Taking of Ohioans’ Land for Private Pipeline Unconstitutional

15 families unite and move to dismiss corporation’s case attempting to take their land through eminent domain.

farmColumbus, OH – The 1851 Center for Constitutional Law today moved to dismiss 16 separate eminent domain cases filed in Bowling Green, Ohio by Texas pipeline company Kinder Morgan, explaining that purely private pipeline corporations’ taking of land for their own gain violates the Ohio Constitution’s strict protection of private property rights.

The action is filed on behalf of 15 families in eastern Wood County who have owned and farmed the disputed land for generations, and oppose turning it over for the Utopia Pipeline, a private ethane pipeline running underground to a Canadian plastics factory.

Kinder Morgan, a Texas-based corporation amongst the world’s largest pipeline companies, has used the threat of eminent domain as leverage to force Ohioans to sell it desirable land to construct the Utopia across northern Ohio. It claims that it — by itself and without government approval — can take Ohioans’ homes and land pursuant to an arcane Ohio statute now experiencing a revival due to energy development in eastern Ohio.

However, in its Motion for Judgment on the Pleadings, the 1851 Center explains that taking private property from Ohioans and giving to private businesses simply to enhance their profit margins, whether initiated by the state or the private party itself, violates the Ohio Constitution:

  • The Due Process Clause forbids a state from delegating, without any limits whatsoever (as here), the power of eminent domain to a purely private individual or business.
  • The taking of land through eminent domain must be for “public use,” and economic benefits to private interests are not public uses. Here, the public will not own, control, or use the Utopia Pipeline as it journeys underground through Ohio to Canada.
  • The taking of land must be a “public necessity.” But here, ethane, a waste product created by the fracking process, can be shipped by railroad, tanker truck, and barge. Further, the Utopia Pipeline’s route is not set in stone by any regulator, and Kinder Morgan remains free to create a different route by acquiring land from voluntary sellers.
  • Ohio’s constitutional protection of private property rights is significantly greater than that of the federal constitution, requiring that all doubts be strictly construed against those seeking to seize Ohioans’ properties.

“This is redistribution of wealth of the worst sort: taking property from regular Ohioans and giving it to a billion-dollar Texas corporation for its own benefit, under the false pretense of progress,” explained 1851 Center Executive Director Maurice Thompson. “The abuse along the Utopia Pipeline is a prime example of what can happen when legislators attempt to auction off Ohioans’ property rights to the highest bidder. Ultimately, the Ohio Constitution prevents this abuse, and we will prevail in court. But statutes inviting this sort of behavior should be amended or repealed.”

“And while we fully support the continued development of oil and gas reserves in eastern Ohio,” continued Thompson, “the very thing that makes private enterprise possible is respect for private property rights – – the Ohio Constitution does not enable private parties to take Ohioans homes and land, simply to improve their own profit margins.”

The 1851 Center draws a distinction between takings for pipelines facilitating home heating or energy independence and pipelines for purely private commercial interests. While public utilities may exercise eminent domain to provide service to Ohioans homes, and certain oil and gas pipelines may even possess eminent domain authority, the Utopia Pipeline remains submerged through the entire state, and provides no service to Ohioans.

“At minimum, Kinder Morgan is using the false threat of eminent domain to intimidate Ohio property owners into accepting below-market settlements for their land,” added Thompson. “Ohioans should be aware of this ploy.”

Read the 1851 Center’s full Motion to Dismiss HERE.

Federal Court: State Cannot Inspect Ohio Businesses Without a Warrant

Fourth Amendment prohibits state mandate to make business records, property, and inventory available to state agents “at all times” and “upon demand”

recordsColumbus, OH – A federal court late yesterday ruled that State Agencies violate the Fourth Amendment’s protection against unreasonable searches when they, without a warrant or any evidence of wrongdoing, investigate Ohio businesses by simply demanding private business records, property, and inventory.

