ICYMI - links from around the web

There's been so much going on this week that I thought an ICYMI (in case you missed it) column was in order ... so here we go:

* Did you know that school officials have an "obligation" to ensure that property taxes that fund schools are "fair"??? Nope, I didn't realize that was in their job description either. But that's exactly what a representative of school administrators and boards told an Ohio senate committee this week.

The premise is that they *must* challenge the values of properties in order to ensure that fairness, but is that really the case? As Lucas County Auditor Anita Lopez says, if that were true, wouldn't they also challenge property values that are too high? Turns out, they don't.

Read the whole thing at Ohio Watchdog

* If you were asked to describe a political action committee, would you include a group of people who get together to talk about politics? How about if one of the people in the group was a blogger? Probably not your idea of a PAC - but that's exactly what Ohio thinks is a PAC and they want a Cleveland-area blogger to register and follow all the rules associated with being a PAC - and pay the fines/fees for not already doing so.

This could have ramifications for any group in the state that discusses politics, regardless of political perspective. So the 1851 Center for Constitutional Law has asked the U.S. Supreme Court to review what it calls the "nation's strictest PAC regulations."

Read more at Ohio Watchdog

* The Farm Bill - though since it's really 80% food stamps so the name is quite misleading - is pending before Congress. Here's some really interesting information you need to know, especially since the bogus 'food stamp challenge' is back. Funny that this ridiculous challenge seems to be a regular event every time the bill is up for vote...but I digress.

Take a look at this chart. Do you really think we should borrow even more money to fund a 56% increase in spending for the Farm Bill?

* If you think George Orwell got it right in his book 1984, you should read this article about Herbert Spencer who wrote The Man Versus The State - in 1884.

There are some really terrific quotes from him and his book like:

Regulations have been made in yearly growing numbers, restraining the citizen in directions where his actions were previously unchecked, and compelling actions which previously he might perform or not as he liked; and at the same time heavier public burdens … have further restricted his freedom, by lessening that portion of his earnings which he can spend as he pleases, and augmenting the portion taken from him to be spent as public agents please.

The more numerous public instrumentalities become, the more is there generated in citizens the notion that everything is to be done for them, and nothing by them. Every generation is made less familiar with the attainment of desired ends by individual actions or private agencies; until, eventually, governmental agencies come to be thought of as the only available agencies.

and in a nod to the 'you didn't build that' meme:

It is not to the State that we owe the multitudinous useful inventions from the spade to the telephone; it is not the State which made possible extended navigation by a developed astronomy; it was not the State which made the discoveries in physics, chemistry, and the rest, which guide modern manufacturers; it was not the State which devised the machinery for producing fabrics of every kind, for transferring men and things from place to place, and for ministering in a thousand ways to our comforts. The worldwide transactions conducted in merchants' offices, the rush of traffic filling our streets, the retail distributing system which brings everything within easy reach and delivers the necessaries of life daily at our doors, are not of governmental origin. All these are results of the spontaneous activities of citizens, separate or grouped.

You might not have time to read the whole book, but this article about it will give you a good overview - and might surprise you at how predictable the move to tyranny is.

Bill authorizing warrantless searches of Ohioan's cell phone activity derailed

Email from the 1851 Center for Constitutional Law:

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

Columbus, 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.

IRS covered up 'tea party' policy in response to FOIA requests

Well, well, well...this gets more interesting day by day...

In 2011, The 1851 Center for Constitution Law made a Freedom of Information Act (FOIA) request to the IRS asking for any "tea party" related policies. They were told there there no such documents. But the Inspector General's report showed specific policies were in place in 2010.

So they kept the information from Congress and the public.

Oh - and they also closed their FOIA reading room and locked the door..and no one had a key. Apparently "there's nothing worth reading in the FOIA public reading room anyway."

UPDATE: A very nice IRS disclosure officer tells @fschouten and me there's nothing worth reading in the FOIA public reading room anyway.

— Gregory Korte (@gregorykorte) May 16, 2013

This article from Ben Domenech really goes to the heart of the matter:

The point is that these scandals cut at the core conceit of Obama’s ideology: the healthy and enduring confidence of big government to be good government. As technological capabilities advance and the scope of government expands, the types of domestic scandals we’re seeing here are only going to increase in frequency and invasiveness, with personal information shared more frequently, easier for even low level bureaucrats to acquire and manipulate. At the same time, Americans are becoming increasingly skeptical and cynical about their public institutions, with their trust in the federal government at historic lows. They distrust the agencies and bureaucrats even as the politicians of our age are investing more and more power in them.

