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

Rampant Eminent Domain Abuse Continues Throughout Rural Ohio; However, Ohioans Have Legal Defenses

Columbus, OH – The 1851 Center for Constitutional Law  moved to counter the aggressive legal actions taken by Texas Eastern Transmission, a private Texas pipeline corporation, against Ohioans Roger and Lana Barack of Belmont County, alongside hundreds of other Ohio landowners.

The Barack family’s opposition takes aim at abusive eminent domain practices frequently used by private out-of-state corporations to seize Ohioans property by force, and without legitimate compensation.

More specifically, the 1851 Center’s opposition asserts the following:

  • Recent federal court decisions reaffirm and revitalize the principle that Congress may not delegate its power, including the power to seize property, to purely private companies: taking of Ohioans property without sufficient government oversight is unconstitutional.
  • Government agencies must provide Ohio landowners with notice of any hearings that may result in government permission allowing the seizing of their properties. In this case, the Federal Energy Regulatory Commission (“FERC”) failed to notify Ohioans of the proceedings affecting their properties.
  • Federal approval of a pipeline route does not mean that private pipeline companies may immediately seize Ohioans private property: the Ohio Constitution prevents “quick takings” other than in the case of roads and emergencies. Even with federal approval, pipeline companies must abide by the Ohio Constitution.

“While we fully support energy development in eastern Ohio, that development does not preclude Ohioans’ property rights – – through an unholy alliance of government and big business, both state and federal statutes claim to authorize private pipeline companies to take Ohioans property. However, Ohioans should know that even in the case of federally-approved pipelines, they maintain important constitutional rights protecting their property: in many cases, private pipeline companies altogether lack the eminent domain authority they claim to have; and even where such authority may be legitimate, these companies may not immediately seize Ohioan’s properties,” explained Maurice Thompson, Executive Director of the 1851 Center.

“Simply asserting the proper defenses can force pipeline companies to choose a pipeline route that goes around objecting landowners properties, or for enterprising Ohioans, raise offers for their land by hundreds of thousands of dollars.”

Section 19, Article I of the Ohio Constitution protects property rights above and beyond the federal baseline protections, forbidding takings that are not for legitimate “public use,” and forbidding immediate takings, other than in limited circumstances.

Read the Landowners’ Opposition to the Pipeline Company’s “Motion for Immediate Possession” HERE.
January 23, 2015: Sandusky Register: Public events announced on proposed gas pipeline

January 15, 2015: Natural Gas Intel: Ohio Couple Fighting Eminent Domain For Tetco Project

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

Maple Heights Mayor sues to silence local bloggers for “defamation” and “emotional distress,” violating their right to free speech; 1851 files countersuit

Columbus, OH – The 1851 Center for Constitutional Law  moved to dismiss a lawsuit filed by the Mayor of Maple Heights, Ohio, Jeffrey Lansky, against a husband and wife who questioned the Mayor’s policies through their blog, Maple Heights News.

The action, filed in the Cuyahoga County Court of Common Pleas, comes in response to the Mayor’s September Complaint alleging “defamation” and “emotional distress,” and demanding $25,000 in damages from the Brownlees. This is the fourth defamation-type action that Mayor Lansky has filed against his political opponents.

This latest lawsuit attacks an editorial article Lynde Brownlee authored in July suggesting that the Mayor’s record had failed to live up to his 2011 campaign promises on a number of fronts. The article strictly addresses Mayor official conduct, and does not use insulting or harsh language.

The Brownlees are defending themselves with the First Amendment, while also relying on the additional free speech protections offered by the Ohio Constitution, guaranteeing “[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.”

The lawsuit stands for the following well-established constitutional principles:

  • Political speech regarding a public official’s policies is constitutionally protected, especially when those statements are opinions.
  • Even factually false criticisms of public officials are constitutionally protected, when honest mistakes, since political critiques cannot objectively impose damages or distress on a public official.

The 1851 Center’s defense of the Brownlees further counterclaims to declare Mayor Lansky a “vexatious litigator,” and seeks sanctions against both the Mayor and his legal counsel.

“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.”

The Brownlees write about community affairs in their small town, a suburb of Cleveland, at www.MapleHeightsNews.org. One prominent undercurrent to the case concerns whether political editorials on citizen websites are entitled to the same level of protection as mainstream newspaper, television, and radio media.

