Archives for 2013

Victory for Parental Rights: State Agrees to End Stand-Off with Amish Family over Forced Health Care

Official who had sought to take family’s daughter from home and force chemotherapy on her, despite parent’s earnest objections and Health Care Freedom Amendment, resigns as guardian

Family will continue to pursue alternative treatment

amishColumbus, OH – The 1851 Center for Constitutional Law today accepted the Resignation as Limited Guardian of a state official attempting to, on behalf of the State and Akron Children’s Hospital, force chemotherapy on ten-year-old Sarah Hershberger.

While the resignation still requires the signature of Probate Judge Kevin Dunn, Judge Dunn is expected to approve the resignation sometime next week, effectively ending the two-month stand-off with Sarah’s parents, Andy and Anna Hershberger, who, concerned that the chemotherapy was killing their daughter, sought the right to first try a less invasive alternative treatment that the hospital did not provide.

Andy and Anna, after the Court’s order, left the country to pursue an alternative treatment and prevent Sarah from being taken from them. The family reports that Sarah has responded well to the alternative treatment, the cancer is receding, and she is in excellent physical condition.

“We made it clear to our opponents that they were in for a protracted battle over fundamental principles and constitutional rights; and that on each, they were on the wrong side,” said Maurice Thompson, Executive Director of the 1851 Center.

“The Judge’s approval of this Resignation will pave the way for the family’s return home, which will allow Sarah to receive the family’s preferred treatment under the best possible conditions,” continued Thompson. “We hope that this Resignation also seals one of the darkest moments for parental rights and health care freedom in the State’s history: a court ordering a little girl to be ripped away from her loving and competent parents, and forced to submit to procedures that could kill or sterilize her, simply because her parents sought to first pursue a less invasive treatment option – – one the hospital disagreed with because it did not itself provide it.”

On November 19, the 1851 Center announced its representation of the Hershbergers, maintaining:

  • Section 21, Article I of the Ohio Constitution, the Ohio Healthcare Freedom Amendment passed by 67 percent of Ohio voters in 2011 prohibits the compulsion of any person “to participate in a health care system.”
  • Even before Section 21, the Ohio Supreme Court held that the Ohio Constitution ensures “personal security, bodily integrity, and autonomy,” and therefore “[t]he right to refuse medical treatment” is amongst the “rights inherent in every individual.”
  • The U.S Supreme Court has repeatedly confirmed the Fourteenth Amendment to the United States Constitution clearly provides protection to parents in the “care, custody, and control” of their children, including the right “to direct the upbringing . . . of children under their control.”
  • The U.S. Supreme Court has also ruled that the “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition,” and “[t]he statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”

The litigation began when the Hershbergers removed their daughter from Akron Children’s Hospital in July, in favor of a less invasive alternative treatment, after it appeared as though chemotherapy itself was a greater threat to her than her mild form of cancer. The Hospital then moved in court to take Sarah from the Hershbergers and force treatment in July.

The hospital’s move came only after county social services officials found the Hershbergers to be quality parents, and, and despite hospital demands, refused to take Sarah from the family. The Medina County probate court found that the Hershbergers were model parents, explaining “there is no evidence the parents are unfit or unstable,” and “there is not a scintilla of evidence showing the parents are unfit.”

However, the Appellate Court used an obscure Ohio statute intended to address child abuse and neglect to order Sara to be taken from the home and forced to undergo chemotherapy.

The Court made this ruling even though Sarah’s mild form of cancer is a type that can and is being treated without chemotherapy, and despite conceding that chemotherapy may well cause loss of hair, infections, infertility, cardiovascular disease, damage to internal organs, an increased risk of contracting other cancers, and even death.

The case remains pending on a jurisdictional motion before the Ohio Supreme Court and on appeal to the Ninth District; however those appeals are likely to be mooted by the Judge’s approval of the Resignation.

