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Bevan & Associates, LPA, Inc. v. Yost

United States Court of Appeals, Sixth Circuit

July 8, 2019

Bevan & Associates, LPA, Inc.; Thomas W. Bevan; Patrick M. Walsh, Plaintiffs-Appellants,
v.
Dave Yost, in his official capacity as Attorney General of the State of Ohio; Thomas H. Bainbridge; Jodie M. Taylor; Karen L. Gillmor; Stephanie McCloud, Defendants-Appellees.

          Argued: January 30, 2019

          Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:16-cv-00746-Algenon L. Marbley, District Judge.

         ARGUED:

          Ralph E. Breitfeller, KEGLER, BROWN, HILL RITTER, Columbus, Ohio, for Appellants.

          Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

         ON BRIEF:

          Ralph E. Breitfeller, Jason H. Beehler, Saša Trivunić, KEGLER, BROWN, HILL RITTER, Columbus, Ohio, for Appellants.

          Michael J. Hendershot, Stephen P. Carney, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

          Before: SILER, COOK, and BUSH, Circuit Judges.

          OPINION

          JOHN K. BUSH, Circuit Judge.

         Appellants, the Ohio law firm of Bevan & Associates, LPA, and its partners (collectively, "Bevan"), bring a First Amendment challenge to the provision in Ohio Revised Code § 4123.88(A) that states, in pertinent part, that "[n]o person shall directly or indirectly solicit authority" (1) to "represent the claimant or employer in respect of" a worker's compensation "claim or appeal," or (2) "to take charge of" any such claim or appeal. Under the plain meaning of this statutory language that we predict would be applied by the Ohio Supreme Court, the State has prohibited all solicitation, whether oral or written, by any person to represent a party with respect to an Ohio workers' compensation claim or appeal. Such a prophylactic ban violates the First Amendment under Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988) and other relevant authority.

         The solicitation ban is not saved by the argument advanced by the Appellee state officials that the constitutionally questionable language is part of a larger statutory scheme that, according to Appellees, Bevan violated by obtaining claimant information from the Ohio Bureau of Workers' Compensation in an allegedly unlawful manner. The district court agreed with Appellees and upheld the solicitation ban. However, whether Bevan is in violation of other provisions of the statute governing disclosure of claimant information, that issue is not relevant to whether the solicitation ban itself is constitutional. The words in the solicitation ban make no distinction as to how the person doing the soliciting learned of the claimant's information: by its plain terms, the statute bans all solicitation regardless of where or how the claimant's information was obtained. As written, this prohibition is repugnant to the free speech clause of the First Amendment.

         We therefore REVERSE the district court's grant of summary judgment in favor of Appellees and remand with instructions to grant summary judgment in favor of Bevan.

         I. BACKGROUND

         According to Appellees, Ohio has adopted a "non-tort," non-adversarial approach to workers' compensation insurance. Under that system, injuries sustained in the workplace are removed from the ambit of traditional tort litigation, and injured workers are compensated instead by a state insurance system. This approach involves a trade-off "whereby employees relinquish their common law remedy and accept lower benefit levels coupled with the greater assurance of recovery and employers give up their common law defenses and are protected from unlimited liability." Arrington v. DaimlerChrysler Corp., 849 N.E.2d 1004, 1009 (Ohio 2006) (quoting Blankenship v. Cincinnati Milacron Chem., Inc., 433 N.E.2d 572, 577 (Ohio 1982)). This workers' compensation method requires that Ohio maintain information about injured claimants. The State has enacted Ohio Revised Code § 4123.88 to address how claimant information is to be handled and protected by the Ohio Bureau of Workers' Compensation ("Bureau"). This statute also contains the solicitation ban at issue in this case.

         Ohio Revised Code § 4123.88 contains five subsections or "divisions," (A)-(E). Portions of division (A) trace back to an Ohio law enacted in 1931, which included a solicitation ban as to workers' compensation claims, providing for fine and imprisonment of "whoever shall directly or indirectly solicit authority from a claimant or employer to take charge of any claim pending before the industrial commission," 114 Ohio Laws 789, 791 (1931). As a result of amendments in 1953 and 2006, division (A) now reads as follows (with the solicitation ban denoted with emphasis below):

(A) No person shall orally or in writing, directly or indirectly, or through any agent or other person fraudulently hold the person's self out or represent the person's self or any of the person's partners or associates as authorized by a claimant or employer to take charge of, or represent the claimant or employer in respect of, any claim or matter in connection therewith before the bureau of workers' compensation or the industrial commission or its district or staff hearing officers. No person shall directly or indirectly solicit authority, or pay or give anything of value to another person to solicit authority, or accept or receive pay or anything of value from another person for soliciting authority, from a claimant or employer to take charge of, or represent the claimant or employer in respect of, any claim or appeal which is or may be filed with the bureau or commission. No person shall, without prior authority from the bureau, a member of the commission, the claimant, or the employer, examine or directly or indirectly cause or employ another person to examine any claim file or any other file pertaining thereto. No person shall forge an authorization for the purpose of examining or cause another person to examine any such file. No district or staff hearing officer or other employee of the bureau or commission, notwithstanding the provisions of section 4123.27 of the Revised Code, shall divulge any information in respect of any claim or appeal which is or may be filed with a district or staff hearing officer, the bureau, or commission to any person other than members of the commission or to the superior of the employee except upon authorization of the administrator of workers' compensation or a member of the commission or upon authorization of the claimant or employer.

Ohio Rev. Code § 4123.88(A) (emphasis added).

         The 2006 amendment made no change from the 1953 version in the text that now appears in division (A) other than to add gender-neutral language. The 2006 amendment did, however, make substantial revisions to Ohio Revised Code § 4123.88 as a whole by adding divisions (B)- (E), which did not appear in the prior version of the statute. This additional text reads as follows:

(B) The records described or referred to in division (A) of this section are not public records as defined in division (A)(1) of section 149.43 of the Revised Code. Any information directly or indirectly identifying the address or telephone number of a claimant, regardless of whether the claimant's claim is active or closed, is not a public record. No person shall solicit or obtain any such information from any such employee without first having obtained an authorization therefor as provided in this section.
(C)Except as otherwise specified in division (D) of this section, information kept by the commission or the bureau pursuant to this section is for the exclusive use and information of the commission and the bureau in the discharge of their official duties, and shall not be open to the public nor be used in any court in any action or proceeding pending therein, unless the commission or the bureau is a party to the action or proceeding. The information, however, may be tabulated and ...

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