IN THE OHIO ELECTIONS COMMISSION

MARK W. MILLER : Case No. 2018G-022

:
Complainant, :
:
v. :
:
AFTAB PUREVAL, et al. :
:
Respondents. :

MOTION FOR CONTINUANCE OF HEARING

Respondents respectfully request that the hearing in the above-captioned matter set for

November 1, 2018 before the Ohio Elections Commission be continued until a later date, pursuant

to Ohio Elections Commission Rule 3517-1-06(B). Respondents’ counsel contacted

Complainant’s counsel via email on October 24, 2018 and requested his consent to a continuance

in this matter. He declined. See, October 24, 2018 email attached hereto.

A Memorandum in Support is attached to this Motion.

Respectfully submitted,

1
/s/ Donald J. McTigue____________
Donald J. McTigue (0022849)
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
Fax: 614-263-7078
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com

Peter J. O’Shea (0086560)

Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
Tel: 513-977-3477
Fax: 513-762-0077
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*admitted pro hac vice
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Respondents

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 MEMORANDUM IN SUPPORT

I. INTRODUCTION

Respondents request a continuance of the hearing scheduled for November 1, 2018,

pursuant to Ohio Elections Commission Rule 3517-1-06(B). As there is no agreement of the parties

for a joint request, Respondents hereby submit the request to the Commission for its consideration.

II. LAW AND ARGUMENT

Pursuant to Commission Rule 3517-1-06(B), the Commission can continue hearings for

good cause shown. For the following reasons, there is good cause to continue the November 1

hearing until a later date.

A. The Commission should continue the hearing to allow for the courts to decide the
threshold issue of whether the Commission has jurisdiction to adjudicate the matter.

The November 1 hearing should be continued because there is a pending legal challenge

to the Commission’s jurisdiction to adjudicate this matter. Respondents in this matter instituted a

writ of prohibition action with the Tenth District Court of Appeals against the Commission on

October 15, 2018 and had sought an emergency motion to enjoin or stay the Commission’s

proceedings pending disposition of the action. In response, the Commission filed a motion to

dismiss contending that the Commission has jurisdiction to adjudicate Case No. 2018G-022 and

that Respondents, therefore, are not entitled to a writ of prohibition. On October 22, 2018, the

Tenth District denied the emergency motion—though not on the grounds that Respondents in this

matter were unlikely to succeed on the merits of their claim that the Commission lacks jurisdiction

to adjudicate this matter. The Court denied the Commission’s motion to dismiss the entire case.

The following day, October 23, 2018, Respondents in the instant matter filed an appeal of right of

the denial of their emergency motion with the Ohio Supreme Court where it is currently pending.

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 If the Commission proceeds to adjudicate Case No. 2018G-022 on November 1, it will

effectively eliminate the courts’ jurisdiction to hear the legal challenge by mooting it. The Tenth

District’s October 22 entry clearly leaves open the issue of the Commission’s jurisdiction to

adjudicate Case No. 2018G-022—this should give pause to the Commission. Rather than mooting

the legal challenge, the Commission, which is a state agency subordinate to the courts, should

defer to the courts’ exercise of their jurisdiction to determine the threshold issue of whether the

Commission’s exercise of jurisdiction over Case No. 2018G0-022 is authorized by law.

B. The Commission should continue the hearing to allow the parties sufficient time to
conduct discovery.

Another reason the November 1 hearing should be continued is because the compressed

timeline since October 11, 2018 provides insufficient time for discovery. Respondents are in the

process of having out-of-state subpoenas served upon material witnesses for depositions in Kansas

and Washington D.C., and this is a drawn-out process. In both jurisdictions, it requires identifying

and obtaining local counsel who can serve the subpoena upon the deponents following the local

service rules of these jurisdictions. Those subpoenas are in the process of being served, but service

has not been perfected yet due to logistical delays inherent in serving out-of-state subpoenas. And

here, other factors have delayed the process. For instance, the subpoena to the Kansas-based

deponent had to be reissued after the would-be local counsel notified Respondents that he would

be unable to handle the matter. Similarly, the subpoena to the Washington, D.C.-based deponent

had to be reissued in order to correct the duces tecum portion. All of these factors mean that the

deponents, who may or may not object to the subpoenas, will not be served until, at the absolute

earliest, within a week of the November 1 hearing. Deponents are entitled to a reasonable time to

object before their depositions. Fourteen days in these out-of-state jurisdictions is presumed to be

a reasonable period.

