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Ohio School District Forced to Return $5.5 Million in Illegal Taxes to Taxpayers

Indian Hill Board of Education raised taxes without a vote, refused to refund money

Cincinnati, OH – After a five-plus year legal battle concluded with an Ohio Court denying all of its objections, the Indian Hill Exempted Village School District Board of Education finally conceded that it must return the $5.5 million that it illegally assessed taxpayers after raising taxes without a public vote in 2010.

The 1851 Center for Constitutional Law’s victory on behalf of a certified class of all school district property taxpayers comes nearly one year after the 1851 Center prevailed in striking down the tax increase before the Ohio Supreme Court. After the Court’s unanimous December 2014 decision, the school district still refused to return the funds, requiring the Center to file a class action lawsuit in January of 2015.

In affirming that Ohio taxpayers maintain a constitutional right to recover unlawfully-imposed taxes, Judge Martin of the Hamilton County Court of Common Pleas denied the Board’s Motion for Summary Judgment, rejecting the Board’s position that it was not required to return any of the funds, or that in the alternative, it was required to return $2 million at most.

Indian Hill School District property taxpayers can expect a refund check by March 1, 2016. Amounts are expected to be approximately $1,000 for the average taxpayer, and much greater for many others.

“The outcome of this case reflects the principles that property taxes cannot be increased without a vote by citizens, unlawfully-collected taxes must be returned to those taxpayers from whom they were taken, and government must pay interest to taxpayers when it has kept their funds for many years, as here,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

“These results should dissuade other school districts from attempting to unlawfully raise taxes. Nevertheless, Ohioans should have a hard look at their school board members, who, absent scrutiny, could quite literally be getting away with theft, as would have otherwise happened here.”

Due to the class-action status of the case, the Court of Common Pleas will hold several hearings over the coming months to finalize the case, including addressing the administrative complexities of issuing pro rata refunds not just to current homeowners in the district, but to those that owned homes during the period of illegal taxation.

Rather than settling the matter in January, the Board diverted nearly $200,000 from funds earmarked for the education of school district children to pay attorneys fees of $400 per hour. Unable to find Cincinnati law firms willing to defend its practices, the Board opted to hire a firm consisting of Washington D.C. lobbyists and Cleveland lawyers.

The Board and its lawyers argued that it was entitled to keep the taxpayers’ money because each and every taxpayer did not file an individual protest letter with each and every property tax payment, and further argued that perhaps it could have legally raised taxes, albeit to a lesser extent, in the absence of the unlawful tax increase that it chose.

The 1851 Center countered by explaining that state and federal Due Process Clauses have been held to require the return of unlawfully-charged taxes. The Court took little time in flatly rejecting the firm’s arguments and siding with the 1851 Center.

“Judge Martin should be commended for scrutinizing and seeing through the Board’s outlandish arguments rather than just reflexively siding with government – – the Court deserves credit for doing justice for Ohio taxpayers,” added Thompson.

Read more about the underlying Ohio Supreme Court Case HERE

Read the 1851 Center’s Class-Action Filings HERE

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Ohio Court: Cities Cannot Immediately Seize Private Property When Not For Roads

Court’s ruling places important limits on “quick-take” eminent domain power

Columbus, OH – An Ohio Court ruled that the City of Perrysburg’s attempt to immediately seize the land of eleven local homeowners exceeds its power, given the Ohio Constitution’s protection of private property rights.

The 1851 Center’s victory curtails the abuse of a practice known as “quick-take,” where governments claim to immediately own private property upon the filing of a Complaint, before any hearing or trial. While the Ohio Constitution sanctions this immense power for “making or repairing of roads,” local governments have increasingly sought to use quick-take for many other purposes.

In striking down the City’s attempt to use quick-take here, Judge Woessner of the Wood County Probate Court concurred that the practice cannot be expanded beyond roads, holding as follows:

  • “[T]he proposed appropriations are for . . . ‘other municipal purposes,’ as well as references to ‘installing pedestrian walkways and sidewalks’ as well as ‘for providing for public utilities.’ This Court finds that if the legislature intended for ‘quick-take’ procedures to extend to other areas, those other areas would have accordingly been referenced somewhere . . . They are not.”
  • “The Court further finds that expanding ‘quick take’ immediate possession of private property . . . beyond the clearly stated purpose of ‘making or repairing roads’ is not appropriate as a matter of law in appropriation/eminent domain cases. . .”

“The Court’s ruling is a victory for private property rights across Ohio,” explained Maurice Thompson, Executive Director of the 1851 Center. “Governments have increasingly been using quick-take for anything and everything, rather than just for roads, intimidating Ohioans and stripping them of their right to mount any legal objection in court. This ruling helps ensure that meritorious arguments against eminent domain will now be heard – – and that in turn means that many more eminent domain abuses will be stopped.”

