United States Court of Appeals

for the Sixth Circuit

Case No. 22-5938
JOSEPH FISCHER, et. al. :

Plaintiffs/Appellants :
v.
:
HON. KAREN THOMAS, et. al.
:
Defendants/Appellees
:
REPLY IN SUPPORT OF PLAINTIFFS’ INJUNCTION PENDING
APPEAL
Plaintiffs/Appellants (“Plaintiffs”), briefly, provide this Reply in support of

their Motion for Injunction Pending Appeal.

A. Defendants’ response confirms standing

Defendants’ response is largely dedicated to their argument that the 2018

changes to the Kentucky Judicial Code make it materially different from the 2014

Code such that those changes preclude standing, and ultimately, federal court

review.1 Defendants’ argument relies on word games – suggesting that magic

words, like “enforcement” and “probable cause,” are necessary in the letters they

1
Defendants do not dispute that the intent of these changes was an attempt at a
federal court gerrymander, designed to place Kentuckians in the no man’s land of
never having standing to go to court before someone is actually charged, but then
allow Defendants to argue it is too late to raise a challenge, once charges are
pending, because of abstention under Younger v. Harris, 401 U.S. 37 (1971).
1
sent to Mr. Winter and Mr. Fischer to possibly trigger standing. Defendants are

wrong.

Defendants do not dispute (because they cannot) that the JCC’s letters to Mr.

Winter and Mr. Fischer inform these men that Defendants have determined there is

“a basis” for Defendants to conduct an investigation. Mr. Winter and Mr. Fischer

are informed they are under investigation for their campaign speech that implicates

specific provisions of the Kentucky Judicial Code. It bears noting that Defendants

are well aware of what the allegations are and the speech, and play coy games on

that score with vague allegations in their letter likely to permit them to raise the

same arguments they raise now.

Defendants acknowledge that both men are invited to appear before the JCC

at a particular date and time, and that they can have representation if their counsel

enters an appearance. And, Defendants pass on yet another opportunity to disclaim

enforcement against Mr. Winter and Mr. Fischer despite both those gentlemen

acknowledging what statements they’ve made concerning their party affiliation,

and what statements they would like to make but have been chilled from making.

Oh, and Defendants claim that any speech Mr. Winter and Mr. Fischer are chilled

from making is simply a “subjective” determination on their part. Regardless of

Defendants’ word games, this record establishes standing.

2
 This Court in McKay v. Federspiel, 823 F.3d 862, 869 (6th Cir. 2016)

synthesized standing cases, and the analysis therein, into four factors (meeting any

one of which establishes standing): (1) “a history of past enforcement against the

plaintiffs or others;” (2) “enforcement warning letters sent to the plaintiffs

regarding their specific conduct;” (3) “an attribute of the challenged statute that

makes enforcement easier or more likely, such as a provision allowing any member

of the public to initiate an enforcement action;” or (4) the “defendant's refusal to

disavow enforcement of the challenged statute against a particular plaintiff.” Id.

In terms of the first McKay factor, prior enforcement, the Defendants resort

to hairsplitting regarding the 2014 correspondence to Mr. Winter claiming that

correspondence did not involve “actual enforcement” because Mr. Winter was only

able to obtain “preenforcement [sic] standing”. (Resp. at 18). Well, Mr. Winter

prevented “actual enforcement” in 2014 by prevailing in federal court, ignore their

own arguments about their having found probable cause in 2014 from the same

speech, and does not change the fact there was a “previous enforcement” effort

against him by these Defendants. And, Defendants completely ignore the fact that

others beyond Mr. Winter have been subjected to enforcement for similar speech.

(Dec. Winter, Doc. 18-2, ¶4, PageID#178-184).

On the second McKay factor, Defendants attempt to distinguish Kiser v.

Reitz, 765 F.3d 601 (6th Cir. 2014), arguing that the letter Kiser received about the

3
enforcement body’s concerns at the end of the investigation is somehow different

than telling Mr. Winter and Mr. Fischer that they are under investigation, are

“invited to appear” with counsel who must enter a formal entry of appearance, and

to explain themselves in the middle of an election cycle. If anything, the JCC

letters are worse – they involve core election-related speech. And the

communications the Defendants sent here are sufficient to establish the second

McKay factor. Online Merchs. Guild v. Cameron, 995 F.3d 540, 551 (6th Cir.

2021).

On the third McKay factor, Defendants do not dispute that they receive

complaints from the public, but wrongly argue that this does not establish the third

prong of McKay. (Resp. at 15). Of course, Susan B. Anthony List v. Driehaus, 573

U.S. 149, 158, 164 (2014), is clear that Defendants acceptance of complaints from

the public meets this prong.

On the fourth McKay factor, Defendants do not dispute that they were put on

the spot in a telephonic hearing on October 7, 2022, and that they expressly

declined to disavow enforcement. (Resp. at 15). And, in their response, and

despite another opportunity to do so, they again decline to disavow enforcement.

Id. That clearly establishes the fourth prong of McKay.

