Ohio Mayor Sues Husband and Wife for $25,000 for Criticizing His Performance

Maple Heights Mayor sues to silence local bloggers for “defamation” and “emotional distress,” violating their right to free speech; 1851 files countersuit

bloggercolorColumbus, OH – The 1851 Center for Constitutional Law today moved to dismiss a lawsuit filed by the Mayor of Maple Heights, Ohio, Jeffrey Lansky, against a husband and wife who questioned the Mayor’s policies through their blog, Maple Heights News.

The action, filed in the Cuyahoga County Court of Common Pleas, comes in response to the Mayor’s September Complaint alleging “defamation” and “emotional distress,” and demanding $25,000 in damages from the Brownlees. This is the fourth defamation-type action that Mayor Lansky has filed against his political opponents.

This latest lawsuit attacks an editorial article Lynde Brownlee authored in July suggesting that the Mayor’s record had failed to live up to his 2011 campaign promises on a number of fronts. The article strictly addresses Mayor official conduct, and does not use insulting or harsh language.

The Brownlees are defending themselves with the First Amendment, while also relying on the additional free speech protections offered by the Ohio Constitution, guaranteeing “[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.”

The lawsuit stands for the following well-established constitutional principles:

  • Political speech regarding a public official’s policies is constitutionally protected, especially when those statements are opinions.
  • Even factually false criticisms of public officials are constitutionally protected, when honest mistakes, since political critiques cannot objectively impose damages or distress on a public official.

The 1851 Center’s defense of the Brownlees further counterclaims to declare Mayor Lansky a “vexatious litigator,” and seeks sanctions against both the Mayor and his legal counsel.

“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.”

The Brownlees write about community affairs in their small town, a suburb of Cleveland, at www.MapleHeightsNews.org. One prominent undercurrent to the case concerns whether political editorials on citizen websites are entitled to the same level of protection as mainstream newspaper, television, and radio media.

Read the Bloggers Motion to Dismiss HERE.

 


December 12, 2014: Ohio Watchdog: Group wants Ohio mayor labeled ‘vexatious litigator’ for suing adversaries

Ohio Supreme Court Argument: Can School Districts Raise Your Taxes Without a Vote?

1851 Center argues that Indian Hill School District violated state law by raising property taxes without a vote, while already running huge budget surpluses and maintaining extravagant cash on hand

supremecourtColumbus, OH – The Supreme Court of Ohio on Tuesday heard oral arguments on whether Ohio school districts need voter permission to raise property taxes that collect tax revenue that the districts do not need or use, even as they run considerable budget surpluses and stockpile cash reserves.

The 1851 Center asserts, on behalf of the taxpayers of the Indian Hill School District, that the District violated state law in 2009 when it raised property taxes by 1.25 mills ($400 per year, on average, for Indian Hill households), without voter permission, while already, without the tax increase, running multi-million dollar budget surpluses and maintaining a free and clear cash reserve of over $25 million.

The case centers around Ohio Revised Code Section 5705.341, which provides “no tax rate shall be levied above that necessary to produce the revenue needed by the taxing district or political subdivision for the ensuing fiscal year,” and “Nothing . . . shall permit . . . the levying of any rate of taxation . . . unless such rate of taxation for the ensuing fiscal year is clearly required by a budget of the taxing district.”

The case also draws upon Section 2, Article XII of the Ohio Constitution, which forbids property taxation “in excess of one per cent of its true value in money for all state and local purposes,” except by approval of the voters.

“If Indian Hill – – Ohio’s wealthiest school district – – can use public budgeting gimmicks to raise property taxes without a vote, then any school district in Ohio will be able to follow suit. A victory in this case is important to protecting taxpayers here and also in many other school districts,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

“Running exorbitant budget surpluses and maintaining a thick bank account may echo fiscal responsibility to some; however, this means the school district is taking from taxpayers money that it does not need- – over-taxing them rather than allowing them to keep and use their own money for their families’ betterment.”

Watch the oral argument HERE.

The Ohio Supreme Court previews the argument HERE.

