses entirely upon whether the

Commission’s exercise of quasi-judicial power was unauthorized by law,


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

which is part of the determination of whether Relators are likely to

succeed on the merits of their writ of prohibition claim. In so doing, the

Commission concedes that the remaining equitable factors

overwhelmingly favor granting Relators’ minimal request: an alternative

writ, injunction, or stay temporarily enjoining or staying Case No. 2018G-

022 pending disposition of the instant action.

On the merits of whether Respondent Commission’s exercise of

quasi-judicial power was unauthorized by law, the Commission’s

Response tries to draw the Court’s attention away from the proper inquiry:

whether the Commission’s power to adjudicate Case No. 2018G-022 is

unauthorized by law. Instead, the Commission attempts to frame Relators’

action as a challenge to the Commission’s subject matter jurisdiction to

hear complaints alleging violations of Ohio campaign finance law. But

that is not what Relators’ action is about. Rather, the issue is that the OEC
1
Complaint fails to comply with a mandatory statutory prerequisite for the

Commission to be able to exercise subject matter jurisdiction.

For these reasons, the Court should grant Relators’ motion.

LEGAL ARGUMENT
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

Respondent Commission concedes that the sole dispositive issue is

whether the Commission’s exercise of quasi-judicial power is

unauthorized by law (Response at 9), which is one element in determining

Relators’ likelihood of success on the merits. Because the Commission

does not address the remaining factors relevant to the determination of

whether to issue an alternative writ, injunction, or stay temporarily

enjoining the Commission from adjudicating Case No. 2018G-022

pending disposition of the instant action, the Commission has conceded

these points and Relators do not further address them herein.

I. Relators are Likely to Succeed on the Merits of their Writ of


Prohibition Claim.

The Commission does not dispute that it is exercising quasi-judicial

power nor does the Commission dispute that Relators lack an adequate

remedy in the ordinary course of law. The remaining issue then in

2
determining the likelihood that Relators will succeed on the merits of their

writ of prohibition action is whether Respondent Commission’s exercise

of quasi-judicial power is unauthorized by law.

A. Writs of prohibition will issue when the exercise of quasi-


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

judicial power is unauthorized by law; they are not narrowly


limited to situations where a tribunal lacks subject matter
jurisdiction.

The Commission’s Response seeks to frame Relators’ action as a

challenge to the Commission’s subject matter jurisdiction to hear

complaints alleging violations of Ohio campaign finance law. (Response

at 3, 8-10). But this is not at issue. Instead, the issue is whether the

Commission’s exercise of its quasi-judicial power to adjudicate the OEC

Complaint is unauthorized by law.

There is an important distinction between lacking authorization to

exercise quasi-judicial power and lacking subject matter jurisdiction as

the latter is a subset of the former. If a tribunal lacks subject matter

jurisdiction, then it lacks authorization to exercise quasi-judicial power.

However, if a tribunal lacks authorization to exercise quasi-judicial

power, it is not necessarily because it lacks subject matter jurisdiction; a

3
tribunal could have subject matter jurisdiction and still act without

authorization. Indeed, the Ohio Supreme Court recognized this in State ex

rel. Ford v. Ruehlman, 149 Ohio St.3d 34, 2016-Ohio-3529, 73 N.E.3d

396, in which the Court explained that “even if a common pleas court has
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

general jurisdiction over a case, a writ of prohibition will issue when the

court seeks to take an action or provide a remedy that exceeds its statutory

authority.” Id. at ¶ 69 citing State ex rel. Mason v. Griffin, 104 Ohio St.3d

279, 2004-Ohio-6384, ¶ 12-16, State ex rel. Triplett v. Ross, 111 Ohio

St.3d 231, 2006-Ohio-4705, 855 N.E.2d 1174, ¶ 50, State ex rel. Adams

v. Gusweiler, 30 Ohio St.2d 326, 328-29, 285 N.E.2d 22 (1972).

