Case: 2:14-cv-00404-PCE-NMK Doc #: 78 Filed: 09/09/14 Page: 1 of 6 PAGEID #: 5963
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
OHIO STATE CONFERENCE OF THE
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE, et al.
Plaintiffs,
v.
JON HUSTED, et al.
Defendants.
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Case No. 2:14-cv-00404
Judge Peter C. Economus
Magistrate Judge King
INTERVENOR OHIO GENERAL ASSEMBLY’S RESPONSE TO PLAINTIFFS’
MOTION TO RECONSIDER THIS COURT’S ORDER GRANTING OHIO
GENERAL ASSEMBLY’S SECOND MOTION TO INTERVENE
Intervenor Ohio General Assembly (the “General Assembly”) submits this response to
Plaintiffs’ Motion for Reconsideration of this Court’s Order granting the General Assembly’s
Second Motion to Intervene (the “Motion for Reconsideration”) (ECF No. 77).
PROCEDURAL BACKGROUND
In July 2014—while the parties were conducting their briefing on Plaintiffs’ Motion for
Preliminary Injunction—the General Assembly moved to intervene to become a party in this
case. (ECF No. 29). The Court denied that motion—and the General Assembly’s motion for
reconsideration—based, principally, on its finding that the General Assembly’s motion for
intervention was untimely and that the participation of the General Assembly could delay the
proceedings on the Motion for Preliminary Injunction. (ECF Nos. 48, 55). The General
Assembly appealed the Court’s denial of intervention, and that appeal remains pending before
the Sixth Circuit.
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On September 4, 2014, the Court entered its Order granting Plaintiffs’ Motion for
Preliminary Injunction (the “Preliminary Injunction Order”) (ECF No. 72). On September 5,
2014, Defendants Secretary of State Jon Husted and Ohio Attorney General Mike DeWine
appealed the Preliminary Injunction Order to the Sixth Circuit. (ECF No. 73). That same day, the
General Assembly moved to intervene solely for purposes of joining the appeal of the
Preliminary Injunction Order (the “Second Motion to Intervene”). (ECF No. 74). On September
8, 2014, this Court granted the General Assembly’s Second Motion to Intervene “for the purpose
of appeal only.” (ECF No. 75). Plaintiffs filed their Motion for Reconsideration the same day,
arguing that the Court lacked jurisdiction to entertain the Second Motion to Intervene. The
Motion for Reconsideration should be denied.
ARGUMENT
Plaintiffs raise two jurisdictional arguments in their Motion for Reconsideration. First,
Plaintiffs insist that the Court could not entertain the General Assembly’s Second Motion to
Intervene while the appeal of the Court’s denial of the General Assembly’s previous motion to
intervene is pending. Second, Plaintiffs suggest that the Defendants’ filing of the notice of appeal
of the Preliminary Injunction Order, in effect, divested the trial court of jurisdiction to do
anything during the pendency of that appeal—including entertaining the Second Motion for
Intervention. Neither argument is persuasive.
Plaintiffs cite general jurisdictional principles relating to appeals, but in their haste to
oppose the General Assembly’s Second Motion to Intervene, Plaintiffs ignore crucial factual
distinctions present in this case. Plaintiffs fail to distinguish between the General Assembly’s
earlier motion to intervene for all purposes and the Second Motion to Intervene, which sought
intervention solely for the purpose of appeal. Moreover, Plaintiffs ignore the fact that this case
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involves an appeal from a preliminary injunction, which is not subject to the same rules
regarding divestiture of jurisdiction as appeals from final judgments. The Court should not be
distracted by the Plaintiffs’ flawed jurisdictional arguments and should stand by its decision to
allow the General Assembly the opportunity to vindicate its indisputable and unique interests in
defending the validity of its duly-enacted law on appeal.
As to the first point, the General Assembly’s appeal of the previous motion to intervene
for all purposes did not interfere with the trial court’s jurisdiction to consider the General
Assembly’s later request to intervene solely for purposes of appeal. Plaintiffs insist that in filing
its Second Motion to Intervene, the General Assembly “has sought from this Court a ruling on a
matter that is already the subject of an appeal before the Sixth Circuit.” (ECF No. 77, p. 4).
However, as Plaintiffs themselves note, the filing of an appeal only “‘divests the district court of
its control over those aspects of the case involved in the appeal.’” Id. at 2 (quoting Griggs v.
Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)) (emphasis added).
Here, Plaintiffs ignore the fact that the Second Motion to Intervene does not involve the
same issue as the motion to intervene currently on appeal with the Sixth Circuit. The General
Assembly’s prior motion to intervene sought leave to join the case as a full-fledged party. By
contrast, in the Second Motion to Intervene, the General Assembly sought intervention solely
“for the purpose of taking appeal from the [Preliminary Injunction] Order,” (ECF No. 74-1, p. 1),
and the Court’s order granted leave to intervene “for the purpose of appeal only.” (ECF No. 75).