Read the Bloggers Motion to Dismiss HERE.


December 12, 2014: Ohio Watchdog: Group wants Ohio mayor labeled ‘vexatious litigator’ for suing adversaries

Justice French ruled for Constitutionally Limited Government in Zero of Eight Critical Cases, Justice Kennedy in Five of Eight

Columbus, OH – The 1851 Center for Constitutional Law shared research previously prepared for various citizen groups demonstrating that (1) Ohio Supreme Court Justice Judith French ruled for constitutionally limited government on zero of the eight critical occasions examined, while Justice Sharon Kennedy has ruled so on five of those eight occasions; and (2) Justice French has ruled in favor of her top 20 campaign contributors, when they have appeared before her, 91 percent of the time, while Justice Kennedy has ruled so 88 percent of the time.

The findings are prepared in response to citizen inquiries that have arisen as citizens are attempting to educate themselves on judges prior to the election.

“The Ohio Constitution is more protective of rights than the federal constitution, but Ohio’s judges aren’t enforcing it as such,” said Maurice Thompson, Executive Director of the 1851 Center. “We shouldn’t have to go to federal court every time we are serious about enforcing limits on government, or afraid that we will face a politically-connected opposition; but our high court will only improve if Ohioans are sufficiently educated on it.”

Justice French was appointed by Governor Kasich to replace the retiring Justice Stratton in late 2012. A summary of the 1851 Center’s findings regarding her rulings for and against constitutionally limited government and her rulings’ alignment with her top campaign contributors, are as follows:

  • Justice French has ruled in a manner consistent with the protection of constitutional rights, advancement of liberty, and limiting of government in zero of the eight critical decisions identified.
  • Justice French has been highly unlikely to check abuse by state or local governments or powerful interest groups when given the opportunity, and this is consistent with her expressed philosophy of placing her personal views of judicial restraint and majority power above constitutional limits on government.
  • Top campaign contributors to Justice French appeared before her, directly as parties to the case, amicus curiae parties, or legal counsel for parties, on 43 occasions. Justice French ruled in favor of her top contributors on 39 of those occasions, or 91 percent of the time.
  • By comparison, fellow Republican Justice Pfeifer, who does not receive large campaign contributions, ruled in favor of Justice French’s top contributors in these same instances on only 21 of 41 occasions, or 51 percent of the time.
  • By comparison, Democrat Justice William O’Neill, who does not receive large campaign contributions, ruled in favor of Justice French’s top contributors in these same instances on only 26 of 43 occasions or 60 percent of the time.
  • Justice French ruled in favor of the law firms who made major contributions to her on 22 of the 24 occasions upon which they appeared before here, or 92 percent of the time.

Justice Kennedy defeated Justice Yvette McGee-Brown in late 2012. A summary of the 1851 Center’s findings regarding her rulings for and against constitutionally limited government and her rulings’ alignment with her top campaign contributors, are as follows:

  • Justice Kennedy ruled in a manner consistent with the protection of constitutional rights, advancement of liberty, and limiting of government in five of the eight critical cases identified.
  • Justice Kennedy has been highly likely to check abuse by local governments when given the opportunity.
  • Justice Kennedy has been unlikely to check abuse by the executive branch of state government and the powerful hospital lobby, when given the opportunity, and this somewhat differs from her expressed opposition to “government intrusion.”
  • Top campaign contributors to Justice Kennedy appeared before her, directly as parties to the case, amicus curiae parties, or legal counsel for parties, on 41 occasions. Justice Kennedy ruled in favor of her top contributors on 36 of those occasions, or 88 percent of the time.
  • By comparison, fellow Republican Justice Pfeifer, who does not receive large campaign contributions, ruled in favor of Justice Kennedy’s top contributors in these same instances on only 19 of 40 occasions, or 48 percent of the time.
  • By comparison, Democrat Justice William O’Neill, who does not receive large campaign contributions, ruled in favor of Justice Kennedy’s top contributors in these same instances on only 24 of 41 occasions or 59 percent of the time.
  • Justice Kennedy ruled in favor of law firms who made major contributions to her on 26 of the 30 occasions upon which they appeared before her, or 87 percent of the time.