Finally, and tellingly, Defendants argue that they are “affronted” by Mr.

Winter and Mr. Fischer’s speech, which Defendants claim makes elections

4
“partisan.” Consequently, Defendants have the right to take enforcement action,

First Amendment notwithstanding. (Resp. at 15). Well, Plaintiffs also are

affronted, but it is because these same Defendants continue to disregard the First

Amendment, and multiple decisions of this Court, all of which instructs them that

they cannot restrict truthful speech about political party affiliation or discussions of

significant political issues.

B. Defendants had the opportunity to brief the merits below, did not do so,
and did not contradict the factual record establishing a right to relief,
electing to rest only on their flawed standing argument. They now seek
a “do over” all while continuing to chill Plaintiffs’ First Amendment
speech in the middle of an election cycle

Defendants next argue that there were no findings or analysis by the District

Court on the merits and so, relief should be denied. This ignores the record. The

Amended Complaint was verified (including the exhibits), establishing a factual

record. [Pl.’s Am. Ver. Compl., Doc#13, ¶2, PageID#95-126]. So were the

declarations by the Plaintiffs. [Dec. Fischer, Doc. 18-1, PageID#172-177; Dec.

Winter, Doc. 18-2, ¶1, PageID#178-184].

Defendants could have raised whatever they wanted to factually or on the

merits, and the District Court afforded them that very opportunity – they chose

only to contest standing. They also could have defended on the merits in their

response here, but again failed to do so. This is a tacit acknowledgement that they

are unable to defend on the merits. The speech that these Plaintiffs engaged in was

5
well within the boundaries of protected speech established in cases by this Court

and the Supreme Court, and attempts to suppress this speech by these Defendants

run afoul of both First Amendment vagueness principles and does not satisfy strict

scrutiny. Republican Party of Minn. v. White, 536 U.S. 765 (2002); Winter v.

Wolntizek, 834 F.3d 681 (6th Cir. 2016); Carey v. Wolntizek, 614 F.3d at 196 (6th

Cir. 2010). Defendants do not defend on the merits, because they cannot.

Defendants next miscite Ramsek v. Beshear, No. 20-5542, 2020 U.S. App.

LEXIS 17203, at *1 (6th Cir. May 29, 2020), for the proposition that this Court

should simply ignore Plaintiffs’ request for injunctive relief. However, Defendants

ignore that the remand in Ramsek came after an injunction pending appeal was

entered for the protest, and after this Court weighed in on the merits.

If this Court wishes to remand this appeal after correcting the District

Court’s egregious error on standing, and after granting an injunction pending

appeal between now and November 8, 2022 (election day), and ensuring that

Defendants do not file formal charges in the meantime to play games with

jurisdiction (including after remand and prior to an adjudication on the merits), that

would be a form of appropriate relief.

Finally, Defendants argue that this motion is somehow improper, but miss

the point of an injunction pending appeal, which is to prevent irreparable harm –

here suppression of core First Amendment speech in the run up to an election.

6
 C. The remaining injunction factors warrant entry of an injunction
pending appeal

Defendants claim they have all the time in the world to decide to bring

formal charges – but ignore (and ultimately admit) the fact that they could do so

very soon after October 28, 2022 (even early next week). And they ignore the

ongoing chill that their actions have caused in the middle of election cycle, which

occurred solely because of their letters.

At bottom, and Defendants never address this, clear Sixth Circuit law

establishes that the remaining factors are met where constitutional rights are

infringed upon, and so, in these cases, the likelihood of success factor is

dispositive. H.D.V. - Greektown, LLC v. City of Detroit, 568 F.3d 609 (6th Cir.

2009) (abuse of discretion not to grant preliminary injunction where constitutional

violation found); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020); Maryville Baptist

Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020); Elrod v. Burns, 427 U.S.

347, 373 (1976) (irreparable harm from violation of rights).

D. Conclusion

Plaintiffs respectfully request that an injunction pending appeal be granted.

Respectfully submitted,

/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
7
 513/257-1895 (c)
chris@cwiestlaw.com

/s/Thomas Bruns_____________
Thomas Bruns (KBA 84985)
Bruns, Connell, Vollmar & Armstong
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com
513/312-9890

/s/Zach Gottesman____________
Zach Gottesman (KBA 86288)
404 East 12 St., First Floor
Cincinnati, OH 45202
zg@zgottesmanlaw.com
(513) 225-8997
Attorneys for Plaintiffs/Appellants

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing upon Counsel for the
Defendants/Appellees, this 26th day of October, 2022, by filing same with the
Court via its CM/ECF system, and by electronic mail upon Counsel for the
Defendants/Appellees, which will provide notice to all parties Counsel.
/s/ Christopher Wiest___________

CERTIFICATE OF COMPLIANCE

As required by Fed. R. App. P. 32(g) and 6th Cir. R. 32(a), I certify that this Reply
contains 1,521 words. This response complies with the typeface requirements of
Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because it has been prepared in 14-point Times New Roman font using
Microsoft Word.
/s/ Christopher Wiest___________