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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 Court: Cities Cannot Immediately Seize Private Property When Not For Roads

Court’s ruling places important limits on “quick-take” eminent domain power

Columbus, OH – An Ohio Court ruled that the City of Perrysburg’s attempt to immediately seize the land of eleven local homeowners exceeds its power, given the Ohio Constitution’s protection of private property rights.

The 1851 Center’s victory curtails the abuse of a practice known as “quick-take,” where governments claim to immediately own private property upon the filing of a Complaint, before any hearing or trial. While the Ohio Constitution sanctions this immense power for “making or repairing of roads,” local governments have increasingly sought to use quick-take for many other purposes.

In striking down the City’s attempt to use quick-take here, Judge Woessner of the Wood County Probate Court concurred that the practice cannot be expanded beyond roads, holding as follows:

  • “[T]he proposed appropriations are for . . . ‘other municipal purposes,’ as well as references to ‘installing pedestrian walkways and sidewalks’ as well as ‘for providing for public utilities.’ This Court finds that if the legislature intended for ‘quick-take’ procedures to extend to other areas, those other areas would have accordingly been referenced somewhere . . . They are not.”
  • “The Court further finds that expanding ‘quick take’ immediate possession of private property . . . beyond the clearly stated purpose of ‘making or repairing roads’ is not appropriate as a matter of law in appropriation/eminent domain cases. . .”

“The Court’s ruling is a victory for private property rights across Ohio,” explained Maurice Thompson, Executive Director of the 1851 Center. “Governments have increasingly been using quick-take for anything and everything, rather than just for roads, intimidating Ohioans and stripping them of their right to mount any legal objection in court. This ruling helps ensure that meritorious arguments against eminent domain will now be heard – – and that in turn means that many more eminent domain abuses will be stopped.”

The City had sought to immediately seize property for sidewalks, a bike path, and what it cryptically referred to as “other municipal purposes.” Ohio cities may still acquire property for such purposes; however the Court’s ruling clarifies that they must attempt to negotiate and agree with homeowners, rather than exercising force as a first option.

Read the Homeowners’ Motion for Judgment on the Pleadings HERE

Read the Court’s Order HERE

Ohioans Beware: State Issue 2

Proposed Constitutional Amendment would prohibit tax reform without stopping monopolies or marijuana legalization as promised

Columbus, OH – The 1851 Center for Constitutional Law took action to clarify for Ohioans State Issue 2, which will appear on the November 3, 2015 ballot.

State Issue 2, introduced as an attack on the marijuana legalization effort of State Issue 3, proposes to amend Section 1e of Article II of the Ohio Constitution to specify numerous purposes for which “the power of the initiative shall not be used.” (The “initiative” refers to the people, through submission of petitions, to place issues on the ballot). Those include granting or creating a monopoly, oligopoly, or cartel; but also include specifying or determining a tax rate.

Issues that are deemed to violate the new limits, in the opinion of the Ohio Ballot Board, will be required to win an extra election before they can be added to the Ohio Constitution.

There has been very little public debate on the issue leading up to the election, and many citizens are largely unaware of the details of proposed amendment. Accordingly, in its Policy Briefing on State Issue 2, the 1851 Center explained the following:

  • State Issue 2 is not an “anti-monopoly amendment.” The Ohio General Assembly will be left entirely free to create monopoles and rejected language that would have tied its own hands.
  • State Issue 2 precludes tax reform instead of monopolies. While Issue 2 would not stop government from creating monopolies, it would stop citizens from initiating tax reform. Ohioans would be prohibited from using the initiative to eliminate or reduce any state or local income tax, severance tax, sales tax, property tax, or other tax.
  • State Issue 2 would not preclude marijuana legalization. This issue will only override Issue 3 if it gets more votes than Issue 3, and even then, litigation is likely to preclude that effect.
  • Issue 2 is the result of a questionable political process. Only after those supporting the marijuana amendment submitted their signatures did the Ohio General Assembly spring into action, and change rules in midstream. If legislators are successful on this occasion, there is nothing stopping them from again laying in the weeds and changing the rules of the game once any citizen initiative is completed.
  • Issue 2 would allow the Ballot Board to stifle any Initiative. “The opinion of the Ohio ballot board,” without judicial review, determines whether the Ballot Board can impose additional hurdles on citizen initiatives. No standards or criteria are specified other than the Ballot Board’s “opinion.”

