Archives for 2012

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Federal Court: Ohio Precious Metals Dealers Licensing Scheme Unconstitutional

Act regulates business in response to constitutionally-protected advertising, and prohibits legitimate purchases of gold and silver

Columbus, OH – A federal court late yesterday ruled that Ohio’s regulatory scheme governing those purchasing gold, silver, and other precious metals – the Precious Metals Dealers Act- violates the First Amendment.

The ruling, made by Judge Watson of the Columbus division of the Southern District of Ohio, paves the way for Ohio businesses, most prominently coin dealers, to resume purchases of items containing gold and silver content, and in particular, to resume advertising their interest in purchasing inventory consisting of precious metals, free from concern over confiscatory prosecution, fines and regulations.

The 1851 Center for Constitutional Law took up the coin dealers’ case and challenged the state law after the Ohio Department of Commerce threatened to shut down Liberty Coins, of Delaware, Ohio, if it refused to pay considerable fines and obtain a government license to advertise its business.

The lawsuit had sought recognition that the First Amendment applies to and protects “commercial speech,” such as coin dealers’ advertising, and that the Act’s prohibition of advertising by coin dealers was not a means of reducing gold and silver-related theft.

The lawsuit had also made claims asserting that requirements that business owners demonstrate that they have “good character,” “sufficient reputation,” “sufficient financial responsibility,” and “sufficient experience” prior to being permitted to run their businesses were unconstitutionally vague; and that the Act’s authorization of warrantless searches of business owners’ property and records at any time without notice violated their Fourth Amendment rights.

In his 28 page decision, Judge Watson, explaining that “the Act only prohibits the unlicensed buying of precious metals when commercial speech is involved,” emphasized that “a broad injunction completely prohibiting enforcement of the licensing provision is warranted.”

The order, an across-the-board rebuke to Ohio’s regulations and the cavalier enforcement tactics the Ohio Department of Commerce has against Ohio’s small businesses over the past year, concluded as follows:

  • The Department of Commerce failed to show “how holding one’s self out as willing to purchase precious metals contributed to the evils the State seeks to prevent. Moreover, Defendants have not shown how requiring a license only for purchasers of precious metals who engage in commercial speech directly and materially advance those interests.”
  • “[The state] has not shown that forcing those who engage in commercial speech to obtain a license is reasonable,” and “the restriction on commercial speech is more extensive than necessary.”
  • The Department of Commerce “incorrectly” asserts “that the law prevents fraud, money laundering, theft and terrorism by requiring those who wish to engage in the business of buying from the public gold, silver, and other precious metals to be licensed.”
  • “The breadth and number of exemptions undercuts the Defendants’ argument that the licensing scheme is narrowly tailored to protect against theft, fraud, or terrorism.”

The Court added that the Department of Commerce’s aggressive reading of the regulations was “nonsensical,” and that Ohio coin dealers and others “are unable to actually purchase precious metals without facing prosecution due to Defendants’ incorrect interpretation of the Act.”

“We are just trying to make it safe for small businesses to operate in Ohio – – a mission that we wish our state government would share, rather than thwart,” said Maurice Thompson, Executive Director of the 1851 Center. “This Act and those enforcing it treat small businesses who make gold and silver available as public utilities at best, and criminals at worst, irrespective of whether they have done harm.”

Heightened enforcement of the PMDA by the Department of Commerce, under the control of the Kasich Administration, comes in response to accelerated lobbying and financial contributions to candidates by the pawn brokers industry, which is exempt from the regulations, and a direct competitor of those who are subject to the Act. The enforcement, which would have put many coin dealers out of business, also comes at a time of rising precious metals prices, where an increasing number of Ohioans seek to use gold and silver to protect their savings against potential inflation caused by federal government increases in the money supply.

