Archives for July 2012

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.

Legal Center: Shaker Heights Threats to Tax-Increase Opponents Unconstitutional

shtuCleveland, OH – The 1851 Center for Constitutional Law today filed suit in federal court on behalf of Shaker Heights residents whom city officials threaten to silence through threat of a frivolous trademark lawsuit. The threat comes in retaliation for the citizens’ opposition of the City of Shaker Heights’ attempt to increase income taxes on residents through an August 7 vote.

The legal action, filed on behalf of the Shaker Heights Taxpayers Union (“SHTU”), includes 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).

Federal courts have repeatedly confirmed that the First Amendment trumps trademark law in the field of political speech. Nevertheless, 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 has been forced to stop using the logo in its campaign.

Despite the City’s claims, given the clarity of the law on this issue, the City’s trademark concerns are simply a pretext to silence the SHTU from hindering the City’s efforts to raise taxes on its citizens. The lawsuit seeks to restore the right of taxpayers to engage in these types of debates without fear of officious-sounding but frivolous threats and intimidation from their own government.

“This is 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. “These types of case are why we formed the 1851 Center: to prevent city official from bullying those trying to limit government, who they know don’t have the means to fight back on their own.”

Added Thompson, “the City was counting on the reality that an average citizen would not understand the frivolity of its threats, given the complexities of intellectual property law. This case will help ensure that other cities do not use official-appearing legal threats to masquerade their efforts to silence limited-government viewpoints in the heat of a local tax election.”

The logos at issue in this case are below:

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

 

July 13, 2012: Cleveland.com: Federal judge to discuss potential court injunction against Shaker Heights by anti-tax increase group

July 13, 2012: Cleveland.com: Shaker Heights agrees to let Shaker Heights Taxpayers’ Union use city logo in its materials

 

The 1851 Center’s Complaint can be viewed here.

The 1851 Center’s can be viewed here.

Obamacare: The Way Forward in Ohio

Friends,

You, like me, were no doubt inundated with punditry on the fallout of the Obamacare ruling last Thursday and Friday.

We didn’t follow suit. I did not found the 1851 Center to gab. We exist to advance liberty and limit government, whether we’re taking the lead, or simply supporting you.

Of course, we’re not enamored with the Chief Justice’s placement of his image, or “the institute of the Court,” above adherence to applicable law. And we do think there’s a lesson for you in that by squandering the opportunity to place a constitutionalist on the Court, George W. Bush handed over the matches that Barack Obama is using to burn down your rights. Meanwhile, we’re not enamored with the prospect that the federal government may force you to buy any commercial product, and impose a tax if you refuse.

But you’ve heard plenty about the decision by now.

So now that the smoke has cleared, let’s get back to business.

First things first: I’ve heard some rumblings from tea party soothsayers to our always-shaky Attorney General that the Ohio Health Care Freedom Amendment has now lost its meaning.

The Status of Ohio’s Health Care Freedom Amendment (“Issue 3”)

As I’ve said many times in the past, if you supported the Health Care Freedom Amendment on the sole grounds that it would, without more, influence the Supreme Court’s interpretation of federal power, then you were reaching. But you were also partially correct: 5 Justices ruled that the individual mandate was not “proper,” as required by the Necessary and Proper Clause, because it transgresses principles of state sovereignty. To the extent that the Amendment could have influenced the Court’s reasoning, it did its job – – it was Justice Roberts who did not do his.

However, this was, at best, only a minor purpose of the Amendment. As to the others, the Amendment remains fully effective. Let me remind you of those purposes, by quoting from campaign materials that were distributed early in 2011:

Passage of the Ohio Health Care Freedom Amendment necessarily provides protections that will be effective as against state and local government. This means that Ohio and its local governments would be prohibited from enacting health care and health insurance mandates, a single-payer system, or any regulatory provisions equivalent to health care systems in Massachusetts, Vermont, Canada, or the United Kingdom.

Moreover, even in the face of a valid federal health insurance mandate, Ohio governments would be prohibited from enacting regulations above and beyond the federal baseline.

