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