“The messaging behind State Issue 2 appears to be built upon the mistruths that it prevents monopolies and would stop the proposed marijuana monopoly if enacted – – neither is accurate: this issue is simply an attack on Ohioans’ initiative rights,” said Maurice Thompson, Executive Director of the 1851 Center. “Issue 2 simply proposes that legislators should have a monopoly on the power to create monopolies. This change would simply force special interests to fund politicians’ campaigns, rather than directly promoting their issues to the public.”

Ohioans appear particularly unaware that the proposed amendment would eliminate their ability to use the initiative to advance any number of issues having nothing to do with monopolies, including any effort at tax reform, since the proposal would stifle an amendment that would “specify or determine a tax rate.”

“Nationwide, it has been proven that the citizen initiative is the most effective method of reforming excessive state and local taxes, which Ohio certainly maintains. Because current political leadership has proved unwilling to tackle these problems, Ohioans will need the initiative in the future,” added Thompson

Read The 1851 Center’s Short Policy Brief on State Issue 2 HERE

Ohio Cities May Not Immediately Seize Rural Township Properties

Eminent Domain Abuse Continues as Cities Attempt to Seize Land Beyond Their Borders, Overuse “Quick-Take”

farmColumbus, OH – The 1851 Center for Constitutional Law has moved to counter the aggressive legal tactics taken by the City of Perrysburg, Ohio to immediately seize the land of eleven Ohio homeowners, including property well beyond city limits.

The homeowners’ defense take aim at abusive eminent domain practices used with increasing frequency as Ohio legislators have flooded the state with extra public funds for all types of road and transportation projects.

The first practice, extra-territorial takings, occurs when a city attempts to forcibly seize land beyond city limits, typically in a township. The second, known as “quick-take,” occurs when local governments seize homeowners’ land immediately, prior to any trial or defense.

To counter these tactics, the 1851 Center has moved for a ruling in favor of the Perrysburg homeowners, who were in late September sued by the City, asserting the following:

  • Ohio cities lack constitutional authority to use eminent domain to seize property located in an Ohio township, particularly for non-essential “urbanization” projects such as sidewalks and bike paths.
  • Ohio cities lack constitutional authority to immediately seize property through quick-take, prior to any trial or hearing, when the public project is for something other than “making or repairing roads.”
  • Ohio’s constitutional protection of private property rights is significantly greater than that of the federal constitution, requiring that all doubts be strictly construed against governments seeking to seize Ohioans’ properties.

In response to the 1851 Center’s Motion, the Wood County Probate Court Judge David Woessner on October 16 ruled “plaintiff shall not take immediate possession of defendants’ property nor begin any construction on defendants’ property pending this Court’s rulings on the issues raised in the October 14 Motion for Judgment on the Pleadings.”

“Ohioans living in rural townships would never contemplate a city government seizing their property overnight, to ‘urbanize’ and ‘update’ it, particularly when those township residents have no right to vote for or against the city officials doing the taking; there is simply no democratic accountability,” explained Maurice Thompson, Executive Director of the 1851 Center. “This practice is essentially indistinguishable from having one’s land forcibly taken by Canada, Mexico, or even worse, Michigan.”

“Likewise, situations where Ohioans’ land is taken overnight, prior to any trial, hearing, or compensation, must be minimized to the most urgent circumstances only – – not expanded as is the case here.”

Read the Homeowners’ Motion for Judgment on the Pleadings HERE.

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Federal Court: Cities’ Rental Licensing and Inspection Requirements Unconstitutional

Fourth Amendment secures property rights of landlords from unlawful searches and occupational licensing regulations in Ohio and nationwide

Columbus, OH – The Southern District of Ohio ruled that the City of Portsmouth’s occupational licensing requirements imposed upon landlords – – rental property inspections and licensing fees – – violates the Fourth Amendment to the United State Constitution.

The 1851 Center for Constitutional Law’s victory on behalf of Portsmouth rental property owners Ron Baker, Nancy Ross, Thomas Howard, and Darren Oliver means that indiscriminate and warrantless government inspections of rental properties are unconstitutional nationwide, and that unlawfully-extracted “rental inspection fees” must be returned to the rental property owners who paid them.

