FOR IMMEDIATE RELEASE
April 6, 2021

 

In Ashland County, ”any further attempt to enforce mask restrictions will result in further restraint of any such attempt.”

Ashland, OH – An Ohio Court late Wednesday cast doubt on the lawfulness of the state’s mask mandates, holding that the Governor and Department of Health lack authority to issue such mandates.

The decision by Judge Ronald Forsthoefel of the Ashland County Court of Common Pleas comes on behalf of 1851 Center for Constitutional Law’s client Cattlemans Restaurant in Savannah, Ohio. The Court concludes that “Plaintiffs should not be subject to any further enforcement action,” over masks due to the following:

  • “R.C. 3701.13 grants no authority to the Director of the Ohio Department of Health to issue or enforce mandatory mask orders since there is no stated or implied authority in R.C. 3701.13 which authorizes any action to prevent the spread of contagious or infections disease.”
  • “The Dine Safe Ohio Order in this case fails to accomplish anything scientifically demonstrable, or otherwise corroborated with empirical data, to prevent the spread of contagious or infectious diseases even if that purpose were authorized by R.C. 3701.13.”
  • Local health departments may not suspend restaurants’ licenses for “immediate danger to public health” arising from mask violations because such danger has not been “factually established nor scientifically demonstrated.”

“The Court’s Order is further evidence that no statute permits Ohio agencies to overregulate all Ohioans over an extended period of time, and that if one did, it would violation the Ohio Constitution’s separation of powers,” explained 1851 Center Executive Director Maurice Thompson. “The decision provides a roadmap for elected officials in other counties, who ultimately maintain the power to protect their citizens from the State’s arbitrary and continuous administrative overreach, since virtually all enforcement of these orders is undertaken locally.”

The Court’s reasoning arises while addressing procedural, jurisdictional, and timing issues in a case that ultimately resulted in an injunction forbidding the county’s health department from suspending food service operations licenses in response to restaurant employees not wearing masks.

The Ashland County Health Department had suspended Cattlemans business license for mask violations in July of 2020, but the 1851 Center won a Temporary Restraining Order permitted the Restaurant to open the next week.

Read the Read the Court’s Order here.

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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.

FOR IMMEDIATE RELEASE
March 24, 2021

 

Ohio General Assembly adopted key 1851 Center recommendations, but other than leveling legal playing field, leaves Governor and ODH unchecked

 

Columbus, OH – In overriding the Ohio Governor’s veto and enacting Senate Bill 22, the Ohio General Assembly codified several 1851 Center recommendations that will benefit Ohioans.

Upon the 1851 Center’s advice and request, the Ohio House of Representatives added the following safeguards to House Bill 90 before rolling that Bill into Senate Bill 22:

  1. Reining in Local Health Department Authority: Past General Assemblies had granted local health department breathtakingly-broad powers. SB22 universally addresses these hidden landmines by (1) limiting “quarantine and isolation” powers to use on only those “who have been medically diagnosed with the disease or have come in direct contact with someone has been medically diagnosed;” and (2) requiring local administrative orders to “apply only to specific persons” and forbidding “any order or regulation that applies to a class of persons.”
  2. Access to Justice in One’s Home County: The Governor and Health Department employed questionable legal tactics to move all legal challenges to pandemic orders to either Franklin County or the Court of Claims in Columbus. SB22 vests Ohioans with the right to challenge pandemic orders in their home counties before their own elected judges.
  3. Access to Legal Representation to Challenge Pandemic Orders: While many state and federal provisions require government to compensate someone who has successfully vindicated his constitutional rights in court, no such provision applied when Ohioans challenged the constitutionality of pandemic orders, leaving many Ohioans (already cut off from their incomes) without the ability to acquire legal representation to protect their rights. SB22 requires the State to pay “reasonable attorneys fees” to those who “successfully challenge an order or rule.”
  4. Preclusion of Shifting Justifications for Administrative Power: After the 1851 Center won several lawsuits challenging the constitutionality of R.C. 3701.13, the State began claiming that its authority actually arose from a different statute. SB22 closes this loophole by applying its limits to all like-kind statutes.
  5. Preclusion of Gamesmanship, Should the General Assembly Act: The original version of the Bill failed to prevent the Governor from simply re-enacting a restriction invalidated by the General Assembly through pretextually labeling the restriction differently. SB22 closes this loophole by forbidding “the reissuance of any restriction contained in the rescinded special or standing order or rule.”
  6. Addition of a “Severability Clause”: SB22 ensures that even if one provision within the Bill is “held invalid, the invalidity does not affect other items of law contain this act.”  This means that the 1851 Center’s recommended policies will endure even if the General Assembly’s other reforms face legal headwinds.