Thompson added “the state misguidedly seeks to advance its mission of ‘preventing theft and resale of precious metals’ through gag orders, warrantless searches, and criminalization of innocent small businesses. Fortunately, the First Amendment allows us to protect Ohioans’ rights to engage in truthful promotion of their businesses.”

Read the Court’s Order Granting Liberty Coins’ Motion for Preliminary Injunction HERE.


December 7, 2012: Bloomberg Businessweek: Ohio gold, silver dealers’ law blocked by judge

December 7, 2012: Ohio Watchdog: OH: Judge blocks catch-22 in state law that threatened entire industry

December 6, 2012: WYTV 33 News: Ohio gold, silver dealers’ law blocked by judge

Legal Center to High Court: Ohio PAC Laws Violate First Amendment

1851 Center asks Ohio Supreme Court to review Ohio Political Action Committee regulations on behalf of Geauga County Blogger

blogger-150x150Columbus, OH – The 1851 Center for Constitutional Law today applied to the Supreme Court of Ohio for jurisdiction over a case challenging the nation’s strictest Political Action Committee regulations.

The legal action is filed on behalf of Edmund Corsi, a Cleveland-area blogger who faces prosecution after blogging about state and local political issues, authoring a pamphlet critical of local politicians, and hosting an informal political discussion group. The state contends that Ohio’s PAC laws required Mr. Corsi to first register with the state and hire a treasurer, and then disclose his home address on his pamphlet and blog, and that by failing to do so, Corsi is subject to criminal penalties and civil fines. Mr. Corsi was referred for prosecution by one of the politicians he criticized – – Geauga County Republican Party chairman Edward Ryder.

The United States Supreme Court has repeatedly confirmed that political speech, even when through group association, in pamphlets or on the internet, is afforded the greatest constitutional protection.

In fact, the Court has already once struck down Ohio’s Political Action Committee regulation, in McIntyre v. Ohio Elections Commission in 1995. There, the Court chastised Ohio courts and the OEC for upholding the regulations after state officials attempted to prosecute a senior citizen for failing to include a “disclaimer” on her homemade flyer advocating against a Westerville property tax increase. Nevertheless, the Ohio Elections Commission maintains that the re-written regulations still require groups of two or more Ohioans who communicate political thoughts to first register as a Political Action Committee, and thereby submit to reporting, disclaimer, and disclosure requirements when communicating.

This case will mark the Ohio Supreme Court’s first opportunity to analyze the re-written PAC regulations, as well as the Court’s first opportunity to consider the effect of the U.S. Supreme Court’s landmark Citizens United decision on Ohio’s campaign finance regulations. There, of potential importance to Mr. Corsi’s case, the Court explained that “the First Amendment does not permit laws that force speakers to retain a campaign finance attorney * * * before discussing the most salient points of our day” (At Mr. Corsi’s hearng, the OEC Chairman advised Mr. Corsi to engage a campaign finance attorney if he wished to continue blogging about state and local public policies).

The 1851 Center’s Motion for Jurisdiction asserts the following:

  • Ohio’s PAC regulations unconstitutionally regulate small groups of citizens that spend little or even no money on politics, and do not coordinate with political candidates or campaigns, thereby extending beyond the entire purpose of campaign finance regulations.
  • The costs of complying with the PAC regulations, which includes reporting and disclaimer requirements, administrative burdens, the hiring of a treasurer, and the loss of privacy and anonymity of those who speak out by effectively requiring the disclose of the author’s name and home address on government filing, has the effect of silencing protected speech.
  • The regulations are unconstitutionally vague and overbroad, because they permit the Ohio Elections Commission members to guess at the “primary or major purpose” of the group, without considering whether they have spent money on politics.
  • The OEC improperly overanalyzes Facebook and blogs posts to involuntarily commit a group of citizens as a PAC (federal law prohibits consideration of “internet activities” when determining federal PAC status).