The ruling, made by Judge Watson of the Columbus division of the Southern District of Ohio, addressed regulations governing those purchasing gold, silver, and other precious metals under the Precious Metals Dealers Act (“PMDA”).

However, its impact is likely to far exceed just the PMDA. Many Ohio businesses, particularly those requiring government licensing, face materially identical mandates. Accordingly, the ruling paves the way for Ohio businesses, even if heavily licensed and regulated, to refuse government demands to search private records, property, and inventory, especially when such demands are made on-the-spot and without a warrant.

The 1851 Center for Constitutional Law took up the case in 2012 on behalf of Liberty Coins, a coin dealer of Delaware, Ohio, and Worthington Jewelers, a retail jeweler in Worthington, Ohio. Each balked at the prospect of, without any evidence of wrongdoing, losing their business licenses and being fined and prosecuted for refusing to turn over cell phones, laptops, paper records, and even inventory such as jewelry and rare coins simply “upon demand” of state enforcement agents.

In his 35 page decision, Judge Watson, enjoined four state requirements:

  • A statute declaring that “all books, forms, and records, and all other sources of information with regard to the business shall at all times be available for inspection.”
  • A statute demanding “free access to the books and papers and other sources of information with regard to the business.”
  • A requirement that private business records be “open to the inspection of the police upon demand.”
  • A mandate that businesses, at the end of each business day, fax descriptions of every item purchased that day to local police.

The Court explained as follows: “The Inspection Provisions give the government and law enforcement the right to inspect a licensee’s records without any opportunity for the licensee to seek neutral, precompliance review. The PMDA specifically provides that failure to comply with a search request is a crime. . . . The PMDA’s Inspection Provisions violate the Fourth Amendment’s protection against unreasonable searches and seizures.”

“Acts like this treat Ohio entrepreneurs as public utilities at best, and criminals at worst, irrespective of whether they have done harm. No entrepreneur deserves to be arrested for questioning the authority of a state agent to show up at his business unannounced, without any evidence of wrongdoing, and confiscate or filter through his papers, computers, cell phones, and even his business’s inventory.” said Maurice Thompson, Executive Director of the 1851 Center.

Thompson added “we brought this case to invalidate the constant invasions confronting not just precious metal dealers, but all of the other businesses that face similar inspection requirements. Our expectation is that this precedent will invalidate these kinds of searches in all industries. Ohio businesses are free to decline invasive and costly government searches – – they cannot lose their business licenses or be prosecuted, fined, or disciplined simply for saying ‘no’.”

The Supreme Court has continuously reaffirmed that the Fourth Amendment applies to businesses and business property just as it does to individuals and private homes.

Read the Court’s Order Granting the Motion for Summary Judgment of Liberty Coins and Worthington Jewelers HERE.

Read the Plaintiffs’ Motion for Summary Judgment HERE.

Ohio Cities’ Pre-Sale Home Inspections Unconstitutional

Legal Center moves to protect Ohioans’ property rights from unlawful searches and fees statewide

uncle-sam-point-of-saleColumbus, OH – The 1851 Center for Constitutional Law today moved in federal court to immediately enjoin Ohio cities, and the Cities of Bedford and Oakwood in particular, from enforcing “point of sale” and “presale” programs that require citizens to endure and pass arbitrary and warrantless government inspections before they can sell their homes to even the most informed and willing buyers.

Such municipal ordinances, in addition to restricting Ohioans’ property rights, subject homeowners to open-ended warrantless searches of every interior and exterior space of a home, violating the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

The legal action against Bedford is filed on behalf of area landlord Ken Pund, who is forbidden from selling to his daughter a home that he owns and she already resides in, and John Diezic, who was prohibited from selling his Bedford home due to minor cracks in the asphalt of his driveway. In Oakwood, Plaintiff Jason Thompson was forced to pay for and undergo an inspection simply after making an alteration to the title of his property.

In each case, the City threatened to criminally prosecute and even imprison these homeowners if they sold their homes without first submitting to and passing city inspections.

