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Federal Court Enjoins Shaker Heights from Blocking Message of Tax-Increase Opponents

Cleveland, OH – A federal court enjoined the City of Shaker Heights from further harassment of Shaker Heights residents city officials silenced through threat of a frivolous trademark lawsuit. The threat had come in retaliation for the citizens’ opposition to the City of Shaker Heights’ attempt to increase income taxes on residents through an August 7 vote.

The Northern District of Ohio Judge Christopher Boyko ordered that the City “shall take no action which interferes in any way with Plaintiffs’ use of the Shaker Heights Taxpayers Union Logo. . .

This Order comes in response to legal action filed on behalf of the Shaker Heights Taxpayers Union (“SHTU”). This legal action included a demand for an immediate injunction prohibiting city officials from engaging in any further threats, intimidation, or retaliation in response to the taxpayers’ legitimate exercise of their constitutional rights

Shaker Heights resident Mark Zetzer formed the SHTU to advocate against the City’s placement of a personal income tax increase on the August 7 ballot, arguing that Shaker Heights taxes were already the highest in the state. In addition Mr. Zetzer designed for the group a logo that parodies the City of Shaker Heights logo by replacing the City logo’s leaves with dollar signs, to represent City officials’ use of taxation as a first-resort (see the logo below).

Even though federal courts have repeatedly confirmed that the First Amendment trumps trademark law in the field of political speech, just as Mr. Zetzer’s message was beginning to gain traction, the City of Shaker Heights sent Mr. Zetzer a “Demand to Cease and Desist,” threatening that “[f]ailure to stop [use of the SHTU logo] will result in the City taking legal action to protect its trademark, including a request for an award of damages.”

In response, SHTU had been forced to stop using the logo in its campaign.

“This case featured an appalling attempt by city officials to silence anyone who stands in the way of their access to more of Shaker Heights residents’ earnings,” said Maurice Thompson, Executive Director of the 1851 Center. “The Court’s Order preserves the rights of Ohioans to effectively criticize their local governments, particularly as they push for more taxes, and further acknowledges that political speech parodying one’s government cannot be abridged.”

Added Thompson, “Conducting frivolous legal activity on city time is not just unethical – – it’s also a waste of public funds. If the City simply abstained from paying government employees to engage in activities such as instituting official-appearing legal threats to silence opposing viewpoints in the heat of an election, there would likely be no need to impose additional taxes on Shaker Heights residents.”

July 27, 2012: Cleveland.com: Judge says Shaker Heights can’t stop anti-tax group’s use of logo

 

The 1851 Center’s Complaint can be viewed here.

The Motion for a Preliminary Injunction is available here.

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Update: Estate Tax Repeal Signed into Law, Expires January 1, 2013

The legislature has passed a state budget that includes the repeal of Ohio’s Estate Tax.  Special thanks to the team at http://www.endohioestatetax.com/ for their leadership in accomplishing a feat that no liberty group before them had accomplished:  the elimination of a statewide tax.  In drafting the initiative and representing the effort, the 1851 Center was simply the professional scaffolding around this inspiring all-volunteer effort. Read more

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Cincinnati Public Schools v. Conners

Cincinnati Public Schools has a policy of prohibiting the use of vacant public school buildings by charter schools and private schools.

Historical Overview

Theodore Roosevelt School, in Cincinnati, had purchased an unused school building located in the Fairmount neighborhood, where all CPS schools are in academic emergency status and 80 percent of families are minorities and live in poverty. The school opened in August, 2010, serving 210 students and employing 45 staff members.

CPS sued Dr. Conners, the operator of Theodore Roosevelt, attempting to enforce a deed restriction and shut down the school. The 1851 Center asserted such a restriction is void by Ohio’s public policy in favor of school choice and cheats taxpayers of sales revenue from the buildings.

Both the Hamilton County Court of Common Pleas and Appellate Court ruled in favor of Dr. Conners, affirming the following: CPS’s deed restriction is void due to Ohio’s public policy in favor of transferring taxpayer-owned school buildings to community schools; statewide public policy favors effectuating parental choice and educational opportunity through community schools; and Theodore Roosevelt is entitled to retain possession of the school and continue its operation.

“Our expectation is that the Supreme Court will decide to uphold a landmark ruling in favor of school choice in Ohio, and against adversarial school districts who attempt to block alternative schools’ right to exist,” said 1851 Center Executive Director Maurice Thompson. “Deed restrictions like the one struck down in this case were devised simply to stop new charter schools from opening in Cincinnati, so that CPS could retain students and protect its state funds. In its brief, CPS compares itself to a ‘gas station’ or ‘hotel’ that has a right to use hardball tactics against its competition. It seems to have forgotten that it’s a public school that exists to educate children, rather than to amass revenue.”

Partners in Action

Joining the 1851 Center in defending school choice, as amicus parties, are the Ohio Alliance for Public Charter Schools, the Black Alliance for Educational Opportunities, School Choice Ohio, the Ohio Coalition for Quality Education, and the National Alliance for Public Charter Schools. Joining Cincinnati Public Schools is the controversial government-funded lobbying organization The Ohio School Boards Association.

