In a case before the U.S. District Court for the Southern District of Ohio, the 1851 Center for Constitutional Law successfully challenged the constitutionality of an Ohio statute that banned non-Ohio residents from gathering signatures on initiative  petitions. The group also sought monetary damages from Secretary of State Husted to compensate for the higher cost of using only in-state residents to circulate their petition, costs incurred due to the Secretary’s continued enforcement of the unconstitutional statute.

Secretary Husted filed a motion for immunity from Plaintiffs’ damages claim in which he argued that the doctrine of qualified immunity shielded him from personal liability. The District Court denied Defendant Husted’s motion because courts have long agreed that qualified immunity is not available to public officials whose conduct violates “clearly established law.” The District Court further explained that the Sixth Circuit clearly established in Nader v. Blackwell that limiting petition signature gathering to Ohio residents constitutes a First Amendment violation. The District Court also granted Plaintiffs’ motion for a permanent injunction prohibiting Defendant Husted from enforcing the statute.

In an opinion authored by Judge Sutton, a Sixth Circuit panel reversed the trial court’s denial of Husted’s qualified immunity claim. Judge Sutton’s opinion rejects the “clearly established law” test with an even higher – and mistaken – test. This new test provides that the enforcing official’s qualified immunity defense can be defeated only by a showing that the law enforced was “grossly and flagrantly unconstitutional.”

Legal Theory

This matter presents a major misinterpretation of law that, if unchallenged, threatens to broadly frustrate the vindication of federal constitutional rights.

Status Update

On February 18, 2016, Citizens in Charge filed a petition to have the panel’s decision reviewed by the entire Sixth Circuit Court of Appeals. Four days later on February 22, 2016 we filed an amicus brief that was also signed by the Lawyers Committee for Civil Rights Under Law urging the Sixth Circuit to grant the petition for en banc review. The petition was denied by the Court on May 4, 2016.

Date filed

February 12, 2016