Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Jun 21 10:36 AM-16CV000554
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IN THE FRANKLIN COUNTY
COURT OF COMMON PLEAS
LIBERTARIAN PARTY OF OHIO,
Plaintiff, Case No. 16-cv-554
v. Judge David C. Young
JON HUSTED,
OHIO SECRETARY OF STATE, et al.,
Defendants.
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S RULE 59
MOTION FOR NEW TRIAL AND ACCOMPANYING RULE 60 MOTION TO STAY
JUDGMENT
Despite the fact that there never was a trial, Plaintiff now seeks a new one because the
Sixth Circuit issued an expedited briefing schedule in an appeal involving its federal claims
against S.B. 193. Alternatively, Plaintiff asks this Court to “stay” its final judgment so it can
reconsider its decision based on the outcome of the Sixth Circuit appeal, something this Court
has no jurisdiction to do. Plaintiff's motion has multiple fatal flaws and should be denied.
Most importantly, Plaintiff cannot seek a new trial because this Court dismissed its case
based on Defendants’ motion for summary judgment. The Ohio Supreme Court has clearly
explained:
[A] summary judgment proceeding is not a trial but rather is a hearing upon a
motion. Since a summary judgment proceeding is not a trial, a motion for a new
trial does not properly lie. The legal conclusion in the instant cause is that the
motion for a new trial which questions the granting of a summary judgment is a
nullity and not proper.
L.A.&D., Inc. v. Board of Lake County Commrs., 67 Ohio St.2d 384, 387 (1981) (internal
citation omitted). See also Wolf-Sabatino v. Sabatino, 10th Dist. Franklin No. 12AP-307, 2012-
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Ohio-6232, J 13 (Dec. 31, 2012) (“[A] motion for a new trial properly lies only after a trial.”),
Thus, Plaintiff's motion for a new trial may be denied solely on the basis that there was no trial
and its motion is improper.
But, even if there had been a trial, the Sixth Circuit’s expedited briefing schedule is not
grounds for granting a new one. Plaintiff argues that the Sixth’s Circuit expedited briefing
schedule is “newly discovered evidence.” A briefing schedule, however, is not substantive
evidence. Moreover, the Sixth Circuit’s expedited briefing schedule is not “newly discovered”
for purposes of the rule because it was not “in existence at the time of trial.” Lovejoy v. Lovejoy,
5th Dist. Stark No. 2002-CA-000034, 2002-Ohio-4877, { 13 (“Matters which occur after trial are
not generally considered newly discovered evidence upon which to justify the granting of a new
trial, because newly discovered evidence refers to facts in existence at the time of the tial, of
which the parties were excusably ignorant.”), citing Schwenk v. Schwenk, 2 Ohio App.3d 250,
441 N.E.2d 631 (8th Dist. 1982).
Even if the Sixth Circuit’s briefing schedule were newly discovered evidence—and it is
not— it still does not warrant a new trial. In order to be entitled to a new trial, a movant must
show that “(1)} the new evidence must be such as will probably change the result if a new trial is
granted, (2) it must have been discovered since the trial, (3) it must be such as could not in the
exercise of due diligence have been discovered before the trial, (4) it must be material to the
issues, (5) it must not be merely cumulative to former evidence, and (6) it must not merely
impeach or contradict the former evidence.” Ja re W., 4th Dist. Athens No. 03CA20, 2003-Ohio-
6299, | 23 (Nov. 19, 2003), citing Sheen v. Kubiac, 131 Ohio St. $2, 1 N.E.Qd 943, (1936),
paragraph three of the syllabus, and Payne v. Cartee, 111 Ohio App.3d 580, 593-394, 676
N.E.2d 946 (4th Dist. 1996). The existence of a new briefing schedule fails to meet this
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standard by any measure. Plaintiff offers no argument to the contrary and has completely
ignored the governing standard.
Plaintiff's motion under Civ.R. 62(A) for a “Stay of Proceedings to Enforce a Judgment”
is also procedurally improper and without merit. Such a stay can only be granted “pending the
disposition of a motion for a new trial, or a motion for relief from a judgment or order made
pursuant to Rule 60, or of a motion for judgment notwithstanding the verdict made pursuant to
Rule 50.” Civ. R. 62(a). As explained above, Plaintiff's motion is not a proper motion for a new
trial, and Plaintiff has not filed any of the other types of motions enumerated in the Rule.
Moreover, Civ.R. 62 has no application where, as here, there can be no execution on the
judgment. Civ.R. 62(A) provides:
In its discretion and on such conditions for the security of the adverse party as are
proper, the court may stay the execution of any judgment or stay any proceedings
to enforce judgment pending the disposition of a motion for a new trial... .
(Emphasis added). Here, Plaintiffs claims were dismissed. This is not a case where Defendants
could attempt to collect a money judgment through execution or enforce an injunction. See
Civ.R. 69 (“Process to enforce a judgment for the payment of money shall be a writ of execution,
unless the court directs otherwise.”) As there is nothing to execute or enforce, Civ.R. 62 is
inapplicable. There is simply nothing to stay.