This means that when a tribunal lacks the judicial power to take a

particular action, it lacks “jurisdiction” in the boarder sense of the term.

See, Black’s Online Legal Dictionary, “Jurisdiction” (defining

“jurisdiction” as the “power and authority conferred upon…a court or

judge”). For instance, in State ex rel. Durrani v. Ruehlman, 147 Ohio

St.3d 478, 2016-Ohio-7740, 67 N.E.3d 769, a writ of prohibition case, the

Ohio Supreme Court explained that the case was “not about the

jurisdiction of the trial court, or even of Judge Ruehlman, to hear the


4
underlying tort cases,” but was about whether the judge had the “judicial

power” or “authority” under the Rules of Superintendence of the Courts,

the Civil Rules, and the Hamilton County Local Rules to consolidate

cases. Id. at ¶ 21-26. Finding that that the judge did not have the authority
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

under the procedural rules, the Durrani Court issued a writ of prohibition.

Id.

Thus, the Court’s focus here must be on whether the Commission’s

attempt to adjudicate Case No. 2018G-022 is unauthorized by law.

B. The exercise of quasi-judicial power is unauthorized by law if


the tribunal’s jurisdiction has not been properly invoked.

In general, Respondent Commission’s exercise of its quasi-judicial

power could be unauthorized by law for several reasons. This would

include a scenario where a complaint does not present an issue within the

Commission’s subject matter jurisdiction. However, it would also include

a scenario where a complaint fails to meet the jurisdictional prerequisites

to invoke the Commission’s subject matter jurisdiction. The instant action

presents the latter issue. The OEC Complaint failed to meet the

jurisdictional prerequisites to invoke the Commission’s subject matter

5
jurisdiction as it did not adhere to statutory requirements for filing

complaints. As a result, the Commission’s attempt to adjudicate the

claims in the OEC Complaint is unauthorized by law.

1. The Commission’s complaint-filing process is a creature of


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

statute, and, therefore, its procedures must be strictly


followed.

An individual’s right to file a complaint with Respondent

Commission is a right conferred by statute, not by the Ohio Constitution.

As such, the right can be exercised only in the manner as prescribed by

the General Assembly.

The Commission cites Salemi v. Cleveland Metroparks, 145 Ohio

St.3d 408, 2016-Ohio-1192, 49 N.E.3d 1296 for the proposition that

requirements to file complaints by verified affidavit are not actually

mandatory. (Response at 11-12). However, the key distinction between

Salemi and the Commission’s process is that Salemi involved the

requirements for mandamus actions, which are provided for in the Ohio

Constitution. See, Article IV, Sections 2(B)(1)(b), 3(B)(1)(b) of the Ohio

Constitution. In holding that miscaptioned pleadings or omissions of

affidavits do not automatically invalidate mandamus actions, Salemi


6
essentially stands for the proposition that statutory requirements for filing

mandamus actions may facilitate but not restrict the constitutional right to

file a mandamus action.

In stark contrast to mandamus actions¸ the Commission’s


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

complaint-filing process is entirely a creature of statute. See, R.C.

3517.153. As such, the right must be exercised in the manner prescribed

by the General Assembly. This is a well-settled principle. For instance, in

Helms v. Koncelik, 187 Ohio App.3d 231, 2010-Ohio-1782, 931 N.E.2d

657, in which this Court was presented with a question of whether an

appeal from the Ohio Environmental Review Appeals Commission was

timely filed, the Court explained the following longstanding principles:

(1) “[w]here a statute confers the right of appeal, an appeal may be

perfected only in the manner prescribed by statute.”; (2) “An

administrative appeal, the right to which is conferred by statute, can be

perfected only in the mode prescribed by statute. The exercise of the right

conferred is conditioned upon compliance with the accompanying

mandatory requirements.” (3) “Strict compliance with statutory filing

requirements is a necessary precursor to jurisdiction.” Id. at ¶ 15 (internal


7
quotations and citations omitted) (emphasis added); see also, State ex rel.

