Ohio Department of Health’s Orders may be prudent, but are largely unenforceable

Columbus, OH – State and federal constitutions entitle Ohioans to protections, which remain in place even as the state implements seemingly prudent restrictions to combat the COVID-19 pandemic.

On March 22, the Ohio Department of Health issued its “Director’s Stay at Home Order.” This Order, like others before it, relies upon the delegation to the Ohio Department of Health of a sweeping power – never previously relied upon or analyzed by a single court in the history of the state – to exercise “ultimate authority in matters of quarantine and isolation.”

The Order is set to expire on April 6, 2020. No court is likely to take action, much less question quarantine authority, prior to that date. However, depending on the circumstances, regulations that continue to remain in place subsequent to that date must be seriously examined: no attribute of these policies can be permitted to remain beyond their useful life.

For the reasons below, Ohioans must carefully scrutinize these exercises of power, and remember that they maintain rights against it:

1. Delegating “ultimate authority” to bureaucrats violates Separation of Powers. To justify their flurry of Orders, the governor and state health department rely on R.C. 3701.13 (“the department of health shall have . . . ultimate authority in matters of quarantine and isolation, which it may declare and enforce . . .”).

However, while the Ohio Constitution vests the General Assembly alone with emergency powers (Section 42, Art. II), even that authority is limited to “enemy attacks.” And, the General Assembly certainly cannot transfer its power to legislate on major policy issues to just one politically-unaccountable administrative agency.

Separating powers “divides power among sovereigns and branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crises of the day” and serves to “reduce the risk of tyranny and abuse.” New York v. United States, 505 U.S. 144, at 181, 187-188 (1992).

In Ohio, “the lawmaking prerogative is a sovereign power conferred by the people upon the legislative branch of the government,” and therefore “cannot be delegated to other officers, board or commission, or branch of government.” Matz v. J.L Curtis Cartage Co. 132 Ohio St. 271, 7 N.E.2d 220 (1937). Rather, the General Assembly can only “confer administrative power on an executive, a board or commission.” Since the time of the Ohio Constitution, these limits have been consistent: “the delegation of power to make the law, which necessarily involves a discretion as to what it shall be . . . cannot be done.'” Cincinnati, Wilmington & Zanesville R. Co. v. Com’rs of Clinton County, 1 Ohio St. 77, 88 (1852).

Consequently, it is black letter administrative law in Ohio that “Administrative regulations cannot dictate public policy, but rather can only dictate policy already established by the General Assembly.” D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 2002-Ohio-4172, ¶ 41.

To protect Ohioans, the Ohio Constitution forbids the General Assembly from giving away its policymaking power to unelectedagencies. But here, that has happened. The Ohio Department of Health’s picking and choosing between “essential” and “non-essential” business, travel, and activities, and then criminalizing what it alone deems “non-essential,” is policy-making that administrative agencies quite likely cannot undertake.

2. Neither the Ohio Department of Health nor the governor can cancel or schedule an election. On March 16, the Ohio Department of Health promulgated an Order insisting on “closure of the polling locations in the State of Ohio.” However, Article I, Section 4 of the United States Constitution expressly provides that, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

3. Ohioans are entitled to Equal Protection. Over half of the state’s twelve-page Stay at Home Order is dedicated to articulating exemptions from the Order, meaning that many Ohioans or their activities will be unaffected by it. However, any “attempted classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.” State v. Mole, 2016-Ohio-5124.

As the Ohio Lottery Commission remains exempt to sell lottery tickets, and others with strong lobbying presences in Columbus remain exempt, those put out of work or otherwise limited must examine whether they have been treated even-handedly.

4. Ohioans maintain the right to travel throughout Ohio. The Ohio Department of Health’s Stay at Home Order states, “all individuals currently living within the State of Ohio are ordered to stay at home.” However, since 2002, the Sixth Circuit, an appellate circuit within which Ohio is located, became one of a few circuits “to recognize the right to intrastate travel as “fundamental.” In Johnson v. City of Cincinnati, our circuit court held that, “the Due Process Clause of the Fourteenth Amendment protects the right to travel locally through public spaces and roadways,” which “enjoys a unique and protected place in our national heritage.” Johnson, 310 F.3d at 495–98. And “as early as the Articles of Confederation, state citizens “possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom.” See also Cole v. City of Memphis, 839 F.3d 530, 535 (6th Cir. 2016).

While the state maintains a compelling interest in limiting contact to curtail the spread of COVID-19, the state’s selective ban on travel it deems “non-essential” likely fails to advance that interest in a sufficiently narrow manner.