Legal Center to High Court: Cleveland-Area Stormwater Tax Unconstitutional

Northeast Ohio Sewer District tax on “impervious surfaces” is without legislative authorization, and is a property tax without the required voter approval

stormwaterColumbus, OH – The 1851 Center for Constitutional Law late yesterday submitted to the Ohio Supreme Court its Merit Brief asserting that the Northeast Ohio Regional Sewer District, a Cleveland-Akron area administrative agency, lacks authority to regulate property in response to rainwater, which is not sewage, and even if it has such authority, may not impose a stormwater-related tax without a vote.

The Sewer District seeks to levy a tax on “impervious surfaces” on hundreds of thousands of Northeast Ohio residential and business property owners. These surfaces include roofs, patios, driveways, and parking lots, and are taxes levied based upon the square footage of each. The District maintains that this is a means of addressing rain-related erosion, run-off, and flooding.

Although such districts’ authorities often claim that settlement agreements with the federal EPA mandate such programs, such settlements mandate no particular course of action and do not permit agencies to transgress the Ohio Constitution.

Joining the 1851 Center on the Brief is the Ohio Real Estate Investors Association. Objecting to the taxes and regulations are several Cleveland-area municipalities, as well as numerous property-owner and business organizations, including the Ohio Council of Retail Merchants, Greater Cleveland Association of Building Owners and Managers, and the Cleveland Automobile Dealers Association.

The 1851 Center’s amicus brief argues that a sewer district, as an administrative agency of defined and limited powers, has no authority to impose taxes and regulations related to rainwater falling from the sky, i.e. something other than sewage. The brief further maintains that even if the agency had power to address rainwater, it may not tax property owners because the Ohio Constitution prohibits the raising of property taxes without voter approval through a tax levy election.

The 1851 Center’s brief asserts the following:

 

  • Pursuant to the Ohio Constitution, the General Assembly can only confer administrative power on an agency, and such agencies may not make policy.

 

  • The Northeast Ohio Regional Sewer District seeks to manage stormwater – – rain, essentially. The legislature, however, fully aware that it rains and snows in Cleveland, gave the Sewer District no such authority.

 

  • The Sewer District maintains no power to levy a tax without voter approval.

 

  • Although labeled a “fee,” the stormwater fee meets the legal standards of a tax because it is levied without regard to use, on certain property owners who gain no particular benefit from paying it, to advance goals that benefit the general public.

 

“Agencies like this are entirely unaccountable to the public, and this case stands for the principles that such agencies cannot take control of every facet of our lives, down to rainwater and the size of our patios, while taxing development in a manner that punishes and discourages it, with no regard to economic factors or public approval,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

“The Sewer District’s tax on impervious surfaces, including nearly every patio, rooftop, and driveway in Northeast Ohio, bares a far closer resemblance to sewage than does rainwater, and the District must consider less invasive methods to dealing with rain, which we have managed to deal with without taxation for all of human civilization.”

Oral arguments will likely take place in the fall.

Read the Amicus Brief here.

Supreme Court Argument: Are Ohio’s Political Speech Regulations Constitutional?

1851 Center amicus brief maintains that political class uses elections commission and its regulations to attack grass-roots citizen activity

supremecourtColumbus, OH – The United States Supreme Court heard oral arguments on Susan B. Anthony List v. Driehaus – whether Ohioans can stop the enforcement actions of the Ohio Elections Commission, and further, whether regulations prohibiting “false statements” regarding “public officials” or “candidates” violate the First Amendment to the United States Constitution.

Elections Commissions actions are often filed by well-heeled political veterans such as incumbents and well-financed campaigns, to intimidate and squelch the speech of political rivals and dissenters. These legal actions are often effective, since political novices with little money are unable to travel to Columbus and hire a lawyer to defend themselves at multiple lengthy Commission hearings.

The 1851 Center for Constitutional Law filed an amicus curiae brief in this case on behalf of numerous Ohioans who have been frivolously forced to appear before the Commission to defend their political speech.