“Ohio’s PAC regulations have long been considered the most oppressive in the nation,” said Maurice Thompson, Executive Director of the 1851 Center. “It would be wise for our Court to hold that the First Amendment does not allow agency bureaucrats and political opponents to use PAC regulations to silence the speech of those who criticize government, using the loss of privacy and expensive reporting requirements of PAC regulations as leverage to intimidate and threaten those expressing differing views, as has been done here.”

Thompson added, “While many Americans fret over government permitting speech by ‘super-PACs,’ they should be more concerned about shocking amount of everyday grass-roots political speech that Ohio is forcing into PAC status – from lawn signs to Facebook pages – and thus essentially prohibiting, at the very same time.”

The case is particularly significant for opponents of local tax levies and “tea party” groups, many of whom are likely to be characterized as Political Action Committees, if the Ohio Election Commission’s ruling is not overturned.

Ohio’s regulations are notable because they are the nation’s only PAC regulations lacking what is commonly referred to as a “monetary trigger”: Ohioans can be forced to register as PACs even if they neither expect to or actually give money to or take money from political candidates or campaigns, and otherwise spend no money on politics.

Read the Geauga Constitutional Council’s Motion for Jurisdiction HERE.

1851 Center Applauds Kasich Agreement on Obamacare Exchange

flagstethoscope-300x200Columbus, OH – The 1851 Center for Constitutional Law today registered its approval, on behalf of conservative and libertarian leaders throughout Ohio, of the Kasich Administration’s agreement to refuse to implement a “state-run” Obamacare exchange.

The Administration’s agreement is significant for several reasons:

  • The agreement averts litigation that would have pitted Section 21, Article I of the Ohio Constitution, the 1851 Center for Constitutional Law, and grassroots backers of the Ohio Health Care Freedom Amendment against the administration (Division (A) of the Health Care Freedom Amendment prohibits the “employer mandate” that a state exchange would have attempted to impose).
  • The agreement means that Ohio will not impose the “employer mandate,” a penalty of up to $3,000 per employee that must be otherwise paid to the federal government by Ohio employers who do not provide government-approved health care insurance for their employees.
  • The agreement means that Ohio will not provide Obamacare “premium assistance,” a taxpayer-funded subsidy to individuals that masks the true increased costs of health insurance premiums imposed by Obamacare (the Administration estimates that Ohioans’ health insurance premiums may increase by as much as 85 percent).
  • The agreement means that Ohio will not assist the federal government in enforcing Obamacare’s “individual mandate.”
  • The agreement means that Obamacare will be significantly more difficult to enforce, dramatically enhancing the probability that the Act will be “re-opened” to debate, amendment or repeal.

While the issue appears esoteric, the impact of the Administration’s decision cannot be underestimated. The Act’s “employer mandate” taxes employers up to $3,000 per employee if they fail to offer required health benefits. But that tax applies only if employers receive tax credits or subsidies to purchase a health plan through a state-run insurance exchange.

The federal government might create exchanges in states that decline to creat e state-run exchanges, but it cannot offer credits through its own exchanges. And where there can be no credits, there is nothing to trigger that $3,000 tax on employers. The Obama Administration appears intent on using the Internal Revenue Service to impose the employer mandate, but there is no legal authority to support doing so, and the regulation attempting to do so is unlikely to be upheld.

Further, it is highly likely that Obamacare will collapse without the employer mandate and tax credits, just as it would have without the individual mandate.

In addition to inviting Obamacare into Ohioans’ lives, the Kasich Administration acknowledges that a state-run exchange would cost about $43 million annually, versus about $1.6 million to participate in the federal exchange.

“We are pleased that the Kasich Administration heeded the clear effect of the Health Care Freedom Amendment (passed in 2011), which prohibited Ohio from enacting a state based Obamacare exchange,” said Maurice Thompson, Executive Director of the 1851 Center. “We can now turn our attention away from the Kasich Administration, and begin to prepare litigation that ensures that Ohio employers will not be subjected to the $3,000 per employee fine, and that Obamacare ultimately collapses under the weight of its own legal infirmities.”

