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COAST Motion for Preliminary Injunction

COAST Motion for Preliminary Injunction

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Motion for Preliminary Injunction filed by COAST in SBA List & COAST v. Driehaus
Motion for Preliminary Injunction filed by COAST in SBA List & COAST v. Driehaus

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Published by: Finney Law Firm, LLC on Jul 11, 2014
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09/09/2014

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION SUSAN B. ANTHONY LIST, Plaintiff, v. REP. STEVE DRIEHAUS,
et al.
, Defendants. : : : : : : : : : : Case No. 1:10-CV-720
consolidated with
Case No. 1:10-CV-754 Judge Black COALITION OPPOSED TO ADDITIONAL SPENDING & TAXES, Plaintiff, v. OHIO ELECTIONS COMMISSION,
et al.
, Defendants. : : : : : : : : : : :
PLAINTIFF COAST’S
MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Coalition Opposed to Additional Spending & Taxes (“COAST”)
moves,  pursuant to Fed. R. Civ. P. 65, for the issuance of a preliminary injunction enjoining the enforcement of Section 3517.21(B)(9) and Section 3517.21(B)(10) of the Ohio Revised Code by the Ohio Elections Commission and its members. In the interest of judicial economy and efficiency, COAST refers to and incorporates by reference the legal arguments and analysis in Susan
B. Anthony List’s Motion
for a Preliminary Injunction (Doc. No. 120), as well as
COAST’s earlier Motion for Temporary
Restraining Order and Preliminary Injunction (Doc.  Nos. 2 & 2-1 in Case No. 1:10-CV-754). COAST tenders the following memorandum, together
Case: 1:10-cv-00720-TSB Doc #: 121 Filed: 07/01/14 Page: 1 of 7 PAGEID #: 2421
 
 - 2 - with the attached Declaration of Mark Miller, to supplement the arguments of the SBA List and its earlier arguments.
MEMORANDUM IN OPPOSITION
In
Susan B. Anthony List v. Driehaus
, 573 U.S. ___ (June 16, 2014), the Supreme Court
held that COAST has “demonstrated an injury in fact sufficient for Article III
 standing,
 slip op
., at
18, and, thus, COAST, just like Susan B. Anthony List (“SBA List”), may proceed with its
 pre-enforcement
First Amendment challenge herein to Ohio’s false
-political-speech statutes. In connection with the forthcoming 2014 election, COAST desires, similar to SBA List, to criticize Ohio Congresswoman Marcy Kaptur and her support of taxpayer-funded abortion  based upon her vote in favor of the Affordable Care Act
(the “ACA”)
. Similar to the contention of then-Congressman Driehaus befor 
e the Ohio Elections Commission that he didn’t vote for
taxpayer-
funded abortion because of “an executive order clarifying and enforcing long
-standing
law banning the use of federal funds for abortion services,” (Doc. No. 25
-3, Exhibit C, PageID#606), Congresswoman Kaptur has staked out a similar position in order to rationalize her vote in favor of the Act: Congresswoman Kaptur said she was convinced that the legislation will maintain
existing law on abortion. “We have received assurances that we will be
able to work with the Administration to assure that existing law is maintained
 – 
 not to
change it in any way, but to make sure that it applies to this bill.”
 (http://www.kaptur.house.gov/index.php?option=com_content&view=article&id=559:march-21-congresswoman-kaptur-supports-health-care-reform&catid=44&Itemid=300330.) And lest there be any doubt whether Congresswoman Kaptur views her vote for the ACA any different than then-Congressman Driehaus as it relates to providing or allowing taxpayer-funded abortions
, Congresswoman Kaptur’s spokesman was reported as specifically attacking
Case: 1:10-cv-00720-TSB Doc #: 121 Filed: 07/01/14 Page: 2 of 7 PAGEID #: 2422
 
 - 3 - the position of SBA List and, just like then-Congressman Driehaus, asserted reliance upon an executive order to dispute the present contention of SBA List and COAST: Steve Fought, a spokesperson for Kaptur, said the Susan B. Anthony List has a  political agenda rather than an issues agenda in their opposition to the executive order.
“I think these so
-called pro-life groups
 – 
 I think their complaint is more with
who’s signing the executive order than the executive order itself,” Fought said.…
Fought stood by Oba
ma’s executive order.
 
“The executive order, any way you cut it, is a good thing if you’re against federal funding of abortion, unless you have a political agenda,” Fought said. “Congresswoman Kaptur has been consistent in her voting pattern since she’s
 been a member of Congress. And she calls it pro-
family.”
1
)  Notwithstanding Co
ngresswoman Kaptur’s assertion that her vote for the
ACA
didn’t
 constitute a vote for taxpayer-funded abortions, COAST directly disagrees with such a conclusion and, instead, seeks and desires to have its voice added to the marketplace of ideas on the issue leading up to the forthcoming election. For as extensively developed in the
amicus
 
1
 While the press release and the article from
 Human Events
 may, concededly, constitute hearsay, this matter is presently before the Court on a motion for preliminary injunction. As the
Sixth Circuit has recognized, “
a preliminary injunction is customarily granted on the basis of  procedures that are less formal and evidence that is less complete than in a trial on the merits.'"
Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp.
, 511 F.3d 535, 542 (6th Cir. 2007) (quoting
Univ. of Texas v. Camenisch,
 451 U.S. 390, 395 (1981)). Furthermore,
“[t]he
United States Court of Appeals for the Sixth Circuit has not explicitly stated whether hearsay evidence may be considered in the context of a preliminary injunction hearing. This Court, however, and other district courts within this circuit have considered such evidence, as have
numerous other circuit courts.”
 Damon’ 
 s Restaurants, Inc. v. Eileen K Inc.
, 461 F.Supp.2d 607 (S.D. Ohio 2006)(internal citations omitted);
accord
United States v. O’Brien
, 836 F. Supp. 438, 441 (S.D.
Ohio 1993)(“[t]he Federal Rules of Evidence do not apply at preliminary injunction hearings”).
 And notwithstanding the foregoing, with respect to the press release, it is published on an official governmental website and, thus, is appropriate for taking judicial notice.
 E.g.,
 
 Denius v. Dunlap,
 330 F.3d 919, 926-27 (7th Cir.2003) (taking judicial notice of information from official government website). If any doubt or issue actually exists with respect to these matters, then at a preliminary injunction hearing, the presence of Congresswoman Kaptur or her spokesman can be compelled wherein they can confirm or refute these reported positions on the issue.
Case: 1:10-cv-00720-TSB Doc #: 121 Filed: 07/01/14 Page: 3 of 7 PAGEID #: 2423

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