These property owners had long rented their property in Portsmouth without license or inspections, and their properties had never been the subject of complaint by tenants, neighbors, or others. However, the City threatened to criminally prosecute and even imprison these landlords if they continued to rent their homes without first submitting to an unconstitutional warrantless search of the entire interior and exterior of these homes.

Judge Susan Dlott, of the Western Division of the Southern District of Ohio, held as follows:

  • “[T]he Court finds that the Portsmouth [Rental Dwelling Code] violates the Fourth Amendment insofar as it authorizes warrantless administrative inspections. It is undisputed that the [Rental Dwelling Code] affords no warrant procedure or other mechanism for precompliance review . . . the owners and/or tenants of rental properties in Portsmouth are thus faced with the choice of consenting to the warrantless inspection or facing criminal charges, a result the Supreme Court has expressly disavowed under the Fourth Amendment.”
  • “The inspections are also significantly intrusive. As the Supreme Court has noted, the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’”
  • “The search inspection sheet details eighty items to be inspected throughout the entirety of the rental property. The Court thus concludes that the intrusion is significant.”
  • “Taking into account the above factors—the significant expectation of privacy, the substantial intrusion into the home, and the inefficacy of the warrantless inspections on the proffered special need—the Court finds the warrantless inspections are unreasonable.”
  • “Having determined that the Code is not saved by special needs or the closely regulated industry exceptions, the Court concludes that the Code’s failure to include a warrant provision violates the Fourth Amendment.”

Both the United States and Ohio Supreme Court have invalidated warrantless inspections of rental property, and repeatedly held that warrantless administrative inspections of business property are generally invalid, absent exigent circumstances.

Nevertheless, Ohio cities had vigorously sought to collect licensing fees from area landlords, and the warrantless searches served as the lynchpin to each of these goals. Ordinances such as Portsmouth’s Rental Dwelling Code established an absolute prohibition on renting out property within a community – – even though the landlord may have long done so and even though his or her property may be in pristine condition – – without a government-approved license that cannot be acquired without first paying a $100 annual fee per rental home and submitting to an open-ended warrantless search of every area of the property, inside and out.

“The Federal Court’s ruling victory for all property owners and tenants. Local government agents 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 a moral and constitutional right to exclude others, even government agents, from their property. Entry requires either a warrant or an emergency, and neither is present with respect to these suspicion-less rental inspections,” said Maurice Thompson, Executive Director of the 1851 Center.

“Government inspections of one’s home frequently results in arbitrary orders to make thousands of dollars worth of untenable improvements to even the most well-maintained properties. These enactments were nothing more than a set of back-door tactics to collect revenue on the backs of Ohio property owners, while attempting to chase ‘the wrong type of owners’ out of town.”

Read the Federal Court’s Order HERE

October 4, 2015: Columbus Dispatch: Rental inspections ruled unconstitutional

October 2, 2015: WDTN-TV 2: Federal judge rules Ohio city’s warrantless rental property inspections are unconstitutional

October 1, 2015: Portsmouth Daily Times: The original Portsmouth licensing fee declared unconstitutional

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Update: Amish Daughter Healthy Despite Health Care “Experts”

In this picture, taken September 24, 2015 at the Hershberger’s roadside stand — Sarah (2nd from right) with her father and four of her nine siblings.

I visited the home of Andy and Anna Hershberger to deliver the good news that the Medina County Probate Court had at long last formally terminated the guardianship it had created over their now 12-year-old daughter, Sarah.

A government hospital, Akron Children’s Hospital, sought to establish the guardianship to take Sarah from her Amish parents and seven siblings to force chemotherapy on her, even though all signs indicated that the chemotherapy itself appeared to be killing her, was certain to sterilize her, and would no doubt permanently change her life for the worse, even if she were to survive it.

The parents objected, seeking to treat Sarah’s mild form of cancer with a less invasive alternative treatment that appeared to be succeeding. It was at that time – – June of 2013 – that one of the State’s doctors testified that absent “immediate chemotherapy” Sarah would certainly be dead within six months. The court found this evidence compelling.

As the Amish community was put in touch with the 1851 Center, court battles ensued. Ultimately, those battles resulted in protecting Andy and Anna Hershberger’s fundamental constitutional right to make important health care decision for their daughter.