Today, the media, the Obama administration, and David Axelrod are undertaking the task that conservatives could not: illustrating with each passing day that the progressive approach to modern governance and policy is inherently flawed and that vast governments are ripe for abuse. What we are seeing from the IRS and the DOJ is not something new, nor does it represent a perverse approach to benign bureaucracy: it is the inevitable consequence of an approach which puts mechanisms in place and then assumes they will not be used for ill. You should expect government to go as far as it can, whenever it can, in any ways that it can, toward the full exploitation of the power made available to it. Expecting government to behave otherwise is to expect the scorpion not to sting the frog.

The progressive answer to this is more rules and regulators, more agencies and safeguards and accountability projects. Republicans should recognize this intervention for the ridiculousness it is – creating more federal entities to watch over federal entities – and focus their arguments instead on the only solution which will actually work: removing power from the federal government and returning it to the states or the people. The only way to ensure that government doesn’t abuse a power is to make sure it doesn’t have this power in the first place.

Here is the press release sent out by the 1851 Center. It's written by Lynn Walsh.

IRS Covered Up "Tea Party" Policy in Response to FOIA Requests

In 2011 FOIA response, IRS denied existence of records that Inspector General found clearly existed at the time

Columbus, OH - The 1851 Center for Constitutional Law today released a 2011 Internal Revenue Service response to its Freedom of Information Act request denying the existence of any "tea party"-related policy - - a policy that the Inspector General for Tax Administration has found to have clearly existed at that time.

Suspicious that the IRS may have been employing an "anti-tea-party" policy, the 1851 Center, through investigative journalist Lynn K. Walsh, submitted a June 2010 Freedom of Information Act request to the IRS for all documents related to this policy. In its 2011 response, the IRS headquarters, through "Disclosure Manager" Marie Twarog states as follows:

You asked for documents relating to any training, memos, letters, policies, etc., that details how the Tax Exempt/Government Entities Division reviews applications for non-profits, 501(c)(3) and other not for profit organizations specifically mentioning "Tea Party", "the Tea Party", "tea party", and "tea parties".

I found no documents specifically responsive to your request.

However, in its May 14 Report, the Inspector General specifically finds that "[t]he first Sensitive Case Report [identifying tea party groups] was prepared by the Technical Unit" in April of 2010 (See Page 32). The Report's Appendix goes on to chronicle the existence of a series of 2010 policies and related documents targeting "tea party" and other conservative organizations.

"Either IRS Headquarters was entirely incompetent in maintaining awareness of prominent policies and documents within the IRS, or it deliberately covered up the existence of anti-conservative IRS policies. Either is terrifying," said Maurice Thompson, Executive Director of the 1851 Center. "Legal action is necessary to ensure that the IRS does not lie to taxpayers in this manner in the future."

The released documents constitutes the most prominent evidence of either a cover-up or lack of institutional control related to the tea-party policies, and are the only example of the IRS specifically denying the existence of such policies in response to a Freedom of Information Act request. Importantly, the IRS did not claim that the requested documents were exempt from FOIA; it instead claimed that the documents did not exist.

Yesterday, the 1851 Center released that in its May 20, 2010 response to the 1851 Center's application for tax-exempt status, the IRS demanded 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."

Read the IRS FOIA Response HERE.

Read the FOIA Request made to the IRS HERE.

IRS harassment not limited to 'tea party' groups

Looks like Tea Party and Patriot groups weren't the only conservative targets the IRS went after.

This via email:

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


Columbus, 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.

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Federal Court: Speech restrictions on students unconstitutional

Students and free speech win over University of Cincinnati!

Press Release:

Federal Court: University of Cincinnati Speech Restrictions on Students Unconstitutional

Students supporting "right to work" amendment cannot be arrested for discussing amendment and gathering signatures on campus

Cincinnati, OH - A federal court today ruled that the University of Cincinnati's blanket prohibition on student political speech on campus violates the First Amendment. The ruling, made by Judge Black of the Cincinnati division of the Southern District of Ohio, paves the way for members of the student group Young Americans for Liberty ("YAL") to advocate and collect signatures for the Ohio Workplace Freedom Amendment on campus.

The 1851 Center for Constitutional Law, which also drafted the Workplace Freedom Amendment, took up the students' case and challenged UC's policies after UC threatened to arrest student members of YAL if they attempted to gather signatures for the right-to-work cause on campus.