Finally, the Amendment prohibits Ohio state and local governments from enacting any regulation that has the effect of significantly impeding health care or health care insurance choices, or significantly raising costs of health care or health care insurance.

Passage of the Ohio Health Care Freedom Amendment has the capacity to protect Ohioans from the requirements of the Patient Protection and Affordable Care Act. By placing health care freedom in the Ohio Constitution’s Bill of Rights, the Ohio Health Care Freedom Amendment creates a fundamental constitutional right that Ohioans can use to defend themselves from invasive health care regulations, including the PPACA.

The Ohio Health Care Freedom Amendment could be influenced by outcomes in pending litigation challenging the constitutionality of the Patient Protection and Affordable Care act. If the mandate is found to be a valid exercise of the Commerce Clause, Necessary and Proper Clause, or taxing power, litigation will ensue under the Ohio Health Care Freedom Amendment to determine whether Ohioans have a fundamental right to be free from the strictures of health care mandates. Important protections in the Ohio Health Care Freedom Amendment, other than those related to the mandating of health insurance are not affected by current PPACA litigation.

As you can see the Amendment leaves us with many tools to preserve health care freedom in Ohio. And the Supreme Court decision actually provides additional tools to limit government. And with your help, we intend to use them.

Here’s the path forward for stopping Obamcare in Ohio:

Step 1: Stop Ohio from Implementing a state-based Obamacare Exchange.

Here’s the bottom line. Obamacare is unsustainable if states force it to operate through federal exchanges, which are considerably “weaker” than state exchanges.

There’s no easy way to put this, but Case Western law professor Jonathan Adler and Cato scholar Michael Cannon do an admirable job:

“The Act’s ’employer mandate’ taxes employers up to $3,000 per employee if they fail to offer required health benefits. But that tax kicks in only if their employees 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, 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.”

This law will collapse without the employer mandate and tax credits, just as it would have without the individual mandate.

Louisiana Governor Bobby Jindal knows this. Just one day after the decision, he reiterated that his state would steer clear of a state exchange: “Here in Louisiana we have not applied for the grants, we have not accepted many of these dollars, we’re not implementing the exchanges,” Jindal said. “We don’t think it makes any sense to implement Obamacare in Louisiana. We’re going to do what we can to fight it.”

Will John Kasich muster this courage? It hasn’t happened yet.

But here’s some good news: we’ve consistently made this argument to the administration since it accepted the federal grant to create a state-run exchange. And the administration hasn’t moved on the issue since.

In fact, Lt. Gov. Mary Taylor told reporters Thursday that the state is leaning against developing an Ohio exchange, relying instead on whatever system is implemented by the federal government: “At this point, the governor and I don’t see how it is in the best interest of Ohioans to have a state-run exchange,” Taylor said. “Quite frankly, we don’t even see where the additional money would come from in order for us to run that exchange.”

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

And guess who would pay for that? You.

Here’s some additional good news. If the Supreme Court’s ruling were to cause the Administration to change course, we have the trump card: the state constitution. We drafted the Ohio Health Care Freedom Amendment with full knowledge of the need to stop Ohio from implementing a state exchange.

Remember, under the Amendment, no state law can (A) indirectly compel any person, employer, or health care provider to participate in a health care system; (B) prohibit the purchase or sale of health care or health insurance; or (C) impose a penalty or fine for the sale or purchase of health care or health insurance. And no state can implement an Obamacare exchange without doing these exact things.

So if you helped make the Health Care Freedom Amendment happen, you’ve done your job.

But the left is banging the drums of war, with former Governor (and now Obama co-chairman) Ted Strickland and Progress Ohio asserting “It is simply time to enact the law and end the politics,” and “[Taylor] needs to stop talking and go to work and pull together the kind of efforts that’s going to be necessary to get these exchanges up and running.” And some weak-kneed Senate Republicans are already caving as well.

So here’s the next step: Stop the Kasich Administration from rubber-stamping a state-run exchange. That’s a political job – – your job.