GE v. Indus. Comm’n, 10th Dist. Franklin No. 06AP-648, 2007-Ohio-

3293, ¶ 22 (explaining that Ohio law grants to the Industrial Commission

of Ohio the “jurisdiction to adjudicate contested workers’ compensation


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

claims,” but that “[i]n order to exercise that jurisdiction…the commission

must adhere to statutory requirements.”) (emphasis added).

With the above principles in mind, this Court and the Ohio Supreme

Court have regularly held that individuals, agencies, and courts must

strictly adhere to statutory requirements in order to invoke jurisdiction

that is conferred solely by statute. For instance, courts have held that the

failure to identify specific legal or factual errors in the grounds of a party’s

appeal, as formerly required in administrative appeals under R.C. 119.12,

is a jurisdictional defect. See, e.g., Foreman v. Lucas Cnty. Court of

Common Pleas, 189 Ohio App.3d 678, 2010-Ohio-4731, 939 N.E.2d

1302, ¶ 15, 17 (10th Dist.) Courts have also held that a notice of

administrative appeal’s failure to contain the required statement that “the

agency’s order is not supported by reliable, probative, and substantial

evidence and is not in accordance with law,” is also a jurisdictional defect.


8
See, e.g., River Room, Inc., v. Ohio Liquor Control, 10th Dist. Franklin

No. 14 AP-956, 2015-Ohio-2924, ¶ 12. Additionally, courts have

repeatedly held that an untimely filing is a jurisdictional defect. See, e.g.,

State ex rel. DeMatteo v. State Teachers Ret. Sys., 10th Dist. Franklin No.
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

17AP-678, 2018-Ohio-3635, ¶ 33, 35; State ex rel. McGirr v. Winkler,

152 Ohio St.3d 100, 2017-Ohio-8046, 93 N.E.3d 928, ¶ 15-16 (explaining

in a writ prohibition action that the filing of a transfer deed within ten days

of its execution is necessary to vest a probate court with jurisdiction over

voluntary assignments for the benefit of creditors).

Thus, because an individual’s right to file a complaint with the

Commission exists solely by statute, this right must be exercised in the

manner prescribed by law. Failure to adhere to the statute’s filing

requirements is, therefore, a jurisdictional defect.

2. To invoke the Commission’s jurisdiction, the General


Assembly requires complaints filed by individuals to be made
by affidavit on personal knowledge.

For individuals filing complaints with the Commission, the General

Assembly established a heightened requirement to invoke the

Commission’s subject-matter jurisdiction compared to complaints filed


9
by the Secretary of State or any of the boards of elections. Complaints

filed by the Secretary of State or any of the boards of elections must

simply “set[] forth a failure to comply with or a violation of” any

provision within the Commission’s jurisdiction. R.C. 3517.153(A).


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

Complaints filed by individuals, on the other hand, “shall be made by

affidavit of any person, on personal knowledge, and subject to penalties

for perjury.” Id. (emphasis added). Thus, as a jurisdictional prerequisite

to invoke the Commission’s jurisdiction, complaints filed by individuals

must be made by affidavit on personal knowledge.

In explaining its authority to exercise quasi-judicial power over

complaints, Respondent Commission entirely omits this heightened

requirement for individual complainants. Instead the Commission asserts

that it has the power to adjudicate any complaint that simply alleges a

violation of Ohio’s campaign finance laws. (Response at 3 (implying that

the Commission is “duty-bound to investigate” any complaint that alleges

a violation of state campaign finance laws), at 10 (asserting that the

standard is whether a complaint merely alleges a violation of state

campaign finance law)). Getting even further away from the requirements
10
set forth by R.C. 3517.153(A), Respondent Commission absurdly

contends that “even if the OEC Complainant in this case completely failed

to file an affidavit…the Commission would still have jurisdiction over the

Complaint.” (Response at 12). This interpretation flies in the face of this


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

Court’s statement that “[s]trict compliance with statutory filing

requirements is a necessary precursor to jurisdiction.” Helms, 187 Ohio

App.3d at ¶ 15.