Timeline

February 7, 2011: Ohio Supreme Court hears Oral Arguments in Conners

The Ohio Supreme Court heard oral arguments in Cincinnati Public Schools v. Conners at 9:30a.m. on February 7, 2011. 

September 24, 2011: Ohio Supreme Court Will Review CPS v. Conners

The Ohio Supreme Court has granted certorari and will review this case. This will likely be the final resolution of the case.

March 11, 2011: Court of Appeals: CPS Deed Restrictions Against Charter and Private Schools Illegal 

Cincinnati Public Schools’ (CPS) policy of prohibiting the sale of unused available public school buildings to charter schools and private schools is unlawful and must end, today ruled the Court of Appeals for the First District Court of Appeals, Hamilton County.  This decision further rebuffs CPS efforts to shut down Theodore Roosevelt Community School and others, and is a victory for charter and private school operators throughout the state.

CPS appealed after a victory by the 1851 Center for Constitutional Law on behalf of Theodore Roosevelt Community School, a Cincinnati charter school CPS had sued to shut down.  The Court of Appeals decision, authored by Judge Sundermann, states: “We conclude that the trial court properly determined that the facilitation of community schools having access to classroom space was clear Ohio public policy. And the deed restriction that sought to prevent the use of the property for educational purposes was void as against this clear policy.”

The Court further stated:  “[w]e are not persuaded by CPS’s argument that the property was not ‘suitable’ for classroom use.  This argument is belied by the deed restriction itself, which allows the possibility that the restriction would not apply should CPS itself decide to use the property for school purposes in the future.”

This additional ruling exposing CPS to the loss of millions of dollars in funding from the Ohio School Facilities Commission (OSFC), which requires that school districts follow all state rules related to charter schools, including heeding charter schools’ right of first refusal to purchase all property “suitable for use as classroom space,” in order to be eligible for OSFC funding.  The fate of this funding is still in dispute, in a second case brought by the 1851 Center and the Ohio Coalition for Quality Education, pending before Judge Ruehlman in Hamilton County.

The court’s ruling affirms:

  • CPS’s deed restriction is void due to Ohio’s public policy in favor of transferring taxpayer-owned school buildings to community schools;
  • CPS’s deed restriction is void because it is in derogation of a statewide public policy in favor of effectuating parental choice and educational opportunity through community schools;
  • Although the deed restriction is void, Theodore Roosevelt is entitled to retain possession of the school, and continue its operation; and
  • CPS school buildings with such prohibitive deed restrictions are suitable for use as classroom space.

October 14, 2010: Cincinnati Public Schools Continues Charter School Vendetta in Appellate Court 

On October 14, the 1851 Center filed its brief in response to Cincinnati Public Schools’ appeal of a trial court ruling invalidating its efforts to eliminate school choice options in Cincinnati’s poorest communities.

In May, Ohio’s school choice movement won a significant victory when Hamilton County Common Pleas Court Judge Robert P. Ruehlman ruled that Cincinnati Public Schools (CPS) violated state law through its policy of prohibiting the sale of unused available public school buildings to charter and private schools.

The Theodore Roosevelt School opened in August 2010. However, CPS has appealed the case, now before the First Appellate District in Hamilton County. The school building was previously unused, and is located in the Fairmount neighborhood, where all CPS schools are in academic emergency, and 80 percent of families are of minority status and live in poverty.

CPS is attempting to enforce a deed restriction prohibiting the use of school buildings previously owned by CPS for use by a charter or private school. The school district likens itself to a private hotel or gas station that can prohibit “competitors” from acquiring its old buildings. However, those buildings are taxpayer-owned, and being sold at a considerable loss due to the deed restriction.

The 1851 Center countered that such a restriction is void by Ohio’s public policy in favor of school choice, and cheats taxpayers of sales revenue from the buildings. The trial court agreed with the 1851 Center.

“CPS is not a private business or individual: it is a taxpayer supported entity that should not target the state’s program of education, i.e. community schools, as ‘competing,’” the 1851 Center wrote in its filing with the appeals court.

The 1851 Center is joined by the Ohio Alliance for Public Charter Schools (OAPCS), which has filed an amicus brief in the action.

“Securing adequate and affordable facilities remains one of the greatest challenges to Ohio’s charter schools,” OAPCS wrote in its amicus brief. “The Cincinnati Public School District’s attempt here to prevent a public school from operating where a different public school once existed unlawfully exacerbates these facilities challenges and, at the same time, needlessly prevents students from getting a public education at the school of their choice.

July 06, 2010: Cincinnati Public Schools Blocked from Discriminating Against Charter and Private Schools

On July 6, Judge Ruehlman denied CPS’s desperate last-ditch effort to derail Theodore Roosevelt School’s opening by denying CPS’ Motion to Stay. This clears the way for the school to open in August; area families have already enrolled over 200 children. The school will employ approximately 40 people.

A Public Records Request by the 1851 Center reveals that CPS has already paid its hand-picked law firm over $32,000 in Cincinnati taxpayers’ money for the case, at an average rate of approximately $200 per hour, and at times as much as $256 per hour.

