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]

High Court Will Determine Ohioans Right to Challenge JobsOhio

1851 Center argues that state taxpayers maintain standing to challenge the constitutionality of Corporate Welfare

Columbus, OH – The Supreme Court of Ohio heard arguments on January 23 to determine the extent to which Ohioans may take legal action to force state government to comply with constitutional spending, indebtedness, and corporate welfare constraints.

The 1851 Center for Constitutional Law has spearheaded the litigation, briefing and arguing the merits of the position that the Ohio Constitution demands broad access to the courts for taxpayers seeking to enforce the Ohio Constitution’s structural restraints on government. The Center had originally submitted to the Ohio Supreme Court a “friend of the court” brief asserting that Progress Ohio and other left-wing challengers must be found to have taxpayer and “public interest” standing to challenge the constitutionality of Governor Kasich’s JobsOhio legislation.

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

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

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

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

  • The Ohio Constitution demands that citizens and taxpayers maintain standing to enforce limits on tax, spending, and indebtedness legislation.
  • The lower courts in this case erred in relying on federal standing cases, which are centered on Article III of the federal constitution, because the language of the Ohio Constitution deliberately rejects such barriers to standing in Ohio, and contains no jurisdictional prohibition on taxpayers and citizens bringing public interest actions.
  • Enforcing well-defined constitutional limits on state spending, indebtedness, and governmental conferral of special corporate privilege is “of great importance and interest to the public.”
  • Ohioans’ stake in enforcement of their constitution is sufficiently personal to maintain standing to enforce constitutional limits on state government’s spending, indebtedness, and provision of special corporate privileges.
  • If Ohioans are required to have a “personal stake” in such actions beyond their role as citizens and taxpayers, as the lower courts require in this case, then no Ohioan will have the capacity to enforce these general spending, debt and corporate welfare limits, and Courts will have rendered those provisions effectively unenforceable.

“While we may not agree with Progress Ohio’s politics, we certainly believe that they, like all Ohioans, must have standing to defend the Ohio Constitution in court, if that document is to remain enforceable,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law. “By requiring a ‘personal stake’ in a matter upon which all Ohioans are harmed relatively equally, such as state spending, indebtedness, and corporate welfare, Ohio courts are pulling the rug out from under these key constitutional limitations on government, and placing their own preference for abstaining from the hard work of enforcing the constitution above them. Such decisions cannot stand, if these important limits on government are to be enforceable going forward.”

Continued Thompson, “The Ohio Supreme Court’s decision in this case needs to acknowledge that when courts strip Ohioans’ of the right to enforce constitutional limits on government in court, they essentially redact those constitutional limits through procedural artifice. Ohio judges should enforce, not redact, the Ohio Constitution”

Read the 1851 Center’s initial Brief in this case HERE.

November 7, 2013: Columbus Dispatch: Supreme Court to decide who has the right to sue JobsOhio

November 6, 2013: WKSU NPR 89.7: Ohio Supreme Court hears first round of arguments in JobsOhio [AUDIO]

November 6, 2013: NBC 4: Foes Of Ohio Job-Creation Board Seek Right To Sue [VIDEO]

March 15, 2013: Ohio Watchdog: Court rejects basis for democracy in JobsOhio case

March 11, 2013: WBNS-10TV: Ohio Auditor Asks To See The Books For JobsOhio [VIDEO]

March 8, 2013: The Plain Dealer: Auditor’s authority to check JobsOhio books sparks dispute with Gov. John Kasich

February 26, 2013: Ohio Christian Alliance: The Important Issue of Judicial Standing with Maurice Thompson of the 1851 Law Center [AUDIO]

February 17, 2013: Dayton Daily News: ‘Activist’ Kasich getting mixed reviews

February 5, 2013: The Lima News: Editorial: JobsOhio delays irk Kasich

February 3, 2013: The Repository: Genesis of proposal doesn’t bode well for coming debate