Adopting the Commission’s position would not only require the

Court to omit the express language of R.C. 3517.153(A)—something

courts cannot do (see, Beau Brummel Ties, Inc. v. Lindley, 56 Ohio St.2d

310, 311-12, 383 N.E.2d 907 (1978) (explaining that, in interpreting legal

provisions, courts are “not to delete words used” in statutes)—but it would

also represent a sea change in Ohio campaign finance law. It would allow

any person who baldly alleges that another individual or committee

violated Ohio campaign finance law to then go on endless fishing

expeditions. For instance, in the underlying action before the

Commission, the OEC Complainant has requested the Commission to

subpoena Relator Pureval’s mother to testify. This cannot be what the


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General Assembly intended when it expressly required complaints filed

with the Commission by individuals to be made on personal knowledge.

3. The OEC Complaint did not properly invoke the Commission’s


jurisdiction because it failed to satisfy the jurisdictional
prerequisite to make its allegations on personal knowledge.
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

As explained more fully in Relators’ Motion, the OEC Complaint’s

primary defect is that its linchpin allegations that expenditures were made

by the County Committee for the benefit of Relator Pureval’s federal

campaign are not based on personal knowledge. Rel. Motion at 13-20

Instead, they are, by their own words, based on “information and belief,”

which the Ohio Supreme Court has explained does not constitute personal

knowledge. See, Rel. Motion at 14-16. Thus, these allegations are not

sufficient to invoke the Commission’s jurisdiction, and without them, the

OEC Complaint has not alleged any violation of Ohio law.

Respondent Commission contends that the Ohio Supreme Court

cases cited in Relators’ Motion defining and explaining “personal

knowledge” are somehow “inapposite.” (Response at 14). However, the

Commission provides no real explanation as to how these cases are

“inapposite.” The cases cited all stand for the simple proposition that if an
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affidavit affirmatively states that any number of allegations contained

therein are based on something other than personal knowledge—whether

it be “information and belief,” “personal knowledge and information,” or

“to the best of my knowledge, information, and belief”—then the affidavit


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

is not made on personal knowledge. The Commission cannot get around

this.

The Commission also cites two decisions from the Franklin County

Court of Common Pleas to contend that the personal knowledge

requirement is somehow “not as onerous in the Commission’s

administrative setting.” (Response at 13-14 Athens Cty. Democratic Party

v. Ohio Elections Comm’n. (Aug. 23, 2011), Franklin Cty. Case No. 08-

CVF-07-10699; Stow Munroe Falls Sch. Dist. Levy Cmte v. Ohio

Elections Comm’n (Sept. 27, 2013), Franklin Cty. Case No. 11CVF-10-

13362). However, these decisions stand only for the proposition that

personal knowledge does not require parties to have personally observed

the alleged wrongdoing—one can still have personal knowledge of

13
wrongdoing without having personally observed it.1 They do not stand for

the proposition that “information and belief” satisfies “personal

knowledge.” If they did, they would be in direct conflict with the Ohio

Supreme Court’s numerous opinions that hold otherwise.


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

In sum, because the key allegations in the OEC Complaint are based

on information and belief instead of personal knowledge, the Complaint

fails to properly invoke the Commission’s jurisdiction. As a result, the

Commission’s exercise of quasi-judicial power to adjudicate the claims in

the OEC Complaint is unauthorized by law.

4. The Complaint fails to invoke the Commission’s jurisdiction for


the additional reason that it fails to set forth facts that would
constitute a prima facie violation of Ohio campaign finance law.

