Reply IPAFischer
Reply IPAFischer
Plaintiffs/Appellants :
v.
:
HON. KAREN THOMAS, et. al.
:
Defendants/Appellees
:
REPLY IN SUPPORT OF PLAINTIFFS’ INJUNCTION PENDING
APPEAL
Plaintiffs/Appellants (“Plaintiffs”), briefly, provide this Reply in support of
changes to the Kentucky Judicial Code make it materially different from the 2014
Code such that those changes preclude standing, and ultimately, federal court
words, like “enforcement” and “probable cause,” are necessary in the letters they
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Defendants do not dispute that the intent of these changes was an attempt at a
federal court gerrymander, designed to place Kentuckians in the no man’s land of
never having standing to go to court before someone is actually charged, but then
allow Defendants to argue it is too late to raise a challenge, once charges are
pending, because of abstention under Younger v. Harris, 401 U.S. 37 (1971).
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sent to Mr. Winter and Mr. Fischer to possibly trigger standing. Defendants are
wrong.
Defendants do not dispute (because they cannot) that the JCC’s letters to Mr.
Winter and Mr. Fischer inform these men that Defendants have determined there is
“a basis” for Defendants to conduct an investigation. Mr. Winter and Mr. Fischer
are informed they are under investigation for their campaign speech that implicates
specific provisions of the Kentucky Judicial Code. It bears noting that Defendants
are well aware of what the allegations are and the speech, and play coy games on
that score with vague allegations in their letter likely to permit them to raise the
Defendants acknowledge that both men are invited to appear before the JCC
at a particular date and time, and that they can have representation if their counsel
enforcement against Mr. Winter and Mr. Fischer despite both those gentlemen
and what statements they would like to make but have been chilled from making.
Oh, and Defendants claim that any speech Mr. Winter and Mr. Fischer are chilled
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This Court in McKay v. Federspiel, 823 F.3d 862, 869 (6th Cir. 2016)
synthesized standing cases, and the analysis therein, into four factors (meeting any
one of which establishes standing): (1) “a history of past enforcement against the
regarding their specific conduct;” (3) “an attribute of the challenged statute that
makes enforcement easier or more likely, such as a provision allowing any member
In terms of the first McKay factor, prior enforcement, the Defendants resort
correspondence did not involve “actual enforcement” because Mr. Winter was only
able to obtain “preenforcement [sic] standing”. (Resp. at 18). Well, Mr. Winter
own arguments about their having found probable cause in 2014 from the same
speech, and does not change the fact there was a “previous enforcement” effort
against him by these Defendants. And, Defendants completely ignore the fact that
others beyond Mr. Winter have been subjected to enforcement for similar speech.
Reitz, 765 F.3d 601 (6th Cir. 2014), arguing that the letter Kiser received about the
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enforcement body’s concerns at the end of the investigation is somehow different
than telling Mr. Winter and Mr. Fischer that they are under investigation, are
“invited to appear” with counsel who must enter a formal entry of appearance, and
letters are worse – they involve core election-related speech. And the
communications the Defendants sent here are sufficient to establish the second
McKay factor. Online Merchs. Guild v. Cameron, 995 F.3d 540, 551 (6th Cir.
2021).
On the third McKay factor, Defendants do not dispute that they receive
complaints from the public, but wrongly argue that this does not establish the third
prong of McKay. (Resp. at 15). Of course, Susan B. Anthony List v. Driehaus, 573
U.S. 149, 158, 164 (2014), is clear that Defendants acceptance of complaints from
On the fourth McKay factor, Defendants do not dispute that they were put on
the spot in a telephonic hearing on October 7, 2022, and that they expressly
Finally, and tellingly, Defendants argue that they are “affronted” by Mr.