 


October 12, 2015: Medical Daily: Amish Family Wins Chemotherapy Case; Daughter No Longer Forced To Receive Leukemia Treatment

October 9, 2015: Business Insider: Court battle over Amish girl’s cancer treatment ends

October 2, 2015: Medina Gazette: Attorney: Amish girl who fled country to avoid chemo is cancer-free

March 11, 2014: Reason.com: Amish vs. the Courts: Family Speaks Out on Fleeing the U.S. to Save Daughter from Court-Mandated Chemo [VIDEO]

February 14, 2014: Medina Gazette: Judge accepts guardian’s resignation in Amish medical case

February 8, 2014: 6 ABC Action News: Ohio parents fight law over girl’s forced chemo

January 21, 2014: ABC News via Associated Press: Amish Family: Forced Chemo Order Violates Rights

January 21, 2014: Medina Gazette: Attorney: Court had no authority to force Amish girl’s cancer treatments

December 27, 2013: Daily Mail: Court was wrong to appoint guardian to force Amish girl to have chemotherapy, family says

December 26, 2013: Washington Post via Associated Press: Ohio Amish argue against guardian in chemo case

December 6, 2013: Reason.com: Amish Girl in Ohio Won’t Be Forced to Have Chemotherapy

December 3, 2013: Natural News Radio: Joni Abbott hosts with guests Donna Navarro and Hershberger family attorney Maurice Thompson

November 29, 2013: New York Daily News: Amish girl in hiding to avoid Ohio court’s ruling on her cancer treatment options

November 28, 2013: Good Morning America: Amish Girl With Leukemia, Family Flees US to Avoid Chemotherapy

State’s Forced Chemotherapy on Amish Child Violates Parental Rights, Health Care Freedom Amendment

State sues to take Amish family’s daughter and force chemo on her after chemo nearly kills her and family chooses different treatment option   

amishColumbus, OH – The 1851 Center for Constitutional Law today began representation of Andy and Anna Hershberger, parents of Sarah Hershberger, a ten year old Amish girl upon whom the State of Ohio, through Akron Children’s Hospital, seeks to force an unnecessary and potentially-deadly form of chemotherapy.

The litigation began when the Hershbergers removed their daughter from the Hospital in July, in favor of a less invasive alternative treatment, after it appeared as though chemotherapy itself was a greater threat to her than her mild form of cancer. The Hospital then moved in court to take Sarah from the Hershbergers and force treatment in July.

The case is now pending on a jurisdictional motion before the Ohio Supreme Court.

The Motion for Jurisdiction requests review and reversal of the Court of Appeals for the Ninth District of Ohio which concluded that Ohio children can be taken from their parents and forced to submit to objectionable procedures “without regard to the suitability of the parents.”  The Court used an obscure Ohio statute intended to address child abuse and neglect to order Sara to be taken from the home and forced to undergo chemotherapy.

However, the United States Supreme Court has long emphasized the importance of parents’ rights to direct the upbringing of their children, alongside the right to refuse unwanted medical treatment. The Ohio Constitution does the same even more vigorously. Accordingly, on each front, the 1851 Center maintains:

  • Section 21, Article I of the Ohio Constitution, the Ohio Healthcare Freedom Amendment passed by 67 percent of Ohio voters in 2011 prohibits the compulsion of any person “to participate in a health care system.”
  • Even before Section 21, the Ohio Supreme Court held that the Ohio Constitution ensures “personal security, bodily integrity, and autonomy,” and therefore “[t]he right to refuse medical treatment” is amongst the “rights inherent in every individual.”
  • The U.S Supreme Court has repeatedly confirmed The Fourteenth Amendment to the United States Constitution clearly provides protection to parents in the “care, custody, and control” of their children, including the right “to direct the upbringing . . . of children under their control.”
  • The U.S. Supreme Court has also ruled that the “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition,” and “[t]he statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”

The Supreme Court has also explained that there is a “fundamental right to refuse medical treatment.” Despite these clear principles, the Court for the Ninth District ruled that “upon a mere finding it is in the best interest of a minor, [the Ohio Revised Code] authorizes a probate court to supplant a parent’s rights and responsibilities through appointment of a limited guardian,” and that it may do so irrespective of whether “the court finds the child’s natural parents to be unsuitable parents.”