Both the United States and Ohio Supreme Court have invalidated warrantless inspections of houses, absent consent or an emergency. Nevertheless, Ohio cities have vigorously sought to collect inspection fees and impose fines, and the point of sale inspection requirements are the lynchpin to this revenue stream – – homeowners, irrespective of whether they want or need the inspection, pay a $100 fee to fund the inspections, and then additional fees for “follow-up” inspections.

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

  • Government inspection of homes, even when for sale, requires a warrant, and these expansive warrantless searches, as “unreasonable searches” of “houses,” violate Ohioans’ Fourth Amendment rights.
  • The Warrant Requirement is a significant protection for property owners, because a warrant can only be issued in light of serious and credible complaints about the property.
  • Fees that are charged to fund these unconstitutional inspections are also unconstitutional; cities cannot require their payment, and must return past payments.
  • In a prior 1851 Center victory, Baker v. Portsmouth, federal courts declared warrantless inspections of rental homes unconstitutional. The Fourth Amendment’s protections should extend to inspections triggered by the marketing or sale of a home, just as they apply to inspections triggered by renting a home.

“Local government agents do not have unlimited authority to force entry into Ohioans’ homes or businesses. To the contrary ‘houses’ are one of the types of property specifically mentioned by the Fourth Amendment; and Ohioans have a moral and constitutional right to exclude others, even government agents, from their property. Entry requires either a warrant or an emergency, and neither is present with respect to these suspicionless inspections,” said Maurice Thompson, Executive Director of the 1851 Center.

Watch Director Maurice Thompson explain the challenge to point of sale requirements

Watch Director Maurice Thompson explain the challenge to point of sale requirements

“The right to own property in Ohio has little value if local governments can continuously chip away at one’s right to actually make use of that property, requiring government permission slips for basic arrangements such as the sale of one’s home to a willing buyer.”

In Bedford, the City maintains the power to block sales on account of “architectural style and detail,” “color,” and lack of “orderly appearance.” In Oakwood, the City concedes “the inspection will seldom, if ever, reveal latent defects or violations of the Property Maintenance Code which are not readily apparent. Neither should owners nor prospective owners or occupants rely entirely upon our inspection regarding the house or accessory structures or fixtures.”

Read the Property Owners’ Complaint HERE

Read the Property Owners’ Motion for Preliminary Injunction HERE

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This lawsuit is brought in partnership with the Ohio Real Estate Investors Association (“OREIA”), the Finney Law Firm in Cincinnati, and the law firm of Berns, Ockner & Greenberger in Cleveland.

No, Ted Strickland, the Constitution Does Not Require a Supreme Court Confirmation Now

Senator Portman is Within His Right to Forestall

Columbus, OH – Former Ohio Governor and current Ohio Senate Candidate Ted Strickland spoke inaccurately yesterday when insisting that the United States Constitution requires an immediate vote on an Obama Administration Supreme Court nominee.

His repeated assertions that the Senate has a “constitutional obligation” to confirm an Obama Administration nominee came in response to Ohio Senator Rob Portman indicating that it would be “wiser” to wait until after the presidential election.

In reality, the Senate has no such constitutional “obligation,” and further, forestalling Supreme Court nominations until after the presidential election is lawful, non-threatening, and entirely plausible:

  • Under Article II, Section 2 of the United States Constitution, confirmation by the Senate requires both “advice” and“consent,” and the Senate maintains no obligation to “consent.” There is no requirement to hold a vote, and no requirement to vote in favor of confirmation. In fact, Congress sets the very sizeof the Supreme Court, and could elect to permanently maintain an eight justice court.
  • Only 15 percent of Supreme Court cases are decided by one vote, meaning the maintenance of an eight-Justice-court fails to present a significant threat, especially since it is already too late for a new justice to participate in this term’s decisions.
  • President Obama cannot lawfully appoint a Supreme Court Justice through the “recess appointment” process. The Supreme Court unanimously rejected such a move in the 2014 caseNLRB v. Noel Canning, finding that the President has no “recess appointment power” unless the Senate actually declares that it is in a recess (which it will not do here).