4
 Additionally, the compressed discovery timeline has resulted in Respondent Pureval’s

personal attorney being unable to attend the scheduled deposition of Mr. Pureval on October 26,

2018. Because the Complaint was filed against Mr. Pureval personally, he had his personal

attorney, Paul De Marco, file an appearance with the Commission on his behalf. After the

Complainant scheduled Mr. Pureval’s deposition for October 26, 2018, Mr. Pureval sought to

reschedule it to allow for Mr. De Marco’s presence. However, the Complainant has refused to

reschedule. As a result, Mr. Pureval’s personal attorney will be unable to attend the deposition.

However, continuing the hearing will allow time for the deposition to be rescheduled to a date at

which Mr. Pureval’s attorney can attend.

The compressed discovery timeline also does not allow the parties to properly engage in

discovery. Discovery is meant to be conducted in stages, with the first leading to the second, and

so forth. However, in the instant matter, the impending November 1 hearing means that the parties

will have little-to-no time to follow up with additional discovery requests. Complainants’ first

deposition was conducted on Tuesday, October 23 and Relators’ first deposition will be conducted

on Friday, October 26. Complainant has already requested the Commission to subpoena a third-

party identified at the October 23 deposition—though the third-party likely will not be served until

sometime just days before the November 1 hearing—and Respondents anticipate that they, too,

will need to subpoena additional parties following their scheduled depositions. But with the

November 1 hearing, there is virtually no time for this necessary process.

C. The Commission should continue the hearing because due process requires it.

The November 1 hearing should be continued for the additional reason that due process

requires it. As set forth above, the compressed discovery period does not afford Respondents

adequate time to discover all that may be necessary to defend themselves from the sprawling

5
allegations in the Complaint—allegations that can lead to civil fines and/or criminal prosecution.

Due process demands that Respondents be permitted sufficient time to prepare their defense.

D. The Commission should continue the hearing to prevent the Commission’s hearing from
being hijacked and manipulated for purely partisan purposes.

Finally, there is no reason for the Commission to decide the matter on November 1, but

there are ample reasons for continuing it until after November 1. Adjudicating the matter on

November 1, a mere five days before the federal election at which Respondent Pureval is a

candidate, would be an unwarranted disruption of a contentious, hard fought federal election by a

state agency. It would require a federal candidate to spend the few days before said election

preparing to give testimony, attending a deposition, and attending the Commission’s hearing,

which is in a different part of the state. This is especially concerning given that the Commission

lacks jurisdiction over federal elections and federal campaigns.

Moreover, regardless of which party might prevail at the November 1 hearing, there is no

doubt that Respondent Pureval’s mere presence at the hearing will be used in negative political

ads. Indeed, this is the sole basis for the Complainant’s insistence on the November 1 hearing

date—he just wants to generate negative publicity to benefit Respondent Pureval’s political

opponent in the federal race ahead of the November 6 election. This motivation is evidenced by

the numerous commercials aired by his allies that are filled with innuendo and distortions of the

Commission’s proceedings.1 It is also evidenced by the Complainant’s legal counsel’s incessant

attacks against Respondents on his blog and on Twitter since the Complaint was filed.2 This is

1
For instance, here are four ads aired by the Complainant’s political allies: (1) From Chabot for Congress:
https://www.youtube.com/watch?v=LrhuKslfio8; (2) From the Congressional Leadership Fund:
https://www.youtube.com/watch?v=YU9ivsep46M; (3) From the Congressional Leadership Fund:
https://www.youtube.com/watch?v=LYCvFZDeTMw; (4) From the Congressional Leadership Fund:
https://www.youtube.com/watch?v=xt0J_w2HXG8.
2
See, e.g., Articles by Brian Shrive on the Finney Law Firm Blog, https://finneylawfirm.com/article_author/brian-c-
shrive/; Brian Shrive Twitter, https://twitter.com/brianshrive.

6
harm that cannot be undone even if Respondent Pureval prevails at the November 1 hearing or

prevails on a R.C. 119.12 appeal—the Commission must not allow its proceedings to be hijacked

and manipulated for such partisan purposes.

The Commission is considering purported violations of state campaign finance law by a

county clerk of courts campaign committee, and the election for the county clerk of courts position

will not occur for another two years in 2020. In light of all the concerns stated herein, there is no

reason for the Commission to decide this matter before the November 2018 general election.

CONCLUSION

For good cause shown, Respondents respectfully request the Commission to continue the

November 1, 2018 hearing until a later date.

