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Federal Court Victory: Forbidding More Than Three People from Living Together Violates Ohio Constitution

Ohio cities violate property rights by using zoning to prohibit more than three unrelated people from living in the same home

Bowling Green, OH – A federal court late Friday, agreeing with arguments made by the 1851 Center for Constitutional Law, held that an Ohio city’s zoning ordinance restricting homes to occupancy by no more than three unrelated adults violates the Ohio Constitution’s greater protection of private property rights.

The 1851 Center’s victory against the City of Bowling Green comes on behalf of 23 Bowling Green landlords and three student tenants threatened with eviction. The landlords own over 161 homes that until the ruling, despite having four or more bedrooms and ample parking, could not be occupied by more than three unrelated people.

“In Ohio, many zoning regulations needlessly interfere with private property rights, drive up the cost of living, fail to accomplish their proclaimed purposes, and are used as political weapons – often to benefit special interests or suppress disfavored minorities. This regulation is no different,” said 1851 Center Executive Director Maurice Thompson. “However, there is no coherent reason why four graduate students or even the  Golden Girls should be prohibited from occupying a large six-bedroom house, even as an unruly family of eight lives in a smaller home next door.”

The 13-page ruling by Judge James R. Knepp of the Northern District Ohio firmly rejects any notion that local zoning ordinances can be used to trample private property rights and equal protection, while embracing the Ohio Constitution’s protection of property and equality at a higher level than the federal constitution.

Specifically, in observing that an unlimited number of unruly, but barely-related family members could live together while a peaceful collection of students or even senior citizens could not, the court ruled as follows:

  • “[U]nder the Ohio Constitution, private property rights are fundamental rights to be strongly protected, such that “homeowners have a constitutionally protected property interest in running their residential leasing businesses free from unreasonable and arbitrary interference from the government” and “the free use of property is guaranteed by the Ohio Constitution.”
  • “[T]he City’s dwelling limit only focuses on the type of relationship between those living together in a home, and as such, is both over- and under-inclusive with respect to either of these interests. The Court thus concludes the dwelling limit is an “unreasonable and arbitrary” restriction on the issue of property.”
  • “[T]he limit is arbitrary, unduly oppressive, fails to substantially advance the avowed government interests of reducing population density or targeting specific issues with college-aged inhabitants, and treats similarly-situated homeowners and tenants differently without any justifiable basis. Consequently, the Court finds the dwelling limit is unconstitutional, as applied, and therefore unenforceable.”

Judge Knepp’s decision paves the way for overcoming overly-restrictive zoning regulations, and especially those, common in Ohio cities and college towns, that forbid unrelated adults from living together.

The 1851 Center draws a distinction between zoning regulations that prohibit homeowners from using their property to directly inflict harm on others and regulations simply aimed at social engineering.

“This regulation is aimed at government-controlled social engineering, i.e. keeping ‘the wrong kind of people’ out of certain neighborhoods, rather than land use. Unruly behavior should be directly regulated, rather than regulated on the basis of the relationships between those who live together,” added Thompson.  “Ohioans should not be forced to pay higher rent or endure longer commutes due to such arbitrary regulations.”

The case was brought in cooperation with Andrew Mayle of Mayle Law, and supported by an amicus brief from the Ohio Association of Realtors.

Read the Court’s Order HERE .

Read the 1851 Center’s Motion for Summary Judgment HERE .

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The  1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and search and seizures.

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Columbus “Admissions Tax” Will be in Court and on Ballot

1851 Center spearheads legal action to protect citizens from municipal “ticket taxes” on arts and entertainment that force funding of private art

Columbus, OH – The 1851 Center for Constitutional Law today moved to protect Ohioans from special city taxes on tickets to art, theater, movie, sports and other performances.

The non-profit legal center leads a broad coalition business owners and residents seeking to prohibited so-called “ticket taxes” through both a municipal charter amendment and targeted public-interest litigation.

In December 2018, Columbus City Council politicians imposed a five percent “admissions tax,” on art, entertainment, and event tickets effective July 1. The city’s ordinance directs all revenue collected from this tax to the privately-run Greater Columbus Arts Council.

“Funding private art and the operations of private art corporations is neither an essential nor proper function of government,” said 1851 Center Executive Director Maurice Thompson. “It is especially troubling when a city already awash in tax revenue funds purely-private causes and interests by imposing even higher taxes on residents,” explained 1851 Center Executive Director Maurice Thompson.