In addition to safeguards recommended and/or written by the 1851 Center, the Bill contains the following limits:

  • A declared “State of Emergency” may not last longer than 90 days, meaning the Governor’s emergency rulemaking authority also expires with 90 days.
  • The General Assembly maintains the power to terminate the “State of Emergency” Declaration after 30 days, thus cutting the Governor’s emergency rulemaking authority to 30 days as well.
  • The General Assembly maintains the power to rescind any pandemic-related administrative rule and order through adopting a resolution doing so.

“It’s unlikely that the General Assembly will ever rescind a rule or order or terminate a state of emergency, and the reform bill leaves the Governor and Ohio Department of Health nearly as unchecked as they have been over the past year, meaning that the legislative branch has essentially passed the buck to the judicial branch to protect Ohioans,” explained 1851 Center Executive Director Maurice Thompson.

“However, we appreciate the General Assembly leveling the playing field for Ohioans who need to vindicate their rights in Ohio courts, and we look forward to carrying on that fight, now that the State’s gamesmanship has been put to rest. We are also pleased to be able to concentrate our efforts on Ohio’s Governor and Department of Health, with local health departments now appropriately disarmed.”

Read the Read the 1851 Center’s February 16, 2021 Recommendations to the House here.

Watch the 1851 Center’s Testimony on the Bill:

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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.

FOR IMMEDIATE RELEASE
March 19, 2021
 
Top Ten Takeaways from Government Discovery Responses

Columbus, OH – Recent discovery responses provided by the Ohio Department of Health suggest that even after a full year, the Department remains unable to provide evidence justifying its “Stay at Home Orders.”

On March 22, 2020, the Ohio Department of Health issued its “Director’s Stay at Home Order,” prohibiting “non-essential” businesses and activities. Soon thereafter, the 1851 Center for Constitutional Law commenced litigation to challenge the lawfulness of these orders, winning several cases.

In June, the 1851 Center won a preliminary injunction prohibiting the state from forbidding the opening of amusement and water parks, including Kalahari Resorts, Cedar Point, and Kings Island. But only recently has the Department of Health responded to the 1851 Center’s Interrogatories (questions required to be responded to under oath during the course of litigation), posited on behalf of Kalahari Resorts.

Those Interrogatory Responses display that the State remains unable to provide evidence supporting it policies, failed to track relevant data, and was at time outright bluffing the public:

  1. Though clearly erroneous, Department of Health (“ODH”) stands by the Ohio Attorney General’s April of 2020 misrepresentation to a federal court that the Orders were justified because “approximately 29 percent of confirmed cases of Covid-19 result in hospitalizations and approximately 4 percent of confirmed cases result in death.”  See Interrogatories 10, 20.
  2. ODH still maintains no evidence that “non-essential” businesses and activities increased the risk of Covid-19 harm, other than what ODH now calls its own “rational speculation;” and the Department cannot identify a single instance of Covid-related harm caused by any Ohio “non-essential business.”  See Interrogatories 3, 5, 7, 11, 28 (“Defendant is unaware of any evidence displaying that Plaintiffs’ operations uniquely increase the harm resulting from Covid-19”).
  3. The only evidence ODH proffers in support of the proposition that the “Stay at Home” Orders “reduced serious harm” is that the number of cases within the State never reached the numbers supplied through then-Director Acton’s self-described “guestimates,” more formally known as “curve-flattening models.”  See Interrogatories 6, 27.
  4. Despite claiming that its regulations were driven by “hospital capacity,” “ICU bed occupancy,” and “hospital staffing capacities,” and a desire to avoid “overwhelming” those capacities, when under oath, ODH concedes that it maintains no metric or benchmark as to what constitutes “overwhelming,” and “no information” as to the capacities of Ohio hospitals. See Interrogatories 22, 25, 31, 32.
  5. Despite being unable to provide any evidence that Ohioans’ “non-essential” businesses or activities ever posed a risk, ODH, the Governor, and the Attorney General continue to deride those Ohioans wishing to open and operate as an “apparent desire to elevate profitability over the health and lives of its employees and patrons.” See Interrogatory 19.
  6. ODH continues to insist with certainty that “the non-essential business restrictions did not cause any public or private health harm or economic harm.”  See Interrogatory 34.
  7. In assessing the risk of Covid-19 to the general public, ODH concedes that it failed to track any data related to the coincidence of hospitalizations or deaths with co-morbidities such as obesity, and relied solely on death certificate date to determine the number of deaths proximately caused by Covid-19. See Interrogatories 37, 38.
  8. The only evidence ODH offers in support of the effectiveness of its mask and curfew policies, given that cases, hospitalizations, and deaths increased after those policies were enacted, is “evidence of reduced cases, hospitalizations, and deaths occurring after mask and curfew orders went into effect,” while conceding elsewhere that “it is not surprising that daily cases [after the mask mandate] continued to increase.”  See Interrogatories 12, 17.
  9. ODH refuses to disclose to Ohioans, when under oath, who writes or reviews its pandemic orders or even the “process by which these orders are drafted and codified,” citing “attorney-client privilege.”  See Interrogatory 18.
  10. The end-date of the pandemic in Ohio will be determined by the Governor alone, rather than by “public health experts.”  See Interrogatory 33.