The lawsuit sought recognition that (1) the First Amendment applied to public university property, such as the University of Cincinnati; (2) signature-gathering for petition drives is a protected form of political speech; and (3) UC's requirement that all UC students register up to 15 days ahead of time before engaging in any political speech on campus violates the First Amendment.

In his decision, Judge Black emphasized "It is simply unfathomable that a UC student needs to give the University advance notice of an intent to gather signatures for a ballot initiative. There is no danger to public order arising out of students walking around campus with clipboards seeking signatures." The order, an across-the-board rebuke to UC's policies, enjoins UC from:

* "Requiring prior notification for the solicitation by students of signatures for petitions;"

* "Prohibiting all solicitation by students of signatures for petitions in any designated public forum, including the Free Speech Area, the outdoor spaces described in the MainStreet Event Guide, and campus sidewalks;"

* "Requiring that all student 'demonstrations, picketing, or rallies' occur only in the Free Speech Area;"

* "Requiring 5 to 15 days prior notification for any and all student 'demonstrations, picketing, or rallies' without differentiations;"

* "Imposing or enforcing any policy restricting student speech in any designated public forum, including the Free Speech Area, the outdoors spaces described in the MainStreet Event Guide, and campus sidewalks, that is not individually and narrowly tailored to serve a compelling university interest.

The Court further ordered UC to craft "more narrowly tailored regulations that regulate student expressive activities . . . only as are necessary to serve a compelling government interest." "UC is an arm of the state that has chased and received state and federal tax dollars since its inception, all in the name of 'public education,'" said Maurice Thompson, Executive Director of the 1851 Center.

"UC mistakenly seeks to advance its mission of public education by shielding its students from actual education on public policy issues that affect all Ohioans. Fortunately, the First Amendment allows us to protect the education of UC students from their educators; it further protects the right of students to calmly address facts and arguments that UC would rather suppress, and to do so without prior permission."

The 1851 Center and UC students endured four months of procedural tactics, harassing depositions, and frivolous daily letters by UC's attorneys, after Ohio Attorney General Mike DeWine authorized $200,000 in state funds to the private law firm of Crabbe Brown, a campaign contributor of Mr. DeWine's, to defend the clearly unconstitutional University of Cincinnati policies. The 1851 Center represents clients at no cost.

Multiple Ohio colleges and universities maintain speech restrictions similar in kind, although not as extensive, as those of the University of Cincinnati - - the Foundation for Individual Rights in Education recently named UC's speech policies the worst in the nation. However, these policies are suspect in light of the Court's clear ruling.

Click here to view the court's decision.

Click here to read more about the case.

Deed restrictions against charter schools ruled illegal

Good news for charter schools in Ohio! Remember when Toledo Public Schools and the Toledo City Council tried to implement a deed restriction in the sale of Libbey HS that would have prevented the property from ever being used/sold for a charter school? As a result of my blog post exposing the illegality of that provision, the deed restriction was removed.

Well, Cincinnati Public Schools weren't so wise and their attempt to do the same thing ended up before the Ohio Supreme Court which ruled the act illegal.

Here is the Press Release from the 1851 Center for Constitutional Law which represented a charter school in the lawsuit:

High Court Rebukes Attack on Cincinnati Charter Schools

CPS Deed Restrictions Against Charter and Private Schools Illegal, Cincinnati Charter Schools to Remain Open

Columbus - Cincinnati Public Schools' (CPS) policy of prohibiting the sale of unused available public school buildings to charter schools and private schools is unlawful and must end, today ruled the Supreme Court of Ohio. This decision rebuffs CPS efforts to shut down numerous successful charters schools in Cincinnati, and is a considerable victory for charter and private school operators throughout the state.

1851 Center for Constitutional Law represented Theodore Roosevelt Community School, a Cincinnati charter school CPS had sued to shut down. Theodore Roosevelt School had purchased an unused school building located in the Fairmount neighborhood, where all CPS schools are in academic emergency, and 80 percent of families are of minority status, and live in poverty. The school opened in August of 2010, and currently serves nearly 300 students and employs 45 staff members.

CPS attempted to enforce a deed restriction prohibiting the use of school buildings previously owned by CPS for use by a charter or private school. The 1851 Center asserted such restrictions are void by Ohio's public policy in favor of school choice, and cheat taxpayers of sales revenue from the buildings.

