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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the Court’s Order HERE

Listen to Maurice Thompson discuss the 4th Amendment:

​Watch our video discussing this case:

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Federal Court Approves Class Action on Ohio City’s Illegal Home Inspections

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.

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Should Public Officials Be Held Liable for Violating Ohioans’ Rights?

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

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Court: Ohioans Have Right to Criticize the Performance of Public Officials

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more about the underlying Ohio Supreme Court Case HERE

Read the 1851 Center’s Class-Action Filings HERE

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Ohio High Court Rebukes School District Tax Increase

Taxpayers cheated by Indian Hill School District’s “Inside Millage Move”, by raising taxes without public vote

Cincinnati – Indian Hill School District’s property tax increase without voter permission violated state law, according to unanimous ruling from the Supreme Court of Ohio.

This decision rebuffs Ohio school districts’ efforts to take advantage of a legal loophole created in 1998, which appeared to allow such tax increases in limited circumstances, though not to collect tax revenue that the districts do not need or use, as they run considerable budget surpluses and stockpile cash reserves.

The 1851 Center for Constitutional Law asserted, on behalf of the taxpayers and homeowners of the Indian Hill School District, that the District violated state law in 2009 when it raised property taxes by 1.25 mills ($400 per year, on average, for Indian Hill households), without voter permission, while already, without the tax increase, running multi-million dollar budget surpluses and maintaining a free and clear cash reserve of over $25 million.

The case centered around Ohio Revised Code Section 5705.341, which provides “no tax rate shall be levied above that necessary to produce the revenue needed by the taxing district or political subdivision for the ensuing fiscal year,” and “Nothing . . . shall permit . . . the levying of any rate of taxation . . . unless such rate of taxation for the ensuing fiscal year is clearly required by a budget of the taxing district.”

The case also drew upon Section 2, Article XII of the Ohio Constitution, which forbids property taxation “in excess of one per cent of its true value in money for all state and local purposes,” except by approval of the voters.

Indian Hill raised taxes despite carrying an unencumbered surplus of over $25 million in its bank account at the time.

The Court’s decision, authored by Justice O’Neill, explains “far from defraying current operating expenses, the increased revenue from the outside mills padded the district’s surplus. To permit a tax increase that performs no function other than to increase the amount of budget surplus would deprive the ‘clearly required’ standard of all meaning.”

“The Court’s decision means that already-wealthy Ohio school districts cannot continue to use public budgeting gimmicks to raise property taxes without a vote. This decision protects taxpayers here and also in many other districts,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

“While running exorbitant budget surpluses and maintaining a thick bank account may echo fiscal responsibility to some, this means the school district is taking from taxpayers money that it does not need – – over-taxing them rather than allowing them to keep and use their own money for their families’ betterment.”

The 1851 Center will now litigate to recoup for the taxpayers the roughly six million dollars that Indian Hill School District wrongfully charged them between 2010 and 2014.

The Court’s Decision can be found HERE.

The Court’s Decision can be found HERE.

Oral Arguments from the case can be viewed HERE.

March 12, 2015: Cincinnati.com: Indian Hill Board stonewalls refund of inside millage tax

December 14, 2014: Sandusky Register: Court: Some schools’ inside millage moves could be illegal

December 4, 2014: Cincinnati.com: Court ruling could reduce property taxes in Indian Hill

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Legal Center to High Court: Cleveland-Area Stormwater Tax Unconstitutional

Northeast Ohio Sewer District tax on “impervious surfaces” is without legislative authorization, and is a property tax without the required voter approval

stormwaterColumbus, OH – The 1851 Center for Constitutional Law submitted to the Ohio Supreme Court its Merit Brief asserting that the Northeast Ohio Regional Sewer District, a Cleveland-Akron area administrative agency, lacks authority to regulate property in response to rainwater, which is not sewage, and even if it has such authority, may not impose a stormwater-related tax without a vote.