Winter and Mr. Fischer’s speech, which Defendants claim makes elections
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“partisan.” Consequently, Defendants have the right to take enforcement action,
affronted, but it is because these same Defendants continue to disregard the First
Amendment, and multiple decisions of this Court, all of which instructs them that
they cannot restrict truthful speech about political party affiliation or discussions of
B. Defendants had the opportunity to brief the merits below, did not do so,
and did not contradict the factual record establishing a right to relief,
electing to rest only on their flawed standing argument. They now seek
a “do over” all while continuing to chill Plaintiffs’ First Amendment
speech in the middle of an election cycle
Defendants next argue that there were no findings or analysis by the District
Court on the merits and so, relief should be denied. This ignores the record. The
record. [Pl.’s Am. Ver. Compl., Doc#13, ¶2, PageID#95-126]. So were the
merits, and the District Court afforded them that very opportunity – they chose
only to contest standing. They also could have defended on the merits in their
response here, but again failed to do so. This is a tacit acknowledgement that they
are unable to defend on the merits. The speech that these Plaintiffs engaged in was
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well within the boundaries of protected speech established in cases by this Court
and the Supreme Court, and attempts to suppress this speech by these Defendants
run afoul of both First Amendment vagueness principles and does not satisfy strict
scrutiny. Republican Party of Minn. v. White, 536 U.S. 765 (2002); Winter v.
Wolntizek, 834 F.3d 681 (6th Cir. 2016); Carey v. Wolntizek, 614 F.3d at 196 (6th
Cir. 2010). Defendants do not defend on the merits, because they cannot.
Defendants next miscite Ramsek v. Beshear, No. 20-5542, 2020 U.S. App.
LEXIS 17203, at *1 (6th Cir. May 29, 2020), for the proposition that this Court
should simply ignore Plaintiffs’ request for injunctive relief. However, Defendants
ignore that the remand in Ramsek came after an injunction pending appeal was
entered for the protest, and after this Court weighed in on the merits.
If this Court wishes to remand this appeal after correcting the District
appeal between now and November 8, 2022 (election day), and ensuring that
Defendants do not file formal charges in the meantime to play games with
jurisdiction (including after remand and prior to an adjudication on the merits), that
Finally, Defendants argue that this motion is somehow improper, but miss
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C. The remaining injunction factors warrant entry of an injunction
pending appeal
Defendants claim they have all the time in the world to decide to bring
formal charges – but ignore (and ultimately admit) the fact that they could do so
very soon after October 28, 2022 (even early next week). And they ignore the
ongoing chill that their actions have caused in the middle of election cycle, which
At bottom, and Defendants never address this, clear Sixth Circuit law
establishes that the remaining factors are met where constitutional rights are
infringed upon, and so, in these cases, the likelihood of success factor is
dispositive. H.D.V. - Greektown, LLC v. City of Detroit, 568 F.3d 609 (6th Cir.
violation found); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020); Maryville Baptist
Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020); Elrod v. Burns, 427 U.S.
D. Conclusion
Respectfully submitted,
/s/Thomas Bruns_____________
Thomas Bruns (KBA 84985)
Bruns, Connell, Vollmar & Armstong
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
[email protected]
513/312-9890
/s/Zach Gottesman____________
Zach Gottesman (KBA 86288)
404 East 12 St., First Floor
Cincinnati, OH 45202
[email protected]
(513) 225-8997
Attorneys for Plaintiffs/Appellants
CERTIFICATE OF SERVICE
I certify that I have served a copy of the foregoing upon Counsel for the
Defendants/Appellees, this 26th day of October, 2022, by filing same with the
Court via its CM/ECF system, and by electronic mail upon Counsel for the
Defendants/Appellees, which will provide notice to all parties Counsel.
/s/ Christopher Wiest___________
CERTIFICATE OF COMPLIANCE
As required by Fed. R. App. P. 32(g) and 6th Cir. R. 32(a), I certify that this Reply
contains 1,521 words. This response complies with the typeface requirements of
Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because it has been prepared in 14-point Times New Roman font using
Microsoft Word.
/s/ Christopher Wiest___________