Mark Brown, Legal Representative for The OCEQI, Responds to AG Yost’s Summary Rejection

Dear Attorney General Yost,

Your March 14, 2024 Letter rejecting my clients’ proposed “Protecting Ohioans’ Constitutional Rights” amendment incorrectly asserts that relators failed to address problems that you had identified in your November 17, 2023 letter rejecting their prior submission. This is not true. Because this publicly declared falsehood was obviously material to your renewed rejection of their summary on March 14, 2024 – you use the word “[r]egrettably” – and because it is potentially defamatory and places them in a false light, my clients demand that you retract it.

My clients went to great lengths in their March 2024 submission to address every concern you raised in your November 17, 2023 rejection letter. Far from ignoring your criticisms and concerns, my clients relied on them in both their revision of the text of the proposed amendment and its revised summary.

Your November 17, 2023 rejection letter identified no less than a dozen problems. Most of them centered on the proposed amendment’s venue provision and my clients’ summary of it. See November 17, 2023 Letter at 1-2. My clients resolved these many difficulties in their March 2024 submission by changing the venue portion of the proposed amendment and then describing this new venue provision in their revised summary. You expressed no concerns with these changes in your March 14, 2024 Letter rejecting the revised summary, which proves my clients had addressed these problems to your satisfaction.

You also expressed concern over the November 2023 summary’s failure to adequately describe the proposed amendment’s potential for non-party liability. See November 17, 2023 Letter at 2. My clients corrected this problem in their revised summary, and you expressed no further concern about it in your March 14, 2024 Letter. Again, we can only presume that the problem was corrected to your satisfaction.

You had also expressed concern about the November 2023 summary’s description of “public employee” and “entity.” See November 17, 2023 Letter at 3. My clients altered the text of the proposed amendment to address the “entity” problem, going so far as to add a definition of “entity” and then thoroughly summarizing this change in their March 2024 submission. You said nothing further about your concerns in these regards in your March 14, 2024 rejection letter, again demonstrating that my clients had responded to your satisfaction.

You added concerns in your November 2023 rejection about the summary’s descriptions of potential defendants, including “public employees,” “instrumentalities of the State of Ohio,” and “independent contractors,” see November 14, 2023 Letter at 3 & 4, all of which were addressed by my clients’ revised summary submitted in March 2024. You said nothing more about them in your March 14, 2023 rejection letter, meaning the changes were to your satisfaction.

Your complaint in November of 2023, see November 17, 2023 Letter at 3, that the summary misstated the remedies available and who could request a jury trial were also corrected in the March 2024 submission. You said nothing further about them in your March 14, 2023 rejection letter, indicating the changes were proper. The same goes for your complaint that my clients inadequately described potential “reasonable attorney’s fees” and did not make clear that only plaintiffs can choose jury trials. Id. at 4. My clients corrected both problems in their March 2024 summary and you said nothing more about them, demonstrating that the changes were made to your satisfaction.

To use another example, you claimed in your November 17, 2023 rejection letter that the November 2023 summary improperly “omit[ed] that the types of immunities which are enumerated therein are part of an expressly non-exhaustive list.” Id. Because the November 2023 summary had merely mentioned only “[q]ualified immunity, sovereign immunity, prosecutorial immunity, and any immunity provided the State, political subdivision, or public employee by statute,” without stating that this list was not exhaustive, you found it misleading. My clients corrected this per your suggestion in their March 2024 summary by stating that the listed immunities and defenses “include[ed] but [were] not limited to” them. Again, you said nothing about this in your March 14, 2024 Letter, so it must have worked.

Likewise with your complaint about the November 2023 summary’s use of the word “eliminated” to describe the proposed amendment’s effect on immunities. See November 17, 2023 Letter at 4-5. My clients removed that word from their March 2024 submission and you never said any more about it. Problem solved.

While accepting the dozen-or-so changes and corrections my clients made, you use four new reasons to reject their summary. Not one of these four reasons for rejecting their proposed amendment on March 14, 2024 was stated in your prior rejection on November 17, 2023.

1. Your novel, meritless and illegal March 14, 2024 complaint about the title, see March 14, 2024 Letter at 2, is demonstrably new, since that same title was included with the November 2023 submission (and several others before that) and you never indicated it was improper.

2. Your meritless complaint about my clients’ description of the statute of limitations is also new. Id. That complaint was not included in your November 17, 2023 rejection (or at any other time).

3. Your meritless and contradictory, see below, March 14, 2024 claim that the summary’s addition of “or any subset thereof” to describe “immunities and defenses” is also new, since the prior November 2023 summary that my clients submitted did not use the phrase “or any subset thereof” to describe anything.

4. Your meritless complaints about the current summary’s failure to include the phrase “or any subset thereof” immediately following the words “government actors” is also new. You did not make this charge in your November 17, 2023 as you erroneously assert – in bold face type -- in your March 14, 2024 rejection letter. Indeed, your November 17, 2023 letter only complained about the summary’s not including the phrase “or any subset thereof” with its discussion of government actors’ “defenses.” This failure to use the phrase “or any subset thereof” with government actors’ “defenses,” you claimed in November of 2023, resulted in “the summary fail[ing] to encapsulate the broader swath of defenses [as opposed to a broader set of government actors, which you now assert] contemplated by the text of the proposed amendment.” November 17, 2023 Letter at 5 (emphasis added).

Given your claim in November 2023 that the summary needed to include the phrase “or any subset thereof” with “defenses” to “encapsulate the broader swath of defenses” that the proposed amendment restricted, my clients in good faith reliance did exactly what you said. They added the phrase “or any subset thereof” immediately following “immunities and defenses” in their most recent summary. That revised summary’s language now states that “[i]n any action filed under this Amendment, no government actor shall enjoy or may rely upon any immunities or defenses, or any subset thereof, which are only available to government actors.” (Emphasis added). Far from ignoring your November 2023 rejection, my clients in good faith made the change you said was necessary.

Remarkably, you now complain that this addition of “or any subset thereof” “directly follow[ing] and modif[ying] the comma-separated clause ‘immunities or defenses,’” see March 14, 2024 Letter at 2, “affirmatively misleads the reader into believing that the proposed amendment broadly abrogates ‘any subset’ of immunities or defenses available to government actors.” March 14, 2024 Letter at 2 (italics original and emphasis added).

This is a 180-degree reversal from your position in November 2023 that the summary’s failure to use the phrase “or any subset thereof” with government actors’ defenses “failed to encapsulate the broader swath of defenses” and thus too narrowly described the proposed amendment’s reach. Your contradictory instructions leave my clients ‘darned if they do and darned if they don’t.’

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My clients have in good faith done everything in their power to cooperate with you and your Office. They have repeatedly made the changes that you have required. But now, for some unknown reason, you have not only publicly and falsely accused them of repeating mistakes that you identified in November 2023, you have developed contradictory reasons to keep them off the ballot. As made clear above, your false accusations and patent contradictions need to be corrected.

Sincerely,

Mark R. Brown

Mark R. Brown

Attorney at Law