“Recent discovery responses plainly illustrate that the Governor, Attorney General, and Department of Health – when required to justify their policies under penalty of perjury – are unable to provide any factual evidence that Ohio’s lockdown policies either worked or were justified,” explained 1851 Center Executive Director Maurice Thompson. “The lesson is that Ohioans ought to remain skeptical and resistant, rather than reflexively trusting, when public officials insist a restriction on their liberty is necessary to counteract a risk to health or safety.”

Read the State’s Interrogatory Responses here.

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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.

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.

 

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:

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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:

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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.

Court considers whether Secretary of State Jon Husted should be required to compensate Ohioans whose First Amendment rights he violated

Cincinnati, OH – On Thursday, December 10, the Sixth Circuit Court of Appeals heard oral arguments on whether government officials must reimburse the victims of their unconstitutional conduct for the costs and expenses imposed by that conduct.

In late 2013, federal judge Michael Watson sided with the 1851 Center in Citizens in Charge v. Husted, determining that a “residency requirement” reenacted through Senate Bill 47 violated Ohioans’ First Amendment rights by prohibiting them from working with out-of-state petition circulators on their initiative. Thereafter, the Ohio Attorney General insisted that the Secretary of State Husted was nevertheless “immune” from damages for the harm he imposed on a conservative pension reform effort in Cincinnati.

In March, Judge Watson denied the plea for immunity, explaining that Mr. Husted may indeed be liable for the harm he inflicted because the plaintiffs’ constitutional rights were “clearly established,” and any reasonable public official would have known that the residency requirement was unconstitutional (the same requirement had been held invalid in 2008).

The Attorney General appealed, even though Mr. Husted does not deny that he violated Ohioans’ rights. Instead he claims that, as a government official, he should be absolutely immune from personal liability when enforcing statutes enacted by the legislature, irrespective of their constitutionality.

The parties filed briefs, and on December 10, the 1851 Center argued that government officers should be personally liable, rather than “immune,” when they violate Ohioans’ clear constitutional rights.

“Public officials should be held accountable for the harm they inflict when violating Ohioans’ rights, not their innocent victims,” according to Maurice Thompson, Executive Director of the 1851 Center. “If public officials from the governor down through the police know that they will be liable for enforcing an unconstitutional law, they are far more likely to take Ohioans’ constitutional rights seriously. We would like to end the ‘I don’t make the law; I just enforce it’ mentality that many public officials use to escape liability for the harm they cause.”

If the State prevails in its appeal, public officials – whether police, bureaucrats, or politicians – may well be authorized to violate Ohioans’ rights without consequence.

Capital elections law professor Mark Brown is supporting the 1851 Center’s position with an amicus brief, while Ohio State elections law professor Daniel P. Tokaji has called denial of immunity here “dead-on right,” explaining “[s]ome qualified-immunity cases are difficult. Not this one.”