In substance, Plaintiff is not asking for a Civ.R. 62 stay.' Rather, it is asking this Court
to retain post-judgment jurisdiction until the Sixth Circuit decides the related federal appeal, so
that this Court could reconsider its final judgment if the Sixth Circuit reverses the trial court. But
a trial court has no jurisdiction to reconsider a final appealable order like the June 7 summary
' The caption of Plaintiffs Motion refers to a “Rule 60 Motion to Stay Judgment” and the first
sentence of the motion similarly references Rule 60, but the memorandum cites Rule 62 and
quotes from it. As Rule 62, not Rule 60, governs stays, Defendants construe Plaintiffs motion
as premised upon Rule 62.
3
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Jun 21 10:36 AM-16CV000554
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judgment decision at issue here. See Yavitch & Palmer Co., L.P.A. v. U.S. Four, Inc., 10th Dist.
Franklin No. OSAP-294, 2005-Ohio-5800, {| 10 (Nov. 1, 2005) (“Final orders are not subject to
motions for reconsideration.”). In short, this Court has no jurisdiction to do what Plaintiff asks.
For all the foregoing reasons, Plaintiff's motion for a new trial or to stay judgment
should be denied.
Respectfully submitted,
MICHAEL DEWINE (0009181)
Ohio Attorney General
s/ Halli Brownfield Watson
HALLI BROWNFIELD WATSON (0082466)
JORDAN S. BERMAN (0093075)
SARAH E. PIERCE (0087799)
Assistant Attorneys General
Constitutional Offices Section
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
Tel: 614-466-2872 | Fax: 614-728-7592
halli.watson @ ohioattorneygeneral.gov
jordan. berman @ ohioattorneygeneral.gov
sarah.pierce @ ohioattorneygeneral.gov
Counsel for Defendants Ohio Secretary of State and
Ohio Attorney General
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Jun 21 10:36 AM-16CV000554
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CERTIFICATE OF SERVICE
Thereby certify that a true copy of the foregoing was served by operation of this court’s
electronic filing system on June 21, 2016, upon the following:
Mark R. Brown
303 E Broad Street
Columbus, Ohio 43215
mbrown @law.capital.edu
Mark G Kafantaris
Kafantaris Law Office
625 City Park Avenue
Columbus, Ohio 43206
mark @kafantaris.com
s/ Halli Brownfield Watson
HALLI BROWNFIELD WATSON (0082466)
Assistant Attorney General
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Jun 21 10:36 AM-16CV000554 0D108 - H8 IN THE FRANKLIN COUNTY COURT OF COMMON PLEAS LIBERTARIAN PARTY OF OHIO, Plaintiff, Case No. 16-cv-554 v. Judge David C. Young JON HUSTED, OHIO SECRETARY OF STATE, et al., Defendants. DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S RULE 59 MOTION FOR NEW TRIAL AND ACCOMPANYING RULE 60 MOTION TO STAY JUDGMENT Despite the fact that there never was a trial, Plaintiff now seeks a new one because the Sixth Circuit issued an expedited briefing schedule in an appeal involving its federal claims against S.B. 193. Alternatively, Plaintiff asks this Court to “stay” its final judgment so it can reconsider its decision based on the outcome of the Sixth Circuit appeal, something this Court has no jurisdiction to do. Plaintiff's motion has multiple fatal flaws and should be denied. Most importantly, Plaintiff cannot seek a new trial because this Court dismissed its case based on Defendants’ motion for summary judgment. The Ohio Supreme Court has clearly explained: [A] summary judgment proceeding is not a trial but rather is a hearing upon a motion. Since a summary judgment proceeding is not a trial, a motion for a new trial does not properly lie. The legal conclusion in the instant cause is that the motion for a new trial which questions the granting of a summary judgment is a nullity and not proper. L.A.&D., Inc. v. Board of Lake County Commrs., 67 Ohio St.2d 384, 387 (1981) (internal citation omitted). See also Wolf-Sabatino v. Sabatino, 10th Dist. Franklin No. 12AP-307, 2012- Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Jun 21 10:36 AM-16CV000554 0D108 - H8 Ohio-6232, J 13 (Dec. 31, 2012) (“[A] motion for a new trial properly lies only after a trial.”), Thus, Plaintiff's motion for a new trial may be denied solely on the basis that there was no trial and its motion is improper. But, even if there had been a trial, the Sixth Circuit’s expedited briefing schedule is not grounds for granting a new one. Plaintiff argues that the Sixth’s Circuit expedited briefing schedule is “newly discovered evidence.” A briefing schedule, however, is not substantive evidence. Moreover, the Sixth Circuit’s expedited briefing schedule is not “newly discovered” for purposes of the rule because it was not “in existence at the time of trial.” Lovejoy v. Lovejoy, 5th Dist. Stark No. 2002-CA-000034, 2002-Ohio-4877, { 13 (“Matters which occur after trial are not