“Senator Portman is correct on this issue. There is simply no constitutional obligation to appoint an Obama nominee to the Supreme Court,” explained Maurice Thompson, Executive Director of the 1851 Center.

“And as to ‘wiseness,’ Ohioans should not forget how uniquely unqualified Mr. Strickland is to speak to the issue of democracy and the politicization of the courts: after losing Ohio’s gubernatorial election in November of 2010, he hastily disgraced the Ohio Supreme Court by appointing his running mate, Yvette McGee Brown, to the high court at the eleventh hour of his governorship (in January of 2011). Brown was summarily swept from office by Ohio voters at the next general election. Mr. Strickland’s other Supreme Court appointment, political crony Eric Brown, was removed from office just seven months after appointment.”

Of note to Ohioans, Strickland also mentioned his view that former Ohio Attorney General Richard Cordray should be appointed to the high court. However, much like the current occupier of that office, Cordray spent his entire tenure in Ohio attacking state and local businesses, rather than defending the state or federal constitutions or limiting government in any manner.

Top 10 Reasons to Donate to the 1851 Center . . . this Year!

This holiday season, as you’re besieged by end of the year fundraising emails, don’t overlook Ohio’s only charity that consistently defends your constitutional rights and limits government.

Here are a few reasons to make room in your budget to contribute to liberty in Ohio before the end of the year:

Donate to 1851

  1. With our help, you really can fight city hall, at no cost. Our clients pay nothing, due to the generous support of people like you. The cost of having to pay a lawyer is the very reason many unjust government actions are never challenged, while many victims of government abuse simply cannot afford to fight back.
  1. We defend Ohio taxpayers from government. This year, we forced one Ohio school district to return $5.5 million in illegal property taxes to its taxpayers.
  1. We defend your property rights. This year, we stopped Ohio cities from using a form of eminent domain abuse called “quick-take” to immediately seize Ohioans’ land without a trial or even a hearing. We also stopped private pipeline corporations from doing the exact same thing.
  1. We defend your parental rights. This year, we stopped judges and government medical “experts” from overruling fit parent’s health care decisions for their children.
  1. We defend your freedom to criticize politicians. This year, we protected the rights of a Maple Heights husband and wife to criticize the failed policies of their mayor on their blog, after the Mayor sued them demanding “an amount in excess of $25,000” for “defamation” and “emotional distress.” And now we’re taking that Mayor and his lawyer to court to make them pay for their frivolous litigation.
  1. We defend your right to do business. This year, we stopped Ohio cities from intruding into rental properties without a warrant, while levying extortionate fees and fines on Ohio’s landlords.
  1. We defend you from career politicians. This year, after Ohio legislators hatched a plan to use an under-the-radar commission to get rid of their own term limits, we stopped them. And we’ll stop them next year too.
  1. When public officials violate your constitutional rights, we make them pay. This year, we won a ruling forcing Ohio’s Secretary of State personally compensate Cincinnati pension reformers after he unconstitutionally forbid them from contracting with out-of-staters to collect signatures for their ballot issue.
  1. We have big plans for 2016. We have big plans to better protect you from local tax increases and union abuses. We’re going to continue using the Fourth Amendment to protect your property, business, and contract rights. And we’ll continue to stop eminent domain abuse.
  1. Your contributions actually make a difference. In 2015, support from people like you made all of our work possible. As opposed to a huge national or global non-profit, we focus intensely on Ohio, and do it on a shoestring budget. So every dollar matters. Donations directly fund our cases and actions, not endless chatter, swanky offices, or bloated salaries. As little as $1,000 sometimes covers the expenses for an entire case.

And precisely because we are supported by individuals like you, we can’t be bought by special interests, big corporations, labor unions or politicians. Our work will never deviate from our mission: achieving your freedom from government force. We are the only “special interest group” representing Ohioans who oppose special interests.