5. Ohioans maintain health care freedoms. On March 17, 2020, the Department of Health prohibited all “non-essential or elective surgery. However, in 2011, Ohio voters enacted the Health Care Freedom Amendment. Section 21(B) of Article I of the Ohio Constitution provides that, “No federal, state, or local law or rule shall prohibit the purchase or sale of health care.” Nor can health care be forced, as Division (A) of that amendment prohibits compulsion. There are many medical treatments the cancellation of which fails to create the availability of more resources to fight COVID-19.

A willing doctor and patient cannot be forbidden from participating in voluntary otherwise-lawful medical treatment.

6. Ohioans maintain the right to access and use their properties. Since March 15, the state has forbidden, selectively and without notice, businesses such as “onsite consumption” of food, liquor, beer, and wine. However, property rights protected by the Ohio Constitution are “fundamental rights” entitled to greater protection than what is provided by the federal constitution.

Just over two decades ago, the Ohio Supreme Court affirmed that, “an injunction closing property against its use for any purpose for one year violates Section 19, Article I of the Ohio Constitution, when applied to an owner who did not negligently or knowingly acquiesce to, and did not participate in the creation or perpetuation of the nuisance.” State ex rel. Pizza v. Rezcallah, 1998-Ohio-313, 84 Ohio St. 3d 116. The Court added that, “The fact that the order is of limited duration does not change this conclusion. It is well established that the Constitution protects against temporary takings just as it does against permanent takings,” and “Deprivation of the use of resources equal to the value of the property is as much a taking as is deprivation of the use of the property itself.” Id. While these rights can be limited, this is so only when “necessary,” “required,” and not “unduly oppressive upon individuals.” Id.

Barricading or otherwise obstructing all uses of a bar, restaurant, or other business or residential property would almost certainly constitute an unconstitutional taking of private property without compensation, as previously contemplated by the Ohio Supreme Court.

7. Ohioans maintain the right “to labor freely without restraint.” The Department of Health’s March 22 Order insists that “all businesses and operations in the state, except essential businesses and operations . . . are required to cease all activities.” However, “The right to contract, the right to do business and the right to labor freely and without restraint are all constitutional rights equally sacred.” Eastwood Mall, Inc. v. Slanco, 1994-Ohio-433.

The state’s selective impairment of some work, labor, and business, and not others raise the possibility that the non-exempt Ohioans have been arbitrarily deprived of this right. With that said, any argument to this end will be at its weakest in industries relying upon close distance and/or touch, such as the “hair salons, barber shops, tattoo parlors, body piercing locations, and massage therapy locations” forbidden on March 19.

8. Ohioans remain entitled to Due Process before or soon after any of the foregoing rights are injured. In the midst of disordered lawmaking through agency fiat, the state has prescribed no procedure for Ohioans to appeal the denial of their rights to travel, use their private property, to labor, or provide or procure health care. However, due process under the Ohio and United States Constitutions demands that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner where the state seeks to infringe a protected liberty or property interest. State v. Hochhausler, 1996-Ohio-374.

Our Ohio Supreme Court has held that, “Given the importance of the property interest affected, even the temporary denial of possession and use of the vehicle inflicts too severe a hardship on the individual wrongfully deprived,” and the state “will not be able to make a driver whole for any personal inconvenience or economic hardship suffered by reason of any delay in redressing an erroneous suspension through post-suspension review procedures.” State v. Hochhausler, 1996-Ohio-374.

Ohioans’ businesses and livelihood are just as important as one’s car or driver’s license: the Sixth Circuit Court of Appeals recently prohibited the taking of the right to operate a restaurant without a “pre-deprivation hearing,” explaining that “such a system unfairly jeopardized Johnson’s property interest in her means of livelihood, an interest that this court and the Supreme Court have recognized as ‘one of the most significant that an individual can possess.’” Johnson v. Morales, 946 F.3d 911, 937 (6th Cir. 2020).

Those forbidden from travel, health care, business, employment, and other activities during the quarantine are entitled to an opportunity to object and make their case that their activity is entitled to an objection. The state’s haphazard orders have entirely disregarded that right.

9. Local regulations are subject to all of the foregoing limits. Local governments may pass their own limitations on travel, health care, and business during this time. Those regulations, while unlikely to trigger separation of powers concerns, remain subject to all of the same constitutional limits articulated above.

These Orders may well be wise advice. But Ohioans must also be wise in protecting themselves from creeping paternalism, and subjection of their lives to the untreated anxieties of our public officials.

The 1851 Center is open around-the-clock by email. Ohioans threatened with penalties for noncompliance with the state’s restrictions should email us. These communications will be given priority over all other cases.

###

The 1851 Center for Constitutional Law is a nonprofit, nonpartisan 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 searches and seizures.