Two years later, having never undergone chemotherapy, Sarah couldn’t be healthier. Court records disclosed  hearing indicated the following:

  • “[Sarah] exhibits no symptoms of lymphoma”
  • “There are no reports or indications that Sarah cannot keep up with her work or her siblings on a daily basis.”
  • “Medicine is not always right, as evidenced by Sarah’s survival in the face of ‘certainty’ she would die without treatment”
  • “There is no need for Sarah’s health to be on the Court’s radar”

This case exposed the worst of the alignment between health care “experts,” Ohio’s big hospital lobby, and faulty government legislation:

  • The statute at issue, still on the books, gives Ohio judges the freedom to overrule suitable parents when they hold a differing opinion as to the “best interests of the child.”
  • Government hospitals put forth so-called experts to testify that there is only one way to treat a particular ailment, and that “one best way” must be imposed through forced health care, even over parents’ thoughtful objections.
  • Average Ohio parents lack the resources to hire an expert doctor to rebut the so-called “expert” doctor that their government is using against them (funded by their own tax dollars).
  • So long as government locks in “the one best treatment” by forcing all to comply with that protocol, medical innovation and experimentation will suffer.

Fortunately for Sarah, the Amish community is not conventional, and refused to bow to government commands. We at the 1851 Center are proud to have played a role in defending suitable Ohio parents’ moral and constitutional right to make important health care decision for their children.

But this battle continues. Ohio suffers from a cavalcade of health care “experts”, eager to deprive of us of our autonomy in light of their “certainty” that they know what is best for us.

But as this now-closed saga has proven, these experts have no skin in the game, arrogantly pontificate without fear of consequences, and are in fact frequently wrong.

Ohioans cannot afford to trust their health or their children to government expertise. We have already been swept into a system whereby we are forced to fund much of what now passes for health care in our state and nation, whether we use it or not. But the matter of whether we must be forced to use itis another matter entirely.

The Ohio General Assembly – – members of which laud health care freedom, family values, and parental choice while campaigning for office – – cannot justify maintenance of Ohio’s wide-open and highly subjective “best interests of the child” test. This test allows county judges to overrule health care, educational, and other important decisions of suitable Ohio parents. Once overruled, children can be immediately seized from their homes.

In the wake of Sarah’s case, this concept came to be known as “medical kidnapping.”

The Hershberger’s case is a lesson for all of us: we’re not as smart as we think we are. Knowledge is decentralized, and when in doubt, those closest to the situation, families (and not government experts with special designations next to their names) must make life-altering decisions.

Further, Sarah’s good health bolsters the case against forced health care that we supposedly cannot live without (literally, in this case).

It is now time for Ohio legislators to protect Ohio families from wayward judges. This can be done by reforming Ohio’s unconstitutional “best interests of the child” test.

In the meantime, Ohioans must continue to question authority.

Maurice Thompson
Executive Director
1851 Center for Constitutional Law

Watch a 2013 video on the case from Reason.tv:

reason_amish

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Proposed Amendment Will Strengthen Ohio’s Term Limits on Legislators

Columbus, OH –  The 1851 Center for Constitutional Law secured the approval necessary for a coalition of good government advocates to begin the circulation of a proposed constitutional amendment that would limit state legislators to no more than eight years in each House and twelve total years at the Statehouse.

The proposal “To Strengthen Ohio Term Limits” cleared the Ohio Ballot Board, after obtaining Attorney General certification ten days earlier. Petitions will now be circulated by a coalition of Ohioans backed by U.S. Term Limits, the organization responsible for first introducing term limits to Ohio through a 1992 constitutional amendment.

The proposed amendment will likely appear on the November 2016 ballot, so long as 304,000 valid signatures are submitted by early July of 2016.

The Amendment would provide that, in Ohio:

  • No person shall hold any combination of elected legislative offices for greater than twelve years, total.
  • No person shall hold the same elected legislative office for greater than eight years, total.
  • No person shall hold an elected legislative office if the term limits in this Amendment would forbid that person from completing the full term for that office.

The Amendment would not count years in office accrued prior to its passage.