The Sewer District seeks to levy a tax on “impervious surfaces” on hundreds of thousands of Northeast Ohio residential and business property owners. These surfaces include roofs, patios, driveways, and parking lots, and are taxes levied based upon the square footage of each. The District maintains that this is a means of addressing rain-related erosion, run-off, and flooding.

Although such districts’ authorities often claim that settlement agreements with the federal EPA mandate such programs, such settlements mandate no particular course of action and do not permit agencies to transgress the Ohio Constitution.

Joining the 1851 Center on the Brief is the Ohio Real Estate Investors Association. Objecting to the taxes and regulations are several Cleveland-area municipalities, as well as numerous property-owner and business organizations, including the Ohio Council of Retail Merchants, Greater Cleveland Association of Building Owners and Managers, and the Cleveland Automobile Dealers Association.

The 1851 Center’s amicus brief argues that a sewer district, as an administrative agency of defined and limited powers, has no authority to impose taxes and regulations related to rainwater falling from the sky, i.e. something other than sewage. The brief further maintains that even if the agency had power to address rainwater, it may not tax property owners because the Ohio Constitution prohibits the raising of property taxes without voter approval through a tax levy election.

The 1851 Center’s brief asserts the following:

 

  • Pursuant to the Ohio Constitution, the General Assembly can only confer administrative power on an agency, and such agencies may not make policy.

 

  • The Northeast Ohio Regional Sewer District seeks to manage stormwater – – rain, essentially. The legislature, however, fully aware that it rains and snows in Cleveland, gave the Sewer District no such authority.

 

  • The Sewer District maintains no power to levy a tax without voter approval.

 

  • Although labeled a “fee,” the stormwater fee meets the legal standards of a tax because it is levied without regard to use, on certain property owners who gain no particular benefit from paying it, to advance goals that benefit the general public.

 

“Agencies like this are entirely unaccountable to the public, and this case stands for the principles that such agencies cannot take control of every facet of our lives, down to rainwater and the size of our patios, while taxing development in a manner that punishes and discourages it, with no regard to economic factors or public approval,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

“The Sewer District’s tax on impervious surfaces, including nearly every patio, rooftop, and driveway in Northeast Ohio, bares a far closer resemblance to sewage than does rainwater, and the District must consider less invasive methods to dealing with rain, which we have managed to deal with without taxation for all of human civilization.”

Oral arguments will likely take place in the fall.

Read the Amicus Brief here.

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Legal Center to High Court: Traffic Cameras Unconstitutional in Ohio

Toledo’s enforcement scheme for enforcing traffic camera infractions violates Ohio Constitution

Columbus, OH – The 1851 Center for Constitutional Law  submitted to the Ohio Supreme Court its brief in Walker v. City of Toledo asserting that the City of Toledo’s method of fining drivers under its automated traffic camera violates the judicial article of the Ohio Constitution.

Joining the 1851 Center on the Brief are 21 State Representatives and eight State Senators.

The 1851 Center’s brief argues Section 4, Article I of the Ohio Constitution requires that Ohioans’ rights and liabilities must be determined by elected judges unless the General Assembly has created statutory authority for something less than a judge.

This means that the City is required to use municipal judges to enforce the camera violations, rather than the administrative hearing officers that all cities currently use. However, these cities’ agreements with private camera corporations require the use of administrative hearing officers.

“While the issue in this case may sound like a mere procedural hang-up, we are confident that if we succeed, traffic camera violations will essentially become impossibly expensive and untenable for Ohio cities to enforce. If we win, these cameras will quickly disappear from Ohio,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

The 1851 Center’s brief asserts the following:

  • Through the Ohio Constitution, citizens vested judicial power in the courts only. And Ohio cities’ hearing officers exercise “judicial power” when they determine whether Ohio drivers are liable for the violation.
  • While the Ohio Constitution permits the Ohio General Assembly to create additional judicial power, legislators have never created blanket authority for cities, or traffic-camera specific authority. Instead, they have indicated that all such violations must run through municipal courts.
  • The City of Toledo, like other Ohio cities, cannot create judicial power through local ordinances.
  • “Administrative” traffic camera enforcement violates Ohioans’ right to defend themselves before an elected judge, as well as their due process right to judicial oversight before deprivation of their vehicles.