Respectfully submitted,

7
 /s/ Donald J. McTigue____________
Donald J. McTigue (0022849)
Derek S. Clinger (0092075)
McTigue & Colombo LLC
545 E. Town St.
Columbus, Ohio 43215
Tel: 614-263-7000
Fax: 614-263-7078
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com

Peter J. O’Shea (0086560)

Katz Teller Brant & Hild
225 East Fifth Street, Suite 2400
Cincinnati, Ohio 45202
Tel: 513-977-3477
Fax: 513-762-0077
poshea@katzteller.com

Brian G. Svoboda*
David Lazarus*
*admitted pro hac vice
Perkins Coie
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005
Tel: 202-654-6200
Fax: 202-654-6211
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Counsel for Respondents

CERTIFICATE OF SERVICE

I hereby certify that on October 24, 2018, a copy of the foregoing was sent via electronic
mail to the following:

Brian C. Shrive, brian@finneylawfirm.com

Counsel for Complainant

/s/ Donald J. McTigue____________

Donald J. McTigue (0022849)

8
10/24/2018 McTigue & Colombo LLC Mail - Continuance of 11/1/18 hearing

Derek Clinger <dclinger@electionlawgroup.com>

Continuance of 11/1/18 hearing

2 messages

Don McTigue <dmctigue@electionlawgroup.com> Wed, Oct 24, 2018 at 10:51 AM

To: "Brian C. Shrive" <Brian@finneylawfirm.com>
Cc: Derek Clinger <dclinger@electionlawgroup.com>, "Brian (Perkins Coie)" <BSvoboda@perkinscoie.com>, "Peter J. O'Shea" <poshea@katzteller.com>

Brian,

It is becoming increasingly clear that the hearing scheduled for 11/1/18 should be continued in order to allow adequate time for the discovery process and
to ensure due process rights of the Respondents. Based on Therefore, I am hereby requesting your agreement to a joint request to the OEC to continue
the hearing.

Don
___________________________
Donald J. McTigue
Attorney at Law
McTIGUE & COLOMBO LLC
545 E. Town Street
Columbus, Ohio 43215
Tel: 614-263-7000
Cell: 614-832-5984
Fax: 614-263-7078
dmctigue@electionlawgroup.com

Unless otherwise evident from the nature of the communication, the information contained in this email message is attorney-client privileged and/or
confidential information intended for the use of the individual or entity to whom/which it is addressed. If the reader of this message is not the intended
recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution, or copying
of this communication is strictly prohibited. See 18 U.S.C. §§ 2510-2521, the Electronic Communications Privacy Act. If you have received this email in
error, please immediately notify us by telephone, and delete the original.

Brian C. Shrive <Brian@finneylawfirm.com> Wed, Oct 24, 2018 at 11:00 AM

To: Don McTigue <dmctigue@electionlawgroup.com>, "Christopher P. Finney" <Chris@finneylawfirm.com>, Emma Brodzki <emma@finneylawfirm.com>,
"Brandy E. Fitch" <Brandy@finneylawfirm.com>
Cc: Derek Clinger <dclinger@electionlawgroup.com>, "Brian (Perkins Coie)" <BSvoboda@perkinscoie.com>, "Peter J. O'Shea" <poshea@katzteller.com>

Don,

We respectfully disagree with your assessment and will not join you in such a motion. From our perspective the OEC is fully capable of
adjudicating this matter on November 1.

Thank you,

Brian C. Shrive, Esq.

FINNEY LAW FIRM, LLC

4270 Ivy Pointe Boulevard, Suite 225

Cincinnati, Ohio 45245

513.943.6656 (o)

513.482.9321 (c)

Brian@FinneyLawFirm.com

https://mail.google.com/mail/u/0?ik=16acaeabf3&view=pt&search=all&permthid=thread-f%3A1615218797086571899&simpl=msg-f%3A16152187970… 1/2
10/24/2018 McTigue & Colombo LLC Mail - Continuance of 11/1/18 hearing

*******************PRIVATE AND CONFIDENTIAL********************

This electronic message transmission and any files transmitted with it, are communications from the Finney Law Firm, LLC. This message contains
information protected by the attorney/client privilege and is confidential or otherwise the exclusive property of the intended recipient or Finney Law Firm,
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Thank you for your assistance.

From: Don McTigue <dmctigue@electionlawgroup.com>

Sent: Wednesday, October 24, 2018 10:51 AM
To: Brian C. Shrive <Brian@finneylawfirm.com>
Cc: Derek Clinger <dclinger@electionlawgroup.com>; Brian (Perkins Coie) <BSvoboda@perkinscoie.com>; Peter J. O'Shea <poshea@katzteller.com>
Subject: Continuance of 11/1/18 hearing

[Quoted text hidden]

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