This effort comes in response to legislators’ creation of a commission – – “The Constitutional Modernization Commission” – – to attempt to increase their own terms of office by rolling back or eliminating Ohio’s current term limits. Several legislators have indicated this to be the overwhelming purpose behind the Commission, which consists solely of legislators, former politicians, lobbyists, and political donors.

“Ohioans should be disturbed to learn that state legislators appear poised to attempt to shred the very term limits Ohioans overwhelmingly voted to place upon them,” said Maurice Thompson, Executive Director of the 1851 Center. “This Amendment will end the abusive ‘musical chairs’ practice whereby some legislators remain in power for decades, losing touch with their communities and constituents and making better connections with politically-connected interests in Columbus.”

“The longer a public official holds office, the more likely he or she is to see government as the solution to every problem, and the less likely he or she is to reform serious problems created by government. The United State Congress perfectly illustrates this.”

Members of the coalition include those responsible for passing Ohio’s original term limits on legislators in 1992, eliminating Ohio’s estate tax in 2011, and passing the Health Care Freedom Amendment in 2011.

Read the Full Text of the Amendment HERE

Read 1851 Center Op-Ed on Improving Ohio Term Limits HERE

Read further media reports on this term limits effort HERE

Obamacare in Ohio: Outcome of Wednesday’s Supreme Court Argument Will Be Pivotal

Columbus, OH – On Wednesday March 4, the U.S. Supreme Court will hear its latest challenge to the Affordable Care Act – – this time a challenge to how the President and the IRS are enforcing the law. If that challenge prevails, both the ACA’s employer mandate and tax credits to individuals will be forbidden in Ohio, because Ohio’s Health Care Freedom Amendment prohibits the state from establishing a state exchange.

Should Governor Kasich still move to establish a state based Obamacare exchange, the 1851 Center is prepared to take legal action to stop it.

The Lawsuit: King v. Burwell

The lawsuit, King v. Burwell, addresses one of the ACA’s cornerstones: the insurance exchanges created by Obamacare. More specifically, the questions revolves around the IRS’s interpretation of a provision of the law that authorizes tax credits for health insurance purchased through an exchange “established by the state.”

Section 1401 of the ACA offers health-insurance “tax credits” to certain taxpayers who enroll in a qualified health plan “through an Exchange established by the State.”

Pursuant to this Section, Obamacare creates “premium assistance,” taxes credits and subsidies, to offset the costs of health insurance premiums that all agree Obamacare causes. Essentially, these tax credits and subsidies were designed to mask the full extent of outlandish cost increases imposed on health insurance producers and consumers by the Act. However, they also comprise the bulk of the hundreds of billions of dollars in federal spending triggered by Obamacare.

When 36 states chose not to establish their own exchanges, the federal government stepped in and created federally run exchanges in those states. The IRS then extended the tax credits for insurance purchased through the federally run exchanges – an interpretation that directly violates the plain language of the law, and subjects employers in these states to the “employer mandate” – – a $3,000 penalty that is assessed each time one of its employees purchases subsidized health insurance through an exchange.

The challengers argue, quite reasonably, that the statute limits the tax credits and subsidies to state established Exchanges in a manner that is plain and unambiguous, and that the remainder of the ACA and its legislative history are fully consistent with those provisions. The Obama administration responds that the phrase “through an Exchange established by the State” includes federally established exchanges and, alternatively, that the statute is vague enough to allow the executive branch to decide whether (or not) to offer subsidies in federal exchanges.

The challengers have a high likelihood of prevailing, given the Administration’s weak arguments. If they do, insofar as the IRS has sought to provide tax credits for the purchase of health insurance in federally established Exchanges such as Ohio, its actions are contrary to law and must be set aside. This means subsidies for those using the ACA exchange would be unavailable to Ohioans, but also that Ohio employers would not be sanctioned.

A State Based Exchange: Forbidden in Ohio

On February 19, Governor Kasich indicated to Bloomberg that he was “open to” establishing an Ohio-based ACA exchange. Such an exchange would cost Ohioans millions, while spending billions to subsidize purchases of health insurance pursuant to the ACA, and imposing the otherwise-forbidden ACA employer mandate on Ohio employers.

However, with the overwhelming passage of Issue 3 in November of 2011, Ohioans created a likely-insurmountable legal hurdle to state officials implementing Obamacare in Ohio through a state-based ACA exchange.

