Ohio Revised Code § 3599.45 prohibits, under criminal penalty, donations to candidates for the offices of Ohio Attorney General or county prosecuting attorneys from Medicaid providers or anyone with “an ownership interest” in a Medicaid provider. Mr. Kilroy, the plaintiff-appellant, owns ten shares of Target Corp., stock, and is a minority shareholder with no control over the corporation’s activities. Given the fact that he owns ten shares of stock in Target, he has an “ownership interest” in the corporation, which is a Medicaid provider. Therefore, he may be criminally prosecuted if he makes a contribution to candidates for the offices of prosecutor or attorney general. Mr. Kilroy sought a facial challenge to the law before a court in the Southern District of Ohio, which ruled in favor of Secretary Husted on the grounds that the Eleventh Amendment grants him immunity. The court also held that the mere threat of criminal penalty is not enough to overcome Eleventh Amendment immunity. Mr. Kilroy appealed and the case is now in the Court of Appeals for the Sixth Circuit.
Significantly, Medicaid providers can include publicly held pharmacy providers such as Target Corp. and even minority shareholders like Mr. Kilroy are effectively barred from having a voice as a contributor to candidates for office of county prosecutor or Attorney General. By barring these contributions, the statute infringes on the First Amendment rights of freedom of speech and freedom to associate. Additionally, the district court’s ruling strayed from current case precedent and could have far reaching implications for plaintiffs in facial challenges on state statutes.
The parties have submitted their briefs and are awaiting oral arguments scheduled for October 2, 2012. We have signed on to an amicus brief in support of Mr. Kilroy that was filed on July 19, 2012. On September 6, 2012, the court denied both a motion to dismiss filed by Secretary Husted and a motion for summary reversal filed by Mr. Kilroy. The Secretary filed a second motion to dismiss on September 26, 2012 and Mr. Kilroy filed a response on September 27, 2012. On October 1, 2012 the court granted the Secretary’s motion to dismiss on the grounds that it lacked jurisdiction in the case as it was moot. The case was remanded to the district court in the Southern District with a direction to dismiss on October 1, 2012. Mr. Kilroy submitted a petition for en banc rehearing on October 15, 2012, which is waiting review by the court. The Sixth Circuit entered an order vacating its October 3, 2012 order on October 10, 2012. On October 31, 2012 the Sixth Circuit denied Mr. Kilroy’s petition for an en banc rehearing. The District Court issued an order dismissing the case under the mandate issued by the Sixth Circuit on November 15, 2012.