The Court's decision, authored by Justice Lanzinger, acknowledged held ". . . the inclusion of a deed restriction preventing the use of property for school purposes in the contract for sale of an unused school building is unenforceable as against public policy." The Court added, "[t]he restriction, on its face, prevents the free use of property for education purposes . . . Furthermore, the restriction is not neutral; it seeks to thwart competition by providing that the restriction applies to all buyers except CPS itself."

"The Court's decision upholds a landmark ruling in favor of school choice in Ohio, and against adversarial school districts who attempt to block alternative schools' right to exist," said 1851 Center Executive Director Maurice Thompson.

"Deed restrictions like the one struck down in this case were devised simply to stop new charter and private schools from opening in Cincinnati, so that CPS could retain students and protect its state funds. In its brief, CPS compares itself to a 'gas station' or 'hotel' that has a right to use hardball tactics against its competition. It seems to have forgotten that it's a public school that exists to educate children, rather than amass revenue."

The Court's decision suggested promise for the 1851 Center's overarching approach of using the doctrine "public policy" -- the requirement that contract terms are subject to the public interest -- to nullify government contract terms that attack school choice and reward special interests. While the Court acknowledged that the doctrine is narrow, it affirms 1851's position that special scrutiny should apply to government contracts: "in this case, however, involving a contract between a private party and a political subdivision, there is a compelling reason to support application of the doctrine [of public policy]."

This additional ruling exposing CPS to the loss of millions of dollars in funding from the Ohio School Facilities Commission (OSFC), which requires that school districts follow all state rules related to charter schools. The fate of this funding is still in dispute, in a second case brought by the 1851 Center and the Ohio Coalition for Quality Education, still pending before Judge Ruehlman.

All briefs in the case can be viewed here.

Oral Arguments from the case can be viewed here.

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1851 Center: beware of back-door Obamacare in Ohio

From the 1851 Center for Constitutional Law:

Two Years Ago: Obamacare Passed

Today: The US Supreme Court Hears Oral Arguments to Decide if Obamacare is Constitutional

With all attention on the Supreme Court, Ohio officials could quietly impose the mandate and restrict choice in Ohio through creating a state Obamacare exchange.

Ohio left-wing and Democratic Party front groups have recently ratcheted-up pressure on state officials to create an Obamacare exchange for Ohio. Meanwhile, it's unclear whether the Kasich Administration buys rhetoric that enacting its own Obamacare exchange will give Ohio increased flexibility.

But the issue should be a non-starter: Ohioans have already fought and won this battle. The Ohio Health Care Freedom Amendment prohibits Ohio from implementing Obamacare in Ohio through creating an exchange.

By creating an Obamacare exchange in Ohio, state government would be doing the following:

* indirectly compelling the forced purchase of government-defined health care insurance
* prohibiting Ohioans from choosing doctors and insurance plans of their choice
* imposing a host of new taxes and fees on Ohioans
* turning Ohio's health care markets over to the federal government
* gift-wrapping a victory for Obamacare by making it easier for the federal government to enforce in Ohio and elsewhere
* undermining the sincerity of Ohio's current Supreme Court challenge to Obamacare

"Any state that creates an Obamacare exchange is ultimately voluntarily choosing to enforce Obamacare and its mandates and restrictions on freedom of choice, while simultaneously reducing the chance that Obamacare will repealed or rewritten," according to 1851 Center Director Maurice Thompson in Does Ohio's Health Care Freedom Amendment Prohibit it from Imposing an Obamacare Exchange? Thompson suggests that legal action would be appropriate to stop the exchange, and that the 1851 Center may take it. Read the entire report here.

More information on this important topic is available at www.StoptheExchange.com, where Ohioans can directly share their feeling on this topic with the Kasich Administration.

A constitutional amendment to end forced unionism in Ohio

Press Release - this is huge!!!

Coalition Begins Initiation of Constitutional Amendment to End Forced Unionism in Ohio

COLUMBUS - The 1851 Center for Constitutional Law today submitted to the Ohio Attorney General, on behalf of liberty groups and business leaders, initial signatures and summary language to begin the process of adding protections against forced union participation to Ohio's Bill of Rights.

The Ohio Workplace Freedom Amendment, which would "guarantee the freedom of Ohioans to choose whether to participate in a labor organization as a condition of employment," will appear on the November 2012 ballot if 386,000 signatures are submitted by early July. Specifically the Amendment would provide that, in Ohio:

* No law, rule, agreement, or arrangement shall require any person or employer to become or remain a member of a labor organization.