The Court made this ruling even though Sarah’s mild form of cancer is a type that can and is being treated without chemotherapy, and despite conceding that chemotherapy may well cause loss of hair, infections, infertility, cardiovascular disease, damage to internal organs, an increased risk of contracting other cancers, and even death.

“This case touches upon the very role of government in a free society: our Constitutions do not empower state government to rip a child from her admittedly competent parents and loving home, and force her to submit to unneeded treatment that may kill or sterilize her, when other courses of treatment are being pursued, and are working,” said Maurice Thompson, Executive Director of the 1851 Center. “This is amongst the very things that the 2011 Health Care Freedom Amendment was passed to guard against – – a state that can force health care upon you or deprive you of it can control every aspect of life.”

The hospital’s move came only after county social services officials found the Hershbergers to be quality parents, and, and despite hospital demands, refused to take Sarah from the family. The Medina County probate court found that the Hershbergers were model parents, explaining “there is no evidence the parents are unfit or unstable,” and “there is not a scintilla of evidence showing the parents are unfit.”

Federal Court: SB 47 Restrictions on Petition Circulation Unconstitutional

Key features of Senate Bill 47 “reform” violate First Amendment speech and associational rights of Ohioans, restrict free trade

iandrColumbus, OH – A federal court late yesterday enjoined the state from enforcing Senate Bill 47’s new limits on Ohioans’ Initiative and Referendum rights. Specifically, the Court held that Ohio’s new ban on Ohioans contracting with non-Ohioans to circulate initiative petitions violates Ohioans’ First Amendment Rights.

The ruling, made by Judge Watson of the Columbus division of the Southern District of Ohio, paves the way for Ohioans advancing the Workplace Freedom Amendment and other freedom-oriented ballot issues to resume association and contracts with professional out-of-state signature gatherers.

The legal action was filed on behalf of Ohioans for Workplace Freedom and Cincinnati for Pension Reform. OWF is currently gathering signatures to place a right-to-work amendment before voters; and CPR incurred significant additional last-minute costs attempting to utilize only in-state petitioners.

In his 27 page decision, Judge Watson, explained that “petition circulation – whether for candidates or issues – constitutes core political speech protected by the First Amendment,” and “laws prohibiting nonresidents from acting as petition circulators significantly burden political speech because they substantially reduce the number of petition circulators and are therefore subject to strict scrutiny.”

The Order concluded as follows: “The Court holds that Plaintiffs are likely to succeed on the merits of their claim that R.C. 3503.06(C)(1)(a) violates the First Amendment because it substantially burdens core political speech and is not narrowly tailored to serve Ohio’s compelling interest in curbing fraud in the election process.”

The lawsuit sought to restore Ohioans freedom to contract or associate with any and all American citizens to convey their message and advance their issue to the ballot. The lawsuit further seeks to invalidate the prohibition, applicable only to those associated with the issue, on gathering signatures during certain critical periods.

“We’re grateful for the Court’s thorough ruling. This Act is a set of back-door tactics to effectively eliminate initiative and referendum in Ohio, by eliminating many of those who do the actual work of gathering signatures on important issues” said Maurice Thompson, Executive Director of the 1851 Center.

“Initiative and referendum supply an important check on arbitrary government, and also supply citizens with the opportunity to act as civic adults – – taking the lawmaking power into their own hands rather than begging the legislature for change.”

The only attempt at using exclusively in-state circulators since the new statute’s enactment, a referendum effort on behalf of internet sweepstakes businesses, had failed dramatically, with less than 37 percent of submitted signatures found to be valid.

Read the Court’s Order Granting Ohioans for Workplace Freedom’s Motion for Preliminary Injunction HERE.

