Ohioans Beware: State Issue 2

Proposed Constitutional Amendment would prohibit tax reform without stopping monopolies or marijuana legalization as promised

Columbus, OH – The 1851 Center for Constitutional Law took action to clarify for Ohioans State Issue 2, which will appear on the November 3, 2015 ballot.

State Issue 2, introduced as an attack on the marijuana legalization effort of State Issue 3, proposes to amend Section 1e of Article II of the Ohio Constitution to specify numerous purposes for which “the power of the initiative shall not be used.” (The “initiative” refers to the people, through submission of petitions, to place issues on the ballot). Those include granting or creating a monopoly, oligopoly, or cartel; but also include specifying or determining a tax rate.

Issues that are deemed to violate the new limits, in the opinion of the Ohio Ballot Board, will be required to win an extra election before they can be added to the Ohio Constitution.

There has been very little public debate on the issue leading up to the election, and many citizens are largely unaware of the details of proposed amendment. Accordingly, in its Policy Briefing on State Issue 2, the 1851 Center explained the following:

  • State Issue 2 is not an “anti-monopoly amendment.” The Ohio General Assembly will be left entirely free to create monopoles and rejected language that would have tied its own hands.
  • State Issue 2 precludes tax reform instead of monopolies. While Issue 2 would not stop government from creating monopolies, it would stop citizens from initiating tax reform. Ohioans would be prohibited from using the initiative to eliminate or reduce any state or local income tax, severance tax, sales tax, property tax, or other tax.
  • State Issue 2 would not preclude marijuana legalization. This issue will only override Issue 3 if it gets more votes than Issue 3, and even then, litigation is likely to preclude that effect.
  • Issue 2 is the result of a questionable political process. Only after those supporting the marijuana amendment submitted their signatures did the Ohio General Assembly spring into action, and change rules in midstream. If legislators are successful on this occasion, there is nothing stopping them from again laying in the weeds and changing the rules of the game once any citizen initiative is completed.
  • Issue 2 would allow the Ballot Board to stifle any Initiative. “The opinion of the Ohio ballot board,” without judicial review, determines whether the Ballot Board can impose additional hurdles on citizen initiatives. No standards or criteria are specified other than the Ballot Board’s “opinion.”

“The messaging behind State Issue 2 appears to be built upon the mistruths that it prevents monopolies and would stop the proposed marijuana monopoly if enacted – – neither is accurate: this issue is simply an attack on Ohioans’ initiative rights,” said Maurice Thompson, Executive Director of the 1851 Center. “Issue 2 simply proposes that legislators should have a monopoly on the power to create monopolies. This change would simply force special interests to fund politicians’ campaigns, rather than directly promoting their issues to the public.”

Ohioans appear particularly unaware that the proposed amendment would eliminate their ability to use the initiative to advance any number of issues having nothing to do with monopolies, including any effort at tax reform, since the proposal would stifle an amendment that would “specify or determine a tax rate.”

“Nationwide, it has been proven that the citizen initiative is the most effective method of reforming excessive state and local taxes, which Ohio certainly maintains. Because current political leadership has proved unwilling to tackle these problems, Ohioans will need the initiative in the future,” added Thompson

Read The 1851 Center’s Short Policy Brief on State Issue 2 HERE

Ohio Cities May Not Immediately Seize Rural Township Properties

Eminent Domain Abuse Continues as Cities Attempt to Seize Land Beyond Their Borders, Overuse “Quick-Take”

farmColumbus, OH – The 1851 Center for Constitutional Law has moved to counter the aggressive legal tactics taken by the City of Perrysburg, Ohio to immediately seize the land of eleven Ohio homeowners, including property well beyond city limits.

The homeowners’ defense take aim at abusive eminent domain practices used with increasing frequency as Ohio legislators have flooded the state with extra public funds for all types of road and transportation projects.

The first practice, extra-territorial takings, occurs when a city attempts to forcibly seize land beyond city limits, typically in a township. The second, known as “quick-take,” occurs when local governments seize homeowners’ land immediately, prior to any trial or defense.

To counter these tactics, the 1851 Center has moved for a ruling in favor of the Perrysburg homeowners, who were in late September sued by the City, asserting the following:

  • Ohio cities lack constitutional authority to use eminent domain to seize property located in an Ohio township, particularly for non-essential “urbanization” projects such as sidewalks and bike paths.
  • Ohio cities lack constitutional authority to immediately seize property through quick-take, prior to any trial or hearing, when the public project is for something other than “making or repairing roads.”
  • Ohio’s constitutional protection of private property rights is significantly greater than that of the federal constitution, requiring that all doubts be strictly construed against governments seeking to seize Ohioans’ properties.