“At the end of the day, Due Process means that you get to see a judge before government takes your money or your car,” said Thompson. “Through these camera agreements, Ohio’s local governments are essentially selling to private corporations the right to fine their citizens and take their vehicles. We believe that it’s time to end this practice.”

The General Assembly has taken no action to enable administrative enforcement, but has instead maintained a longstanding statute requiring that municipal courts must field cases related to municipal ordinances, unless parking-related. This means that the City is required to use municipal judges rather than administrative hearing officers.

The municipalities maintain that constitutional “home rule” authority lends them the power to create judicial authorities such as the hearing officers. However the Ohio Supreme Court has rejected such a claim four times between 1925 and 1959, stating that only the General Assembly can create additional judicial officers, and violations of city ordinances must be handled in municipal courts. The Appellate Court was also unconvinced.

The Brief explains that if Ohio’s high court gives a pass to municipalities, it will be turning upside down the Ohio Constitution’s requirement that Ohioans have access to an actual judge before being deprived of their property. Toledo exacts a $120 fine, and seizes or immobilizes the vehicles of those who do not or cannot pay.

Joining the 1851 Center’s Brief is a bipartisan coalition of legislators, including State Senators Seitz, Schaffer, Jordan, Jones, Uecker, Patton, and Ecklund; and State Representatives Mallory, Adams, Maag, Becker, Lynch, Boose, Conditt, Perales, Hacket, Blair, Adams, Stautberg, Rosenberger, Dovilla, Blessing, Patmon, Beck, Reece, Hall, Derickson, and Barnes.

Read the Amicus Brief here.

March 17, 2014: WBNS-10TV: Ohio Supreme Court Could Soon Determine Fate Of Red Light Traffic Cameras [VIDEO]

March 15, 2014: Toledo Blate: State lawmakers, liberties groups oppose devices

March 14, 2014: San Francisco Gate via Associated Press: Ohio legislators, liberties groups oppose cameras

March 13, 2014: 610 WTVN: Court case could spell the end of traffic-enforcement cameras

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Lawsuit: Ohio’s Attempted Medicaid Expansion Unlawful

Governor’s end-run around the Ohio General Assembly violates the separation of powers, Controlling Board’s vote impermissibly contradicts General Assembly intent

Columbus, OH – The 1851 Center for Constitutional Law late yesterday moved in the Ohio Supreme Court, on behalf of six veteran Ohio legislators and two of Ohio’s largest pro-life organizations, to stop Ohio’s executive branch from expanding Affordable Care Act (“Obamacare”) Medicaid spending without legislative approval.

The legal action is filed on behalf of State Representatives Matt Lynch, Ron Young, Andy Thompson, Ron Maag, John Becker, and Ron Hood, and Cleveland Right to Life and Right to Life of Greater Cincinnati. These representatives and groups combine to represent nearly 1 million Ohioans.

The action asserts that in accepting jurisdiction over and passing the Governor’s proposed Medicaid spending, the Controlling Board exceeded its legal authority by acting inconsistently with the intent of the Ohio General Assembly. Specifically:

R.C. 127.17 states: “The Controlling Board shall take no action which does not carry out the legislative intent of the general assembly regarding program goals and levels of support of state agencies as expressed in the prevailing appropriation acts of the general assembly.”

The Ohio General Assembly first removed Governor Kasich’s proposed expansion of Medicaid spending from the state budget bill, and then inserted a prohibition against the expansion and spending.

Article II of the Ohio Constitution requires that the legislature, rather than administrative boards such as the Controlling Board, make major policy decisions.