Allowing governmental entities to intervene for purposes of appeal is appropriate in cases
involving expedited appeals of challenges to election laws. See Northeast Ohio Coalition for the
Homeless v. Husted, 696 F.3d 580, 588 n.3 (6th Cir. 2012) (noting that the State of Ohio had
been granted leave to intervene on appeal); Northeast Ohio Coalition for the Homeless v.
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Blackwell, 467 F.3d 999 (6th Cir. 2006) (finding that state was entitled to intervene in appeal).
Moreover, permitting the General Assembly to intervene for the limited purpose of appealing the
Preliminary Injunction Order will have no effect on the Sixth Circuit’s resolution of whether the
General Assembly should have been allowed to intervene in the earlier preliminary injunction
proceedings before this Court, or whether the General Assembly will be allowed to participate in
future proceedings before this Court. Contrary to Plaintiffs’ suggestion, the Second Motion to
Intervene did not involve “a matter that is already the subject of an appeal before the Sixth
Circuit”; rather, it was a wholly separate—and appropriately limited—request to intervene solely
for purposes of appeal.
As to the second point, Plaintiffs also insist that the Court was without jurisdiction to
entertain the Second Motion to Intervene because it was filed after the Defendants filed their
notice of appealing the Preliminary Injunction Order. Plaintiffs cite Sixth Circuit case law for the
proposition that “where a non-party files a motion to intervene after a notice of appeal has been
filed, a district court is without authority to assert jurisdiction.” (ECF No. 77, p. 4 (citing Taylor
v. KeyCorp, 680 F.3d 609 (6th Cir. 2012)). Plaintiffs’ case law, however, is distinguishable
because the Defendants have appealed an order on a preliminary injunction, not a final
judgment. While an appeal from a final judgment generally deprives the trial court of jurisdiction
to act, this per se rule of divestiture does not apply in situations involving appeals from
interlocutory orders—namely, appeals from preliminary injunction orders:
“As a general rule, an effective notice of appeal divests the district court of
jurisdiction over the matter forming the basis for the appeal.” N.L.R.B. v.
Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). However, “an appeal
from an order granting or denying a preliminary injunction does not divest the
district court of jurisdiction to proceed with the action on the merits.” Moltan Co.
v. Eagle–Picher Indus., Inc., 55 F.3d 1171, 1174 (6th Cir. 1995) (quoting 9 M.
Moore, B. Ward & J. Lucas, Moore's Federal Practice ¶ 203.11, at 3–54 (2d ed.
1989)). The district court retains some jurisdiction to continue deciding other
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issues during the pendency of an interlocutory appeal. Weaver v. Univ. of
Cincinnati, 970 F.2d 1523, 1528–29 (6th Cir. 1992) (citing Marrese v. Am. Acad.
of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327, 84 L.Ed.2d 274
(1985)).
Zundel v. Holder, 687 F.3d 271, 282 (6th Cir. 2012). Where a party appeals a preliminary
injunction order, the trial court retains jurisdiction to resolve other matters; indeed, as the above
quote makes clear, the trial court can resolve even the merits of the case. Thus, the Court plainly
had jurisdiction to entertain the General Assembly’s Second Motion to Intervene, even after the
Defendants filed their notice of appeal.
For these reasons, the General Assembly respectfully requests that the Court deny
Plaintiffs’ Motion for Reconsideration and allow the General Assembly to participate in the
appeal of the Preliminary Injunction Order to defend its indisputable—and unique—interest in
upholding the validity of Ohio’s duly-enacted laws.
Dated: September 9, 2014
Respectfully submitted,
/s/ Robert J. Tucker
Robert J. Tucker (0082205)
*Trial Attorney
BAKER & HOSTETLER LLP
Capitol Square, Suite 2100
65 East State Street
Columbus, Ohio 43215-4260
Telephone: 614.228.1541
Facsimile: 614.462.2616
Email: rtucker@bakerlaw.com
Trial Attorney for Proposed IntervenorDefendant The Ohio General Assembly
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Co-Counsel:
E. Mark Braden (0024987) (pro hac vice)
mbraden@bakerlaw.com
BAKER & HOSTETLER LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304
Telephone: (202) 861-1500
Facsimile: (216) 861-1783
Patrick T. Lewis (0078314)
plewis@bakerlaw.com
BAKER & HOSTETLER LLP
1900 E. Ninth Street, Suite 3200
Cleveland, Ohio 44114-1483
Telephone: (216) 621-0200
Facsimile: (216) 696-0740
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served upon all counsel of record via the
Court’s electronic filing system on this 9th day of September, 2014.
/s/ Robert J. Tucker
Robert J. Tucker (0082205)
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