Read the 1851 Center’s explanation of why a state-run Obamacare exchange is bad policy, and violates the Ohio Constitution, here.


November 16, 2012: WKSU NPR: Kasich rejects health-insurance exchanges

November 16, 2012: Ohio Liberty Coalition: Governor Kasich confirms that creation of Ohio’s Obamacare exchange will be left to the feds

November 19, 2012: WYSO Ohio Public Radio: Kasich Tells Feds Ohio Won’t Set Up Its Own Health Care Exchange

November 19, 2012: Insurance News Net: Ohio: No State Health Care Exchange

November 20, 2012: Ohio Watchdog: OH: Step 2 — Sue IRS over Obamacare rule

November 21, 2012: Watchdog.com: VA: NFIB, Cuccinelli weigh Obamacare exchange costs; could Virginia get a pass?

November 23, 2012: Heartlander: Kasich Decides Against Obamacare Implementation

January 10, 2013: Heartland.org: Without State Exchange, Ohio Small Businesses Have Standing to Sue IRS

Legal Center Move to Protect Rights of Ohio Gold and Silver Dealers to do Business

Regulations prohibit advertising and impose warrantless searches

Columbus, OH – The 1851 Center for Constitutional Law today moved in federal court to immediately enjoin the state from enforcing the “Ohio Precious Metals Dealers Act,” against Ohio coin dealers threatened with criminal sanction for advertising their businesses, and sweeping warrantless searches of their business records and properties without probable cause.

The legal action is filed on behalf of Liberty Coins, a Delaware, Ohio coin dealer ordered by the Ohio Department of Commerce to cease all advertising indicating that it purchases gold and silver and all actual purchases of gold and silver, and threatened with a $10,000 fine and jail time if it does not comply.

The Supreme Court has repeatedly confirmed that First Amendment applies to “commercial speech,” which includes advertising. Nevertheless, the Ohio Department of Commerce has begun vigorous enforcement of regulations prohibiting coin dealers from advertising without a license, and requiring a license if they do advertise (conditioned on a state finding of “good character and reputation”). Once licensed, state and local agents may search and seize any item or business record without a search warrant or finding of probable cause, and may do so on a daily basis.

The Department of Commerce enforcement policies, which exempt banks, jewelers, and other special interests, appear to be targeted at preventing theft and resale of gold and silver items. However, the policies punish any coin or precious metals dealer who advertises “we buy gold and silver,” even if that dealer, as Liberty Coins does, purchases gold and silver items exempted by the Act, such as certain collectibles, coins, hallmark bars, ingots, numismatics.

Further, the regulations apply only to coin dealer to advertise, entirely exempting those who do not. The state defines advertising to include business cards and signs in storefront windows making reference to gold and silver.

The lawsuit seeks to restore the right of Ohio retail gold and silver coin dealers to be free from a licensing regime that punishes them on the basis of their speech, and subject them to unconstitutionally sweeping searches and seizures.

“This Act and its aggressive enforcement treats the many Ohio small businesses who participate in gold and silver markets as public utilities at best, and criminals at worst, irrespective of whether they have done harm,” said Maurice Thompson, Executive Director of the 1851 Center.

“The state misguidedly seeks to advance its mission of ‘preventing theft and resale of precious metals’ through gag orders, warrantless searches, and criminalization of innocent small businesses. Fortunately, the First Amendment allows us to protect Ohioans’ rights to engage in truthful promotion of their businesses, and to run a business without constant subjection to unlimited warrantless searches of one’s property and records by state agents. And protect these rights we must: if these regulations are upheld, there is nothing stopping the state from imposing similarly on all business activity with the state.”

The state’s heightened enforcement tactics, which effectively put many coin dealers out of business, come at a time of rising precious metals prices, where despite an already burdensome state sales tax on the purchase of precious metals, an increasing number of Ohioans seek to use gold and silver to protect their savings against potential inflation due to federal government increases in the money supply.