As to issues, the 1851 Center’s findings demonstrate that when presented with the opportunity on critical cases of constitutional principle, Justice Kennedy supported religious liberty, free speech, property rights, government transparency, and political association and speech. In the same cases, Justice French opposed these principles.

Meanwhile both Justices, when presented with the opportunity, supported unilateral Affordable Care Act Medicaid Expansion by the Governor, supporting forced health care by state hospitals, refused to support parental rights to make health care decisions for their children, and supported citizen-taxpayer standing to enforce the structural limits on government.

As to the alignment “while we have observed what we view as some irregularities over the past few years, and expected to find a correlation between campaign contributions and case outcomes. We did not expect the correlation to be so stark,” added Thompson.

The 1851 Center analysis attempted to explain away this correlation by controlling for ideological alignment (i.e. “pro-business” views) and by comparing Justices French and Kennedy’s rulings with those of Justice Pfeifer (Republican) and O’Neill (Democrat), neither of whom accept significant campaign contributions. However, the analysis demonstrates that rate of rulings in favor of non-ideologically-aligned donors, such as law firms, are just as high. Meanwhile, Justices Pfeifer and O’Neill both vote for these same contributors significantly less frequently.

Thompson concluded “at this time, we don’t have an explanation for the high correlation; but we hope the Justices do. They should explain this rate to the public with something other than ‘we just call it as we see it.'”

Read The 1851 Center’s full research memorandum is available HERE.

Important Disclaimers: The 1851 Center for Constitutional Law does not support or oppose candidates, and nothing in this publication or elsewhere should be construed as an endorsement of or opposition to any candidate. We recognize that this research is released close to an election; however this is to collect the maximum number of data points, including very recent contributions to campaigns and decisions by the Ohio Supreme Court. We also recognize that we have not analyzed the records of the two Justices’ opponents; this is because we are institutionally committed to focusing on judicial incumbents with record that permit analysis – – neither challenger has a record as an appellate judge. We express no opinion on those merits of those opponents.

December 22, 2015: Cincinnati.com: Opinion: Red-light camera ruling a fail

1851 Center argues that Indian Hill School District violated state law by raising property taxes without a vote, while already running huge budget surpluses and maintaining extravagant cash on hand

supremecourtColumbus, OH – The Supreme Court of Ohio on Tuesday heard oral arguments on whether Ohio school districts need voter permission to raise property taxes that collect tax revenue that the districts do not need or use, even as they run considerable budget surpluses and stockpile cash reserves.

The 1851 Center asserts, on behalf of the taxpayers 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 centers 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 draws 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.

“If Indian Hill – – Ohio’s wealthiest school district – – can use public budgeting gimmicks to raise property taxes without a vote, then any school district in Ohio will be able to follow suit. A victory in this case is important to protecting taxpayers here and also in many other school districts,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

“Running exorbitant budget surpluses and maintaining a thick bank account may echo fiscal responsibility to some; however, 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.”

Watch the oral argument HERE.

The Ohio Supreme Court previews the argument HERE.

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.

1851 Center amicus brief maintains that political class uses elections commission and its regulations to attack grass-roots citizen activity

Columbus, OH – The United States Supreme Court heard oral arguments on Susan B. Anthony List v. Driehaus – whether Ohioans can stop the enforcement actions of the Ohio Elections Commission, and further, whether regulations prohibiting “false statements” regarding “public officials” or “candidates” violate the First Amendment to the United States Constitution.

Elections Commissions actions are often filed by well-heeled political veterans such as incumbents and well-financed campaigns, to intimidate and squelch the speech of political rivals and dissenters. These legal actions are often effective, since political novices with little money are unable to travel to Columbus and hire a lawyer to defend themselves at multiple lengthy Commission hearings.

The 1851 Center for Constitutional Law filed an amicus curiae brief in this case on behalf of numerous Ohioans who have been frivolously forced to appear before the Commission to defend their political speech.

The 1851 Center Brief explains and argues as follows:

  • “Ohio’s Statute allows a politically-interested party to file a complaint against another, no matter whether the respondent’s speech is true or not,” meaning that “Ohioans have consistently faced commission hearings and even potential fines and criminal penalties in response to clearly-protected core political speech.”
  • “Ohio maintains an administrative scheme that, on the premise of policing only intentionally false speech, subjects political speech to harassment.”