 

March 16, 2015: Columbus Dispatch: Judge finds Husted liable for enforcing unconstitutional law

Lawsuit: Ohio’s Attempted Medicaid Expansion Unlawful

Governor’s end-run around the Ohio General Assembly violates the separation of powers, Controlling Board’s vote impermissibly contradicts General Assembly intent

medicaid

Maurice Thompson answers questions following Ohio expansion of Medicaid

Columbus, OH – The 1851 Center for Constitutional Law late yesterday moved in the Ohio Supreme Court, on behalf of six veteran Ohio legislators and two of Ohio’s largest pro-life organizations, to stop Ohio’s executive branch from expanding Affordable Care Act (“Obamacare”) Medicaid spending without legislative approval.

The legal action is filed on behalf of State Representatives Matt Lynch, Ron Young, Andy Thompson, Ron Maag, John Becker, and Ron Hood, and Cleveland Right to Life and Right to Life of Greater Cincinnati. These representatives and groups combine to represent nearly 1 million Ohioans.

The action asserts that in accepting jurisdiction over and passing the Governor’s proposed Medicaid spending, the Controlling Board exceeded its legal authority by acting inconsistently with the intent of the Ohio General Assembly. Specifically:

 

  • R.C. 127.17 states: “The Controlling Board shall take no action which does not carry out the legislative intent of the general assembly regarding program goals and levels of support of state agencies as expressed in the prevailing appropriation acts of the general assembly.”

 

  • The Ohio General Assembly first removed Governor Kasich’s proposed expansion of Medicaid spending from the state budget bill, and then inserted a prohibition against the expansion and spending.

 

  • Article II of the Ohio Constitution requires that the legislature, rather than administrative boards such as the Controlling Board, make major policy decisions.

 

  • In a 1980 challenge to the Controlling Board, the Ohio Supreme Court held that the Controlling Board’s authority is only constitutional because it must adhere to the intentions of the General Assembly, and because of “the availability of mandamus relief” through the High Court.

 

“Many competent individuals make strong arguments against Medicaid Expansion on policy grounds. Success in our lawsuit, however, will not prohibit changes to Medicaid through legitimate means. Our lawsuit stands for the simple proposition that neither this Governor nor any other is a king,” said Maurice Thompson, Executive Director of the 1851 Center.

“For government to be limited, the making of transformational public policy requires the assent of the Ohio General Assembly, and cannot be done through administrative overreach. This occasion requires Ohioans to draw a line in the sand and affirm that we’d rather not bring Washington D.C.- style decision-making to Ohio.”

The Supreme Court of the United States, in its seminal decision last July in National Federation of Independent Business v. Sebelius, explained that the spending expansion transforms a state’s Medicaid program from “a program to care for the neediest among us” to “an element of a comprehensive national plan to provide universal health insurance coverage” that “dramatically increases state obligations under Medicaid,” and is “an attempt to foist an entirely new health care system upon the States.”

Read the Complaint HERE.

 


October 23, 2013: Dayton Business Journal: Ohio Medicaid expansion gets legal challenge

October 23, 2013: WOSU NPR 89.7: Activists, Lawmakers Bring Promised Lawsuit Over Medicaid

October 22, 2013: Cincinnati.com: SW Ohio conservatives file suit to stop Medicaid expansion

October 22, 2013: Bloomberg: Ohio Medicaid Expansion Plan Challenged in Lawsuit

October 21, 2013: New York Times: Medicaid Expansion Is Set for Ohioans

October 21, 2013: Columbus Dispatch: Medicaid-expansion opponents plan to sue Kasich administration

October 21, 2013: 60 Seconds Ohio: Maurice Thompson answers questions following Ohio expansion of Medicaid [VIDEO]

October 14, 2013: NBC 4: Controlling Board Medicaid Maneuver May Face Legal Challenge [VIDEO]

Sixth Circuit Oral Argument: Is Ohio’s “Precious Metals Dealer Act” Constitutional?

Court considers whether to protect Ohio business owners’ right to advertise and sustain invalidation of burdensome regulation of coin dealers

libertycoinsCincinnati, OH – The Sixth Circuit Court of Appeals heard oral arguments on the constitutionality of the Ohio Precious Metal Dealer Act, which imposes strict limits on precious metals purchasers and businesses in Ohio.