* No law, rule, agreement, or arrangement shall require, directly or indirectly, as a condition of employment, any person or employer, to pay or transfer any dues, fees, assessments, other charges of any kind, or anything else of value, to a labor organization, or third party in lieu of the labor organization.

The Amendment would not prevent any person from voluntarily belonging to or providing support to a labor organization, or apply to agreements entered into or renewed prior to the enactment of this section.

Similar worker protection is provided in 22 other states, primarily in the south and west. Ohio would be the first Midwestern state to pass such an Amendment. Backers of the Amendment, which was drafted by the 1851 Center, include many of those who successfully implemented the 21st Section to Ohio's Bill of Rights, the Health Care Freedom Amendment, as Issue 3 on November 8. If passed, the Amendment would be the 22nd section in Ohio's Bill of Rights.

"Ohio's current unemployment rate remains over 9 percent - - it's no coincidence that this rate of unemployment is much higher than in states that prohibit forced unionism, while private-sector job growth in those states has dramatically outpaced Ohio's," said Maurice Thompson, Executive Director of the 1851 Center. "This Amendment will make it clear that Ohio is a safe place to start, locate, or keep a business, and also a safe place to gain employment without being commandeered by powerful political machines."

Before circulators can begin gather signatures, the Amendment's summary must be approved as "fair and truthful" by the Ohio Attorney General, and its text as one subject by the Ohio Ballot Board. By law, the Attorney General and Ballot Board each have ten days to complete their respective processes.

Added Thompson "Ultimately, freedom to associate also means freedom not to associate - - it's time for Ohio to end labor conditions that compel its citizens to participate in highly-politicized labor organizations, or instead pay a considerable penalty."

Since the New Deal era, federal regulations have dramatically tilted labor markets in favor of unions, and have left little room for state autonomy. However, states are explicitly permitted to end forced union participation within their borders.

Read the Full Text of the Amendment here.

Questions? Read "Ohio Workplace Freedom Amendment Frequently Asked Questions"

The 1851 Center for Constitutional Law is a non-profit, non-partisan legal action center dedicated to protecting Ohioans constitutional rights and limiting government.

Oral arguments on Ohio's smoking ban challenge

I know a lot of people have been following the lawsuit over the unconstitutionality of Ohio's smoking ban, so I thought this might be of interest.

For background, it's Jackson v. Bartec. The 1851 Center for Constitutional Law and Columbus tavern Zeno's challenged the constitutionally of the Ohio smoking ban, as applied to the property rights of bar owners, and the constitutionally of how the Ohio Department of Health (ODH) has enforced the ban, arguing that ODH has exceeded its limited administrative authority and taken the law into its own hands.

If you'd like to watch the oral arguments before the Ohio Supreme Court, which begin today at 9:30 a.m., you can do so here. If you like to watch them later, they will be available in the Court web site's archive.

UPDATED: Does Libbey HS deal violate state law?

***Updated with Steve Herwat interview on WSPD - see the bottom of the post***

On Tuesday at the Toledo City Council meeting, Deputy Mayor Steve Herwat told the council that the deal to purchase the Libbey High School field house, skill center and football stadium contained a deed restriction: the property could not be used for a charter school.

According to state law, school buildings need to be offered to public schools - including charter schools - before they are torn down. According to Toledo Public School Board member Lisa Sobecki in this news article, they did so:

Before proceeding with demolition, the OSFC requires the district to offer the facility to charter schools for 60 days. Twenty-six charter schools have been contacted; none have shown any interest as of Jan. 31, Sobecki said.

The charter schools have until March 3 to respond. If no charter school is interested in the facility, the district will proceed with requesting proposals for abatement and demolition of the school, Sobecki said.

But the school board reached an agreement with the City of Toledo to preserve part of the property which included a provision to restrict future owners from allowing the property to be used as a charter school - and that's what got the Cincinnati School District into trouble.

On March 11, the First District Court of Appeals ruled against a similar deed restriction the Cincinnati Public Schools had created. From the 1851 Center for Constitutional Law which sued CPS:

CPS attempted to enforce a deed restriction prohibiting the use of school buildings previously owned by CPS for use by a charter or private school. The 1851 Center asserted such a restriction is void by Ohio’s public policy in favor of school choice, and cheats taxpayers of sales revenue from the buildings.