The brief recounts Ohio cases where Congressman Pat Tiberi’s affiliates filed an action to silence a primary opponent who was mocking his voting record; where Congressman Latta filed an action to silence those indicating that he “has a record of supporting higher taxes”; where a favored candidate who lost a township trustee election sued those who chatted on Facebook about whether the candidate was a “pornographer”; where a powerful ballot issue effort sued a citizen who criticized a government light rail plan as “one of the worst plans in the country”; where a township trustee alleged that his opponent was not truly an “organic” farmer; and numerous cases where upstart local candidates simply omitted the word “for” in their campaign literature (“John Smith, Treasurer” vs. “John Smith for Treasurer”).

“A common question asked regarding this case is whether the 1851 Center and others are defending a ‘right to lie.’ The answer is ‘no.’ Our efforts here are aimed at defending Ohioans from a panel of state government bureaucrats empowered to arbitrate what is true and what is false, in the realm of political debate,” according to Maurice Thompson, Executive Director of the 1851 Center.

“Our view, based on our experience litigating these type of cases, is that a government Commission cannot be trusted to accurately distinguish true political speech from false speech; and further, citizens need breathing space to criticize public officials, without concern that those officials will turn around and sue them for cavalier statements.”

“The Supreme Court has repeatedly confirmed that “in the free society ordained by our Constitution, it is not the government, but the people individually as citizens and candidates who must retain control over the quantity and range of debate on public issues.”

In addition to the 1851 Center’s amicus brief, 1851 Center Chairman Bradley Smith has filed an amicus brief, and 1851 Center Board Member Christopher Finney is amongst the attorneys challenging the statute.

Tune in for the oral argument live, at 10:00am on Tuesday April 22, or listen to the archived oral argument later, HERE.

Read the 1851 Center’s Amicus Brief HERE.


April 22, 2014: WSPD AM 1370: Constitutionality of Ohio Campaign Law Heard By Supreme Court

April 22, 2014: WBNS-10TV: U.S. Supreme Court To Determine Whether Ohio Candidates Can Lie

Legal Center moves to protect property rights of landlords from unlawful searches and licensing regulations in Mt. Healthy, Ohio

Columbus, OH – The 1851 Center for Constitutional Law moved in federal court to immediately enjoin Ohio municipalities, and the City of Mt. Healthy in particular, from enforcing new “Rental Permit Programs” that require small landlords to undergo warrantless inspections, pay permit fees, and obtain a license simply to continue renting their houses to tenants.

Such municipal ordinances, such as the Mt. Healthy ordinance which became effective in March, in addition to restricting Ohioans’ property rights, subject property owners and tenants to open-ended warrantless searches that violates the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution. Further, the Rental Permit Program discriminatorily applies only to single family homes, and not to multi-family residences, such as apartments.

The legal action is filed on behalf of four rental property owners and one tenant, all in the City of Mt. Healthy, Ohio, which is located just outside of Cincinnati in Hamilton County. These property owners have long rented their property in Mt. Healthy without license or inspections, and their properties have never been the subject of complaint by tenants, neighbors, or others.

The City has threatened to criminally prosecute and even imprison these landlords if they continue to rent their homes without first submitting to an unconstitutional warrantless search of the entire interior and exterior of these homes.

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 have vigorously sought to collect licensing fees from area landlords and find cause to impose fines, and the warrantless searches serve as the lynchpin to each of these goals.

Ordinances such as the Mt. Healthy Rental Permit Program establish an absolute prohibition on renting 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 the property, inside and out.

The lawsuit seeks to restore Ohio small business owners’ freedom from warrantless searches without probable cause. In doing so, the 1851 Center’s Complaint explains the following:

  • Searches of homes, even when business property to the owner, require a warrant, and warrantless searches violate Ohioans’ Fourth Amendment rights.
  • Even if a city were to seek a warrant to insect a rental home, in the absence of serious complaints about the property or an emergency, regulatory schemes such as rental permit programs do not allow cities to seek and obtain warrants to search homes.
  • Licensing fees that are designated for the purpose of conducting unconstitutional searches are also unconstitutional, and cities cannot require their payment.

“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 suspicionless 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. 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 even the most basic human arrangements.”

Read the Rental Property Owners’ Complaint HERE.

Read the Rental Property Owners’ Motion for Preliminary Injunction HERE.

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