generally considered newly discovered evidence upon which to justify the granting of a new trial, because newly discovered evidence refers to facts in existence at the time of the tial, of which the parties were excusably ignorant.”), citing Schwenk v. Schwenk, 2 Ohio App.3d 250, 441 N.E.2d 631 (8th Dist. 1982). Even if the Sixth Circuit’s briefing schedule were newly discovered evidence—and it is not— it still does not warrant a new trial. In order to be entitled to a new trial, a movant must show that “(1)} the new evidence must be such as will probably change the result if a new trial is granted, (2) it must have been discovered since the trial, (3) it must be such as could not in the exercise of due diligence have been discovered before the trial, (4) it must be material to the issues, (5) it must not be merely cumulative to former evidence, and (6) it must not merely impeach or contradict the former evidence.” Ja re W., 4th Dist. Athens No. 03CA20, 2003-Ohio- 6299, | 23 (Nov. 19, 2003), citing Sheen v. Kubiac, 131 Ohio St. $2, 1 N.E.Qd 943, (1936), paragraph three of the syllabus, and Payne v. Cartee, 111 Ohio App.3d 580, 593-394, 676 N.E.2d 946 (4th Dist. 1996). The existence of a new briefing schedule fails to meet this Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Jun 21 10:36 AM-16CV000554 0D108 - H8 standard by any measure. Plaintiff offers no argument to the contrary and has completely ignored the governing standard. Plaintiff's motion under Civ.R. 62(A) for a “Stay of Proceedings to Enforce a Judgment” is also procedurally improper and without merit. Such a stay can only be granted “pending the disposition of a motion for a new trial, or a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgment notwithstanding the verdict made pursuant to Rule 50.” Civ. R. 62(a). As explained above, Plaintiff's motion is not a proper motion for a new trial, and Plaintiff has not filed any of the other types of motions enumerated in the Rule. Moreover, Civ.R. 62 has no application where, as here, there can be no execution on the judgment. Civ.R. 62(A) provides: In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of any judgment or stay any proceedings to enforce judgment pending the disposition of a motion for a new trial... . (Emphasis added). Here, Plaintiffs claims were dismissed. This is not a case where Defendants could attempt to collect a money judgment through execution or enforce an injunction. See Civ.R. 69 (“Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise.”) As there is nothing to execute or enforce, Civ.R. 62 is inapplicable. There is simply nothing to stay. In substance, Plaintiff is not asking for a Civ.R. 62 stay.' Rather, it is asking this Court to retain post-judgment jurisdiction until the Sixth Circuit decides the related federal appeal, so that this Court could reconsider its final judgment if the Sixth Circuit reverses the trial court. But a trial court has no jurisdiction to reconsider a final appealable order like the June 7 summary ' The caption of Plaintiffs Motion refers to a “Rule 60 Motion to Stay Judgment” and the first sentence of the motion similarly references Rule 60, but the memorandum cites Rule 62 and quotes from it. As Rule 62, not Rule 60, governs stays, Defendants construe Plaintiffs motion as premised upon Rule 62. 3 Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Jun 21 10:36 AM-16CV000554 0D108 - H8 judgment decision at issue here. See Yavitch & Palmer Co., L.P.A. v. U.S. Four, Inc., 10th Dist. Franklin No. OSAP-294, 2005-Ohio-5800, {| 10 (Nov. 1, 2005) (“Final orders are not subject to motions for reconsideration.”). In short, this Court has no jurisdiction to do what Plaintiff asks. For all the foregoing reasons, Plaintiff's motion for a new trial or to stay judgment should be denied. Respectfully submitted, MICHAEL DEWINE (0009181) Ohio Attorney General s/ Halli Brownfield Watson HALLI BROWNFIELD WATSON (0082466) JORDAN S. BERMAN (0093075) SARAH E. PIERCE (0087799) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: 614-466-2872 | Fax: 614-728-7592 halli.watson @ ohioattorneygeneral.gov jordan. berman @ ohioattorneygeneral.gov sarah.pierce @ ohioattorneygeneral.gov Counsel for Defendants Ohio Secretary of State and Ohio Attorney General Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Jun 21 10:36 AM-16CV000554 0D108 - H8 CERTIFICATE OF SERVICE Thereby certify that a true copy of the foregoing was served by operation of this court’s electronic filing system on June 21, 2016, upon the following: Mark R. Brown 303 E Broad Street Columbus, Ohio 43215 mbrown @law.capital.edu Mark G Kafantaris Kafantaris Law Office 625 City Park Avenue Columbus, Ohio 43206 mark @kafantaris.com s/ Halli Brownfield Watson HALLI BROWNFIELD WATSON (0082466) Assistant Attorney General