Through vigorous enforcement of the Act, the Ohio Department of Commerce had threatened to shut down many Ohio small businesses. However, the Act was enjoined in its entirety by a federal court in December of 2012.

The ruling, made by Judge Watson of the Columbus division of the Southern District of Ohio, paved 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 legal action was brought by the 1851 Center for Constitutional Law on behalf of Liberty Coins, a Delaware, Ohio coin dealer ordered by 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 1851 Center continues to defend Liberty Coins’ right to do business against Attorney General Mike DeWine’s appeal. And the case has since gained national attention, with the Washington D.C.-based Institute for Justice and Sacramento-based Pacific Legal Foundation weighing in with Amicus Briefs defending Liberty Coins and attacking the Act’s lawfulness.

“This Act and those enforcing it have treated small businesses who make gold and silver available as public utilities at best, and criminals at worst, irrespective of whether they have done harm,” according to Maurice Thompson, Executive Director of the 1851 Center.

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, and this case demonstrates promise for a powerful new method of enforcing constitutional limits on onerous state and federal regulations.”

The Supreme Court has repeatedly confirmed that First Amendment applies to “commercial speech,” which includes advertising. Nevertheless, Commerce, after vigorous lobbying and political contributions made by the pawnbrokers industry, which is a direct competitor of those who are subject to the Act, had begun vigorous enforcement of regulations prohibiting coin dealers from advertising without a license, and requiring a license and payment of steep fine if they had previously advertised (licenses are conditioned on a state finding of “good character and reputation”). Once licensed, state and local agents were empowered to search and seize any item or business record without a search warrant or finding of probable cause.


Listen to the archived oral argument, HERE.

Read the Appellate Briefs HERE.

Read the Amicus Briefs on behalf of Liberty Coins from the Institute for Justice HERE and Pacific Legal Foundation HERE.


October 12, 2013: Cincinnati.com: Coin shop challenges Ohio law as free speech ban

Legal Center Moves to Protect Ohioans’ Initiative and Referendum Rights from Legislative Suppression

Key features of Senate Bill 47 “reform” violate Ohio Constitution and First Amendment speech and associational rights, restrict free trade

iandrColumbus, OH – The 1851 Center for Constitutional Law today moved in federal court to immediately enjoin the state from enforcing Senate Bill 47’s new limits on Ohioans’ initiative and referendum rights.  The legislation, which became effective in June, restricts Ohioans from working with anyone other than an Ohio resident when gathering signatures to place a ballot issue before voters, and prohibits certain Ohioans from gathering signatures during critical periods.

Secretary of State Jon Husted indicated in July that he intended to fully enforce the new regulations, throwing numerous petitioning efforts into disarray.

The legal action is filed on behalf of Ohioans for Workplace Freedom and Cincinnati for Pension Reform.  OWF is currently gathering signatures to place a right-to-work amendment before voters; and CPR incurred significant additional last-minute costs attempting to utilize only in-state petitioners.

The Supreme Court has repeatedly confirmed that the First Amendment applies to the gathering of signatures to place issues on the ballot, characterizing it as “core political speech.”  Nevertheless, Ohio legislators have vigorously sought to limit these rights, which circumvent the legislative and executive branch.

Senate Bill 47 establishes an absolute prohibition of signature-gathering by anyone not residing in Ohio.  This prohibits Ohioans from contracting with out-of-staters, even though there are virtually no Ohio businesses that offer petition circulation.  Ohioans are also prohibited from seeking assistance from volunteers who do not reside in Ohio.

Legislators exempted themselves from these restrictions, creating an exception to candidate-nominating petitions.

The lawsuit seeks to restore Ohioans freedom to contract or associate with any and all American citizens to convey their message and advance their issue to the ballot.  The lawsuit further seeks to invalidate the prohibition, applicable only to those associated with the issue, on gathering signatures during certain critical periods.

