Bevan & Associates, LPA, Inc.; Thomas W. Bevan; Patrick M. Walsh, Plaintiffs-Appellants,
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
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:16-cv-00746-Algenon L.
Marbley, District Judge.
E. Breitfeller, KEGLER, BROWN, HILL RITTER, Columbus, Ohio,
Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellees.
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.
K. BUSH, Circuit Judge.
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
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.
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
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.
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
(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).
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
(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 ...