The Court of Appeals decision, authored by Judge Sundermann, states:

“We conclude that the trial court properly determined that the facilitation of community schools having access to classroom space was clear Ohio public policy. And the deed restriction that sought to prevent the use of the property for educational purposes was void as against this clear policy.”

“The Court’s decision upholds a landmark ruling in favor of school choice in Ohio, and against adversarial school districts who attempt to block alternative schools’ right to exist,” said 1851 Center Executive Director Maurice Thompson. “Deed restrictions like the one struck down in this case were devised simply to stop new charter schools from opening in Cincinnati, so that CPS could retain students and protect its state funds. In its brief, CPS compares itself to a ‘gas station’ or ‘hotel’ that has a right to use hardball tactics against its competition. It seems to have forgotten that it’s a public school that exists to educate children, rather than amass revenue.”

The Court further stated: “[w]e are not persuaded by CPS’s argument that the property was not ‘suitable’ for classroom use. This argument is belied by the deed restriction itself, which allows the possibility that the restriction would not apply should CPS itself decide to use the property for school purposes in the future.”

This additional ruling exposing CPS to the loss of millions of dollars in funding from the Ohio School Facilities Commission (OSFC), which requires that school districts follow all state rules related to charter schools, including heeding charter schools’ right of first refusal to purchase all property “suitable for use as classroom space,” in order to be eligible for OSFC funding. The fate of this funding is still in dispute, in a second case brought by the 1851 Center and the Ohio Coalition for Quality Education, pending before Judge Ruehlman in Hamilton County.

So - if the Libbey deal goes forward (and I hope it does not as I don't believe the City of Toledo should be purchasing the property in the first place), members of council had better make sure no deed restrictions on charter schools are part of the agreement.

UPDATED - THURSDAY: In a 7:45 a.m. interview with Brian Wilson on WSPD, Herwat stated that the Libbey agreement will not be in violation of the law, that the city attorneys will make sure that the agreement has no illegalities. He said, "The Bell Administration does not violate the law." He further explained that if the deed restriction was illegal, it wouldn't be in the agreement.

But he didn't say why he originally told council there would be a deed restriction. He then complained that people are talking about what can't be done in the building rather than the 'positive' idea they have for the property. He also said 'there's never enough recreational facilities for kids' and that if the city doesn't take advantage of this opportunity, it will be a pile of rubble and the kids of the community will lose out on the experience of having a positive relationship with adults by use of the site.

Um...sorry, Steve, kids can have positive relationships with adults without the city spending $1 million that it doesn't have.

Legal Center asks Ohio Supreme Court to accept smoking ban challenge

From 1851 Center for Constitutional Law:

Legal Center Asks High Court to Accept Smoking Ban Challenge

1851 Center Files Jurisdictional Motion with Ohio Supreme Court


COLUMBUS - The 1851 Center for Constitutional Law, a public interest law firm, yesterday asked the Ohio Supreme Court to make a final determination on the legality of Ohio's state smoking ban, and its enforcement. The legal center argues that state health officials' misguided enforcement of the law violates Ohio constitutional protections, and unduly punishes innocent business owners. Also, the center argues the law itself is unconstitutional, when applied to certain types of bars. A copy of the court filing is available here.

"Irrespective of what one thinks of the merits of this law, it was never intended to result in the indiscriminate imposition of $5,000 citations on innocent business owners," said 1851 Center Executive Director Maurice Thompson. "These enforcement complications are largely a function of trying to fit a square peg into a round hole. At local 'mom and pop' taverns, alcohol and cigarette consumption have always gone hand-in-hand, and owners of these properties have a right to decide how their indoor air is used, just as potential patrons have a right to freely enter or exit."

In 2009, after a politically charged filing against Columbus Bar Zeno's by Attorney General Richard Cordray, the 1851 Center challenged the constitutionality and enforcement of the Ohio smoking ban. The legal center argued the smoking ban unconstitutionally deprived business owners of fundamental property rights. It also argued that the state health officials' methods while enforcing the ban exceeded their constitutional authority, and is at odds with the plain language of the ban.

A Franklin County Common Pleas court agreed and ruled that state and local health officials had overstepped their authority in enforcing the law. "When an individual is asked to stop smoking but refuses, liability is transferred from the property owner to the individual," wrote Judge David E. Cain in his February 2010 decision.

The Ohio attorney general appealed the decision to the Tenth District Court of Appeals, which overturned the lower court and prompted the current appeal to the Ohio Supreme Court.