Read Liberty Coins’ Complaint HERE.
Read Liberty Coins’ Motion for Preliminary Injunction HERE.


November 16, 2012:WBNS-10TV: Scrap Metal Fight: A coin dealer is suing the state over scrap metal license requirements [VIDEO]

Federal Court: University of Cincinnati Speech Restrictions on Students Permanently Enjoined

Students supporting “right to work” amendment cannot be arrested for discussing amendment and gathering signatures on campus

uofcinn1Cincinnati, OH – A federal court today permanently enjoined the University of Cincinnati’s blanket prohibition on student political speech on campus as a violation the First Amendment. The ruling, made by Judge Black of the Cincinnati division of the Southern District of Ohio, paves the way for a likely overhaul of many campus speech policies throughout the state and nation.

The ruling also permits members of the student group Young Americans for Liberty (“YAL”) to advocate and collect signatures for the Ohio Workplace Freedom Amendment on campus.

The 1851 Center for Constitutional Law, which also drafted the Workplace Freedom Amendment, took up the students’ case and challenged UC’s policies after UC threatened to arrest student members of YAL if they attempted to gather signatures for the right-to-work cause on campus.

The lawsuit sought recognition that (1) the First Amendment applied to public university property, such as the University of Cincinnati; (2) signature-gathering for petition drives is a protected form of political speech; and (3) UC’s requirement that all UC students register up to 15 days ahead of time before engaging in any political speech on campus violates the First Amendment.

In his June 12 decision preliminarily enjoining UC policies, Judge Black emphasized “It is simply unfathomable that a UC student needs to give the University advance notice of an intent to gather signatures for a ballot initiative. There is no danger to public order arising out of students walking around campus with clipboards seeking signatures.”

In that decision, the Court further ordered UC to craft “more narrowly tailored regulations that regulate student expressive activities . . . only as are necessary to serve a compelling government interest.”

In response, newly crafted University of Cincinnati speech policies permit unfettered free political speech, including signature gathering, by students, without notice to the University, for groups smaller than 25, and regulates only groups of 5,000 or more.

Today’s final order permanently enjoins UC from returning to its old policies, or any variation thereof. The order, an across-the-board rebuke to UC’s policies, enjoins UC from:

  • “Requiring prior notification for the solicitation by students of signatures for petitions;”
  • “Prohibiting all solicitation by students of signatures for petitions in any designated public forum, including the Free Speech Area, the outdoor spaces described in the MainStreet Event Guide, and campus sidewalks;”
  • “Requiring that all student ‘demonstrations, picketing, or rallies’ occur only in the Free Speech Area;”
  • “Requiring 5 to 15 days prior notification for any and all student ‘demonstrations, picketing, or rallies’ without differentiations;”
  • “Imposing or enforcing any policy restricting student speech in any designated public forum, including the Free Speech Area, the outdoors spaces described in the MainStreet Event Guide, and campus sidewalks, that is not individually and narrowly tailored to serve a compelling university interest.

“We are pleased that the federal court has resolved this matter in favor of free speech, and against government control of young minds. UC is an arm of the state that receives state and federal tax dollars since its inception, all in the name of ‘public education,’” said Maurice Thompson, Executive Director of the 1851 Center.

“It was unwise, and ultimately unconstitutional, for UC to advance public education by shielding its students from actual education on public policy issues that affect all Ohioans. Fortunately, the First Amendment allows us to protect the education of UC students from their educators; it further protects the right of students to calmly address facts and arguments that UC would rather suppress, and to do so without prior permission.”

The 1851 Center and UC students endured four months of procedural tactics, harassing depositions, and frivolous daily letters by UC’s attorneys, after Ohio Attorney General Mike DeWine authorized $200,000 in state funds to the private law firm of Crabbe Brown, a campaign contributor of Mr. DeWine’s, to defend the clearly unconstitutional University of Cincinnati policies. The 1851 Center represents clients at no cost.