“SB 47 consists of a set of back-door mechanisms that have the effect of eliminating initiative and referendum in Ohio, expunging the average citizen from participating in the political process without the assistance of politicians, and strengthening politicians’ monopoly on lawmaking,” said Maurice Thompson, Executive Director of the 1851 Center.

“Initiative and referendum supply an important check on arbitrary government, and also supply citizens with the opportunity to act as civic adults – – taking the lawmaking power into their own hands, rather than begging the legislature for change, and debating the issues, rather than the merits of a candidate’s personality.  And as with all regulations, the politically-powerful will find a way to be heard, whether through paying the higher costs or simply lobbying legislators more – – it’s the average Ohioan that Senate Bill 47 leaves out in the cold.”

These heightened tactics, which dramatically drive up the cost of ballot drives by reducing the supply of eligible signature gatherers, would effectively end grassroots freedom-oriented ballot drives such as that of the Workplace Freedom Amendment.


Read Citizens in Charge’s Complaint HERE.

Read Citizens in Charge’s Motion for Preliminary Injunction HERE.

Read 1851’s recent Testimony to the Ohio Constitutional Modernization Commission, defending Ohioans Initiative and Referendum rights, HERE.

October 5, 2013: The Toledo Blader: Guarding Ohio’s referendum process

September 20, 2013: Plain Dealer: Conservative groups cry foul over Ohio’s new restrictions on referendum petitions

Bill Authorizing Warrantless Searches of Ohioans’ Cell Phone Activity Derailed

Stalled in Committee after 1851 Testimony, Bill would permit sharing of
“any information” to law enforcement, if not amended

warrantlesscellColumbus, OH – The 1851 Center for Constitutional Law today took action that stalled passage of Senate Bill 5, legislation that, if enacted, would permit warrantless acquisition, by state and local law enforcement, of Ohioans’ travels and cell phone communications.

The fast-tracked Bill, which passed 32-1 in the Ohio Senate and was poised to be voted out of its House committee today, voted on by the entire House on June 19, and enacted into law within a matter of days, received almost no public or media scrutiny until the 1851 Center’s involvement today.

In his testimony before the House Committee on Transportation Public Safety and Homeland Security, 1851 Center Director Maurice Thompson explained the following:

  • The Bill authorizes wireless service providers to break their voluntarily-agreed-to contracts with Ohio customers, to whom they’ve promised privacy, and strips Ohioans of their right to enforce these contracts, or sue for damages (Cell phone carriers are granted absolute immunity for sharing information with law enforcement).
  • The Bill is broader than the controversial federal NSA program, in that it authorizes searches not related to foreign communications or terrorism, including activity related to petty crime such as driving infractions, or no crime at all.
  • While the Bill’s initial requirements of an “emergency” are well-defined, later division of the Bill place no limits on local law enforcement’s authority to acquire cell phone records of any Ohioan for any reason.
  • Cell phone companies have considerable incentive to share this information with Ohio police, to whom they can sell this information without liability (under the Bill) at up to $2,200 per search.

“We were shocked to learn that this Bill had overwhelmingly passed the Senate with such speed, and that there was previously no opposition,” said Maurice Thompson, Executive Director of the 1851 Center. “Ohioans should be free from warrantless searches of their phone records except in the gravest of emergencies, if at all, and they should be free to contract with carriers that will not sell their information. This Bill would violate those constitutional principles, accomplishing the very thing the Fourth Amendment was written to guard against. That is why we have taken this action.”

After an hour of testimony by Thompson today, which sometimes included tense exchanges with state representatives, the House Committee agreed to table the Bill and field the 1851 Center’s proposed amendment – – which require a search warrants before any non-emergency acquisition of cell phone information may occur – – before taking further action on the Bill. The next Committee meeting on the matter is not yet scheduled.

Upon review of 1851 testimony, several Senators who voted for the Bill have indicated that the Bill was misleading, and that their support, at the behest of Senate leadership, was too hasty.


Read The 1851 Center’s testimony on proposed Senate Bill 5 HERE.