The 1851 Center Brief explains and argues as follows:

  • “Ohio’s Statute allows a politically-interested party to file a complaint against another, no matter whether the respondent’s speech is true or not,” meaning that “Ohioans have consistently faced commission hearings and even potential fines and criminal penalties in response to clearly-protected core political speech.”
  • “Ohio maintains an administrative scheme that, on the premise of policing only intentionally false speech, subjects political speech to harassment.”

The brief recounts Ohio cases where Congressman Pat Tiberi’s affiliates filed an action to silence a primary opponent who was mocking his voting record; where Congressman Latta filed an action to silence those indicating that he “has a record of supporting higher taxes”; where a favored candidate who lost a township trustee election sued those who chatted on Facebook about whether the candidate was a “pornographer”; where a powerful ballot issue effort sued a citizen who criticized a government light rail plan as “one of the worst plans in the country”; where a township trustee alleged that his opponent was not truly an “organic” farmer; and numerous cases where upstart local candidates simply omitted the word “for” in their campaign literature (“John Smith, Treasurer” vs. “John Smith for Treasurer”).

“A common question asked regarding this case is whether the 1851 Center and others are defending a ‘right to lie.’ The answer is ‘no.’ Our efforts here are aimed at defending Ohioans from a panel of state government bureaucrats empowered to arbitrate what is true and what is false, in the realm of political debate,” according to Maurice Thompson, Executive Director of the 1851 Center.

“Our view, based on our experience litigating these type of cases, is that a government Commission cannot be trusted to accurately distinguish true political speech from false speech; and further, citizens need breathing space to criticize public officials, without concern that those officials will turn around and sue them for cavalier statements.”

“The Supreme Court has repeatedly confirmed that “in the free society ordained by our Constitution, it is not the government, but the people individually as citizens and candidates who must retain control over the quantity and range of debate on public issues.”

In addition to the 1851 Center’s amicus brief, 1851 Center Chairman Bradley Smith has filed an amicus brief, and 1851 Center Board Member Christopher Finney is amongst the attorneys challenging the statute.

Tune in for the oral argument live, at 10:00am on Tuesday April 22, or listen to the archived oral argument later, HERE.

Read the 1851 Center’s Amicus Brief HERE.

 


April 22, 2014: WSPD AM 1370: Constitutionality of Ohio Campaign Law Heard By Supreme Court

April 22, 2014: WBNS-10TV: U.S. Supreme Court To Determine Whether Ohio Candidates Can Lie

Ohio Cities’ Rental Licensing and Inspection Requirements Unconstitutional

Legal Center moves to protect property rights of landlords from unlawful searches and licensing regulations in Mt. Healthy, Ohio

forrentColumbus, OH – The 1851 Center for Constitutional Law today moved in federal court to immediately enjoin Ohio municipalities, and the City of Mt. Healthy in particular, from enforcing new “Rental Permit Programs” that require small landlords to undergo warrantless inspections, pay permit fees, and obtain a license simply to continue renting their houses to tenants.

Such municipal ordinances, such as the Mt. Healthy ordinance which became effective in March, in addition to restricting Ohioans’ property rights, subject property owners and tenants to open-ended warrantless searches that violates the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution. Further, the Rental Permit Program discriminatorily applies only to single family homes, and not to multi-family residences, such as apartments.

The legal action is filed on behalf of four rental property owners and one tenant, all in the City of Mt. Healthy, Ohio, which is located just outside of Cincinnati in Hamilton County. These property owners have long rented their property in Mt. Healthy without license or inspections, and their properties have never been the subject of complaint by tenants, neighbors, or others.

The City has threatened to criminally prosecute and even imprison these landlords if they continue to rent their homes without first submitting to an unconstitutional warrantless search of the entire interior and exterior of these homes.

Both the United States and Ohio Supreme Court have invalidated warrantless inspections of rental property, and repeatedly held that warrantless administrative inspections of business property are generally invalid, absent exigent circumstances.

Nevertheless, Ohio cities have vigorously sought to collect licensing fees from area landlords and find cause to impose fines, and the warrantless searches serve as the lynchpin to each of these goals.

