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OHIO ELECTIONS COMMISSION

MARK W. MILLER, :
: 2018G-022
Complainant :
:
v. :
:
AFTAB PUREVAL, et al. :
:

COMPLAINTANT MARK W. MILLER’S


MEMORANDUM IN OPPOSITON TO RESPONDENTS’
MOTION FOR PROTECTIVE ORDER

Now comes the Complainant Mark W. Miller (“Miller”), by and through undersigned

counsel, and hereby tenders this memorandum in opposition to the Respondents’ motion for a

protective order preventing the motion for protective order to prevent the testimony of Respondent

Aftab Pureval and Sarah Topy from being taken until after November 6, 2018.

Seventh Bite at the Apple

The volume and desperation of Respondents’ motions belies a palpable fear of the truth in

this matter. It is beyond cavil that the purpose underlying each of the motions, lawsuits, and appeals

is concocted simply to delay. Not for justices’ sake, not for any legitimate purpose, but delay for

delay’s sake.

The motions filed this week by Respondents are simply rehashing of the same arguments

the Commission has rejected four times already, the Tenth District Court of Appeals has rejected,

and undoubtedly the Ohio Supreme Court will reject in short order. But simply refiling the same

motion but with more elaborate excuses as to why “this time we really mean it, we can’t possibly

proceed as scheduled,” does not entitle the Respondents to delay further this proceeding. To
paraphrase the old discount retailer saying, “the Respondents lose credibility on every motion, but

they make up for it in volume.”

Topy and Pureval’s feigned surprise

More than any other people involved in this matter, Pureval and Topy know with absolute

precision the various ways in which Pureval and his campaign committee have violated Ohio law.

They have known for weeks that the hearing would be on November 1 and were told even before

then to prepare for it to be on that day. Further, after the preliminary review hearing, the parties

where given the choice of proceeding with the merits hearing on either October 11 or November

1. Complainant’s counsel stated that they were prepared to go forward on October 11, but

Respondents’ counsel objected to having the evidentiary hearing on October 11; as such, any

sudden surprise that the hearing interferes with their schedules rings hollow.

Topy and Pureval knew that the hearing would likely be on November 1 as early as

September 20 (at Pureval’s attorneys’ request). They were informed that the staff attorney would

recommend that date even prior to the October 11 hearing on the motion to dismiss/stay. Thus, for

well over a month, Topy and Pureval have chosen to arrange their schedule in such a way as to

create a conflict with an administrative hearing that they had full knowledge of. This is not the

Commission’s problem to solve.

Foreign Subpoenas

In yet another stroke of disingenuousness, the Respondents’ counsel, well versed in the

procedures and powers of the Ohio Elections Commission, obtained subpoenas to out of state

witnesses, and now is shocked, shocked to learn that the Commission’s subpoena powers do not

cross state lines. Naturally this not at all surprising news has but one solution: Delay. It is the

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miracle product of the day, mop your floors, get that nasty stain out of your favorite shirt, upend

administrative procedure, all with this one handy dandy gadget, Delay!

But what really caused this problem? The Respondents’ failure to promptly respond to this

matter appropriately. Rather than focus on defending the claims, the Respondents have spent

countless hours filing motion after motion, lawsuit after lawsuit. One wonders if that time could

have been better spent on the phone with their out of state witnesses getting them to agree to a

scheduled deposition. Or, is this suddenly unavailability precisely what the Respondents hoped

for? Allowing them yet another cooked up excuse to argue the same motion time and again.

Accusations of partisan manipulation

Respondents suggest that the hearing must now be moved to avoid “partisan manipulation”

and that Pureval’s mere presence at the hearing will be political fodder. They complain that

Pureval’s political opponents are making hay of what is at least one admitted misuse of clerk of

court’s campaign funds – Respondents’ various counsel have acknowledged on the record that it

was wrong for the clerk of courts campaign to pay for the photography services at the

Congressional campaign kickoff event and have suggested that some remedy was in the works.

This is the same candidate whose supporters tout an entirely baseless FEC complaint filed by the

chairwoman of the Hamilton County Democrat Party against Pureval’s opponent – a complaint

that was filed shortly after the complaint in this matter in a blatant attempt at whataboutism. It is

Pureval who is infecting this matter with partisanship – by, for example, issuing subpoenas to his

opponents’ political consultant solely for the purpose of harassment. And now, Pureval has the

audacity to complain that his obvious campaign finance violations are being used against him by

political opponents.

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Respondents have at every opportunity declared this matter baseless, and have trumpeted

their belief that the matter will be resolved in their favor. What would possibly be better for them

politically than a win at the Elections Commission on the eve of the election? Why would they

possibly be opposed to that opportunity? Because they know that they violated Ohio’s campaign

finance law, and they are desperate to prevent a formal declaration of such violation before the

votes are counted. But the Respondents’ political convenience is not an appropriate reason to delay

this matter.

Jurisdiction is not in question

Despite the Respondents’ unceasing motion practice, the Ohio Elections Commission

unquestionably has jurisdiction. The Commission itself has made this point abundantly clear in

response to three previous efforts to derail this matter. The Tenth District Court of Appeals has

likewise rejected the Respondents’ arguments. They are now raising those same arguments (fifth

bite at the apple) to the Ohio Supreme Court, and now once again to the Ohio Elections

Commission. This is literally their seventh bite at the apple. We are now past the time for dilatory

efforts to obstruct this proceeding any further. It is time to move forward, to hear the evidence and

decide the case.

Respectfully submitted,

/s/ Brian C. Shrive


Brian C. Shrive (0088980)
Christopher P. Finney (0038998)
FINNEY LAW FIRM
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
(513) 943-6650
(513) 943-6669 (fax)
brian@finneylawfirm.com
chris@finneylawfirm.com

Attorneys for Complainant Mark W. Miller

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CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing was served upon the
following via email this 26th day of October 2018:

Donald J. McTigue, Esq.


Derek S. Clinger, Esq.
dmctigue@electionlawgroup.com
dclinger@electionlawgroup.com

Peter J. O’Shea, Esq.


poshea@katzteller.com

Brian G. Svoboda, Esq.


David Lazarus, Esq.
bsvoboda@perkinscoie.com
dlazarus@perkinscoie.com

Paul M De Marco, Esq.


pdemarco@msdlega.com

Counsel for Respondents

/s/ Brian C. Shrive


Brian C. Shrive (0088980)