The charter amendment, drafted by the 1851 Center, will amend the Columbus Charter to provide “No person shall be compelled to pay, directly or indirectly, any tax or fee to gain entrance to any performance, place, association, or event in the City of Columbus.”  Petitions must submit 11,030 valid signatures by July 3 to place the amendment on the November ballot.

The 1851 Center has also served city hall with a taxpayer demand letter on behalf of Columbus taxpayers and businesses who will be subject to the tax. If the City fails to take action within 30 days, the 1851 Center will sue on behalf of these businesses and taxpayers. The demand letter lays out the legal case against taxing some to fund the private art and art corporations of others:

  • As the Supreme Court recently explained in Janus v. AFSCME, forcing citizens to fund the private political and “artistic” speech of a purely private corporation unconstitutionally compels citizens to support objectionable private speech.
  • Taxing citizens to expressly fund a private corporation, with no strings attached, “raises money for a corporation,” which violates Article VIII of the Ohio Constitution.
  • Taxing private expression that government disfavors, while exempting politically-connected special interests, only to use the funds to prop up competing private expression that government favors violates the both equal protection and freedom of expression guarantees.

“It’s inappropriate for government to pick winners and losers by taxing expression it views as too pedestrian, such as concerts, movies, and sports, to prop up sometimes-competing elitist artistic expression,” added Thompson. “People, not politicians or special interests, should assess and determine the value and worth of art.”

Read the 1851 Center’s Taxpayer Demand Letter HERE.

Read the 1851 Center’s proposed Charter Amendment forbidding “Admissions Taxes” HERE.

Our clients receive free legal representation thanks to the generosity of our donors. If you support our efforts to advance liberty and limit government, please consider making a tax-deductible donation to the 1851 Center for Constitutional Law.

 

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Ohio Cities Cannot Prohibit Use of Security Alarms

Cincinnati’s “alarm tax” violates homeowners’ right to communicate, freedom from double-taxation

The 1851 Center for Constitutional Law has moved to invalidate a municipal ordinance that forbids homeowners from protecting themselves with a home security alarm unless they first pay a punitive tax to the City of Cincinnati.

The legal action against the City of Cincinnati is brought on behalf of several homeowners and real estate investors who face $800 fines for simply using home security alarms to protect their homes, rental properties, and vacant investment properties, i.e. calling the police to inform them of potential criminal activity at the property.

Through its Motion for Preliminary Injunction, the 1851 Center explains that the City’s ordinance violates the Freedom of Speech by restraining and punishing the truthful reporting of criminal conduct while also impermissibly double-taxing homeowners who already pay for police protection through their general taxes:

The Ohio Constitution protects homeowners’ fundamental right to defend themselves and their houses, and cities cannot force homeowners to pay the City prior to exercising this right, especially when police assistance is not requested.

Speech in defense of oneself and one’s property is just as vital to protect as political speech. Homeowners maintain a First Amendment right to share evidence of criminal conduct on their properties with law enforcement, whether directly or through hiring an alarm company.

Cincinnati’s “alarm fee” is an unconstitutional tax because the City spends it on anything it likes, annually collects more than twice what it spends on security alarm issues, and the fees are imposed irrespective of whether homeowners with alarms actually use more city services.

“Ohio cities’ new practice of forcing homeowners to pay a fee for the privilege of protecting themselves, their families, and their homes with a security alarm is not just an unconstitutional tax, but an outright scam, taxing those who report crime and forcing taxpayers to pay twice for police protection,” explained 1851 Center Executive Director Maurice Thompson. “Government should encourage self-defense and crime-reporting, rather than prohibiting such socially beneficial conduct.”

The City of Cincinnati demands $100 up-front before one may use a security alarm, and those who protect themselves with security alarms without paying the fee are fined up to $800. This prohibition applies even to “local alarms” that do not involve police.

The case is pending before Judge Michael Barrett of the United States District Court for the Southern District of Ohio. However, the 1851 Center has moved to remand the case to state court

Read the 1851 Center’s Motion for Preliminary Injunction HERE.