"The Health Department and its designees have and continue to exceed their limited executive branch authority when they employ a policy of strict liability for the presence of smoking against Ohio's business and property owners," wrote Thompson in the Ohio Supreme Court filing.

Also yesterday, the Ohio Licensed Beverage Association, Buckeye Liquor Permit Holders Association, Ohio Liberty Council, COAST, and the Ohio Freedom Alliance filed amicus briefs with the high court supporting the 1851 Center's position.

The 1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The center litigates constitutional issues related to property rights, voting rights, regulation, taxation, and search and seizures.

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Blogger charged with campaign finance violation gets legal assistance

I received this by email on Wednesday and thought all bloggers should read it...so ICYMI:

Legal Centers Take Up Case of Blogger Charged with Campaign Finance Violation

Geauga County Board of Elections Filed Complaint Against Critic

COLUMBUS - In an apparent retaliatory action against an outspoken critic, the Geauga County Board of Elections charged independent blogger Ed Corsi with violating campaign finance laws. The elections board forwarded a complaint to the Ohio Elections Commission (OEC), where Corsi faces fines of up to $1,000 a day.

Corsi's blog, http://www.geaugaconstitutionalcouncil.org, is critical of local government and political officials, including Geauga County Board of Elections Member Edward Ryder. Specifically, Corsi publishes a politically "most unwanted list" critical of several officials he refers to as "RINOs" (Republicans in Name Only). Ryder is chairman of the Geauga County Republican Party.

The 1851 Center for Constitutional Law and the Rutherford Institute, non-profit legal advocacy firms, today filed arguments with the OEC on behalf of Corsi. The legal organizations argue the elections board improperly and unconstitutional applied campaign finance law to Corsi's activities. Further, the board's complaint infringes upon Corsi's First Amendment right to criticize his government.

"This case has the potential to severally limit free speech in Ohio," said 1851 Center Executive Director Maurice Thompson. "Should independent bloggers in Ohio be subject to registration, political disclosure laws, and fines simply because they discuss Ohio politics, and are critical of certain politicians? The Constitution says otherwise."

The elections board based the complaint on O.R.C. 3517.20(A)(2). Thompson believes its action overreaches the application of the law and violates the freedom of alternative media, such as independent political bloggers.

"When applied to Corsi's activities, the law violates the First Amendment right to anonymous political speech," said Thompson. "It places an impermissible prior restraint on core political speech. And, it applies an overbroad regulation and/or prohibition on political speech that is not express advocacy."

Corsi's website and his blogger pseudonym Geauga Constitutional Council (GCC) are not registered political organizations. They do not coordinate with political campaigns. And, Corsi personally pays for all costs associated with the website and subsequent printed material.

A copy of the filing is available here.

The 1851 Center for Constitutional Law is non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The center litigates constitutional issues related to property rights, voting rights, regulation, taxation, and search and seizures. More information about the 1851 Center is available at http://www.ohioconstitution.org.

The Rutherford Institute is a civil liberties organization that provides free legal services to people whose constitutional rights have been threatened or violated. More on the Institute can be found at http://www.rutherford.org.


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Court:Cincinnati Public Schools violated state law

This in via email from the 1851 Center for Constitutional Law. There was some discussion of this issue in Toledo so I'm sharing the outcome from Cincinnati.

Court: Cincinnati Public Schools Violated State Law

Judge Rules CPS Deed Restrictions Against Charter and Private Schools Illegal

Columbus - Cincinnati Public Schools' (CPS) policy of prohibiting the sale of unused available public school buildings to charter schools and private schools violates state law, yesterday ruled Hamilton County Common Pleas Court Judge Robert P. Ruehlman. The judge issued the ruling immediately from the bench.

The case was won by the 1851 Center for Constitutional Law on behalf of the Theodore Roosevelt School, a Cincinnati charter school CPS sued to block from opening. The school building was unused and located in the Fairmount neighborhood, where all CPS schools are in academic emergency, and 80 percent of families are of minority status, and live in poverty.

CPS attempted to enforce a deed restriction prohibiting charter or private schools from using school buildings previously owned by CPS. The 1851 Center asserted such a restriction is void by Ohio's public policy in favor of school choice, and cheats taxpayers of sales revenue from the buildings. The court agreed.

In his ruling, Judge Ruehlman called CPS's deed restrictions anti-competitive and acknowledged that CPS was merely attempting to suppress competition from charter and other alternative schools, and thwart school choice for the parents and children of Cincinnati.

