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

Federal Court: SB 47 Restrictions on Petition Circulation Unconstitutional

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

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

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

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

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

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

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

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

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

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

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

 

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

Lawsuit: Ohio’s Attempted Medicaid Expansion Unlawful

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

medicaid

Maurice Thompson answers questions following Ohio expansion of Medicaid

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

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

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

 

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

 

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

 

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

 

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

 

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

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

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

Read the Complaint HERE.

 


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

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

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

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

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

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

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

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

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

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

Ohio Constitution Prohibits Legislators from Enacting State Insurance Mandates

Legal center advises Ohio legislators that mandating health treatments and benefits violates Ohio’s Health Care Freedom Amendment

administrativelyColumbus, OH – The 1851 Center for Constitutional Law today emphasized to Ohio’s state senators and representatives that the Ohio Health Care Freedom Amendment, added to Ohio’s Bill of Rights in late 2011, prohibits the state from mandating that Ohioans health insurance purchases include new previously-un-mandated benefits and services. The 1851 Center is the public interest law firm that drafted the Amendment and represents its advocates and sponsors.

The 1851 Center legal memorandum (“A Policymaker’s Guide to Following the Health Care Freedom Amendment“) comes in response to recent news of the Kasich Administration’s purported executive action attempting to mandate that all Ohioans purchase autism-related coverage. The memorandum observes that while the Governor’s action — simply a letter to the Obama Administration recommending that it impose autism coverage on Ohioans — may not be a forbidden “law or rule,” any state legislation will indeed violate the Amendment.

Specifically, the memorandum explains that any state-based insurance mandate is highly likely to violate all three substantive provisions of the Amendment, while also transgressing its spirit and purpose:

  • Most mandates will compel participation in, through purchase of coverage for, a “health care system,” as that phrase is broadly defined in the Amendment. (Division (A) of Section 21, Article I).
  • Mandates necessarily prohibit the purchase of insurance coverage without the newly-mandated coverage. (Division (B) of Section 21, Article I).
  • Mandates impermissibly sanction those who sell or purchase private health care insurance without also purchasing the newly-mandated coverage. (Division (C) of Section 21, Article I).

“State-based health insurance mandates are one of the primary drivers of the increased cost of health insurance premiums in Ohio,” said Maurice Thompson, Executive Director of the 1851 Center. “ We drafted the Health Care Freedom Amendment keenly aware of this problem, and with the full intention of stopping this practice, while further ensuring that the State of Ohio does not compound the challenges presented by Obamacare’s health care mandates and penalties.”

The memorandum further notes that the official “arguments for” the Amendment, approved by the Ohio Secretary of State and which appeared on Ohioans’ ballots, specified that the Amendment prohibited state government from forcing Ohioans “to pay more to upgrade your existing health insurance to meet government requirements,” and would “[p]rohibit government from forcing you into government insurance or medical treatment you don’t want.”

Finally, the memorandum observes that “[i]f the purpose behind the mandate is to provide access for those who cannot afford certain types of health treatments or products, then the mandate is a poorly-adapted policy solution,” because mandates conceal state spending and constitute a hidden tax, impose a one-size-fits all system in a world of varying health care needs, do not provide benefits on the basis of need, and impose greater hardships on small business and individuals than others.

Added Thompson, “although many of Ohio’s elected leaders opposed the federal health care mandate and supported our Amendment, six individual health insurance mandates were introduced during Ohio’s last legislative session. As the legislature begins a new session, it is our hope that clarifying the application of the Health Care Freedom Amendment to state mandates may avert unconstitutional legislation and subsequent litigation.”

Read “A Policymaker’s Guide to Following the Health Care Freedom Amendment” HERE.

Learn more about the Health Care Freedom Amendment HERE.

Listen to Maurice Thompson discuss the trouble with state health insurance mandates

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January 26, 2013: Toledo Watch: Autism coverage plan may violate Ohio Constitution’s newest amendment

January 14, 2013: Brian Thomas Morning Show on 55KRC Radio:

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January 10, 2013: Heartland.org: Without State Exchange, Ohio Small Businesses Have Standing to Sue IRS

January 9, 2013: NBC4i: Gov. Kasich Signs Directive Mandating Coverage For Autism [VIDEO]

Legal Center to High Court: Ohio PAC Laws Violate First Amendment

1851 Center asks Ohio Supreme Court to review Ohio Political Action Committee regulations on behalf of Geauga County Blogger

blogger-150x150Columbus, OH – The 1851 Center for Constitutional Law today applied to the Supreme Court of Ohio for jurisdiction over a case challenging 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 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.

In fact, 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 Ohio courts 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 Westerville property 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 when communicating.

This case will mark the Ohio Supreme Court’s first opportunity to analyze the re-written PAC regulations, as well as the Court’s first opportunity to consider the effect of the U.S. Supreme Court’s landmark Citizens United decision on Ohio’s campaign finance regulations. There, of potential importance to Mr. Corsi’s case, the Court explained that “the First Amendment does not permit laws that force speakers to retain a campaign finance attorney * * * before discussing the most salient points of our day” (At Mr. Corsi’s hearng, the OEC Chairman advised Mr. Corsi to engage a campaign finance attorney if he wished to continue blogging about state and local public policies).

The 1851 Center’s Motion for Jurisdiction asserts the following:

  • Ohio’s PAC regulations unconstitutionally regulate small groups of citizens that spend little or even no money on politics, and do not coordinate with political candidates or campaigns, thereby extending beyond the entire purpose of campaign finance regulations.
  • 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 regulations are unconstitutionally vague and overbroad, because they permit the Ohio Elections Commission members to guess at the “primary or major purpose” of the group, without considering whether they have spent money on politics.
  • The OEC improperly overanalyzes Facebook and blogs posts to involuntarily commit a group of citizens as a PAC (federal law prohibits consideration of “internet activities” when determining federal PAC status).

“Ohio’s PAC regulations have long been considered the most oppressive in the nation,” said Maurice Thompson, Executive Director of the 1851 Center. “It would be wise for our Court to hold that the First Amendment does not allow agency 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 overturned.

Ohio’s regulations are notable because they are the nation’s only PAC regulations lacking what is commonly referred to as a “monetary trigger”: Ohioans can be forced to register as PACs even if they neither expect to or actually give money to or take money from political candidates or campaigns, and otherwise spend no money on politics.

Read the Geauga Constitutional Council’s Motion for Jurisdiction HERE.