This is quite a sum, considering that Dr. Conners only paid $30,000 for the school building and the 1851 Center offered CPS an opportunity to settle beforehand. In addition, the amount also does not include the fees yet to be paid for the pending appeal.

May 28, 2010: Common Pleas Court says Cincinnati Public Schools Violated State Law 

Cincinnati Public Schools’ (CPS) policy of prohibiting the sale of unused available public school buildings to charter schools and private schools violates state law, yesterday ruled Hamilton County Common Pleas Court Judge Robert P. Ruehlman. The judge issued the ruling immediately from the bench.

In his ruling, Judge Ruehlman called CPS’s deed restrictions anti-competitive and acknowledged that CPS was merely attempting to suppress competition from charter and other alternative schools, and thwart school choice for the parents and children of Cincinnati.

The ruling halts CPS’s restrictive practice and opens the district to the loss of hundreds of millions of dollars in funding from the Ohio School Facilities Commission (OSFC). Last week, OSFC member State Rep. Kris Jordan moved to stop state facilities funding to CPS because of its purported violations. Jordan, prompted by the 1851 Center’s legal action against CPS, informed the commission the school district forfeited its statutory right to project funding because of repeated violations of state charter schools provisions. The court’s ruling bolsters Jordan’s assertion.

The court’s ruling affirms:

  • A contract term that violates public policy is void;
  • A contract term that hinders the purpose of a statute is void;
  • CPS’s deed restriction is void due to Ohio’s public policy in favor of transferring taxpayer-owned school buildings to community schools;
  • CPS’s deed restriction is void because it is in derogation of a statewide public policy in favor of effectuating parental choice and educational opportunity through community schools; and
  • Although the deed restriction is void, the conveyance must remain valid.

 

June 1, 2010: Cincinnati Enquirer: Judge Sets Charter School Precedent

March 11, 2011: Appellate Court’s ruling

October 14, 2010: OAPCS’s amicus brief

October 14, 2010: Appellate merit brief

March, 2010: Motion for judgment

March, 2010: Response to original complaint

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Drees Company v. Hamilton Township

Ohio Townships do not have the power to levy taxes.  That’s why they call them “fees.” This case argues that “fees” on new homeowners and developers are really taxes and are unconstitutional.

Timeline

February 14, 2011 – 1851 Center Files Amicus Brief at Ohio Supreme Court

On February 14, 2011, the 1851 Center for Constitutional Law filed an amicus brief with the Ohio Supreme Court, on its own behalf and on behalf of the Tax Foundation. The brief argues that Ohio townships, which do not have the power to levy taxes, cannot levy back-door taxes on new homeowners and developers merely by labeling those taxes as “impact fees.”

December 15, 2010 – The Ohio Supreme Court Accepts the Case on Appeal

February 1, 2010 –  1851 Center Files Amicus Brief at Appellate Court

The 1851 Center filed an amicus brief with the Twelfth District Court Appeals, arguing that Ohio townships, which do not have the power to levy taxes, cannot levy back-door taxes on new homeowners and developers merely by labeling those taxes as “impact fees.”

Media

March 3, 2011 – Listen to Maurice Thompson on the Tax Policy Podcast here.

Documents

February 14, 2011: 1851 Center’s Amicus Brief (Ohio Supreme Court)

February 1, 2010: 1851 Center’s Amicus Brief (Appellate Court)

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Pour House Inc., v. Ohio Department of Health

A victory came on October 19, 2009 for Ohio bars and restaurants facing fines for breaking the state smoking ban. Up to that point, enforcement methods essentially required small businesses to enforce the smoking ban for the government. The 1851 Center points out that it’s the government’s law and that the state should be required to enforce its own laws.  That’s what the statute said and that’s what the court has said.

“I think we’ve been cited about 12 times and it’s up to about $33,000,” Dick Allen said; he owns Zenos Bar in the Harrison West neighborhood of Columbus.

The state’s 10th District Court of Appeals ruled that the way the ban is enforced is unfair, 10TV’s Kurt Ludlow reported. It all came down to two words “permit smoking.” The court ruled that if a business posts signs prohibiting smoking, and notifies customers that smoking is not allowed, then the business should not be charged with permitting smoking just because a patron is caught doing so.

A Toledo bar challenged a $500 fine it received after a Lucas County health department worker caught a patron smoking inside the bar. In the lawsuit, the Pour House of Toledo argued that they were improperly cited because they had posted signs and told patrons to refrain from lighting up. It’s notable that no one smoking in a bar has been fined as an individual. Now the state is going to have to start investigating whether the patron is smoking without the permission of the owner, or whether the owner gave permission to the patron.

Allen said he would help the state enforce the law if they paid him.  “If the state wants me to be their police officer, they should be paying me $30,000 and then I’d be happy to do it,” Allen said. Zenos Bar has not paid any of the fine money.

Media

August 20, 2009 – ONN: Smoking Ban Lawsuit Goes Before an Appeals Court

Filings

October 15, 2009: Appellate Court’s Decision