Appeals Court Declares Injunction Against Ohio’s Blocking Of Immunity-Stripping Bill Moot Because It Dicked Around Long Enough To Make It Moot

Those of you who still believe the nation's courts are capable of handling the constitutionally-guaranteed redress of grievances, prepare to be disabused of those notions. While the courts may occasionally care about rights, they're far more willing to protect the government status quo than allow mere citizens to upset the status quo apple cart.

We've seen this in the Fifth Circuit, where judges originally agreed (very strongly) that arresting a journalist for publishing information obtained from a law enforcement officer violated that person's First Amendment. The solid judicial smackdown of the government's overreach was followed shortly thereafter by a petition by (unnamed) Fifth Circuit judges for a rehearing. Following that rehearing, the Fifth went entirely in the other direction, insisting that what was - only months earlier - determined to be a flagrant violation of rights was now entirely constitutional.

That's what has now happened in the Sixth Circuit Court of Appeals. An Ohio ballot measure that would have stripped local government officials of absolute immunity was denied no less than eight times by Ohio Attorney General David Yost. The ballot measure got the signatures it needed to be added to ballots, but AG Yost rejected it repeatedly. Yost moved the goalposts with each filing, refusing to provide the applicants with any guidance as to how they could bring this ballot measure into compliance with constantly shifting guidelines.

Those seeking to put the measure on the ballot filed a federal lawsuit on March 27, 2024. The lower court - recognizing time was of the essence - issued its decision less than two months later. While it did deny the injunction request, it did rule the plaintiffs could move forward with discovery. Facing this latent threat to his ability to act vindictively when presented with ballot measures he didn't personally like, AG David Yost asked the Sixth Circuit to take a look at the case before he was forced to turn over information to the plaintiffs.

The Sixth Circuit, recognizing time was of the essence, issued its own ruling less than two weeks after AG Yost's appeal. Unfortunately for the Attorney General, the Sixth Circuit not only found in favor of the plaintiffs, but also issued a preliminary injunction barring the AG from continuing to interfere with this ballot measure.

At that point (May 29, 2024), there still may have been enough time for the plaintiffs to gather the 400,000 signatures needed to place this ballot measure on the November 2024 election ballot.

For reasons that are now immediately apparent, the worst judges in the Sixth Circuit decided this question needed to be heard by the full court. This request for an en banc hearing was granted and the Sixth Circuit issued an opinion nullifying its original decision, which had firmly found in favor of the plaintiffs.

Until this point, everything had been expedited. The original lawsuit was reviewed and received a ruling within 60 days. The interlocutory appeal by the state AG was handled within a month of the notice of appeal. The agreement to hear the case en banc was issued within two weeks of the first notice of internal Sixth Circuit disagreement.

And then... nothing happened for another five months. The en banc hearing didn't happen until two weeks before the November 2024 elections. (The case was heard on October 30. The elections occurred on November 5.) The opinion wasn't issued until 16 days after the national election had been called.

It is what it looks like: the en banc request was made by judges upset that regular people might be able to negate state-level immunity protections via ballot measure. So, the request for rehearing was made immediately, and then the court dragged its feet for nearly another six months. While the re-hearing occurred before the election (by two weeks), it wouldn't have mattered. Even if the court had sided with the plaintiffs, it would only have given those pushing the ballot measure about 14 days to secure the 400,000 signatures needed to ensure placement on the ballot during the November elections.

But it pushed off the decision until two weeks after the election, presumably for the sole reason of declaring the lawsuit moot... even if its mootness was entirely dependent on the bullshittery of the judges asking for a full rehearing and the minority judges' cowardly unwillingness to handle this with the same alacrity they had used to respond to the Ohio AG's appeal. Instead of justice, we just get several judges screwing around long enough the chance to put this issue on the November 2024 ballot was nonexistent.

Now that there was no danger of accidentally allowing citizens to pursue lawsuits against Ohio government employees without being stymied by ridiculous declarations of immunity, the Sixth Circuit (en toto) is finally willing to issue its decision [PDF]. And that decision says: hey, we fiddled while metaphorical Rome burned but since Rome is burnt, there's nothing compelling us to find in favor of the people who wanted to see this court act before Rome was burnt to the ground.

Now that the November 2024 election is over, her request for relief, like many a 2024 election yard sign, has become stale. Ordering Yost to certify that summary now will not give Brown the relief she seeks because the window to appear on the 2024 ballot has closed. Without power to rewind the clock, we cannot give Brown the relief she sought in her preliminary injunction. Given the nature of the relief sought," the matter is moot because the . . . election is over." Brockington v. Rhodes, 396 U.S. 41, 43 (1969) (per curiam).

Now, I realize this site draws an audience that is a cross-section of the general public and we're not expecting people to have completed a year of two of law school before reporting posts like this one. But there's only one legal term of art that can be used to describe this: pure cuntishness.

The judges who demanded the rehearing made sure the case couldn't be decided in time to provide relief to the ballot measure proponents who had spent the previous several months being screwed with by a state official who never had any intention of ever approving this ballot measure. And now that the (new) majority had managed to make this a non-issue, it now has the gall to proclaim it is powerless to rewind the clock." And with that statement, it pretends the en banc hearing supporters did not deliberately allow the clock to run solely for the reason of denying relief to the people trying to curtail government immunity.

The dissenting opinion nails it, though. Even if the majority wants to pretend it didn't engage in a performative re-hearing (at the last minute! five months[!] after the case was first handled and, as the dissent points out, only six days before the election), it doesn't get to pretend issuing an injunction is no longer an option. After all, elections and ballot measures are an ongoing process. Denying relief now just means this lawsuit will be showing up in court less than two years from now, when the next state ballot measures are being considered. Even if it's moot" in terms of an election date that has come and gone, an injunction is needed to ensure Ohio AG Yost doesn't just pull the same shit the next time around.

Yost has rejected Plaintiffs' summaries time and time again, for reasons that appear increasingly specious. Meanwhile, Plaintiffs have been unable even to begin circulating their petition. Because Plaintiffs' motion for a preliminary injunction is not moot and because they are likely to succeed on the merits of that motion, I would grant relief.

Unfortunately, it's the majority that has the final say. Everything goes back to square one. The plaintiffs can restart the ballot measure petition process, assured that the same amount of AG bullshit will greet their efforts this time around, only with another layer of vindictiveness added to it. The AG has been told he can fuck these petitioners over repeatedly without fearing any reprisal from federal courts. And so he undoubtedly will, especially when absolute and qualified immunity are on the line. The Sixth Circuit has deliberately abdicated its responsibility to the public by running the clock for the sole purpose of disposing of a lawsuit attempting to salvage a ballot measure only government employees would object to. This is circling the wagons, but at the appellate level. And the moment enough judges recognized the latent threat to government autonomy the proposed ballot measure presented, they ran out the clock to prevent citizens from empowering themselves and/or seeking actual redress through the court system.