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Victory: Ohio Cities’ “Pre-Sale” Home Inspections and Fees Unconstitutional

City of Oakwood violated homeowners Fourth Amendment rights through sweeping city-wide  home inspection requirements and must now return in section fees to all affected homeowners

February 9, 2018: Dayton, OH – A federal court late yesterday declared unconstitutional the City of Oakwood’s pre-sale inspections mandates – – mandates requiring homeowners to obtain and pass thorough government inspection before being permitted to sell their homes.  The court also certified a class of all homeowners who were subject to the mandates and paid a $60 inspection fee at anytime over the past six years

The 40 page ruling, by Judge Thomas M. Rose of the Southern District of Ohio, firmly rejects the lawfulness of pre-sale inspections, sometimes also referred to as “point of sale” mandates, and paves the way for the return of inspections fees to all affected homeowners, rather than just those who filed the lawsuit

Specifically, the Court’s decision ruled and explained as follows:

  • “Oakwood’s ordinance violated Plaintiffs’ Fourth Amendment rights by subjecting them to a warrantless search without valid consent.”
  • “The Court agrees that an Oakwood property owner could not have provided voluntary consent under the prior ordinance because failure to do so could result in denial of a certificate of occupancy and a criminal penalty . . . A person cannot provide such uncontaminated consent when refusal to do so empowers the municipal authority to deny him the right to sell his property.”
  • “Plaintiffs have established Oakwood’s liability on their claim for unjust enrichment and restitution here. Plaintiffs paid the $60 fee to Oakwood for the inspection of their property. It would be inequitable to allow Oakwood to retain that money when it was collected pursuant to an unconstitutionally coercive ordinance.”

Judge Rose’s decision certifies classes of all individuals or businesses that have been subject to the inspections and paid inspection fees to the City in conjunction with the inspections.

“Local governments do not have unlimited authority to force entry into Ohioans’ homes.  To the contrary ‘houses’ are one of the types of property specifically mentioned by the Fourth Amendment; and Ohioans have every moral and constitutional entitlement to exclude others, even government bureaucrats, from their property,” said Maurice Thompson, Executive Director of the 1851 Center.  “The right to own property in Ohio has little value if local governments are permitted to stop the sale of one’s home to a willing buyer.”

“Class action litigation is an excellent method for average citizens to even the playing field when fighting back against their corrupt and otherwise indifferent local governments.  This ruling confirms that Ohio cities must be held just as responsible to their citizens and big corporations are to their customers,” added Thompson.

Such municipal ordinances, in addition to restricting Ohioans’ property rights, subject homeowners to open-ended warrantless searches of every interior and exterior space of a home, violating the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

Accordingly, in May of 2016, the 1851 Center for Constitutional Law moved to immediately enjoin Ohio cities, and the Cities of Bedford and Oakwood in particular, from enforcing “point of sale” and “pre-sale” programs that require citizens to endure and pass arbitrary and warrantless government inspections before they can sell their homes to even the most informed and willing buyers.

In each case, the Cities had threatened to criminally prosecute and even imprison homeowners if sold their homes without first submitting to and passing city inspections.

The legal action against Oakwood was filed on behalf of area real estate investor Jason Thompson, who was told by the City that he would face jail time for transferring a home he owns into a Limited Liability Company he created without first having paid for, obtained, and passed a pre-sale inspection.

This lawsuit is brought in partnership with the Finney Law Firm in Cincinnati.

Read the Court’s Order HERE

Listen to Maurice Thompson discuss the 4th Amendment:

​Watch our video discussing this case:

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Our clients receive free legal representation thanks to the generosity of our donors.  If you support our efforts to advance liberty and limit government, please consider making a tax-deductible donation to the 1851 Center for Constitutional Law.

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Forbidding More Than Three People from Living Together Violates Ohio Constitution 

Ohio cities violate property rights by prohibiting more than three unrelated people from living in the same home

February 5, 2018: Bowling Green, OH – The 1851 Center for Constitutional Law today moved to strike a municipal ordinance that criminalizes greater than three unrelated individuals living in the same home regardless of the size of the home.

The action is filed against the City of Bowling Green on behalf of 23 Bowling Green landlords and three student tenants threatened with eviction.  The landlords own over 161 homes that, despite four or more bedrooms and ample parking, may not be occupied by greater than three unrelated people.

Through its Motion for Preliminary Injunction, the 1851 Center explains that the City’s ordinance, which imposes a $500 per day fine, is violates the Ohio Constitution through suppressing private property rights and equal protection and imposing vague standards and excessive fines:

  • As in other states that have invalidated such occupancy limits, the Ohio Constitution is more protective of private property rights and equal protection than the federal constitution.
  • While the regulation professes to limit population density, many homes in the City are exempt from the rule, while there are no similar occupancy limits on related individuals.
  • The regulation is unconstitutionally vague, insofar as the City maintains no list of which properties are exempt, and regulates houses based upon whether or not they were “designed for single family use.”
  • Fine of $162,500 per year for permitting four individuals to live in a four-bedroom home is patently excessive.

