In Bond v. United States, the Supreme Court held that private individuals – not only the states – had standing to challenge federal laws as violating state sovereignty under the Tenth Amendment. In this case, a woman had been criminally prosecuted by the federal government under a statute implementing an inernational treaty regulating chemical weapons. Read more
In Arizona Free Enterprise Club v. Bennett, the Supreme Court of the United States continued its strong record of supporting political speech against governmental interference. The Court held Arizona’s system of using public funds to selectively fund campaigns unconstitutional.
On June 24, the 1851 Center filed a notice of appeal in the case of Ed Corsi, a political blogger and pamphleteer who distributed materials critical of his local elected officials. After one of those same officials sought prosecution of Mr. Corsi, the Ohio Elections Commission took up the case. The OEC concluded that because some friends and allies assisted Corsi in handing out pamphlets, the efforts of these individuals rendered them a “Political Action Committee,” even though they spent no funds in supporting or opposing candidates, and coordinated with no campaigns. Any Ohioans designated as a PAC must register with the state prior to engaging in political speech, and must comply with onerous reporting requirements.
The 1851 Center argues the law under which Corsi is being charged is not only vague in language, but violates his right to speak anonymously, is an unconstitutional prior restraint on core political speech, and violates freedom of association. Meanwhile, Ohio’s Constitution contains broad protections for speech and press that afford new media the same protections as the mainstream press.
“The right to criticize one’s government cannot be conditioned on that government’s prior permission,” according to 1851 Center Director Maurice Thompson. “Under the Ohio Elections Commission’s decision, every tea party group, every protest, and every signature-gathering or pamphleteering effort in the state is a Political Action Committee that must register with the state or face $1,000 fines, and even apolitical associations run this risk, if associating with those engaged in political speech.” Said Thompson, “This ruling isn’t an aberration – – it represents the outward limit of a corrupt philosophy that prohibits the average Ohioan from fully engaging in political debates.”
On June 2, 2011, The 1851 Center for Constitutional Law, on behalf of Relators Dayton Tea Party and Robert Scott, filed a Public Records Complaint in the Ohio Supreme Court demanding Ohio Municipal League (OML) and Ohio Township Association (OTA) lobbying records. Both organizations have used public funds to lobby:
The Ohio Municipal League is a non-profit organization that was created by city government officials, and is comprised of and funded by more than 250 cities and 680 villages. The Ohio Township Association is an association of Ohio townships whose membership contains 99.8 percent of all elected township trustees and township fiscal officers in Ohio.
Both groups exist and survive due to public funding, and invest these funds in advocacy for greater government spending, and against tax cuts and individual rights. Lately, both have heavily advocated for greater state spending on local governments and against repeal of Ohio’s worst-in-the-nation Estate Tax (80 percent of estate tax revenue is transferred to local governments).
Under the “Functional Equivalency Test” a nominally non-public Ohio entity can be subjected to the Public Records Act if it is the functional equivalent of a public office. The test’s factors include the level of government funding and the extent of government involvement or regulation.The 1851 Center argues that the OML and OTA are the functional equivalent of public offices, as both organizations were created by, are funded by, and exist to serve local governments and public officials.
While this action was dismissed by the Ohio Supreme Court without decision, The 1851 Center believes it is a continuing concern and will pursue it again in the future. Ohioans have a right to know the politically and ideologically-motivated ends to which their tax dollars are being put, and rise in opposition to those ends. Through the OML and OTA, Ohio’s local officials tax their citizens and use these tax dollars to lobby for higher taxes yet, all the while escaping scrutiny for this agenda by running it through the OML or OTA. Citizens have a right to know exactly how and why their hard-earned money is being used like this.
Gongwer: Tea Party Sues Municipal, Township Groups in Supreme Cour Over Public Records
Dayton Business Journal: Dayton Tea Party sues several Ohio groups
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This case is brought on behalf of Zeno’s Victorian Village, a family-owned Columbus tavern.
The Center argues the smoking ban unconstitutionally deprives business owners of fundamental property rights. It also argues that the state health officials’ methods while enforcing the ban exceed their constitutional authority and is at odds with the plain language of the ban.
“Irrespective of what one thinks of the merits of this law, it was never intended to result in the indiscriminate imposition of $5,000 citations on innocent business owners,” said 1851 Center Executive Director Maurice Thompson. “These enforcement complications are largely a function of trying to fit a square peg into a round hole: local taverns are not public property, and owners of these properties have a right to decide how their indoor air is used, just as potential patrons have a right to freely enter or exit.”
