IN THE SUPREME COURT OF OHIO

ERIN G. GABBARD, et alia, Plaintiffs-Appellees, v. MADISON LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, et alia, Defendants-Appellants.

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Case No. 2020-0612 Appeal from the Butler County Court of Appeals, Twelfth Appellate District Court of Appeals Case No. CA2019-03-0051

APPELLANTS’ MOTION TO STAY THE JUDGMENT OF THE COURT OF APPEALS AND REQUEST FOR EXPEDITED BRIEFING AND CONSIDERATION

(additional counsel listed on next page)

Rachel Bloomekatz (0091376) BLOOMEKATZ LAW 37 West Dominion Boulevard Columbus, Ohio 43201 Phone: (614) 259-7611 Fax: (614) 559-6731 rachel@bloomekatzlaw.com Alla Lefkowitz James Miller EVERYTOWN LAW 450 Lexington Avenue P.O. Box 4184 New York, New York 10017 Phone: (646) 324-8365 alefkowitz@everytown.org jedmiller@everytown.org

Counsel for the Appellees

Matthew C. Blickensderfer (0073019) COUNSEL OF RECORD FROST BROWN TODD LLC 3300 Great American Tower 301 East Fourth Street Cincinnati, Ohio 45202 Phone: (513) 651-6162 Fax: (513) 651-6981 mblickensderfer@fbtlaw.com

Brodi J. Conover (0092082) FROST BROWN TODD LLC 9277 Centre Pointe Drive, Suite 300 West Chester, Ohio 45069 Phone: (513) 870-8200 Fax: (513) 870-0999 bconover@fbtlaw.com

Counsel for the Appellants

Supreme Court of Ohio Clerk of Court - Filed August 06, 2020 - Case No. 2020-0612

Attorney General Dave Yost (0056290) Benjamin M. Flowers (0095284) COUNSEL OF RECORD Michael J. Hendershot (0081842) Shams H. Hirji (099227) 30 East Broad Street, 17th Floor Columbus, Ohio 43215 Phone: (614) 466-8980 Fax: (614) 466-5087 benjamin.flowers@ohioattorneygeneral.gov Counsel for Amicus Curiae Ohio Attorney General Dave Yost

Jonathan N. Fox (0040264) LYONS & LYONS, CO., LPA 8310 Princeton-Glendale Road West Chester, Ohio 45069 Phone: (513) 777-2222 jfox@lyonsandlyons.com Counsel for Amici Curiae School Districts

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Defendants-Appellants the Madison Local School District Board of Education and the

Madison Local School District Superintendent Dr. Lisa Tuttle-Huff (collectively “Madison”),

pursuant to Civ. R. 62 and S. Ct. Prac. R. 4.01(A) and (C), respectfully request that this Court stay

execution of the Twelfth District’s judgment pending appeal to this Court. As a political

subdivision of the State, Madison is entitled to a stay of right. And, in any event, the equities favor

a stay of the lower court judgment pending appeal. As required by S. Ct. Prac. R. 4.01(A)(2),

copies of the Twelfth District’s judgment and opinion are attached.

This case involves Madison’s decision to arm certain of its staff for the protection of its

students and staff. That policy was in place during the last two school years – or, to be more

accurate, during the 2018-19 school year and during that part of 2019-20 school year involving in-

person instruction. The Twelfth District issued its decision gutting that policy in late March 2020,

a couple of weeks after Governor DeWine ordered the end of in-person instruction in Ohio schools

due to the novel coronavirus pandemic—an initially temporary measure that would eventually be

extended through the end of the 2019-20 school year. As a result, the Twelfth District’s decision

had no practical effect until now. That changes next week, when the 2020-21 school year begins

for Madison with in-person classroom instruction. Certain other school districts within the Twelfth

District have policies similar to that of Madison, and they would also be impacted as they begin

in-person instruction in the very near future.

Because Madison students will return to classrooms one week from today – August 13 –

Madison respectfully requests that the Court expedite briefing and its consideration of this motion.