Ordinances such as the Mt. Healthy Rental Permit Program establish an absolute prohibition on renting property within a community, even though the landlord may have long done so and even though his or her property may be in pristine condition, without a government-approved license that cannot be acquired without first paying a $100 annual fee per rental home and submitting to an open-ended warrantless search of the property, inside and out.

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

 

  • Searches of homes, even when business property to the owner, require a warrant, and warrantless searches violate Ohioans’ Fourth Amendment rights.

 

  • Even if a city were to seek a warrant to insect a rental home, in the absence of serious complaints about the property or an emergency, regulatory schemes such as rental permit programs do not allow cities to seek and obtain warrants to search homes.

 

  • Licensing fees that are designated for the purpose of conducting unconstitutional searches are also unconstitutional, and cities cannot require their payment.

 

“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 rental inspections,” said Maurice Thompson, Executive Director of the 1851 Center.

“Government inspections of one’s home frequently results in arbitrary orders to make thousands of dollars worth of untenable improvements to even the most well-maintained properties. 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 even the most basic human arrangements.”

Read the Rental Property Owners’ Complaint HERE.

Read the Rental Property Owners’ Motion for Preliminary Injunction HERE.

Legal Center to High Court: Traffic Cameras Unconstitutional in Ohio

Toledo’s enforcement scheme for enforcing traffic camera infractions violates Ohio Constitution

Red-light-cameraColumbus, OH – The 1851 Center for Constitutional Law today submitted to the Ohio Supreme Court its brief in Walker v. City of Toledo asserting that the City of Toledo’s method of fining drivers under its automated traffic camera violates the judicial article of the Ohio Constitution.

Joining the 1851 Center on the Brief are 21 State Representatives and eight State Senators.

The 1851 Center’s brief argues Section 4, Article I of the Ohio Constitution requires that Ohioans’ rights and liabilities must be determined by elected judges unless the General Assembly has created statutory authority for something less than a judge.

This means that the City is required to use municipal judges to enforce the camera violations, rather than the administrative hearing officers that all cities currently use. However, these cities’ agreements with private camera corporations require the use of administrative hearing officers.

“While the issue in this case may sound like a mere procedural hang-up, we are confident that if we succeed, traffic camera violations will essentially become impossibly expensive and untenable for Ohio cities to enforce. If we win, these cameras will quickly disappear from Ohio,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

The 1851 Center’s brief asserts the following:

  • Through the Ohio Constitution, citizens vested judicial power in the courts only. And Ohio cities’ hearing officers exercise “judicial power” when they determine whether Ohio drivers are liable for the violation.
  • While the Ohio Constitution permits the Ohio General Assembly to create additional judicial power, legislators have never created blanket authority for cities, or traffic-camera specific authority. Instead, they have indicated that all such violations must run through municipal courts.
  • The City of Toledo, like other Ohio cities, cannot create judicial power through local ordinances.
  • “Administrative” traffic camera enforcement violates Ohioans’ right to defend themselves before an elected judge, as well as their due process right to judicial oversight before deprivation of their vehicles.

“At the end of the day, Due Process means that you get to see a judge before government takes your money or your car,” said Thompson. “Through these camera agreements, Ohio’s local governments are essentially selling to private corporations the right to fine their citizens and take their vehicles. We believe that it’s time to end this practice.”

The General Assembly has taken no action to enable administrative enforcement, but has instead maintained a longstanding statute requiring that municipal courts must field cases related to municipal ordinances, unless parking-related. This means that the City is required to use municipal judges rather than administrative hearing officers.

The municipalities maintain that constitutional “home rule” authority lends them the power to create judicial authorities such as the hearing officers. However the Ohio Supreme Court has rejected such a claim four times between 1925 and 1959, stating that only the General Assembly can create additional judicial officers, and violations of city ordinances must be handled in municipal courts. The Appellate Court was also unconvinced.

The Brief explains that if Ohio’s high court gives a pass to municipalities, it will be turning upside down the Ohio Constitution’s requirement that Ohioans have access to an actual judge before being deprived of their property. Toledo exacts a $120 fine, and seizes or immobilizes the vehicles of those who do not or cannot pay.