The 1851 Center believes this will be Ohio’s most important decision on property rights since the Ohio Supreme Court decided Norwood v. Horney in 2006, prohibiting takings of private property for economic development. “In Norwood, the Court called Ohioans’ property rights, including the right to use property, ‘fundamental’ and ‘sacrosanct,’” said Thompson. “This case will determine whether the Court really meant that.”
In September, 2009, the 1851 Center offered to defend Zeno’s pro bono, challenging the constitutionality and enforcement of the Ohio smoking ban, after the Attorney General’s office filed a lawsuit to make an example of Zeno’s. The Center sought an injunction to prevent the Ohio Attorney General from seizing Zeno’s tavern and its assets to collect on faulty smoking ban citations. The suit was part of the 1851 Center’s ongoing defense of tavern owners unfairly victimized by the state’s smoking ban.
The legal center argued Ohio’s smoking ban unconstitutionally deprives business owners of fundamental property rights. It also argued that the state health officials’ methods while enforcing the ban exceeded their constitutional authority and is at odds with the plain language of the ban.
A Franklin County Common Pleas court agreed and ruled that state and local health officials had overstepped their authority in enforcing the law. “When an individual is asked to stop smoking but refuses, liability is transferred from the property owner to the individual,” wrote Judge David E. Cain in his February 2010 decision.
The Ohio attorney general appealed the decision to the Tenth District Court of Appeals, which overturned the lower court and prompted the current appeal to the Ohio Supreme Court.
“The Health Department and its designees have and continue to exceed their limited executive branch authority when they employ a policy of strict liability for the presence of smoking against Ohio’s business and property owners,” wrote Thompson in the Ohio Supreme Court filing.
Oral Arguments were made before the Ohio Supreme Court in October, 2011; we are currently awaiting the court’s decision.
The Ohio Licensed Beverage Association, Buckeye Liquor Permit Holders Association, Ohio Liberty Council, COAST, and the Ohio Freedom Alliance filed amicus briefs with the high court supporting the 1851 Center’s position, and asking the Court to review the case.
The Supreme Court of Ohio has agreed to become the first state supreme court in the nation to determine whether a statewide smoking ban violates bar owners’ property rights. The Court has also agreed to review whether the Ohio Department of Health has consistently exceeded its authority in fining business owners under the ban.
January 4, 2011 – Legal Center Asks High Court to Accept Smoking Ban Challenge
The 1851 Center for Constitutional Law, a public interest law firm, yesterday asked the Ohio Supreme Court to make a final determination on the legality of Ohio’s state smoking ban, and its enforcement. The legal center argues that state health officials’ misguided enforcement of the law violates Ohio constitutional protections, and unduly punishes innocent business owners. Also, the center argues the law itself is unconstitutional, when applied to certain types of bars. A copy of the court filing is available here.
February 5, 2010 – State Smoking Ban Enforcement Declared Unlawful
Ohio Department of Health officials and the Attorney General have substantially overstepped their authority in enforcing the state’s smoking ban law, a Franklin County Common Pleas Court ruled. In a cased won by the 1851 Center for Constitutional Law, a non-profit constitutional rights advocacy firm, Judge David E. Cain vacated all fines against Columbus bar Zeno’s. The decision renders the state’s current enforcement of the Ohio Smoke Free Workplace Act invalid and will require government officials to readdress its tactics.
Specifically, the court determined current enforcement of the state smoking ban unduly punishes innocent business owners. In explaining the decision, Judge Cain wrote, “when an individual is asked to stop smoking but refuses, liability is transferred from the property owner to the individual.”
“Law-abiding business owners have a right to operate their establishments free from the tyranny of government officials who overstep their authority and trample personal property rights, all while in pursuit of the extraction of fees,” said 1851 Center Director Maurice Thompson. “This decision should give pause to officials who cavalierly issue $5,000 fines without regard for the negative economic impact their actions impose on law-abiding small business owners.”
