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.”
Opponents of the estate tax and government spending growth said Thursday they are asking the Ohio Supreme Court to declare that two groups of township and city officials are “the functional equivalent” of public offices and should be required to abide by the public records law.
The Dayton Tea Party filed a complaint asking justices to order the Ohio Municipal League and the Ohio Township Association to release policy and financial records related to their legislative lobbying against repeal of the estate tax and in favor of increases in the Local Government Fund.
Both groups declined to produce the material on grounds they were private organizations not subject to the public records law.
Maurice Thompson of the 1851 Center for Constitutional Law, who is representing the Dayton Tea Party, argues that all or nearly all of the OML and OTA support comes from municipal government dues, fees, and contributions, using taxpayer funds.
He said local governments “have shrouded in secrecy certain governmental activities, such as lobbying, through utilization of private organizations,” including the OML and OTA.
“These de facto local government coalitions receive and rely almost exclusively upon public funds to lobby and litigate for higher taxes, greater government spending, diminished constitutional protections for Ohioans, and overall larger government, all as prescribed by their government members,” Mr. Thompson said.
“Meanwhile, these organizations refuse to respond to public records requests, denying information to citizens regarding the use of their tax dollars to promote and advance highly ideological causes by and on behalf of local governments,” he told justices.
Mr. Thompson contends that the OML and OTA are the “functional equivalents of public offices” under the state’s public records act, and must produce documents about the operation of their organizations, including lobbying efforts before the General Assembly.
He said the groups were using public funds to participate in a campaign to inflate the amount of state money spent on the Local Government Fund, and to oppose repeal of the estate tax. Both provisions are included in the pending biennial state budget (HB 153).
“Both the OML and the OTA continue to use Ohio taxpayers’ funds to operate in secrecy on these issues,” Mr. Thompson said. “In the course of their clandestine operations, OML and OTA argues against repeal of the Ohio Estate Tax and in favor of inflating state spending on local governments.”
The complaint asks the Supreme Court to compel the groups to comply with the requests for records, and to pay court costs, attorney fees, and statutory damages.
The Dayton Tea Party, Inc. was described as a non-partisan, non-profit corporation that is a conglomeration of 19 “liberty groups” in the Miami Valley region.
The complaint was filed in the name of Robert Scott, the group’s president and founder, who “has invested significant effort into effectuating repeal of the Ohio Estate Tax, and reducing state government spending.”
Mr. Thompson asked the court to apply a four-part functional equivalency test it cited in a 2006 opinion to determine whether a private entity is a public institution for purposes of the public records law.
“In applying the functional-equivalency test, courts in other states have adjudicated private organizations comparable to the Ohio Municipal League and Ohio Township Association to be amenable to public records requests,” he told justices.
He referred to a 1999 opinion that found the Washington State Association of Counties was a public agency for purposes of a disclosure law. A 2010 decision held that the Association of Washington Cities, a private, non-profit corporation, was the functional equivalent of a public agency subject to that state’s public records law.
“The factual allegations herein demonstrate that the OML is extensively controlled and funded by government, created by and for the benefit of government, exists to serve government, and has no purpose other than to serve government, and is thus the functional equivalent of a public office,” Mr. Thompson said.
Susan Cave, OML executive director, said she had not seen the complaint and could not comment.
Columbus–The 1851 Center for Constitutional Law, on behalf of Relators Dayton Tea Party and Robert Scott, yesterday filed in the Ohio Supreme Court a Public Records Complaint demanding Ohio Municipal League (OML) and Ohio Township Association (OTA) lobbying records. Both the OML and OTA have used public funds to lobby against Ohio Estate Tax repeal and other tax cuts, property rights and the right to bear arms, and in favor of inflated state spending. Read more
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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The legislature has passed a state budget that includes the repeal of Ohio’s Estate Tax. Special thanks to the team at http://www.endohioestatetax.com/ for their leadership in accomplishing a feat that no liberty group before them had accomplished: the elimination of a statewide tax. In drafting the initiative and representing the effort, the 1851 Center was simply the professional scaffolding around this inspiring all-volunteer effort. Read more
On April 6, 2011, The Supreme Court of Ohio 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 also agreed to review whether the Ohio Department of Health has consistently exceeded its authority in fining business owners under the ban. Read more
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
Ohio Supreme Court heard oral arguments in Cincinnati Public Schools v. Conners on February 7, 2011. To view oral arguments, click here. In this critical matter, the 1851 Center represents Dr. Roger Conners, operator of Theodore Roosevelt Public Charter School, a charter serving over 250 underprivileged children in Cincinnati’s downtrodden Fairmount neighborhood. Read more