Multiple Ohio colleges and universities maintain speech restrictions similar in kind, although not as extensive, as those of the University of Cincinnati – – the Foundation for Individual Rights in Education recently named UC’s speech policies the worst in the nation.

The Court’s preliminary and permanent injunction orders can be viewed HERE.

The 1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, voting rights, regulation, taxation, and search and seizures.

The Foundation for Individual Rights in Education (FIRE; thefire.org) is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities.

Young Americans for Liberty is a national student membership organization dedicated to recruiting, training, educating, and mobilizing students on the ideals of liberty and the Constitution.


August 26, 2012: The News Record: Court reverses UC free speech policy

August 23, 2012: Huffington Post: District Court: Campuses Can’t Quarantine Free Speech

August 23, 2012: Columbus Dispatch: Judge blocks university’s restrictions on speech

August 23, 2012: Cincinnati.com: Judge bans UC’s free speech policy

August 23, 2012: Daily Caller: U. of Cincinnati loses free speech lawsuit — is another Ohio college next?

August 23, 2012: Ohio Liberty Coalition: Federal court stops University of Cincinnati from restricting students’ free speech, president unexpectedly resigns

Ohio Candidates Can’t Hide Behind Anti-Tax-Pledge Statute

antipledgestatTo hold their elected officials accountable, a conglomerate of conservative, libertarian, and tea-party groups representing Ohio taxpayers have recently devised two pledges for state legislative candidates. These pledges are directed toward educating Ohio voters as to who can be counted on to limit onerous taxation and regulation.

Specifically, the taxpayers call upon legislative candidates to pledge that they (1) will not vote in a manner inconsistent with health care freedom; and (2) will note vote to impose a severance tax on fledgling oil and gas production in Ohio.

As citizens began to ask candidates to sign this pledge, something interesting – – beyond a policy debate – – happened: some Republican candidates began to balk at the idea of a pledge.

Rather than take a stance, some candidates have even responded that the request that they take the pledge is illegal, and that the person asking them to sign it could be fined out of house and home.

While it’s unclear how vastly this view is held amongst the Ohio Republican Caucus, or Democrats, for that matter, two things are clear: (1) it’s not a violation of a law to ask one’s candidate to sign the pledge; and (2) the statute is, itself, flagrantly unconstitutional.

Read the full analysis HERE.

Petitions Submitted to Place Repeal of Westerville School Levy Tax on November Ballot

Columbus, OH – Proponents today delivered over 5,100 signatures to the Franklin County Board of Elections to place an effective repeal of the March school levy tax increase on the November ballot. So long as 3,585 of these signatures are declared valid, the initiative would effectively repeal the 6.71 mil tax increase narrowly approved in March, after taxpayers defeated a similar measure at the November 2011 general election.

Proponents’ internal validation tests indicate that over 90 percent of collected signatures are valid – – an amount well in excess of the needed threshold.

The effort, spearheaded by Taxpayers for Westerville Schools and represented by the 1851 Center for Constitutional Law, marks the inaugural action of the 1851 Center in facilitating taxpayers’ use of a previously obscure section of the Ohio Revised Code to lower their school district tax burdens, while forcing Ohio school districts to control spending and reign in labor costs rather than raising taxes.

Inundated with interest, volunteer Westerville residents gathered the 5,100-plus signatures in just three months, despite virtually no financial resources.

“Westerville residents’ achievement today is an inspiring example for taxpayers around the state.” said 1851 Center Executive Director Maurice Thompson. “Disingenuous Ohio school districts choose political gamesmanship over fiscal responsibility, placing tax hikes on the ballot at low-turnout elections. Tax rollback projects like this are an essential tool to fight back against this gamesmanship — by subjecting the tax increase to the general election ballot, when those who aren’t ‘on-the-take’ vote.”