June 19, 2013: WBNS-10TV: Kelsey’s Law On Hold In Ohio After Cell Phone Privacy Issues Raised
June 20, 2013: Sandusky Register: Ohio lawmakers hot for snooping power

U.S. Supreme Court Petitioned to Review Ohio PAC Laws

1851 Center asks United States Supreme Court to review Ohio Political Action Committee regulations on behalf of Geauga County blogger’s First Amendment rights

blogger-150x150Columbus, OH – The 1851 Center for Constitutional Law, in cooperation with the Washington D.C.-based Center for Competitive Politics, late yesterday petitioned the United States Supreme Court to weigh in on 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 and others, known as “Geauga Constitutional Council,” 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.

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 the Ohio Supreme Court 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 local 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. Ohio Courts applied no scrutiny to the OEC, and the Ohio Supreme Court voted 4-3 to sidestep the issue.

This case presents the first opportunity for a federal court to analyze application of the re-written PAC regulations, as well as the first opportunity to consider the effect of the Court’s landmark Citizens United decision on Ohio’s campaign finance regulations.

The Petition for Certiorari presents the following legal questions to the Court:

  1. May the major purpose test for political committee status, established by this Court in Buckley v. Valeo and FEC v. Mass. Citizens for Life, be satisfied without finding that regulated activity comprises the majority of an organization’s activity or expenditures?
  1. May a state meet its burden of demonstrating an organization’s major purpose without determining the portion of its expenditures directed toward political communications?

In addressing these issues, the Petition explains:

  • 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 Ohio Elections Commission members improperly guess at the “primary or major purpose” of the group, without considering whether they have spent money on politics, how much money, or other non-campaign-related activities.
  • In involuntarily committing groups of citizens not primarily engaged in elections as PACs, the OEC improperly overanalyzes isolated Facebook and blogs posts and informal “mission statements.”

“Ohio’s PAC regulations have long been considered the most oppressive in the nation, and the Ohio Elections Commission’s application of those regulations has rightfully been the source of national criticism” said Maurice Thompson, Executive Director of the 1851 Center. “Meanwhile, Ohio courts, including our highest court, continue to make high-profile mistakes and oversights on basic First Amendment doctrine, requiring Ohioans to look to federal courts to protect their rights. The First Amendment does not allow politically-appointed OEC 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 eventually overturned.

 


Read The Geauga Constitutional Council’s Petition for Certiorari here.


September 10, 2013: The Plain Dealer: Edmund Corsi’s political blog and activism that triggered Ohio election complaint now sits before U.S. Supreme Court

September 6, 2013: Wall Street Journal: Bradley Smith: The Supreme Court and Ed Corsi’s Life of Political Crime

July 11, 2013: Forbes: In Today’s America, Consult Your Attorney Before Speaking Freely

IRS Targeting of 1851 Center in May of 2010 Demonstrates Broader Corruption

IRS harassment was not limited to “tea party” organizations, and began earlier than many believe

IRSreleaseimageAColumbus, OH – The 1851 Center for Constitutional Law today emphasized that Internal Revenue Service harassment of groups advocating for limited government extends as far back as early 2010, and includes organizations exclusively dedicated to protecting constitutional rights, including the 1851 Center.

In its May 20, 2010 response to the 1851 Center’s application for tax-exempt status, the IRS demands that, in order to receive approval of its application, the 1851 Center must: “Please explain in detail your organization’s involvement with the Tea Party.

The 1851 Center explained that it provides legal representation to Ohioans whose constitutional rights have been aggrieved, including tea party organizations and members, and ultimately received tax exempt status. However, this instance is significant because it reveals infractions beyond what even the Inspector General for Tax Administration’s May 14 Report reveals:

 

  • While the Report focuses on 501(c)(4) political and/or lobbying organizations, the 1851 Center applied for status as an educational and/or civil public charity under Section 501(c)(3) (the 1851 Center is a public interest law firm that litigates civil rights cases without engaging in politics).
  • While the Report indicates that “[t]he Determinations Unit developed and used inappropriate criteria to identify applications from organizations with the words Tea Party in their names,” the 1851 Center made no reference to “tea party,” nor “patriot” or “9-12,” in is application, much less in its name.
  • IRS harassment of liberty-oriented groups, and intent to root out “tea party” activities, even through non-tea party sources such as 1851, has been in full force for a minimum of three years.