The oral argument occurred at 9:30am on Thursday December 10. You can listen to the archived oral argument HERE

Read the 1851 Center’s Appellate Brief HERE

Read media reports on this case HERE

Maple Heights Mayor sued to silence local bloggers for “defamation” and “emotional distress,” and violated their right to free speech in doing so

Columbus, OH – An Ohio Court late Friday dismissed the case of a Cleveland-area Mayor who sued a local family for “an amount in excess of $25,000” after they questioned his job performance on their blog.

The 1851 Center for Constitutional Law’s victory on behalf of Bill and Lynde Brownlee, husband and wife, and their small-town news website, Maple Heights News, reaffirms the principle that citizens’ criticisms of their government officials cannot be silenced when those officials file lawsuits for “defamation” and “intentional infliction of emotional distress,” as Mayor Jeff Lansky had attempted here.

The ruling should provide considerable help to both mainstream news outlets and alternative politically-minded journalists and organizations.

The Brownlees had written a short web article in the summer of 2014 questioning whether the Mayor had kept all of his campaign promises, and further questioning his tax and spending policies. The article strictly addressed the Mayor’s policies, and did not use insulting or harsh language.

In a 27-page Judgment Entry affirming that Ohio public officials cannot prevail in lawsuits merely in response to political speech, Judge Jose Villanueva of the Cuyahoga County Court of Common Pleas held as follows:

  • “Public discussion of public officials is a fundamental principle of the American form of government, and thus a primary purpose of the First Amendment is to encourage self-government by permitting comment and criticism of those charged with its leadership.”
  • “Expressions of opinion are generally protected under Section 11, Article I of the Ohio Constitution as a valid exercise of freedom of the press [and] an alleged defamatory statement is not actionable if the statement constitutes political opinion speech protected by absolute immunity.
  • The statements were obviously opinion because “the Article is labeled ‘editorial’ and appeared in the ‘editorial’ section of a Website created for the avowed purpose of giving voice to the residents of Maple Heights. . . labeling a statement as ‘editorial’ puts readers on notice that the statements constitute the writer’s opinions.”
  • “A reasonable reader would arguably understand the Article as an opinion piece critiquing events in the city during the Mayor’s current term . . . This type of statement is not actionable in defamation.”
  • As to the Mayor’s “emotional distress” claim, “the defendants’ conduct in writing and publishing an Article constituting political commentary does not rise to the level of conduct necessary to prove [that claim].

The Court further explained that Ohioans are free to share their own conclusions about whether a particular official is ultimately responsible for certain bad outcomes, irrespective of whether that conclusion is technically correct: “It is not unreasonable to attribute actions or events that occur during a Mayor’s administration directly to the Mayor, despite the fact that others were also involved in carrying out the actions or events . . . and the Brownlees reasonably believed that the events and actions discussed in the Article could be attributed to Mayor Lansky. . . Merely because Mayor Lansky disagrees with their interpretation of the facts does not amount to actual malice.”

“When voicing their concerns over elected officials’ performance, Ohioans should not be bullied into silence for fear of an expensive lawsuit,” explained Maurice Thompson, Executive Director of the 1851 Center. “The right to criticize an elected official’s poor performance is, as a necessary first step to those officials’ removal from office, the highest, best, and most constitutionally-protected form of free speech. It should be encouraged, rather than suppressed.”

To emphasize the need to deter such lawsuits in the future, the 1851 Center’s defense of the Brownlees includes a counterclaim to declare Mayor Lansky a “vexatious litigator,” and seeks sanctions against both the Mayor and his lawyer, Brent English, who was recently arrested for frivolous litigation elsewhere. The Court indicated that separate hearings would now be held on those matters.

One prominent undercurrent to the case concerns whether political comments on citizen websites are entitled to the same level of protection as mainstream newspaper, television, and radio media. The Court stressed that under the Ohio Constitution, which is more protective of free speech, “internet” speech is almost always likely to be viewed as “opinion,” and therefore immune from lawsuits for defamation and emotional distress. The Ohio Constitution guarantees “[e]very citizen may freely speak, write, and publish his sentiments on all subjects,” and “no law shall be passed to restrain or abridge the liberty of speech, or of the press.”

Read the Court’s Order 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