The City had sought to immediately seize property for sidewalks, a bike path, and what it cryptically referred to as “other municipal purposes.” Ohio cities may still acquire property for such purposes; however the Court’s ruling clarifies that they must attempt to negotiate and agree with homeowners, rather than exercising force as a first option.

Read the Homeowners’ Motion for Judgment on the Pleadings HERE

Read the Court’s Order 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

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Update: Amish Daughter Healthy Despite Health Care “Experts”

In this picture, taken September 24, 2015 at the Hershberger’s roadside stand — Sarah (2nd from right) with her father and four of her nine siblings.

I visited the home of Andy and Anna Hershberger to deliver the good news that the Medina County Probate Court had at long last formally terminated the guardianship it had created over their now 12-year-old daughter, Sarah.

A government hospital, Akron Children’s Hospital, sought to establish the guardianship to take Sarah from her Amish parents and seven siblings to force chemotherapy on her, even though all signs indicated that the chemotherapy itself appeared to be killing her, was certain to sterilize her, and would no doubt permanently change her life for the worse, even if she were to survive it.

The parents objected, seeking to treat Sarah’s mild form of cancer with a less invasive alternative treatment that appeared to be succeeding. It was at that time – – June of 2013 – that one of the State’s doctors testified that absent “immediate chemotherapy” Sarah would certainly be dead within six months. The court found this evidence compelling.

As the Amish community was put in touch with the 1851 Center, court battles ensued. Ultimately, those battles resulted in protecting Andy and Anna Hershberger’s fundamental constitutional right to make important health care decision for their daughter.

Two years later, having never undergone chemotherapy, Sarah couldn’t be healthier. Court records disclosed  hearing indicated the following:

  • “[Sarah] exhibits no symptoms of lymphoma”
  • “There are no reports or indications that Sarah cannot keep up with her work or her siblings on a daily basis.”
  • “Medicine is not always right, as evidenced by Sarah’s survival in the face of ‘certainty’ she would die without treatment”
  • “There is no need for Sarah’s health to be on the Court’s radar”

This case exposed the worst of the alignment between health care “experts,” Ohio’s big hospital lobby, and faulty government legislation:

  • The statute at issue, still on the books, gives Ohio judges the freedom to overrule suitable parents when they hold a differing opinion as to the “best interests of the child.”
  • Government hospitals put forth so-called experts to testify that there is only one way to treat a particular ailment, and that “one best way” must be imposed through forced health care, even over parents’ thoughtful objections.
  • Average Ohio parents lack the resources to hire an expert doctor to rebut the so-called “expert” doctor that their government is using against them (funded by their own tax dollars).
  • So long as government locks in “the one best treatment” by forcing all to comply with that protocol, medical innovation and experimentation will suffer.

Fortunately for Sarah, the Amish community is not conventional, and refused to bow to government commands. We at the 1851 Center are proud to have played a role in defending suitable Ohio parents’ moral and constitutional right to make important health care decision for their children.

But this battle continues. Ohio suffers from a cavalcade of health care “experts”, eager to deprive of us of our autonomy in light of their “certainty” that they know what is best for us.

But as this now-closed saga has proven, these experts have no skin in the game, arrogantly pontificate without fear of consequences, and are in fact frequently wrong.

Ohioans cannot afford to trust their health or their children to government expertise. We have already been swept into a system whereby we are forced to fund much of what now passes for health care in our state and nation, whether we use it or not. But the matter of whether we must be forced to use itis another matter entirely.

The Ohio General Assembly – – members of which laud health care freedom, family values, and parental choice while campaigning for office – – cannot justify maintenance of Ohio’s wide-open and highly subjective “best interests of the child” test. This test allows county judges to overrule health care, educational, and other important decisions of suitable Ohio parents. Once overruled, children can be immediately seized from their homes.

In the wake of Sarah’s case, this concept came to be known as “medical kidnapping.”

The Hershberger’s case is a lesson for all of us: we’re not as smart as we think we are. Knowledge is decentralized, and when in doubt, those closest to the situation, families (and not government experts with special designations next to their names) must make life-altering decisions.

Further, Sarah’s good health bolsters the case against forced health care that we supposedly cannot live without (literally, in this case).

It is now time for Ohio legislators to protect Ohio families from wayward judges. This can be done by reforming Ohio’s unconstitutional “best interests of the child” test.

In the meantime, Ohioans must continue to question authority.

Maurice Thompson
Executive Director
1851 Center for Constitutional Law

Watch a 2013 video on the case from Reason.tv:

reason_amish

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