Joining the 1851 Center’s Brief is a bipartisan coalition of legislators, including State Senators Seitz, Schaffer, Jordan, Jones, Uecker, Patton, and Ecklund; and State Representatives Mallory, Adams, Maag, Becker, Lynch, Boose, Conditt, Perales, Hacket, Blair, Adams, Stautberg, Rosenberger, Dovilla, Blessing, Patmon, Beck, Reece, Hall, Derickson, and Barnes.

Read the Amicus Brief here.


March 17, 2014: WBNS-10TV: Ohio Supreme Court Could Soon Determine Fate Of Red Light Traffic Cameras [VIDEO]

March 15, 2014: Toledo Blate: State lawmakers, liberties groups oppose devices

March 14, 2014: San Francisco Gate via Associated Press: Ohio legislators, liberties groups oppose cameras

March 13, 2014: 610 WTVN: Court case could spell the end of traffic-enforcement cameras

Teachers Union Places 1851 on “Enemies” List

1851 Center responds to unearthed Ohio Education Association “Agenda.”

oea1Columbus, OH – The 1851 Center for Constitutional Law today issued the following response to news that Ohio’s largest teachers union, the Ohio Education Association, has named it to its “enemies” list:

Today, the 1851 Center learned that OEA invests its time in identifying its enemies, and that deliberating on how to “deal” with them.

The Agenda for the OEA 2014 Collective Bargaining Conference outlines its “Critical Issues Sessions.”

What the OEA “considers critical” is identifying and destroying its “enemies.” Session H of the OEA’s annual meeting was entitled “Exposing Our Enemies: Anti-Union and Anti-Public Education Forces.” There, the OEA explains, “Participants will learn the scope and main goals of key local and national anti-union and anti-public education groups pushing the corporate school reform agenda. Participants will explore key major opposition and corporate reform players, including the Koch brothers, Students First, ALEC, Tea Party Patriots, the 1851 Center for Constitutional Law, and the Ohio School Board Leadership Council. Participants will learn how to identify . . . enemies and key players in their own communities. . . “

Equally disturbing, the other “critical” sessions were largely devoted to how these government employees could obtain less accountability and more public funds for themselves at taxpayer expense: Collective Bargaining, Negotiations, Compensation, Teacher Rights and Working Conditions, Bargaining Teacher Evaluations, and ensuring the rights of lesbian, gay, transgender, and bisexual employees.

Not one of these sessions concern how to become a better teacher. That apparently is not considered “critical.”

These are the people who have captured the power to educate Ohioans’ children and intercept Ohioans’ funds. And this is, literally, their agenda.

They did not share this agenda willingly. But we will share ours.

We support defending constitutional rights and limiting government. As to education, this simply means the following:

 

  • Freedom of educational choice for Ohio parents and children.

 

  • Fiscal restraint and responsibility, rather than persistently resorting to increasing property and income taxes to fund public school districts.

 

  • Freedom for Ohioans who are or wish to become teachers to decide for themselves whether to pay a labor union.

 

  • Transparent ballot language and no use of public resources to pass levies.

 

Are these principles “anti-union” or “anti-education”? You decide.

But if supporting freedom of choice, educational opportunity, limited taxation, and fiscal responsibility makes us an enemy of the Ohio Education Association, then we proudly stand as an enemy of the Ohio Education Association; and we are honored to appear on this list. Perhaps dissimilar from the OEA, our allegiance is to the betterment of Ohioans and their children; not to the union self-interest that consistently operates to their detriment.

The 1851 Center maintains that Ohioans would be better served with public servants who spend more time concerning themselves with educating Ohioans’ children, and less time attempting to plot political victories and milk already-struggling Ohio taxpayers.

But this won’t happen under our current set of rules; and so it’s time for those rules to change.

We remain committed to protecting you and your family from these people.

 

Review the OEA’s entire agenda HERE.

February 24, 2014: 610 WTVN: Maurice Thompson’s radio interview with Joel Riley [AUDIO]

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.

 


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.