As the 1851 Center explained in March of 2012, Ohio’s Health Care Freedom Amendment forbids the state from establishing a state-based ACA exchange. Under the Amendment, the state of Ohio may not (1) indirectly compel participation in a health care system; (2) prohibit the purchase or sale of health insurance; or (3) impose a penalty for the sale or purchase of health insurance.

Under implementation of an ACA exchange, the state would be voluntarily using state resources to attempt to do all three. For example:

  • Though establishing an exchange, Ohio would be voluntarily assuming responsibility for enforcing the individual mandate, volunteering to use state officials and resources to turn in those who may not have “minimum essential coverage” to the federal government as defined by HHS. This indirectly compels Ohioans to participate in ACA, in violation of Section (A) of the Health Care Freedom Amendment.
  • Though establishing an exchange, Ohio would be imposing the “employer mandate,” a penalty of up to $3,000 per employee that must otherwise be paid to the federal government by Ohio employers who do not provide government-approved health care insurance for their employees.

In November of 2012, Cato Institute health care policy expert Michael Cannon echoed the 1851 Center’s findings:

“operating an Obamacare exchange would violate the state’s constitution . . . In order to operate an exchange, Ohio employees would have to determine eligibility for ObamaCare’s “premium assistance tax credits.” Those tax credits trigger penalties against employers (under the employer mandate) and residents (under the individual mandate). In addition, Ohio employees would have to determine whether employers’ health benefits are “affordable.” A negative determination results in fines against the employer. These are key functions of an exchange. Ergo, if Ohio passes a law establishing an exchange, then that law would violate the state’s constitution by indirectly compelling employers and individual residents to participate in a health care system. That sort of law seems precisely what Section 21 exists to prevent.”

Case Western law professor Jonathan Adler concurred, responding to news that Governor Kasich may attempt a state-based exchange to salvage the ACA in Ohio by explaining “tax credit eligibility triggers employer mandate and slides more people to individual mandate penalty.”

This would also be true in, at minimum, all states with a Health Care Freedom Amendment or Act (including Alabama, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, Montana, Oklahoma, Tennessee, Utah, and Virginia).

Without State-Based Exchanges in Ohio and Other States: Collapse or Reform

Without state-based exchanges, Obamacare will be significantly more difficult to enforce, dramatically enhancing the probability that the Act will be “re-opened” to debate amendment or repeal.

In the interim, Ohioans who sign up through the federal Obamacare exchange would lose “premium assistance,” a taxpayer-funded subsidy/tax credit to individuals that masks the true increased costs of health insurance premiums imposed by Obamacare. Without tax credits to support the ACA’s inflated insurance costs, there may be some initial disarray for the roughly 234,000 Ohioans who have purchased subsidized health insurance through the federal exchange. (These are Ohioans who are not eligible for Medicaid, with incomes between 100 and 400 percent of the Federal Poverty Level.)

However, this federal spending will be blocked, and the clamor for repeal will be immediate if states refuse to establish exchanges. (This is because Americans would be threatened with experiencing the full effect of the cost increases imposed by Obamacare.)

Further, Ohio employers will be exempt from the damaging employer mandate.

According to 1851 Center Director Maurice Thompson, “Any state that creates an Obamacare exchange is ultimately voluntarily choosing to enforce Obamacare and its mandates and restrictions on freedom of choice, while simultaneously reducing the chance that Obamacare will repealed or rewritten.”

Thompson suggests that legal action would be appropriate to stop the exchange, should Governor Kasich move to establish one, and that the 1851 Center is prepared to take it.

Read the entire report: Does Ohio’s Health Care Freedom Amendment Prohibit it from Imposing an Obamacare Exchange?

March 4, 2015: The Plain Dealer: Obamacare case before Supreme Court could lead to chaos, advocates say

March 3, 2015: 610 WTVN: Maurice Thompson’s radio interview with Joel Riley [AUDIO]

March 3, 2015: WCBE 90.5 FM: Federal Court Case On ACA Subsidies Could Affect 235,000 Ohioans

March 3, 2015: Fierce Health Payer: Past amendments could prohibit states from establishing exchanges

March 2, 2015: National Journal: Those Obamacare Nullification Amendments Could Make a Big Comeback Post-SCOTUS