With your help, we are a force for long-lasting change, rather than a tactic to win the next election.

If you’ve already donated this year, thank you for making our work possible.

If not, help us continue to serve you with your support today.

If your donation is dated before December 31, you’ll be able to take a tax deduction on this year’s taxes. Otherwise, please consider funding freedom a first priority of the New Year.

Together, we can preserve and restore your liberties, and make Ohio more free.

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Checks (made payable to the 1851 Center for Constitutional Law) can be mailed to:
208 E. State St. Columbus, OH 43215

Should Public Officials Be Held Liable for Violating Ohioans’ Rights?

Court considers whether Secretary of State Jon Husted should be required to compensate Ohioans whose First Amendment rights he violated

ohio supreme court judgesCincinnati, OH – On Thursday, December 10, the Sixth Circuit Court of Appeals heard oral arguments on whether government officials must reimburse the victims of their unconstitutional conduct for the costs and expenses imposed by that conduct.

In late 2013, federal judge Michael Watson sided with the 1851 Center in Citizens in Charge v. Husted, determining that a “residency requirement” reenacted through Senate Bill 47 violated Ohioans’ First Amendment rights by prohibiting them from working with out-of-state petition circulators on their initiative. Thereafter, the Ohio Attorney General insisted that the Secretary of State Husted was nevertheless “immune” from damages for the harm he imposed on a conservative pension reform effort in Cincinnati.

In March, Judge Watson denied the plea for immunity, explaining that Mr. Husted may indeed be liable for the harm he inflicted because the plaintiffs’ constitutional rights were “clearly established,” and any reasonable public official would have known that the residency requirement was unconstitutional (the same requirement had been held invalid in 2008).

The Attorney General appealed, even though Mr. Husted does not deny that he violated Ohioans’ rights. Instead he claims that, as a government official, he should be absolutely immune from personal liability when enforcing statutes enacted by the legislature, irrespective of their constitutionality.

The parties filed briefs, and on December 10, the 1851 Center argued that government officers should be personally liable, rather than “immune,” when they violate Ohioans’ clear constitutional rights.

“Public officials should be held accountable for the harm they inflict when violating Ohioans’ rights, not their innocent victims,” according to Maurice Thompson, Executive Director of the 1851 Center. “If public officials from the governor down through the police know that they will be liable for enforcing an unconstitutional law, they are far more likely to take Ohioans’ constitutional rights seriously. We would like to end the ‘I don’t make the law; I just enforce it’ mentality that many public officials use to escape liability for the harm they cause.”

If the State prevails in its appeal, public officials – whether police, bureaucrats, or politicians – may well be authorized to violate Ohioans’ rights without consequence.

Capital elections law professor Mark Brown is supporting the 1851 Center’s position with an amicus brief, while Ohio State elections law professor Daniel P. Tokaji has called denial of immunity here “dead-on right,” explaining “[s]ome qualified-immunity cases are difficult. Not this one.”

 

The oral argument occurred at 9:30am on Thursday December 10. You can listen to the archived oral argument HERE

Read the 1851 Center’s Appellate Brief HERE

Read media reports on this case HERE

Court: Ohioans Have Right to Criticize the Performance of Public Officials

Maple Heights Mayor sued to silence local bloggers for “defamation” and “emotional distress,” and violated their right to free speech in doing so

bloggercolorColumbus, OH – An Ohio Court late Friday dismissed the case of a Cleveland-area Mayor who sued a local family for “an amount in excess of $25,000” after they questioned his job performance on their blog.

The 1851 Center for Constitutional Law’s victory on behalf of Bill and Lynde Brownlee, husband and wife, and their small-town news website, Maple Heights News, reaffirms the principle that citizens’ criticisms of their government officials cannot be silenced when those officials file lawsuits for “defamation” and “intentional infliction of emotional distress,” as Mayor Jeff Lansky had attempted here.

The ruling should provide considerable help to both mainstream news outlets and alternative politically-minded journalists and organizations.