The March 51-49 percent vote for the tax increase came just four months after a 61-39 defeat at the November 2011 general election. This measure will appear on the November 2012 general election ballot.

“We are particularly pleased to begin this project in Westerville, the highest-taxed school district in central Ohio, and also the longtime home of our Governor,” added Thompson. “We hope that the Governor and other state officials take note of these local tax abuses and reform the policy statewide. Until that time, we will vigorously address this issue.”

The 1851 Center has called on state officials to reduce the number of times per year school districts may place tax increases on the ballot from three to one – – the general election held each November. Due in part to these special election tax increases, Ohioans’ local government tax burden is the sixth highest in the nation, according to the Ohio Department of Taxation.

Westerville taxpayers have proposed specific cuts that would alleviate the need for the March tax hike, noting that administrators enjoy luxurious benefits packages, the average teacher’s salary of over $65,000 (trending towards over $80,000 by 2014-15 at current spending rates) is amongst the highest in the state and significantly higher than salaries of average Westerville residents, and the district pays the salary of Westerville Education Association union officials to do union work that does not benefit the district or the taxpayers.

The 1851 Center’s guide on how taxpayers can roll back tax levies can be found here.

More information on Westerville School District finances and the tax repeal effort is available at www.TaxpayersForWestervilleSchools.com.

The Center has vowed to defend the initiative at no cost to taxpayers.

 


October 4, 2012: Media Trackers: Westerville City Schools Secretly Coordinated Opposition to Tax Cut Issue

September 7, 2012: NBC4i: Ohio Taxpayer Group Wants Chance At Ballot

September 7, 2012: ThisWeek: Westerville tax-repeal effort goes to Supreme Court

August 21, 2012: Columbus Dispatch: Effort to repeal Westerville school levy makes ballot

August 8, 2012: Columbus Dispatch: Effort to repeal Westerville schools levy gets signatures aplenty

Enforceability of Ohio Constitution at Stake in Standing Dispute over JobsOhio

1851 Center supports Progress Ohio’s standing to challenge the constitutionality of JobsOhio  

Columbus, OH – The 1851 Center for Constitutional Law today submitted to the Ohio Supreme Court a “friend of the court” brief asserting that Progress Ohio and other left-wing challengers must be found to have taxpayer and “public interest” standing to challenge the constitutionality of Governor Kasich’s JobsOhio legislation.

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

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

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

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

  • The Ohio Constitution demands that citizens and taxpayers maintain standing to enforce limits on tax, spending, and indebtedness legislation.

  • The lower courts in this case erred in relying on federal standing cases, which are centered on Article III of the federal constitution, because the language of the Ohio Constitution deliberately rejects such barriers to standing in Ohio, and contains no jurisdictional prohibition on taxpayers and citizens bringing public interest actions.

  • Enforcing well-defined constitutional limits on state spending, indebtedness, and governmental conferral of special corporate privilege is “of great importance and interest to the public.”

  • Ohioans’ stake in enforcement of their constitution is sufficiently personal to maintain standing to enforce constitutional limits on state government’s spending, indebtedness, and provision of special corporate privileges.

  • If Ohioans are required to have a “personal stake” in such actions beyond their role as citizens and taxpayers, as the lower courts require in this case, then no Ohioan will have the capacity to enforce these general spending, debt and corporate welfare limits, and Courts will have rendered those provisions effectively unenforceable.

“While we may not agree with Progress Ohio’s politics, we certainly believe that they, like all Ohioans, must have standing to defend the Ohio Constitution in court, if that document is to remain enforceable,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

“By requiring a ‘personal stake’ in a matter upon which all Ohioans are harmed relatively equally, such as state spending, indebtedness, and corporate welfare, Ohio courts are pulling the rug out from under these key constitutional limitations on government, and placing their own preference for abstaining from the hard work of enforcing the constitution above them. Such decisions cannot stand, if these important limits on government are to be enforceable going forward.”