Madison has moved promptly for this relief, a mere two days after the Court accepted jurisdiction

of this appeal. Given the circumstances, the Court would be warranted in requiring an expedited

response from the appellees, if they wish to respond. Indeed, this Court’s Rules of Practice allow

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the Court to act upon a motion prior to any responsive filing deadline “if the interests of justice

warrant immediate consideration by the Supreme Court.” S. Ct. Prac. R. 4.01(C) (emphasis

added).

Background

This action arose out of the Madison’s decision to authorize certain administrators,

teachers, and staff members to carry a concealed weapon in a school safety zone. A group of five

parents in the district opposed the decision and brought a declaratory judgment action seeking to

invalidate the District’s Firearms Authorization Policy. The Butler County Court of Common

Pleas granted summary judgment to Madison.

The parents appealed. The Twelfth District reversed, holding that the trial court improperly

interpreted the statutory framework that authorizes boards of education to arm their staff members.

Gabbard v. Madison Local School Dist., 12th Dist. Butler No. CA2019-03-051, 2020-Ohio-1180,

¶ 18. The court of appeals majority ruled that a school district cannot authorize any of its staff to

carry a concealed weapon on school property unless the authorized individual has completed police

academy training or has twenty years’ experience as a police officer. Id. Judge Stephen Powell

dissented. Id. at ¶ 41, 43 (Powell, J., dissenting).

Madison appealed to this Court. The Court unanimously accepted the appeal on August 4,

2020. See 08/04/2020 Case Announcements, 2020-Ohio-3882.

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Argument

I. Madison is entitled to a stay as a matter of right.

As a political subdivision of the State, Madison is entitled to a stay of execution of the

court of appeals judgment as a matter of right and without posting a supersedeas bond—even when

the political subdivision is seeking a stay of a non-monetary judgment. The Rules of Civil

Procedure apply to all courts exercising civil jurisdiction unless they are “clearly inapplicable.”

Civ. R. 1(A). Neither the Rules of Appellate Procedure nor this Court’s Rules of Practice suggest

that Civ. R. 62 is inapplicable in proceedings before this Court. Rule 62 provides that an appellant

is entitled to a stay of the enforcement of a judgment by giving a supersedeas bond:

When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce a judgment by giving an adequate supersedeas bond. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court.

Civ. R. 62(B). But no bond is required for a stay of execution of a judgment requested under Civ.

R. 62(B) when the appellant is a political subdivision of the State. Civ. R. 62(C).

This Court has routinely held that the government is entitled to a stay of a judgment as a

matter of right and without posting a supersedeas bond. See, e.g., State ex rel. Geauga Cty. Bd. of

Comm’rs. v. Milligan, 100 Ohio St.3d 366, 2003-Ohio-6608, 800 N.E.2d 361, ¶ 19. In State ex

rel. Ocasek v. Riley, 54 Ohio St.2d 488, 490, 377 N.E.2d 792 (1978), the Court found that a court

has “no discretion to deny the stay” brought by the government when reading Civ. R. 62(B) and

(C) in tandem. Finally, in State ex rel. State Fire Marshall v. Curl, 87 Ohio St.3d 568, 572, 722

N.E.2d 73 (2000), the Court noted that the government was entitled to a stay as a matter of right

without posting a supersedeas bond, which was “supported by precedent, the views of state and

federal experts in the field, as well as federal courts construing similarly worded rules of civil

procedure.” In each of those cases, the Court granted stays of right to political subdivisions for

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non-monetary judgments. See id. at syllabus; Milligan at ¶ 2-3 (considering a stay for a declaratory

judgment); Riley at 489-490.

II. The equities favor a stay pending appeal even if Madison were not entitled to one as a matter of right.

Even if Madison were not entitled to a stay of right, a stay would still be appropriate under

the traditional equitable factors governing stays pending appeal. For discretionary stays pending

appeal, courts typically consider four factors: (1) whether the applicant has a strong likelihood of

success on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)

whether the stay will substantially injure the other parties; and (4) where the public interest lies.

Nken v. Holder, 556 U.S. 418, 426, 129 S. Ct. 1749, 173 L. Ed.2d 550 (2009). These factors serve

as guideposts and are not a set of rigid rules. Hilton v. Braunskill, 481 U.S. 770, 777, 107 S. Ct.