 

In its IRS filings, the 1851 Center indicated that its mission was “to defend constitutional rights and human rights through legal action.” The Center supplied no information that would have indicated any particular relationship with any particular tea-party organization.

“As with demands made of other organizations, the IRS demand to the 1851 Center was at minimum, irrelevant, and appears to have been calculated to do political opposition research on organizations opposing the President’s policies through, ironically, doing nothing more than enforcing the United States and Ohio constitutions.” said Maurice Thompson, Executive Director of the 1851 Center. “Investigators must acknowledge that the breadth of this scandal extends to not just ‘tea party’ groups, but to conservative and libertarian think tanks and public interest law firms across the nation.”

The 1851 Center has been a steadfast opponent of the Patient Protection and Affordable Care Act since March of 2010, having initiated the Ohio Health Care Freedom Amendment, service as amicus counsel on the lawsuits opposing the individual mandate, and counseling against a state-based Obamacare exchange and more recently against Medicaid expansion.

Read the IRS Demand Letter to the 1851 Center HERE.

Banning Internet Cafes to Benefit Casinos: Unconstitutional and Inadvisable

Attacking politically weak small businesses at behest of influential larger businesses is wrong way for Republicans to begin new legislative session

internetcafesColumbus, OH – The 1851 Center for Constitutional Law today emphasized to Ohio’s state senators and representatives that “priority” legislation to shut down Ohio’s 800-plus internet cafes is inconsistent with principles of limited government, unconstitutional, and dangerous to Ohio’s economic well-being.

House Bill 7, introduced on February 8, is designed to regulate Ohio internet cafes out of existence. The legislation comes in swift response to the casino industry’s public expression of a strong desire “to prohibit internet sweepstakes cafes in Ohio,” which are “posing a threat to existing state-licensed businesses.”

In a comprehensive analysis released today “Placing a Dangerous Bet: Banning Internet Cafes to Benefit Casinos is Unconstitutional and Inadvisable,” the 1851 Center for Constitutional Law explains that the legislation has no place on the “conservative” agenda, much less prioritized as a “first legislative initiative” by House Republican leadership. Specifically, the report asserts:

(1) The ban violates the most basic principles of limited government: treating similarly situated parties equally, respecting property rights and voluntary transactions, and avoiding choosing sides between market competitors.

(2) The newfound interest in banning rather than regulating these business coincides with casino lobbying for the same.

(3) The ban violates the spirit, if not the letter, of Ohio’s anti-cronyism provisions and property rights protections.

(4) The current text of House Bill 7 violates the free speech protections of the state and federal constitutions.

(5) Assigning such a high priority to legislation picking winners and losers amongst business competitors sends a dangerous message to the business community.

The report further notes that the internet cafe business model does not constitute gambling, is not prohibited by the Ohio Constitution’s “lottery” provision, and the only plausible justification for shutting down rather than licensing and regulating internet cafes is to advance the private financial interest of the Ohio’s new casinos.

“House Republicans are misguided in fast-tracking unconstitutional legislation that destroys over 800 harmless small businesses and 16,000 jobs, particularly while Ohioans continue to be burdened by overspending, over-taxation, and over-regulation at the state level,” said Maurice Thompson, Executive Director of the 1851 Center. “This legislation sets a dangerous precedent by signaling to large businesses that they can use political influence to shut down their less influential competitors.”

“While internet cafes do not pursue a universally-adored business model, the property rights of ‘unpopular’ businesses must be afforded the same respect as those of popular businesses,” added Thompson.

Read the policy report: Placing a Dangerous Bet: Banning Internet Cafes to Benefit Casinos is Unconstitutional and Inadvisable

February 15, 2013: Twinsburg Bulletin: Ohio House Begins Hearings on New Bill to Regulate Sweepstakes Parlors [VIDEO]