“In Ohio, many zoning regulations needlessly interfere with private property rights, drive up the cost of living, fail to accomplish their proclaimed purposes, and are used as political weapons – – often to benefit special interests or suppress disfavored minorities.  This regulation is no different,” explained 1851 Center Executive Director Maurice Thompson.  “However, there is no coherent reason why four missionaries should be prohibited from occupying a large six bedroom house, even as an unruly family of eight lives in a smaller home next door.”

The 1851 Center draws a distinction between zoning regulations that prohibit homeowners from using their property to directly inflict harm on others and regulations simply aimed at social engineering.

“This regulation is aimed at government-controlled social engineering, i.e. keeping ‘the wrong kind of people’ out of certain neighborhoods, rather than land use. Unruly behavior should be directly regulated, rather than regulated on the basis of the relationships between those who live together,” added Thompson.  “Ohioans should not be forced to pay higher rent or endure longer commutes due to such arbitrary regulations.”

The case is pending before Judge Zouhary in the Western Division of the Northern District of Ohio.  The Judge has issued a temporary standstill order.

Read the 1851 Center’s Complaint HERE.

Read the 1851 Center’s Motion for Preliminary Injunction HERE.

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The 1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and search and seizures.

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Sixth Circuit: State Cannot Inspect Ohioans’ Business Records without Warrant

Fourth Amendment prohibits state’s mandate making all business records “available at all times” to state agents

January 22, 2018: Columbus, OH – A federal circuit court late yesterday ruled that Ohio’s policies demanding private business records – – without a warrant or any evidence of wrongdoing – – violate the Fourth Amendment’s protection from unreasonable searches and seizures.

The ruling, made by a unanimous panel of the Sixth Circuit and authored by Judge David McKeague, addresses regulations governing those purchasing gold, silver, and other precious metals under the Precious Metals Dealers Act (“PMDA”).

However, its impact is likely to far exceed just the PMDA. Many Ohio businesses, particularly those requiring government licensing, face materially identical mandates. Accordingly, the ruling paves the way for Ohio businesses, even if heavily licensed and regulated, to protect their privacy and property, especially when such demands are made on-the-spot and without a warrant.

In a 23 page decision, the three-judge panel struck down a statute declaring “all books, forms, and records, and all other sources of information with regard to the business shall at all times be available for inspection,” and another demanding “free access to the books and papers and other sources of information with regard to the business.”

The Court explained as follows:

  • “Business owners cannot be forced to choose between being arrested on the spot and standing on their Fourth Amendment rights.”
  • “[The challenged statutes] are both unnecessary to furthering Ohio’s state interest and too broad in scope to withstand facial Fourth
  • Amendment scrutiny . . . both statutes effectively allow searches of dealers’ entire businesses . . . They therefore do not provide any standards to guide inspectors in the exercise of their authority to search.”
  • “The provisions’ seemingly unlimited scope, along with the grant of free access to such information at all times, does not sufficiently constrain the discretion of the inspectors.”

“This ruling essentially affirms that while government may request some basic record-keeping, reporting, and inspection of inventory purchased from the public that has been reported stolen, state officials cannot walk into a business without a warrant or evidence of wrong-doing and demand to review our papers, cell phones, laptops, or other business records,” said Maurice Thompson, Executive Director of the 1851 Center. “No entrepreneur deserves to be arrested for questioning the authority of a state agent to show up at his business unannounced, without any evidence of wrongdoing, and confiscate or filter through these records.”

Thompson added “this precedent will guard warrantless searches of business records in all industries, since the Court of Appeals decision acknowledged that even ‘closely regulated’ industries are entitled to greater protection. Ohioans should feel free to decline invasive and costly government searches without fear of retaliation.”

The 1851 Center for Constitutional Law took up the case in 2012 on behalf of Liberty Coins, a coin dealer of Delaware, Ohio, and Worthington Jewelers, a retail jeweler in Worthington, Ohio. Each balked at the prospect of losing their business licenses and being fined and prosecuted for refusing to turn over cell phones, laptops, and paper records simply “upon demand” of state enforcement agents.

Read the Court’s Order HERE.