In a 1980 challenge to the Controlling Board, the Ohio Supreme Court held that the Controlling Board’s authority is only constitutional because it must adhere to the intentions of the General Assembly, and because of “the availability of mandamus relief” through the High Court.

“Many competent individuals make strong arguments against Medicaid Expansion on policy grounds. Success in our lawsuit, however, will not prohibit changes to Medicaid through legitimate means. Our lawsuit stands for the simple proposition that neither this Governor nor any other is a king,” said Maurice Thompson, Executive Director of the 1851 Center.

“For government to be limited, the making of transformational public policy requires the assent of the Ohio General Assembly, and cannot be done through administrative overreach. This occasion requires Ohioans to draw a line in the sand and affirm that we’d rather not bring Washington D.C.- style decision-making to Ohio.”

The Supreme Court of the United States, in its seminal decision last July in National Federation of Independent Business v. Sebelius, explained that the spending expansion transforms a state’s Medicaid program from “a program to care for the neediest among us” to “an element of a comprehensive national plan to provide universal health insurance coverage” that “dramatically increases state obligations under Medicaid,” and is “an attempt to foist an entirely new health care system upon the States.”

Read the Complaint HERE.

October 23, 2013: Dayton Business Journal: Ohio Medicaid expansion gets legal challenge

October 23, 2013: WOSU NPR 89.7: Activists, Lawmakers Bring Promised Lawsuit Over Medicaid

October 22, 2013: Cincinnati.com: SW Ohio conservatives file suit to stop Medicaid expansion

October 22, 2013: Bloomberg: Ohio Medicaid Expansion Plan Challenged in Lawsuit

October 21, 2013: New York Times: Medicaid Expansion Is Set for Ohioans

October 21, 2013: Columbus Dispatch: Medicaid-expansion opponents plan to sue Kasich administration

October 21, 2013: 60 Seconds Ohio: Maurice Thompson answers questions following Ohio expansion of Medicaid [VIDEO]

October 14, 2013: NBC 4: Controlling Board Medicaid Maneuver May Face Legal Challenge [VIDEO]

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High Court Will Determine Ohioans Right to Challenge JobsOhio

1851 Center argues that state taxpayers maintain standing to challenge the constitutionality of Corporate Welfare

Columbus, OH – The Supreme Court of Ohio heard arguments on January 23 to determine the extent to which Ohioans may take legal action to force state government to comply with constitutional spending, indebtedness, and corporate welfare constraints.

The 1851 Center for Constitutional Law has spearheaded the litigation, briefing and arguing the merits of the position that the Ohio Constitution demands broad access to the courts for taxpayers seeking to enforce the Ohio Constitution’s structural restraints on government. The Center had originally submitted to the Ohio Supreme Court a “friend of the court” brief asserting that Progress Ohio and other left-wing challengers must be found to have taxpayer and “public interest” standing to challenge the constitutionality of Governor Kasich’s JobsOhio legislation.

The 1851 Center asserts that if Ohio’s high court gives a pass to lower court rulings that Progress Ohio does not possess standing in this case, the Court will essentially bar all Ohioans from enforcing the Ohio Constitution’s stringent spending, debt, and “anti-corporate-welfare” provisions, effectively rending these provisions unenforceable.

The JobsOhio legislation sets up a special public-private corporation to invest public funds in select private corporations without transparency. The challengers contend (1) these features violate the Ohio Constitution’s prohibitions on corporate welfare and state spending and indebtedness (contained in Articles 8 and 13); and (2) the General Assembly has unconstitutionally attempted to insulate JobsOhio from judicial scrutiny by including a provision that essentially prohibits any legal actions from being brought to challenge it.

Lower courts refused to consider these serious constitutional claims, flippantly concluding that Progress Ohio has no standing (the right to sue in Court) because it does not have a sufficiently “personal stake” in enforcement of the state constitution; and further because enforcement of the constitution’s spending, debt, and corporate welfare limits are not a sufficiently important public interest to warrant an exemption from this personal stake requirement.