January 31, 2013: Columbus Dispatch: Kasich says critics will answer to God

January 31, 2013: Media Trackers Ohio: Governor Kasich Blasts Conservative, Liberal Foes of JobsOhio as “Nihilists”

January 31, 2013: Columbus Business First: Kasich: JobsOhio foes threaten ‘wrecking’ state’s economy

January 31, 2013: Cincinnati.com: Kasich blasts supporters of JobsOhio lawsuit

January 23, 2013: Houston Chronicle: High court to decide group’s right to sue JobsOhio

January 23, 2013: Columbus Dispatch: State justices to assess legality of JobsOhio suit

Eminent Domain Abuse Continuing Along Ohio Pipeline Route

1851 Center stops abuse in Licking County, offers free assistance to property owners threatened with taking of property by private pipeline corporation

farmColumbus, OH – The 1851 Center for Constitutional Law today condemned a private pipeline corporation’s continued assertion of legal authority to take Ohioans’ private property for its own benefit, and threatened litigation, should the corporation not discontinue. In addition, the Center (1) made public its analysis demonstrating a lack of such authority; (2) disclosed that the corporation has immediately backed down from its threats once confronted with 1851 analysis; and (3) offered free legal representation to all owners threatened with a taking of their private property.

Enterprise Liquid Pipelines, a Texas-based corporation amongst the world’s largest pipeline companies, to construct the Appalachia to Texas (“ATEX”) Pipeline across the state, claims that it — by itself and without government approval — can take Ohioans’ homes and land pursuant to an arcane Ohio statute. Enterprise is relying on Ohio Revised Code Section 1723.01, which at first blush appears to permit certain private pipeline companies to “appropriate so much land. . . as is deemed necessary. . . for the laying down of pipes.”

In a November 27, 2012 formal statutory notice to farmer Dave Bonifant, Enterprise threatened “the property you own . . . is within the proposed route of the pipeline,” “Enterprise will exercise its eminent domain authority to appropriate your property,” and “Enterprise will exercise its eminent domain authority through a court proceeding if you and it are unable to reach an agreement.” In the same letter, Enterprise claimed that the fair market value of Mr. Bonifant’s property was just “$5,500.”

In its December 17, 2012 response on behalf of Mr. Bonifant and several others, the 1851 Center exhaustively outlines why the Ohio Constitution denies appropriation authority to the pipeline project.

The 1851 Center’s legal memorandum includes the following analysis:

  • R.C. 1723.01 does not apply to ethane pipelines. While R.C. 1723.01 authorizes the use of eminent domain, in some cases “for transporting natural or artificial gas, petroleum, coal or its derivatives, water, or electricity, through tubing, pipes, or conduits,” etc., the ATEX pipeline does not transport any of these. Rather, it transports ethane, which Enterprise describes as a “liquid,” that is “derived from the natural gas extraction process.”
  • ELP, through the ATEX, is not a “public utility. Due to Senate Bill 315’s amendments to R.C. 4905 in June of 2012, ELP is clearly not a “public utility.”
  • The Ohio Constitution requires that any taking of property be for “public use. The Ohio Supreme Court has explained that “even under * * * a deferential standard * * * public use is not established as a matter of law whenever the legislative body acts.” Instead, “defining the parameters of the power of eminent domain is a judicial function, and [Ohio courts] remain free to define the proper limits of the doctrine.”
  • Economic benefits to private interests are not “public uses.” In Norwood v. Horney, the Supreme Court of Ohio recently affirmed private uses for private gain are not public uses, explaining “we have never found economic benefits alone to be a sufficient public use for a valid taking;” [t]o justify the exercise of eminent domain solely on the basis of the fact that the use of that property by a private entity seeking its own profit might contribute to the economy’s health is to render impotent our constitutional limitations on the government’s power of eminent domain;” “economic development by itself is not a sufficient public use to satisfy a taking;” and “[w]e hold that an economic or financial benefit alone is insufficient to satisfy the public-use requirement of Section 19, Article I. In light of that holding, “any taking based solely on financial gain is void as a matter of law.” Thus, the economic benefits of the ATEX Pipeline alone would not appear to justify appropriation of private property.
  • The public will not possess or otherwise use the ATEX Pipeline.In Pontiac Improvement Co. v. Board of Com’rs of Cleveland Metropolitan Park Dst., the Supreme Court of Ohio indicated that the use must always be a public use, and the land or the interest therein must be taken by the public. Where private property is taken against the will of the owner under the power of eminent domain, it is a prerequisite that possession, occupation, and enjoyment of the property by the public, or by public agencies, is sought and is necessary;” and “‘[p]ublic use means the same as use by the public.” The ATEX, however, will not be possessed or used by the public, but will instead be privately owned, operated, and possessed, solely for the benefit of Enterprise and several large natural gas producers.
  • Taking property to advance the ATEX Pipeline is not “necessary.”In addition to being for a “public use,” the Ohio Constitution requires that takings be “necessary.”Similar pipelines are being built in Ohio without the use of eminent domain. As the Supreme Court of Ohio explained in Cooper v. Williams, “[i]t is only this great and common benefit to all the people alike that creates a necessity authorizing and justifying the seizure.”

