Can One Ohio County-Level Trial Court Judge Enjoin a Statewide Election on an Emergency Basis? Of Course, Not! Kudos To Judge Roger Frye

With less than 12 hours before Ohio’s statewide primary election, scheduled for March 17, 2020, politicians called upon Franklin County Common Pleas Court Judge Roger Frye to issue an Emergency Temporary Restraining Order to close the polls. The Plaintiffs sought to invoke the Court’s extraordinary powers under Ohio

P. 65(A) which allows a County Common Pleas Judge to issue a “temporary” order restraining activity which could forever alter the status quo and render the ultimate relief sought a nullity. It is truly an extraordinary remedy, available ex parte, when the movant must act with utmost alacrity to prevent action, on a temporary basis, to redress an emergency.

Certainly, the COVID-19 pandemic is extraordinary and some would say requires emergency action. But, there is far more necessary for a judge to consider. As a threshold, the relief sought must arise from an emergency not of the movant’s own making. The movant must clearly establish “from specific facts…that immediate and irreparable injury, loss or damage will result to the applicant” in the absence of the extraordinary relief. In addition, the movant must also establish that the relief is justified after the balancing of four factors:

1. That the moving party has a likelihood of success on the merits;
2. That there is an immediate and certain threat of irreparable harm absent such relief (that there is no adequate remedy at law for the moving party should the relief not be afforded);
3. That the injury suffered by the parties enjoined, if any, will not outweigh the potential injury suffered by the moving party absent the relief; and
4. That the public interest will be served by maintaining the status quo between the

This is where the very experienced Judge Frye really hit the nail on the head.

The author has not been able to obtain a transcript of his comments or written memorandum decision, but the quoted excerpts are taken from Jake Zuckerman, Ohio Capital Journal, who recorded the proceeding. Judge Frye’s reasoning basically comes down to four overall comments (the parenthetical comments are the author’s).

1. We don’t know that things will be better at a specific later date (no likelihood of success on the merits and/or no irreparable harm)
2. People are harmed/disenfranchised by delay (injuries suffered by third- parties and the public interest in general)
3. Ballots cast could be lost in a delay (injuries suffered by third-parties)
4. The Legislature has not called an emergency session (no emergency and no irreparable harm)

Judge Frye provided specific quotes relating to the factors and standards that were not met. As for the emergency nature of the proceeding, he said, “I don’t believe that plaintiffs have proceeded in a timely matter, or for that matter, that the secretary [of state] has proceeded in a timely matter himself.” As noted above, the movant seeking a TRO must act with utmost alacrity and Judge Frye apparently was concerned that the movants before him could have acted more expeditiously.

Regarding the balancing of factors, he said, “there are too many factors to balance in this uncharted territory to say we ought to take away from the legislature and elected statewide officials and throw it to a common pleas court judge in Columbus with 12 hours to go until the election.” He apparently found it particularly troubling that cancelling an election at literally the 11th hour could adversely affect innocent third-parties by disenfranchising voters: “No one is disenfranchising people intentionally. The plaintiffs and people that are similarly situated could have voted absentee or voted by early voting. They’ve had some means to do that.” He succinctly stated, “the request for the TRO is denied.”

Ultimately, Governor DeWine and his staff “trumped” (pardon the pun) this decision by having the Ohio Department of Health declare an emergency closing the polls just hours after Judge Frye’s decision. Regardless whether the Governor was correct or prudent – and he has been very proactive, listening to doctors and scientists – the important take away is that this one, country trial judge, got it right and did not create untenable precedent.

Judge Frye’s decision harkens back to a Shakespeare quote from Measure for Measure: Isabella decries the Duke’s Deputy Angelo for betraying her and ordering her brother’s execution. In accusing the Deputy of being corrupted by power she states: “O! It is excellent to have a giant’s strength, but it is tyrannous to use it like a giant.” The Ohio Civil Rules and Statutes give county trial judges the “giant’s strength” to issue the extraordinary relief of restraining orders and injunctions.

Sometimes, it is absolutely necessary to use that strength. But, the true legal giants exercise it judiciously.