The 1851 Center’s initial brief, which takes no position on the substantive issue – – the constitutionality of JobsOhio – – asserts the following:

  • The Ohio Constitution demands that citizens and taxpayers maintain standing to enforce limits on tax, spending, and indebtedness legislation.
  • The lower courts in this case erred in relying on federal standing cases, which are centered on Article III of the federal constitution, because the language of the Ohio Constitution deliberately rejects such barriers to standing in Ohio, and contains no jurisdictional prohibition on taxpayers and citizens bringing public interest actions.
  • Enforcing well-defined constitutional limits on state spending, indebtedness, and governmental conferral of special corporate privilege is “of great importance and interest to the public.”
  • Ohioans’ stake in enforcement of their constitution is sufficiently personal to maintain standing to enforce constitutional limits on state government’s spending, indebtedness, and provision of special corporate privileges.
  • If Ohioans are required to have a “personal stake” in such actions beyond their role as citizens and taxpayers, as the lower courts require in this case, then no Ohioan will have the capacity to enforce these general spending, debt and corporate welfare limits, and Courts will have rendered those provisions effectively unenforceable.

“While we may not agree with Progress Ohio’s politics, we certainly believe that they, like all Ohioans, must have standing to defend the Ohio Constitution in court, if that document is to remain enforceable,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law. “By requiring a ‘personal stake’ in a matter upon which all Ohioans are harmed relatively equally, such as state spending, indebtedness, and corporate welfare, Ohio courts are pulling the rug out from under these key constitutional limitations on government, and placing their own preference for abstaining from the hard work of enforcing the constitution above them. Such decisions cannot stand, if these important limits on government are to be enforceable going forward.”

Continued Thompson, “The Ohio Supreme Court’s decision in this case needs to acknowledge that when courts strip Ohioans’ of the right to enforce constitutional limits on government in court, they essentially redact those constitutional limits through procedural artifice. Ohio judges should enforce, not redact, the Ohio Constitution”

Read the 1851 Center’s initial Brief in this case HERE.

November 7, 2013: Columbus Dispatch: Supreme Court to decide who has the right to sue JobsOhio

November 6, 2013: WKSU NPR 89.7: Ohio Supreme Court hears first round of arguments in JobsOhio [AUDIO]

November 6, 2013: NBC 4: Foes Of Ohio Job-Creation Board Seek Right To Sue [VIDEO]

March 15, 2013: Ohio Watchdog: Court rejects basis for democracy in JobsOhio case

March 11, 2013: WBNS-10TV: Ohio Auditor Asks To See The Books For JobsOhio [VIDEO]

March 8, 2013: The Plain Dealer: Auditor’s authority to check JobsOhio books sparks dispute with Gov. John Kasich

February 26, 2013: Ohio Christian Alliance: The Important Issue of Judicial Standing with Maurice Thompson of the 1851 Law Center [AUDIO]

February 17, 2013: Dayton Daily News: ‘Activist’ Kasich getting mixed reviews

February 5, 2013: The Lima News: Editorial: JobsOhio delays irk Kasich

February 3, 2013: The Repository: Genesis of proposal doesn’t bode well for coming debate

January 31, 2013: Columbus Dispatch: Kasich says critics will answer to God

January 31, 2013: Media Trackers Ohio: Governor Kasich Blasts Conservative, Liberal Foes of JobsOhio as “Nihilists”

January 31, 2013: Columbus Business First: Kasich: JobsOhio foes threaten ‘wrecking’ state’s economy

January 31, 2013: Cincinnati.com: Kasich blasts supporters of JobsOhio lawsuit

January 23, 2013: Houston Chronicle: High court to decide group’s right to sue JobsOhio

January 23, 2013: Columbus Dispatch: State justices to assess legality of JobsOhio suit