Listen to the Oral Argument HERE.

Read the Brief HERE.

Watch our video describing the impact of this case:

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The 1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, voting rights, regulation, taxation, and search and seizures.

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Court: $100 Per Day Fines for Yard Signs Unconstitutional

Ohio city’s ban on political yard signs except directly before and after elections violates free speech, property rights

August 30, 2017: Toledo, OH – A federal court prohibited an Ohio city from fining citizens who display political yard signs for longer than 67 days.

The ruling, made by Judge Jeffrey J. Helmick of the Northern District of Ohio, forbids the City from enforcing local zoning ordinances to stifle free speech. The Court’s Order stops the City from determining which signs are “political,” limiting the display of “political” yard signs on private property to periods of time just before or after an election, or imposing fines on citizens who display such signs.

The ruling comes in response to a First Amendment lawsuit filed by the 1851 Center for Constitutional Law on August 15, 2017 on behalf of independent Perrysburg City Council candidate Charles “Chip” Pfleghaar and other Perrysburg citizens seeking to display their discontent with Perrysburg’s elected officials.

The 1851 Center’s lawsuit asserts that prohibiting signs on private property – or limiting the display of such signs to just two months of the year – simply because the signs reference politicians, government, or public policy issues, violates the First Amendment to the United States Constitution and Section 11, Article I of the Ohio Constitution.

In late July the City’s zoning inspector ordered Mr. Pleghaar to remove two relatively-modest signs advocating for his own election to city council or face fines of up to $100 per day for each day he displayed the signs in his yard.

The City cited its own local ordinance prohibiting signs with political messages except directly before and after elections, which it had previously cited to order citizens to remove Donald Trump and Hillary Clinton signs, as well as signs advocating for lower property taxes. In support of the ordinance, the City claims it prohibits political signs “to enhance the physical appearance of the City . . . to create an appearance that is attractive . . . and to improve traffic safety.”

“Ohioans should remain free to use their private property however they would like, so long as they abstain from inflicting harm on others. This of course includes displaying yard signs criticizing incumbent politicians, advocating for lower taxes, or advertising a business. When Ohio cities attempt to regulate signs on private property, they both abridge our free speech and violate our property rights at the same time,” explains Maurice Thompson, Executive Director of the 1851 Center.

“Yard signs are an efficient way for a homeowner to criticize public officials and identify where he or she stands on an issue. These signs are particularly important to political outsiders with lower name identification and less-established donor and political networks, and likely the ultimate example of outsider-driven grass-roots politics, as the average homeowner lacks access to media outlets or the capacity to make large donations to candidates or issues.”

Read the Homeowners’ Complaint HERE

Read the Homeowners’ Motion for Preliminary Injunction HERE

Read the Court’s Order HERE

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Ohio Court: Eminent Domain for Private Pipelines Unconstitutional

Private ethane pipeline to Canada is not a “public use” or “public necessity,” as required by Ohio Constitution

Ruling will protect property rights of Ohio farmers and other rural property owners

Bowling Green, OH – An Ohio court ruled that private pipeline companies cannot use eminent domain to forcibly seize Ohioans’ private property for purely private pipeline projects.

The ruling protects the property rights of dozens of Ohioans represented by the 1851 Center for Constitutional Law and others along the pipeline route. However, given the escalation in private pipeline construction throughout Ohio and the nation, the decision is anticipated to have impact well beyond just the immediate parties or the Utopia Pipeline.

In April 2016, Texas pipeline corporation Kinder Morgan, using an arcane Ohio statute, sued the farmers in an attempt to forcibly take their land for the benefit of its private ethane pipeline to Canada. In moving to dismiss the case, the 1851 Center argued that the Utopia Pipeline is not a “public use,” as required by the Ohio Constitution. The 1851 Center explained that the pipeline is, for the sole benefit of one private Canadian corporation, shipping ethane (a by-product of fracking) underground throughout Ohio directly to that corporation’s Canadian factory, where the ethane will be used to manufacture plastic products such as water bottles.

The 1851 Center further argued that taking Ohioans’ land was not a “public necessity,” since the pipeline’s route was not set it stone by government, giving Kinder Morgan the freedom (unlike natural gas pipelines) to build its pipeline around objecting landowners.