The Brownlees had written a short web article in the summer of 2014 questioning whether the Mayor had kept all of his campaign promises, and further questioning his tax and spending policies. The article strictly addressed the Mayor’s policies, and did not use insulting or harsh language.

In a 27-page Judgment Entry affirming that Ohio public officials cannot prevail in lawsuits merely in response to political speech, Judge Jose Villanueva of the Cuyahoga County Court of Common Pleas held as follows:

  • “Public discussion of public officials is a fundamental principle of the American form of government, and thus a primary purpose of the First Amendment is to encourage self-government by permitting comment and criticism of those charged with its leadership.”
  • “Expressions of opinion are generally protected under Section 11, Article I of the Ohio Constitution as a valid exercise of freedom of the press [and] an alleged defamatory statement is not actionable if the statement constitutes political opinion speech protected by absolute immunity.
  • The statements were obviously opinion because “the Article is labeled ‘editorial’ and appeared in the ‘editorial’ section of a Website created for the avowed purpose of giving voice to the residents of Maple Heights. . . labeling a statement as ‘editorial’ puts readers on notice that the statements constitute the writer’s opinions.”
  • “A reasonable reader would arguably understand the Article as an opinion piece critiquing events in the city during the Mayor’s current term . . . This type of statement is not actionable in defamation.”
  • As to the Mayor’s “emotional distress” claim, “the defendants’ conduct in writing and publishing an Article constituting political commentary does not rise to the level of conduct necessary to prove [that claim].

The Court further explained that Ohioans are free to share their own conclusions about whether a particular official is ultimately responsible for certain bad outcomes, irrespective of whether that conclusion is technically correct: “It is not unreasonable to attribute actions or events that occur during a Mayor’s administration directly to the Mayor, despite the fact that others were also involved in carrying out the actions or events . . . and the Brownlees reasonably believed that the events and actions discussed in the Article could be attributed to Mayor Lansky. . . Merely because Mayor Lansky disagrees with their interpretation of the facts does not amount to actual malice.”

“When voicing their concerns over elected officials’ performance, Ohioans should not be bullied into silence for fear of an expensive lawsuit,” explained Maurice Thompson, Executive Director of the 1851 Center. “The right to criticize an elected official’s poor performance is, as a necessary first step to those officials’ removal from office, the highest, best, and most constitutionally-protected form of free speech. It should be encouraged, rather than suppressed.”

To emphasize the need to deter such lawsuits in the future, the 1851 Center’s defense of the Brownlees includes a counterclaim to declare Mayor Lansky a “vexatious litigator,” and seeks sanctions against both the Mayor and his lawyer, Brent English, who was recently arrested for frivolous litigation elsewhere. The Court indicated that separate hearings would now be held on those matters.

One prominent undercurrent to the case concerns whether political comments on citizen websites are entitled to the same level of protection as mainstream newspaper, television, and radio media. The Court stressed that under the Ohio Constitution, which is more protective of free speech, “internet” speech is almost always likely to be viewed as “opinion,” and therefore immune from lawsuits for defamation and emotional distress. The Ohio Constitution guarantees “[e]very citizen may freely speak, write, and publish his sentiments on all subjects,” and “no law shall be passed to restrain or abridge the liberty of speech, or of the press.”

Read the Court’s Order HERE

Read the 1851 Center’s Motion to Dismiss HERE

Ohio School District Forced to Return $5.5 Million in Illegal Taxes to Taxpayers

Indian Hill Board of Education raised taxes without a vote, refused to refund money

school bus picking up kidsCincinnati, OH – After a five-plus year legal battle concluded with an Ohio Court denying all of its objections, the Indian Hill Exempted Village School District Board of Education late yesterday finally conceded that it must return the $5.5 million that it illegally assessed taxpayers after raising taxes without a public vote in 2010.