WTVN 610 Bob Conners WTVN 610 Bob Conners
October 14, 2011 – Toledo Blade: Budget cut may yield weakened smoke ban
October 14, 2011 – Washington Examiner: Ohio High Court to Hear Smoking Ban Case
April 7, 2011 – Columbus Dispatch: High Court to Weigh Smoking Ban Fines
April 7, 2011 – Dayton Daily News: Smoking ban challenge to be taken up by Ohio Supreme Court
April 7, 2011 – Toledo Blade: Ohio Supreme Court to weigh ban on smoking
April 6, 2011 – Fox19: Ohio Supreme Court to review smoking ban constitutionality
April 6, 2011 – Bloomberg Businessweek: Ohio High Court to Hear Challenge to Smoking Ban
January 4, 2011 – Columbus Business First: Smoking ban detractor wants Ohio Supreme Court to weigh in
Sept 6, 2011 – 1851 Center’s reply brief
June 27, 2011 – Merit Brief filed in Ohio Supreme Court
February 22, 2010 – Trial court decision
January 3, 2010 – Motion for Jurisdiction
The Ohio House of Representatives yesterday amended Senate Bill 5 to include the “1851 Center Amendment,” a provision that would prevent state and local government from facilitating transfer of political contributions from government employees to their unions.
House Republicans added the amendment in response to the 1851 Center’s publication of “The Path Remains Clear for Ohio’s New Legislators to Separate Government Employment from Public Employee Union Politics ” released in late February.
In The Path Remains Clear, the 1851 Center shows that government unions are amongst the Top 20 contributors to political candidates, trailing only traditional political organizations such as the Ohio Democratic and Republican Parties. The 1851 Center argues that state and local governments should level the political playing field in Ohio by discontinuing this taxpayer-provided service to union politics.
Ohio previously prohibited such automatic payroll deductions. In 1998, a state court of appeals struck the prohibition on First Amendment grounds. However, in 2009, the U.S. Supreme Court explained that such scrutiny is not appropriate: “while in some contexts the government must accommodate expression, it is not required to assist others in funding the expression of particular ideas, including political ones.”
In other states, similar laws have led to dramatic reductions in political contributions to unions from government employees. In Utah, after eliminating payroll deductions for government employees in 2001, the number of teachers contributing to their unions for political purposes fell from 68 percent to 6.8 percent of all teachers and PAC contributions plummeted.
Such laws also relieve workers of burdens associated with the political atmosphere often found in the unionized workplace. The history of unionism is replete with examples of threats, coercion, and intimidation directed at workers who do not agree with union goals, policies, or tactics. Between 2000 and 2007, the National Labor Relations Board received 1325 complaints of union-sponsored threats and 546 reports of harassment.
The Amendment to Senate Bill 5 reads:
No public employer shall agree to a provision that provides for the payroll deduction for any contributions to a political action committee using any other method than the method prescribed in sections 3517.082, 3517.09, and 3599.031 of the Revised Code.
Read The Path Remains Clear for Ohio’s New Legislators to Separate Government Employment from Public Employee Union Politics in its entirety
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.”
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.
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:
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:
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
On February 22, the 1851 Center released The Path Remains Clear for Ohio’s New Legislators to Separate Government Employment from Public Employee Union Politics, a Constitutional Viewpoint on automated payroll deductions for political contributions, a service provided to public employee union members and paid for by taxpayers.
From the Overview:
As the debate on the role of government employee unions in Ohio intensifies, citizens and lawmakers shouldn’t lose sight of the prominent role that these organizations play in Ohio politics and policymaking. Nor should they overlook an immediate solution to leveling the playing field in the state: simply stop subsidizing government workers’ political contributions to their employers.
Read the full publication
In October of 2010, Mansfield-area taxpayers filed an Ohio Corrupt Activities Act complaint against Gov. Ted Strickland, Ohio School Facilities Commission (OSFC) Executive Director Richard Murray, the Laborers’ International Union of North America (LIUNA) and others. The taxpayers complained that members of the Strickland administration, organized labor, and Murray used the OSFC and school building construction contracts to engage in pattern of corrupt activities expressly prohibited under Ohio’s RICO laws.
The taxpayers charged that labor unions and Murray used bribery, intimidation, and obstruction of justice to further union financial interests, through projects funded by the OSFC, while the Strickland administration aided and abetted the conduct for its own political gain. The lawsuit sought to prohibit future distribution of state tax dollars by the OSFC to fund union-friendly “Project Labor Agreements” (PLAs) and prevailing wage-only projects.