In response to this analysis, Enterprise has refrained from following through with the threatened legal action against Licking County property owners. Instead, Enterprise responded by first offering Mr. Bonifant a six-figure dollar amount for his “$5,500” property before altering the route to avoid Mr. Bonifant’s property altogether, as he had consistently requested.

However, Enterprise continues to use the threat of eminent domain to gain leverage over Ohioans along the ATEX route.

“Ultimately, any Ohio statute attempting to convey eminent domain authority to a purely private corporation should be repealed. The entire purpose of a constitution is to prevent government from taking private property from the politically weak and transferring it to well-connected special interests. Yet that his precisely what this statute enables,” explained 1851 Center Executive Director Maurice Thompson. “The abuse along the ATEX is a prime example of what can happen to Ohio property owners when such a statute remains on the books.”

“And while we fully support this pipeline project, and 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 ATEX is set to haul Ethane — a chemical byproduct of fracking later used to manufacture consumer plastics — across the state. ELP intends to save money by constructing a pipeline rather than channeling the ethane to their Texas-based facilities by truck or rail. The pipeline remains submerged through the entire state, provides no service to Ohioans, and maintains the same legal status as would a pipeline for milk, bottled water, or chocolate.

“At minimum, Enterprise 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.”

Compounding the matter, in a March 28, 2012 letter to property owners, Enterprise claimed to have eminent domain authority by virtue of its status “as a public utility.” However, Senate Bill 315, enacted in June of 2012, clarified that such operators are clearly not public utilities. Enterprise has not corrected itself and nevertheless continued to threaten homeowners who may have been misled as to Enterprise’s status.

Meanwhile, many eminent domain attorneys hired by property owners have incentives to work in implicit cooperation with the pipeline: a typical attorneys fees agreement to negotiate a pipeline taking provides that the attorney is only paid if the client eventually sells his or her property to the pipeline company. Accordingly, many attorneys summarily advise their clients that Enterprise does indeed maintain eminent domain authority, and that they have no choice but to sell.

The ATEX is set to begin in Jefferson County, Ohio, along the Ohio River, and after crossing the state south of Columbus, exit Ohio through Butler County.

The 1851 Center is offering free representation to homeowners who object to the taking of their private property by Enterprise.

Read the 1851 Center’s full legal memorandum to Enterprise Liquid Pipelines HERE.

April 1, 2013: Farm and Dairy: Licking County landowner fights pipeline and appears to have won

February 2, 2013: The Buckeye Lake Beacon: Help offered to pipeline opponents

January 23, 2013: Ohio Watchdog: Ohio lawyer offers free aid to stop pipeline land seizures

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