The 1851 Center for Constitutional Law’s victory on behalf of a certified class of all school district property taxpayers comes nearly one year after the 1851 Center prevailed in striking down the tax increase before the Ohio Supreme Court. After the Court’s unanimous December 2014 decision, the school district still refused to return the funds, requiring the Center to file a class action lawsuit in January of 2015.

In affirming that Ohio taxpayers maintain a constitutional right to recover unlawfully-imposed taxes, Judge Martin of the Hamilton County Court of Common Pleas denied the Board’s Motion for Summary Judgment, rejecting the Board’s position that it was not required to return any of the funds, or that in the alternative, it was required to return $2 million at most.

Indian Hill School District property taxpayers can expect a refund check by March 1, 2016. Amounts are expected to be approximately $1,000 for the average taxpayer, and much greater for many others.

“The outcome of this case reflects the principles that property taxes cannot be increased without a vote by citizens, unlawfully-collected taxes must be returned to those taxpayers from whom they were taken, and government must pay interest to taxpayers when it has kept their funds for many years, as here,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

“These results should dissuade other school districts from attempting to unlawfully raise taxes. Nevertheless, Ohioans should have a hard look at their school board members, who, absent scrutiny, could quite literally be getting away with theft, as would have otherwise happened here.”

Due to the class-action status of the case, the Court of Common Pleas will hold several hearings over the coming months to finalize the case, including addressing the administrative complexities of issuing pro rata refunds not just to current homeowners in the district, but to those that owned homes during the period of illegal taxation.

Rather than settling the matter in January, the Board diverted nearly $200,000 from funds earmarked for the education of school district children to pay attorneys fees of $400 per hour. Unable to find Cincinnati law firms willing to defend its practices, the Board opted to hire a firm consisting of Washington D.C. lobbyists and Cleveland lawyers.

The Board and its lawyers argued that it was entitled to keep the taxpayers’ money because each and every taxpayer did not file an individual protest letter with each and every property tax payment, and further argued that perhaps it could have legally raised taxes, albeit to a lesser extent, in the absence of the unlawful tax increase that it chose.

The 1851 Center countered by explaining that state and federal Due Process Clauses have been held to require the return of unlawfully-charged taxes. The Court took little time in flatly rejecting the firm’s arguments and siding with the 1851 Center.

“Judge Martin should be commended for scrutinizing and seeing through the Board’s outlandish arguments rather than just reflexively siding with government – – the Court deserves credit for doing justice for Ohio taxpayers,” added Thompson.

Read more about the underlying Ohio Supreme Court Case HERE

Read the 1851 Center’s Class-Action Filings HERE

Ohio Court: Cities Cannot Immediately Seize Private Property When Not For Roads

Court’s ruling places important limits on “quick-take” eminent domain power

Columbus, OH – An Ohio Court ruled late yesterday that the City of Perrysburg’s attempt to immediately seize the land of eleven local homeowners exceeds its power, given the Ohio Constitution’s protection of private property rights.

The 1851 Center’s victory curtails the abuse of a practice known as “quick-take,” where governments claim to immediately own private property upon the filing of a Complaint, before any hearing or trial. While the Ohio Constitution sanctions this immense power for “making or repairing of roads,” local governments have increasingly sought to use quick-take for many other purposes.

In striking down the City’s attempt to use quick-take here, Judge Woessner of the Wood County Probate Court concurred that the practice cannot be expanded beyond roads, holding as follows:

  • “[T]he proposed appropriations are for . . . ‘other municipal purposes,’ as well as references to ‘installing pedestrian walkways and sidewalks’ as well as ‘for providing for public utilities.’ This Court finds that if the legislature intended for ‘quick-take’ procedures to extend to other areas, those other areas would have accordingly been referenced somewhere . . . They are not.”
  • “The Court further finds that expanding ‘quick take’ immediate possession of private property . . . beyond the clearly stated purpose of ‘making or repairing roads’ is not appropriate as a matter of law in appropriation/eminent domain cases. . .”