In a decision extolling private property rights under the Ohio Constitution, Judge Robert Pollex of the Wood County Court of Common Pleas agreed. The Court explained why such attempted land-grabs by large private corporations, particularly those that are not public utilities or otherwise directly providing services to Ohioans, cannot be sustained:

  • “The fundamental principles in the Bill of Rights in our Constitution declare the inviolability of private property, and Ohio has always considered the right of property to be a fundamental right.”
  • “‘Economic development’ alone is not sufficient to satisfy public use requirements.”
  • “In this case Kinder Morgan is taking the private property for the purpose of transporting by pipeline petroleum products for the use of one private manufacturer. The manufacturer is not even a Unites States business, but rather, a Canadian business . . . there is no anticipated circumstances that would show a benefit to the citizens of Ohio or even for that matter, the United States.”
  • “This project and appropriation is not necessary nor a public use. To the extent that the Ohio statutes authorize a common carrier of Kinder Morgan’s type, the legislation is an unconstitutional infringement upon the property rights of the Defendants.”

“The Court’s ruling is a substantial victory for private property rights across Ohio, but above all else, this outcome safeguards the dignity and respect to which every Ohioan is entitled,” explained Maurice Thompson, Executive Director of the 1851 Center.

“While we fully support the continued development of oil and gas reserves in eastern Ohio, profit margins related to private efforts should not be inflated at the expense of Ohioans’ rights. Just like churches, gas stations, supermarkets, and other important private endeavors, pipeline construction can and must move forward without using the governmental power of eminent domain to redistribute land from average Ohioans to wealthy politically-connected cronies and elites.”

The Court’s ruling draws a distinction between takings for pipelines facilitating home heating or energy independence and pipelines for purely private commercial interests. While public utilities may exercise eminent domain to provide service to Ohioans’ homes, and certain oil and gas pipelines may even possess eminent domain authority, the Utopia Pipeline remains submerged through the entire state, and provides no service to Ohioans. The ruling will not prevent governments or public utilities from acquiring land for legitimately public pipelines.

The ruling is also an important reminder that Ohioans enjoy greater property rights than those protected by the federal constitution, due to a stringent state constitution.

The 1851 Center’s position was supported by an amicus brief from the Ohio Farm Bureau, as well as the efforts of the northwest Ohio law firm of Mayle, Ray & Mayle, LLC.

Read the Court’s Order upholding property rights HERE.

Read the 1851 Center’s full Motion to Dismiss HERE.

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Taking of Ohioans’ Land for Private Pipeline Unconstitutional

15 families unite and move to dismiss corporation’s case attempting to take their land through eminent domain.

Columbus, OH – The 1851 Center for Constitutional Law moved to dismiss 16 separate eminent domain cases filed in Bowling Green, Ohio by Texas pipeline company Kinder Morgan, explaining that purely private pipeline corporations’ taking of land for their own gain violates the Ohio Constitution’s strict protection of private property rights.

The action is filed on behalf of 15 families in eastern Wood County who have owned and farmed the disputed land for generations, and oppose turning it over for the Utopia Pipeline, a private ethane pipeline running underground to a Canadian plastics factory.

Kinder Morgan, a Texas-based corporation amongst the world’s largest pipeline companies, has used the threat of eminent domain as leverage to force Ohioans to sell it desirable land to construct the Utopia across northern Ohio. It claims that it — by itself and without government approval — can take Ohioans’ homes and land pursuant to an arcane Ohio statute now experiencing a revival due to energy development in eastern Ohio.

However, in its Motion for Judgment on the Pleadings, the 1851 Center explains that taking private property from Ohioans and giving to private businesses simply to enhance their profit margins, whether initiated by the state or the private party itself, violates the Ohio Constitution:

  • The Due Process Clause forbids a state from delegating, without any limits whatsoever (as here), the power of eminent domain to a purely private individual or business.
  • The taking of land through eminent domain must be for “public use,” and economic benefits to private interests are not public uses. Here, the public will not own, control, or use the Utopia Pipeline as it journeys underground through Ohio to Canada.
  • The taking of land must be a “public necessity.” But here, ethane, a waste product created by the fracking process, can be shipped by railroad, tanker truck, and barge. Further, the Utopia Pipeline’s route is not set in stone by any regulator, and Kinder Morgan remains free to create a different route by acquiring land from voluntary sellers.
  • 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 those seeking to seize Ohioans’ properties.