“Project Labor Agreements” require non-union contractors to enroll their own employees as dues-paying members of a local union hall and abide by union work rules for the duration of the project. It is typically infeasible for non-union contractors to bid on projects with PLAs, which results in the elimination of competitive bidding, and drives up the costs of projects.
“Prevailing Wage” is a wage rate that is set based upon the average wage paid to union workers in a particular locality. It is typically well above the market wage rate, and its use reduces competitive bidding and drives up costs on projects.
According to the complaint, OSFC Executive Director Murray was at the center of the corrupt activity. Specifically, Murray attempted to pressure school districts, when building school buildings, into using PLAs, unduly rewarding those who do and retaliating against those who do not.
Additional allegations of bribery and intimidation by the union are corroborated in the complaint by former OSFC executive director Michael Shoemaker. The complaint alleges LIUNA was displeased with Shoemaker’s unwillingness to strong-arm school districts into using PLAs. According to Shoemaker, organized labor interests threatened Gov. Strickland that they would withhold nearly $400,000 in political contributions to the governor’s re-election campaign if Shoemaker remained OSFC executive director. Gov. Strickland then removed Shoemaker and appointed the union-friendly Murray upon the recommendation an Ohio union leader.
In 2006, LIUNA contributed over $326,000 to Gov. Strickland’s election campaign – making it his single largest political contributor. In 2010, LIUNA reportedly contributed over $500,000 to the Democratic Governors Association, which in turn spent over $1.75 million supporting Gov. Strickland’s re-election campaign.
In addition to Madison and Shelby schools, the complaint cites instances of corrupt activity by the parties in the Clay, New Boston, and Washington-Nile Local School Districts in Scioto County, and the Fremont City School District in Sandusky County.
Construction union contributions to help pass local school building levies are public records, and are available at your county board of elections.
February 24, 2011 – 1851 Victory: OSFC agrees to eliminate Prevailing Wage and Project Labor Agreements
The Ohio School Facilities Commission (OSFC) agreed to adopt Resolution 11-16, marking the conclusion of a lawsuit brought by the 1851 Center. Under the Resolution, the agency will no longer fund Ohio public school construction projects that implement Project Labor Agreements (PLAs) or Prevailing Wage (PW). The move is expected to save Ohio taxpayers tens of millions of dollars, and level the playing field between union and non-union contractors.
“The adoption of this resolution is a monumental victory for the taxpayers of Ohio, who can expect to save tens of millions of dollars now that they won’t be subsidizing inflated union wages on multi-million-dollar school construction projects, and for non-union workers, who can now compete for these contracts on a level playing field,” said 1851 Center Director Maurice Thompson. “Ohioans and non-union workers across the state should be very pleased with this outcome, and the Kasich Administration and Attorney General DeWine are commended for their cooperative approach in resolving this matter.”
The Resolution will:
The Resolution halts a practice outlined in the 1851 Center’s Complaint, whereby local construction unions would ensure the victory of a school district’s tax levy campaign to build new schools in exchange for the school district’s promise to implement union-friendly PW and PLAs.
“Higher quality schools can now be built for less, and tax levy elections in Ohio will now more accurately reflect taxpayers’ wishes, rather than construction union clout,” said Thompson.
As a result of the Resolution, the 1851 Center earlier today voluntarily dismissed its lawsuit, Oleksa v. Murray, which was pending in the Richland County Court of Common Pleas.
April 23, 2011 – Columbus Dispatch Editorial: Outline Limits
October 15, 2011 – Associated Press: Suit Against Ohio Governor Alleges Favoritism
October 15, 2011 – Gannett News Central Ohio: Lawsuit claims Strickland, Ohio School Facilities Commission engaged in corrupt activity
October 21, 2011 – Columbus Dispatch: Suit Alleges Strickland Favored Unions
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October 14, 2010 – 1851 Center’s Complaint
February 24, 2011 – New OSFC Resolution
COLUMBUS – Tax dollars have been wasted and continue to be at risk due to an unlawfully cozy relationship between the Strickland administration and labor unions, claim a group of Mansfield-area taxpayers. The residents today filed an Ohio Corrupt Activities Act complaint against Gov. Ted Strickland, Ohio School Facilities Commission (OSFC) Executive Director Richard Murray, the Laborers’ International Union of North America (LIUNA) and others. The suit will demonstrate members of the Strickland administration, organized labor, and Murray used the OSFC and school building construction contracts to engage in pattern of corrupt activities expressly prohibited under Ohio’s RICO laws. Read more