Continued Thompson, “The 1851 Center’s Brief is a clarion call to all Ohioans to pay attention to Ohio’s judicial branch, which, in instances such as this, chips away at the state constitution through procedural artifice.”


August 10, 2012: The State of Ohio: Battleground Ohio Again [VIDEO]

August 1, 2012: Hudson Hub Times: Conservative group backs liberal advocates in JobsOhio appeal

July 31, 2012: LegalNewsline: Lawsuit over JobsOhio legislation moves to Ohio SC

July 30, 2012: WEWS NewsChannel 5: Libertarian legal center joins JobsOhio fight

July 30, 2012: Cleveland.com: Lawsuit challenging JobsOhio continues with appeal to Ohio Supreme Court

July 30, 2012: Ohio Votes: Political Opposites Join Forces In Court Fight [VIDEO]

July 31, 2012: LegalNewsline: Lawsuit over JobsOhio legislation moves to Ohio SC


Read the filed Amicus Brief here.

Federal Court Enjoins Shaker Heights from Blocking Message of Tax-Increase Opponents

shtuCleveland, OH – Yesterday a federal court enjoined the City of Shaker Heights from further harassment of Shaker Heights residents city officials silenced through threat of a frivolous trademark lawsuit. The threat had come in retaliation for the citizens’ opposition to the City of Shaker Heights’ attempt to increase income taxes on residents through an August 7 vote.

The Northern District of Ohio Judge Christopher Boyko ordered that the City “shall take no action which interferes in any way with Plaintiffs’ use of the Shaker Heights Taxpayers Union Logo. . .

This Order comes in response to legal action filed on behalf of the Shaker Heights Taxpayers Union (“SHTU”). This legal action included a demand for an immediate injunction prohibiting city officials from engaging in any further threats, intimidation, or retaliation in response to the taxpayers’ legitimate exercise of their constitutional rights

Shaker Heights resident Mark Zetzer formed the SHTU to advocate against the City’s placement of a personal income tax increase on the August 7 ballot, arguing that Shaker Heights taxes were already the highest in the state. In addition Mr. Zetzer designed for the group a logo that parodies the City of Shaker Heights logo by replacing the City logo’s leaves with dollar signs, to represent City officials’ use of taxation as a first-resort (see the logo below).

Even though federal courts have repeatedly confirmed that the First Amendment trumps trademark law in the field of political speech, just as Mr. Zetzer’s message was beginning to gain traction, the City of Shaker Heights sent Mr. Zetzer a “Demand to Cease and Desist,” threatening that “[f]ailure to stop [use of the SHTU logo] will result in the City taking legal action to protect its trademark, including a request for an award of damages.”

In response, SHTU had been forced to stop using the logo in its campaign.

“This case featured an appalling attempt by city officials to silence anyone who stands in the way of their access to more of Shaker Heights residents’ earnings,” said Maurice Thompson, Executive Director of the 1851 Center. “The Court’s Order preserves the rights of Ohioans to effectively criticize their local governments, particularly as they push for more taxes, and further acknowledges that political speech parodying one’s government cannot be abridged.”

Added Thompson, “Conducting frivolous legal activity on city time is not just unethical – – it’s also a waste of public funds. If the City simply abstained from paying government employees to engage in activities such as instituting official-appearing legal threats to silence opposing viewpoints in the heat of an election, there would likely be no need to impose additional taxes on Shaker Heights residents.”

The logos at issue in this case are below:

L: City of Shaker Heights logo; R: Shaker Heights Taxpayers Union logo

 


July 27, 2012: Cleveland.com: Judge says Shaker Heights can’t stop anti-tax group’s use of logo

 

The 1851 Center’s Complaint can be viewed here.

The Motion for a Preliminary Injunction is available here.