“This is redistribution of wealth of the worst sort: taking property from regular Ohioans and giving it to a billion-dollar Texas corporation for its own benefit, under the false pretense of progress,” explained 1851 Center Executive Director Maurice Thompson. “The abuse along the Utopia Pipeline is a prime example of what can happen when legislators attempt to auction off Ohioans’ property rights to the highest bidder. Ultimately, the Ohio Constitution prevents this abuse, and we will prevail in court. But statutes inviting this sort of behavior should be amended or repealed.”

“And while we fully support the continued development of oil and gas reserves in eastern Ohio,” continued Thompson, “the very thing that makes private enterprise possible is respect for private property rights – – the Ohio Constitution does not enable private parties to take Ohioans homes and land, simply to improve their own profit margins.”

The 1851 Center draws a distinction between takings for pipelines facilitating home heating or energy independence and pipelines for purely private commercial interests. While public utilities may exercise eminent domain to provide service to Ohioans homes, and certain oil and gas pipelines may even possess eminent domain authority, the Utopia Pipeline remains submerged through the entire state, and provides no service to Ohioans.

“At minimum, Kinder Morgan is using the false threat of eminent domain to intimidate Ohio property owners into accepting below-market settlements for their land,” added Thompson. “Ohioans should be aware of this ploy.”

Read the 1851 Center’s full Motion to Dismiss HERE.

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Federal Court: State Cannot Inspect Ohio Businesses Without a Warrant

Fourth Amendment prohibits state mandate to make business records, property, and inventory available to state agents “at all times” and “upon demand”

Columbus, OH – A federal court ruled that State Agencies violate the Fourth Amendment’s protection against unreasonable searches when they, without a warrant or any evidence of wrongdoing, investigate Ohio businesses by simply demanding private business records, property, and inventory.

The ruling, made by Judge Watson of the Columbus division of the Southern District of Ohio, addressed regulations governing those purchasing gold, silver, and other precious metals under the Precious Metals Dealers Act (“PMDA”).

However, its impact is likely to far exceed just the PMDA. Many Ohio businesses, particularly those requiring government licensing, face materially identical mandates. Accordingly, the ruling paves the way for Ohio businesses, even if heavily licensed and regulated, to refuse government demands to search private records, property, and inventory, especially when such demands are made on-the-spot and without a warrant.

The 1851 Center for Constitutional Law took up the case in 2012 on behalf of Liberty Coins, a coin dealer of Delaware, Ohio, and Worthington Jewelers, a retail jeweler in Worthington, Ohio. Each balked at the prospect of, without any evidence of wrongdoing, losing their business licenses and being fined and prosecuted for refusing to turn over cell phones, laptops, paper records, and even inventory such as jewelry and rare coins simply “upon demand” of state enforcement agents.

In his 35 page decision, Judge Watson, enjoined four state requirements:

  • A statute declaring that “all books, forms, and records, and all other sources of information with regard to the business shall at all times be available for inspection.”
  • A statute demanding “free access to the books and papers and other sources of information with regard to the business.”
  • A requirement that private business records be “open to the inspection of the police upon demand.
  • A mandate that businesses, at the end of each business day, fax descriptions of every item purchased that day to local police.

The Court explained as follows: “The Inspection Provisions give the government and law enforcement the right to inspect a licensee’s records without any opportunity for the licensee to seek neutral, precompliance review. The PMDA specifically provides that failure to comply with a search request is a crime. . . . The PMDA’s Inspection Provisions violate the Fourth Amendment’s protection against unreasonable searches and seizures.”

“Acts like this treat Ohio entrepreneurs as public utilities at best, and criminals at worst, irrespective of whether they have done harm. No entrepreneur deserves to be arrested for questioning the authority of a state agent to show up at his business unannounced, without any evidence of wrongdoing, and confiscate or filter through his papers, computers, cell phones, and even his business’s inventory.” said Maurice Thompson, Executive Director of the 1851 Center.

Thompson added “we brought this case to invalidate the constant invasions confronting not just precious metal dealers, but all of the other businesses that face similar inspection requirements. Our expectation is that this precedent will invalidate these kinds of searches in all industries. Ohio businesses are free to decline invasive and costly government searches – – they cannot lose their business licenses or be prosecuted, fined, or disciplined simply for saying ‘no’.”

The Supreme Court has continuously reaffirmed that the Fourth Amendment applies to businesses and business property just as it does to individuals and private homes.

Read the Court’s Order Granting the Motion for Summary Judgment of Liberty Coins and Worthington Jewelers HERE.

Read the Plaintiffs’ Motion for Summary Judgment HERE.