“The Court’s ruling is a victory for private property rights across Ohio,” explained Maurice Thompson, Executive Director of the 1851 Center. “Governments have increasingly been using quick-take for anything and everything, rather than just for roads, intimidating Ohioans and stripping them of their right to mount any legal objection in court. This ruling helps ensure that meritorious arguments against eminent domain will now be heard – – and that in turn means that many more eminent domain abuses will be stopped.”

The City had sought to immediately seize property for sidewalks, a bike path, and what it cryptically referred to as “other municipal purposes.” Ohio cities may still acquire property for such purposes; however the Court’s ruling clarifies that they must attempt to negotiate and agree with homeowners, rather than exercising force as a first option.

Read the Homeowners’ Motion for Judgment on the Pleadings HERE

Read the Court’s Order HERE

Ohioans Beware: State Issue 2

Proposed Constitutional Amendment would prohibit tax reform without stopping monopolies or marijuana legalization as promised

Columbus, OH – The 1851 Center for Constitutional Law today took action to clarify for Ohioans State Issue 2, which will appear on the November 3, 2015 ballot.

State Issue 2, introduced as an attack on the marijuana legalization effort of State Issue 3, proposes to amend Section 1e of Article II of the Ohio Constitution to specify numerous purposes for which “the power of the initiative shall not be used.” (The “initiative” refers to the people, through submission of petitions, to place issues on the ballot). Those include granting or creating a monopoly, oligopoly, or cartel; but also include specifying or determining a tax rate.

Issues that are deemed to violate the new limits, in the opinion of the Ohio Ballot Board, will be required to win an extra election before they can be added to the Ohio Constitution.

There has been very little public debate on the issue leading up to the election, and many citizens are largely unaware of the details of proposed amendment. Accordingly, in its Policy Briefing on State Issue 2, released today, the 1851 Center explained the following:

  • State Issue 2 is not an “anti-monopoly amendment.” The Ohio General Assembly will be left entirely free to create monopoles and rejected language that would have tied its own hands.
  • State Issue 2 precludes tax reform instead of monopolies. While Issue 2 would not stop government from creating monopolies, it would stop citizens from initiating tax reform. Ohioans would be prohibited from using the initiative to eliminate or reduce any state or local income tax, severance tax, sales tax, property tax, or other tax.
  • State Issue 2 would not preclude marijuana legalization. This issue will only override Issue 3 if it gets more votes than Issue 3, and even then, litigation is likely to preclude that effect.
  • Issue 2 is the result of a questionable political process. Only after those supporting the marijuana amendment submitted their signatures did the Ohio General Assembly spring into action, and change rules in midstream. If legislators are successful on this occasion, there is nothing stopping them from again laying in the weeds and changing the rules of the game once any citizen initiative is completed.
  • Issue 2 would allow the Ballot Board to stifle any Initiative. “The opinion of the Ohio ballot board,” without judicial review, determines whether the Ballot Board can impose additional hurdles on citizen initiatives. No standards or criteria are specified other than the Ballot Board’s “opinion.”

“The messaging behind State Issue 2 appears to be built upon the mistruths that it prevents monopolies and would stop the proposed marijuana monopoly if enacted – – neither is accurate: this issue is simply an attack on Ohioans’ initiative rights,” said Maurice Thompson, Executive Director of the 1851 Center. “Issue 2 simply proposes that legislators should have a monopoly on the power to create monopolies. This change would simply force special interests to fund politicians’ campaigns, rather than directly promoting their issues to the public.”

Ohioans appear particularly unaware that the proposed amendment would eliminate their ability to use the initiative to advance any number of issues having nothing to do with monopolies, including any effort at tax reform, since the proposal would stifle an amendment that would “specify or determine a tax rate.”

“Nationwide, it has been proven that the citizen initiative is the most effective method of reforming excessive state and local taxes, which Ohio certainly maintains. Because current political leadership has proved unwilling to tackle these problems, Ohioans will need the initiative in the future,” added Thompson

Read The 1851 Center’s Short Policy Brief on State Issue 2 HERE