As an additional jurisdictional prerequisite, Ohio law and the

Commission’s rules require complaints filed with the Commission by

1
See, Athens Cty. at *9 (“In the case at bar, Appellants would mandate
that Ms. Morris be personally in attendance at the 2000 City Council vote
and be personally in attendance when Appellants created and/or
authorized the advertisement before she could file a complaint, which
cannot be the standard.”); Stow Munroe at *15-16 (“imposing a
requirement in this appeal that the affiant personally observe the alleged
wrongdoing under R.C. 3517.10(A) would be unreasonably onerous”).

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individuals to set forth facts that constitute a prima facie violation of Ohio

campaign finance law. See, Rel. Motion at 24-25 citing R.C. 3517.153(A),

O.A.C. 3517-1-02(A)(1)(f), O.A.C. 3517-1-02(A)(1)(g). This is similar to

the former requirement under R.C. 119.12 for notices of administrative


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

appeals to set forth the specific grounds of the party’s appeal, which courts

had held was a jurisdictional prerequisite for courts to adjudicate the

appeal. See, e.g., Foreman, 189 Ohio App.3d 678, ¶ 15, 17. In other

words, it is not merely a matter of form, as the Commission contends.

(Response at 12-13). And as set forth more fully in Relators’ Motion (Rel.

Motion at 24-33), the OEC Complaint failed to set forth facts that would

constitute a prima facie violation of R.C. 3517.13(D) or R.C.

3517.13(D)(4). For this independent reason, the Complaint did not

properly invoke the Commission’s jurisdiction, and the Commission,

therefore, lacks jurisdiction to adjudicate these claims.

C. The Commission lacks subject matter jurisdiction to adjudicate


the claims that expenditures were made for a federal election.

On federal preemption, Respondent makes three arguments. First,

Respondent says it is simply trying to “adjudicate alleged violations of

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State campaign finance laws.” (Response at 3.) Second, Respondent

points out that the Ohio Supreme Court has broadly interpreted the

Commission’s jurisdiction. (Response at 15.) Third, Respondent argues

that “[w]hether the expenditures were made for the purpose of influencing
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

a federal election is not an element of R.C. § 3517.13(O),” thereby

suggesting that the Complaint does not involve federal law. (Response at

18).2

Each of these arguments fails. First, whether Respondent is simply

trying to enforce the state campaign finance laws is beside the point.

Under FECA’s sweeping preemption language, state agencies cannot

enforce generally applicable state laws in matters FECA regulates. See 52

U.S.C. § 30143(a) (FECA supersedes and preempts “any provision of

2
Respondent also confusingly argues that Relator Pureval’s status as a
federal candidate prevents him from spending funds from his state
campaign committee at the same time. (Response at 16-17.) However, as
Relators noted previously, state guidance says otherwise: “This single
committee restriction does not prevent a local or statewide candidate from
also having a federal political committee in concurrent operation for the
purpose of seeking election to a federal office.” See Ohio Campaign
Finance Manual at 2-11 (March 2013),
https://www.sos.state.oh.us/globalassets/candidates/cfguide/chapters/cha
pter2.pdf.
16
State law with respect to election to Federal office”). Thus, for example,

even though Kentucky law regulates the financing of Kentucky elections,

the Sixth Circuit kept the Kentucky Registry of Election Finance from

investigating whether a federal candidate spent federal campaign funds to


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

“test the waters” for state office. Bunning v. Kentucky, 42 F.3d 1008,

1012 (6th Cir. 1994). Even though Georgia law regulates lawmakers’

conduct to avoid corruption, the Eleventh Circuit kept that state from

enforcing a law that barred lawmakers from soliciting funds during

legislative sessions, in cases where the lawmakers sought federal office.

See Teper v. Miller, 82 F.3d 989 (11th Cir. 1996). In each case, the state

was unable to “look at some impermissible purposes” under state law

(Response at 18), because federal law controlled.

Second, whether “the Ohio Supreme Court has broadly interpreted

the Commission’s jurisdiction” is also beside the point. (Response at 15).