In response to the 1851 Center’s Motion, the Wood County Probate Court Judge David Woessner on October 16 ruled “plaintiff shall not take immediate possession of defendants’ property nor begin any construction on defendants’ property pending this Court’s rulings on the issues raised in the October 14 Motion for Judgment on the Pleadings.”

“Ohioans living in rural townships would never contemplate a city government seizing their property overnight, to ‘urbanize’ and ‘update’ it, particularly when those township residents have no right to vote for or against the city officials doing the taking; there is simply no democratic accountability,” explained Maurice Thompson, Executive Director of the 1851 Center. “This practice is essentially indistinguishable from having one’s land forcibly taken by Canada, Mexico, or even worse, Michigan.”

“Likewise, situations where Ohioans’ land is taken overnight, prior to any trial, hearing, or compensation, must be minimized to the most urgent circumstances only – – not expanded as is the case here.”

Read the Homeowners’ Motion for Judgment on the Pleadings HERE.

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Federal Court: Cities’ Rental Licensing and Inspection Requirements Unconstitutional

Fourth Amendment secures property rights of landlords from unlawful searches and occupational licensing regulations in Ohio and nationwide

Columbus, OH – The Southern District of Ohio ruled that the City of Portsmouth’s occupational licensing requirements imposed upon landlords – – rental property inspections and licensing fees – – violates the Fourth Amendment to the United State Constitution.

The 1851 Center for Constitutional Law’s victory on behalf of Portsmouth rental property owners Ron Baker, Nancy Ross, Thomas Howard, and Darren Oliver means that indiscriminate and warrantless government inspections of rental properties are unconstitutional nationwide, and that unlawfully-extracted “rental inspection fees” must be returned to the rental property owners who paid them.

These property owners had long rented their property in Portsmouth without license or inspections, and their properties had never been the subject of complaint by tenants, neighbors, or others. However, the City threatened to criminally prosecute and even imprison these landlords if they continued to rent their homes without first submitting to an unconstitutional warrantless search of the entire interior and exterior of these homes.

Judge Susan Dlott, of the Western Division of the Southern District of Ohio, held as follows:

  • “[T]he Court finds that the Portsmouth [Rental Dwelling Code] violates the Fourth Amendment insofar as it authorizes warrantless administrative inspections. It is undisputed that the [Rental Dwelling Code] affords no warrant procedure or other mechanism for precompliance review . . . the owners and/or tenants of rental properties in Portsmouth are thus faced with the choice of consenting to the warrantless inspection or facing criminal charges, a result the Supreme Court has expressly disavowed under the Fourth Amendment.”
  • “The inspections are also significantly intrusive. As the Supreme Court has noted, the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’”
  • “The search inspection sheet details eighty items to be inspected throughout the entirety of the rental property. The Court thus concludes that the intrusion is significant.”
  • “Taking into account the above factors—the significant expectation of privacy, the substantial intrusion into the home, and the inefficacy of the warrantless inspections on the proffered special need—the Court finds the warrantless inspections are unreasonable.”
  • “Having determined that the Code is not saved by special needs or the closely regulated industry exceptions, the Court concludes that the Code’s failure to include a warrant provision violates the Fourth Amendment.”

Both the United States and Ohio Supreme Court have invalidated warrantless inspections of rental property, and repeatedly held that warrantless administrative inspections of business property are generally invalid, absent exigent circumstances.

Nevertheless, Ohio cities had vigorously sought to collect licensing fees from area landlords, and the warrantless searches served as the lynchpin to each of these goals. Ordinances such as Portsmouth’s Rental Dwelling Code established an absolute prohibition on renting out property within a community – – even though the landlord may have long done so and even though his or her property may be in pristine condition – – without a government-approved license that cannot be acquired without first paying a $100 annual fee per rental home and submitting to an open-ended warrantless search of every area of the property, inside and out.

“The Federal Court’s ruling victory for all property owners and tenants. Local government agents do not have unlimited authority to force entry into Ohioans’ homes or businesses. To the contrary ‘houses’ are one of the types of property specifically mentioned by the Fourth Amendment; and Ohioans have a moral and constitutional right to exclude others, even government agents, from their property. Entry requires either a warrant or an emergency, and neither is present with respect to these suspicion-less rental inspections,” said Maurice Thompson, Executive Director of the 1851 Center.

“Government inspections of one’s home frequently results in arbitrary orders to make thousands of dollars worth of untenable improvements to even the most well-maintained properties. These enactments were nothing more than a set of back-door tactics to collect revenue on the backs of Ohio property owners, while attempting to chase ‘the wrong type of owners’ out of town.”

Read the Federal Court’s Order HERE

October 4, 2015: Columbus Dispatch: Rental inspections ruled unconstitutional

October 2, 2015: WDTN-TV 2: Federal judge rules Ohio city’s warrantless rental property inspections are unconstitutional

October 1, 2015: Portsmouth Daily Times: The original Portsmouth licensing fee declared unconstitutional