And my job is to defeat them in court if you’re unsuccessful.

Either way: there will be no state-run Obamacare exchange in Ohio. And this alone will hasten the Act’s demise.

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

Step 2: Stop Medicaid Expansion in Ohio.

Are you concerned about federal spending? Want to hold on to the money you earn? This is your chance to make a difference.

First, Ohio just argued — AND WON — the right to not be coerced by Obamacare to expand Medicaid coverage at state taxpayer expense. This is the part of the case where the Supreme Court actually ruled in our favor. Why would we argue for this autonomy, only to squander it, in the name of the welfare state?

Second, half of Obamacare’s trillions in new federal spending comes through Medicaid expansion. Refusal to expand Medicaid blocks half of the law’s new entitlement spending.

Yet Kasich administration officials said they do not know if they will expand the Medicaid program yet.

This shouldn’t even be a close call.

Obamacare authorizes states to provide free cradle-to-grave health care, using your wallet, for your neighbor making as much as $30,650 per year (this is above the state’s median salary, by the way).

If Ohio were to go ahead and expand Medicaid, Ohio’s portion of the costs would soon balloon to $675 million per year covering roughly another 700,000 residents each year (perspective: that’s either a 5 percent tax hike or reduction in other services).

Think your taxes are too high now? This is your chance to draw a line in the sand.

Step 3: Mount a rights-based challenge to the mandate.

Amongst all of the hand-wringing over the legal conclusion that the federal government has the power to impose a mandate through the back door, something important has continuously been lost: even if the Government has the power, there may be a constitutionally-protected right to be free from such a mandate.

Just because the taxing power allows for the taxing of flag burning, for instance, doesn’t mean the First Amendment doesn’t protect the right and defeat the otherwise lawful tax.

Courts have yet to address the Right to Privacy: The U.S. Supreme Court has held that medical records are constitutionally-protected from disclosure, yet the requirement to contract for health insurers necessarily compels a citizen to divulge private and personal records, along with blood and urine samples, to a private insurance corporation, or pay a fine.

Courts have yet to address Freedom of Association: The Supreme Court holds that “Freedom of Association. . . plainly presupposes the freedom not to associate,” yet those without insurance are forced to contract with insurance private insurance corporations.

And most importantly, Courts have yet to address the Substantive Due Process implications of the Health Care Freedom Amendment. The Fifth Amendment still protects certain liberty interests. Amongst these is the right to control one’s own body; the right to refuse medical treatment, and the right to direct the upbringing and education of one’s own children. The mandate deprives one who believes in an alternative form of health care from fully directing their own health care decisions: they may have to buy less organic food, get less acupuncture, and forfeit their health club membership in order to afford health insurance. Once we recognize the existence of a budget constraint, we see this loss of direction.

Through placing the Health Care Freedom Amendment in Ohio’s Bill of Rights, we’ve given ourselves the strongest claim in the nation for a fundamental right to be free from a one-size-fits-all individual health insurance mandate. And we intend to use it.

Let me close with this:

I am assuming that you, like me, never want any Ohioan to be led away in handcuffs for refuses to purchase federal-government-defined health insurance.

Moreover, I’m assuming that you’ve already rejected the paternalistic philosophy that leads some in government to believe that they know what you must buy even more than you do. And I’m assuming that you reject the collectivist underpinnings of the notion that you should be forced to purchase, as a taxpayer, the health care of your bad-habited neighbor who makes about the same as you do.

For those of us who so reject paternalism and collectivism, let me ask you this:

Are you just human cattle, being fattened up for the benefits of big government? Are you just plants in a garden, who can’t flourish without the master government gardener? Is the federal government, in the name of “public health,” entitled to a first mortgage over your life?

Or are you born free, with a right to run your own life that no political majority may take away?

You should have the power to make these choices. That’s what it means to be human and adult, much less American.

We’ve all got a lot of work to do. The 1851 Center will support you in this work, and we hope that you’ll support us as well.

In Liberty,

Maurice Thompson
Executive Director
1851 Center for Constitutional Law