Under federal preemption doctrine, the question is not whether the

Commission’s jurisdiction is broad or narrow under state law, but whether

it withstands preemption under federal law. “[W]hen state law conflicts

or interferes with federal law, state law must give way.” Teper, 82 F.3d at
17
993. To decide whether Relators spent funds in connection with a federal

election is a question of federal law, and state law cannot be applied to

conflict or interfere with the assignment of exclusive jurisdiction in

Section 30143(a) of FECA. The centerpiece of the Complaint is a poll


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

undertaken to help Relator Pureval decide whether to run for Congress, or

simply seek re-election to state office. The Federal Election Commission

adopted specific, detailed rules on how to pay for such polls. See 11 C.F.R.

§ 106.4 (2018). Yet while a federal complaint is pending over this same

poll, Respondent would hasten to decide whether Relators paid for the

poll correctly.

Third, it does not matter that a federal election-influencing purpose

“is not an express element of R.C. § 3517.13(O).” (Response at 18.) The

central question in the Complaint is whether the expenditures were made

for the purpose of influencing a federal election. See 52 U.S.C. §

30101(9)(A)(1). The travel, media, polling and meetings expenses before

Respondent are all classic legitimate and verifiable campaign expenses.

The only reason Complainant thinks them suspect is that Relator Pureval

is running for Congress. Thus, the Complaint repeatedly asks the


18
Respondent to unmask “[d]isguised federal campaign expenditures …”

Complaint at 3. It repeatedly claims that the disputed expenses were: (1)

“made to support Pureval’s efforts in his campaign for Congress,” id. at

4, 6; (2) “related to Pureval’s campaign for Congress.” id. at 7; and (3)


Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

“related to Aftab Pureval’s testing of the waters for a run for Congress

…” Id. at 10. There is simply no way for the Commission to decide these

claims without deciding whether Relators made expenditures in

connection with a federal election. Here, again, the potential for conflict

is clear. Lacking jurisdiction over these federal questions, Respondent

could decide them adversely to Relators, while the Federal Election

Commission, which has exclusive civil jurisdiction over them, could

decide them favorably. See 52 U.S.C. § 30106(b)(1).

It is not surprising that Respondent seems to admit that Relators’

federal preemption argument cannot “be easily disposed of.” (Response

at 11.) It is also not surprising that Respondent’s brief conspicuously lacks

cases discussing FECA preemption, and completely fails to distinguish or

debunk Relators’ cited authorities. The governing law, the expressly

stated intention of Congress to preempt state law in the field of federal


19
campaign finance, and the Complaint’s specific allegations all clearly

indicate federal preemption is necessary and appropriate in this case.

Unless this Court steps in, Respondent Commission, while claiming to

enforce state law, will decide a question of federal law, thus setting up a
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

potential conflict with the FEC, which is the only administrative agency

that is supposed to decide it.

CONCLUSION

For the foregoing reasons, there ample grounds upon which the

Court should grant Relators’ motion to temporarily enjoin or stay the

proceedings in Case No. 2018G-022. Doing so would allow the Court to

decide the instant action without having the Commission proceed full

steam ahead to adjudicate the matter just days before a federal election.

Respectfully submitted,

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/s/ Donald J. McTigue____________
Donald J. McTigue (0022849)**
**Counsel of Record
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com

Peter J. O’Shea (0086560)


Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
Tel: 513-977-3477
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*Admitted pro hac vice
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Relators

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CERTIFICATE OF SERVICE

I hereby certify that on October 19, 2018, a copy of the foregoing

was filed electronically. Notice of this filing will be sent to all parties by

operation of the Court’s electronic filing system. Parties may access this
Franklin County Ohio Court of Appeals Clerk of Courts- 2018 Oct 19 4:40 PM-18AP000789

filing through the Court’s system.

Service was also made via electronic mail to the following:

Mark Landes, mlandes@isaacwiles.com

Mark Weaver, mweaver@isaacwiles.com

Andrew Yosowitz, ayosowitz@isaacwiles.com

/s/ Donald J. McTigue________


Donald J. McTigue

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