Ohio cities violate private property rights when they criminalize landscaping and gardening

Columbus, OH – The 1851 Center for Constitutional Law has filed an action in federal court on behalf of a Columbus couple threatened with 60 days in jail and fines of $100 per day after landscaping their front yard. Bryden Road couple Drew Stevens and Melanie Copenhaver face draconian penalties after planting a garden that the city ruled “incompatible” with the neighborhood.

“In Ohio, many zoning regulations needlessly interfere with private property rights, insult homeowners’ dignity, and defeat the very purpose of home-ownership. This regulation is no different,” said 1851 Center Executive Director Maurice Thompson. “Columbus pretends to be engaged in historic preservation, but instead subjects homeowners to the arbitrary personal preferences of neighborhood busybodies in search of conformity.”

The city claims Stevens and Copenhaver “destroyed a distinctive architectural feature” by replacing some of their grass with mulch and shrubs, a look that a city commission calls “too suburban.”

Through its Motion for Preliminary Injunction, the 1851 Center explains the Columbus ordinance and its penalties violate the Ohio Constitution through suppressing private property rights and imposing vague standards and excessive fines:

  • The regulation is unconstitutionally vague, insofar as it forces homeowners to avoid prosecution, and prove to a commission of volunteering and unaccountable nearby property owners that their yard is sufficiently “compatible” and “appropriate.”
  • Regulations professing to preserve historic architecture cannot be abused to accomplish gentrification, conformity and authoritarian control over private property.
  • Fines of $36,500 per year for gardening in one’s own yard are patently excessive.

“If home-ownership is to have meaning, Ohioans cannot be forced to obtain government permission to garden. Nor can they be thrown in jail for gardening without such permission, which is only granted when a government commission finds their yard ‘appropriate,’” said Thompson.

The 1851 Center draws a distinction between regulation seeking to preserve historically significant buildings and those regulating blades of grass.

The case is pending before Judge Marbley in the Eastern Division of the Southern District of Ohio.

Read the 1851 Center’s Complaint HERE.

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

View photos of the Bryden Road home before and after landscaping HERE.

###

The 1851 Center for Constitutional Law is a nonprofit, nonpartisan 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 searches and seizures.

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 .

###

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.

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.

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:

###

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.

Donate

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:

###

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.

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

Legal Center: Fees that City’s homeowners were forced to pay to fund unconstitutional “point of sale” inspections must now be returned

Cleveland, OH – A federal court certified a class action lawsuit against the City of Bedford, Ohio, explaining that all homeowners who were forced to endure government searches as a precondition to the sale of their homes are entitled to demand refunds of illegal “Point of Sale” inspection fees.

This ruling paves the way for the return of inspections fees to all affected homeowners, rather than just those who filed the lawsuit.

The Order, made by Judge Benita Pearson of the Northern District of Ohio, confirms class action lawsuits may be maintained against city governments who extort their citizens and businesses in a widespread manner, such as through violating their Fourth Amendment rights through sweeping city-wide home inspection requirements.

Specifically, Judge Pearson certified classes of all individuals or businesses that have been subject to the inspections and paid inspection fees to the City of Bedford in conjunction with the inspections, explaining that “Citizens are entitled to “return of Point of Sale and Rental Inspection fees illegal paid to [the City of Bedford].”

“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 as big corporations are to their customers,” said Maurice Thompson, Executive Director of the 1851 Center.

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 “presale” programs that require citizens to endure and pass arbitrary and warrantless government inspections before they could 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 who sold their homes without first submitting to and passing city inspections. In Bedford, the City also claimed the power to block home sales on account of “architectural style and detail,” “color,” and lack of “orderly appearance.”

Within days of the 1851 Center’s lawsuits, each city rescinded its policies. However each has refused to return illegal inspection fees.

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.

“Local governments 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 every moral and constitutional entitlement to exclude others, even government agents, from their property,” adds Thompson. “The right to own property in Ohio has little value if local governments can continuously chip away at one’s right to actually make use of that property, requiring government permission slips for basic arrangements such as the sale of one’s home to a willing buyer.”

The legal action against Bedford is filed on behalf of area landlord Ken Pund, who is forbidden from selling to his daughter a home that he owns and she already resides in, and John Diezic who was prohibited from selling his Bedford home due to minor cracks in the asphalt of his driveway.

Read the Court’s Order HERE

Read the Property Owners’ Motion for Preliminary Injunction HERE

Check out Maurice Thompson discussing the case against Ohio governments’ forced home inspections below:

###

This lawsuit is brought in partnership with the Ohio Real Estate Investors Association (“OREIA”), the Finney Law Firm in Cincinnati, and the law firm of Berns, Ockner & Greenberger in Cleveland.

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.

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