2113, 95 L.E.2d 724 (1987). The first two factors are the most critical. Nken at 434. Each of the

factors weighs in favor of granting the stay in this case.

First, this appeal was unanimously accepted by this Court. This implies serious questions

going to the merits of the Twelfth District’s decision and that Madison has at least a reasonable

prospect of success on the merits. The fact that Madison prevailed in the trial court and that the

Twelfth District’s majority opinion drew a dissent also indicates there are serious questions going

to the merits.

Second, the whole point of Madison’s Firearms Authorization Policy is to deter and avoid

irreparable injury in the form of school violence. To be sure, everyone can hope that Madison

does not ever experience another school shooting, and it is possible that the absence of this

deterrent effect during the upcoming school year might turn out not to have mattered. But it might

matter, and Madison has made the policy decision that its students and staff are safer with its

policy in place. A stay while this Court decides the merits of this appeal not only honors that

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policy choice until and unless this Court decides that policy choice is not permitted – it also ensures

that the district is not made less safe in the meantime by what might turn out to be an erroneous

lower court decision. Put another way, a stay will help ensure there is no irreparable injury while

this appeal is pending.

Third, the other parties will not be harmed by the continuation of the status quo from the

prior school years. There were no situations or incidents during the 2018-19 school year or the in-

person part of the 2019-20 school year from which the appellees could argue that the continuation

of Madison’s Firearms Authorization Policy causes them or their school-aged children any harm

or risk.

Fourth, the public interest favors a stay. Other districts within the Twelfth District have

also armed staff members pursuant to what they (and the trial court and the dissenting Twelfth

District judge) believed was the General Assembly’s authorization. But the law within the Twelfth

District now precludes them from implementing these policies for the rapidly approaching new

school year. The impacts of the Twelfth District’s decisions described above therefore apply to

districts beyond Madison.

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Conclusion

Madison is entitled to a stay of right and, in any event, the equities also support a stay

pending appeal. Madison respectfully requests that this Court stay the judgment of the Twelfth

District pending this Court’s decision on the merits.

Respectfully submitted, /s/ Matthew C. Blickensderfer Matthew C. Blickensderfer (0073019) COUNSEL OF RECORD FROST BROWN TODD LLC 3300 Great American Tower 301 East Fourth Street Cincinnati, Ohio 45202 Phone: (513) 651-6162 Fax: (513) 651-6981 mblickensderfer@fbtlaw.com Brodi J. Conover (0092082) FROST BROWN TODD LLC 9277 Centre Pointe Drive, Suite 300 West Chester, Ohio 45069 Phone: (513) 870-8200 Fax: (513) 870-0999 bconover@fbtlaw.com Counsel for the Appellants

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PROOF OF SERVICE

I hereby certify that a true and accurate copy of the foregoing has been served upon the following individuals by e-mail on this 6th day of August, 2020: Rachel Bloomekatz BLOOMEKATZ LAW 37 West Dominion Boulevard Columbus, Ohio 43201 rachel@bloomekatzlaw.com Alla Lefkowitz James Miller EVERYTOWN LAW 450 Lexington Avenue P.O. Box 4184 New York, New York 10017 alefkowitz@everytown.org jedmiller@everytown.org Counsel for the Appellees

Attorney General Dave Yost (0056290) Benjamin M. Flowers (0095284) COUNSEL OF RECORD Michael J. Hendershot (0081842) Shams H. Hirji (099227) 30 East Broad Street, 17th Floor Columbus, Ohio 43215 benjamin.flowers@ohioattorneygeneral.gov Counsel for Amicus Curiae Ohio Attorney General Dave Yost Jonathan N. Fox (0040264) LYONS & LYONS, CO., LPA 8310 Princeton-Glendale Road West Chester, Ohio 45069 jfox@lyonsandlyons.com Counsel for Amici Curiae School Districts

/s/ Matthew C. Blickensderfer Matthew C. Blickensderfer

0115422.0711061 4814-1169-7083v4

Judgment of the Twelfth District Court of Appeals

March 30, 2020

Opinion of the Twelfth District Court of Appeals March 30, 2020