"The court's decision is a landmark ruling in favor of school choice in Ohio and against adversarial school districts who attempt to block alternative schools' right to exist," said 1851 Center Executive Director Maurice Thompson. "School districts across the state are now on notice that Ohio law clearly and specifically protects the rights of alternative schools. And serious financial penalties could befall districts who attempt to squelch the rights of these schools."

The ruling halts CPS's restrictive practice and opens the district to the loss of hundreds of millions of dollars in funding from the Ohio School Facilities Commission (OSFC). Last week, OSFC member State Rep. Kris Jordan moved to stop state facilities funding to CPS because of its purported violations. Jordan, prompted by the 1851 Center's legal action against CPS, informed the commission the school district forfeited its statutory right to project funding because of repeated violations of state charter schools provisions. The court's ruling bolsters Jordan's assertion. Jordan's letter to the commission is available here.

"Over $46 million in state revenue has been directed away from Cincinnati Public Schools, and to charter schools, as over 7,000 students have left the Cincinnati Public School System for charters," said Thompson. "Deed restrictions like the one struck down were devised to stop new charter and private schools from opening in Cincinnati, so CPS could retain students and state funds."

The court's ruling affirms:

* A contract term that violates public policy is void;
* A contract term that hinders the purpose of a statute is void;
* CPS's deed restriction is void due to Ohio's public policy in favor of transferring taxpayer-owned school buildings to community schools;
* CPS's deed restriction is void because it is in derogation of a statewide public policy in favor of effectuating parental choice and educational opportunity through community schools; and
* Although the deed restriction is void, the conveyance must remain valid.

The 1851 Center's filings in the case are available here and here.

The 1851 Center for Constitutional Law is non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, voting rights, regulation, taxation, and search and seizures.

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Do public schools risk loss of state funds over charter school issue?

I received this press release from the 1851 Center for Constitutional Law and am sharing it with all of you because we've had some discussion in the Toledo area about what buildings charter schools can go in.

For Immediate Release
Tuesday, May 18, 2010


Cincinnati Public Schools Forfeit State Construction Funding, State Legislator Says

1851 Center Sued CPS Over Handling of Charter Schools

Columbus - State Representative Kris Jordan, a member of the Ohio School Facilities Commission, yesterday notified commission director Richard Murray that Cincinnati Public Schools (CPS) has forfeited its statutory right to project funding because of repeated violations of state charter schools provisions.

Rep. Jordan's action is a direct result of the 1851 Center for Constitutional Law's ongoing litigation against CPS regarding its unfair treatment of charter schools. CPS has prohibited charter schools from purchasing buildings previously owned by the school district, a violation of state law.

"I strongly believe that violations have occurred, and, once again, I urge OSFC to follow the law and withhold CPS-related project funding until these matters are resolved," wrote Rep. Jordan in a letter to commission director Richard Murray. As a result of the violation, CPS potentially stands to lose hundreds of millions of dollars in state funding. According to CPS's facilities master plan, posted on its website, the state is contributing about 23 percent of the cost of an ongoing $1 billion school construction project.

"CPS has shown little regard for the laws put in place to protect charter schools from antagonistic school districts," said Maurice Thompson, executive director of the 1851 Center. "The law clearly stipulates that CPS should lose its facilities funding as a result. De-funding by the School Facilities Commission would send a strong message to school districts unwilling to co-existing with charter schools."

The 1851 Center is pro bono defending the Theodore Roosevelt School, a Cincinnati charter school CPS is trying to close. CPS is attempting to enforce a deed restriction prohibiting anyone from using any school building ever owned by CPS for a charter or private school. The 1851 Center asserts that such a restriction is void by Ohio's public policy in favor of school choice, and cheats taxpayers of sales revenue from the buildings.

A copy of Rep. Jordan's letter is available here.
The 1851 Center's court filings in the case are available here.

The 1851 Center for Constitutional Law is non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, voting rights, regulation, taxation, and search and seizures.

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Ballot Board attempts to block health care freedom amendment

This in via email:

For Immediate Release
Friday, April 9, 2010


Ballot Board Attempts to Block Health Care Freedom Amendment

Constitutional Rights Legal Center to File Action with Ohio Supreme Court

Columbus - Secretary of State Jennifer Brunner and the Ohio Ballot Board today ruled a proposed constitutional amendment aimed at protecting Ohioans from forthcoming health care regulations should be split into two parts. As a result, the board rejected the proposed amendment and told its sponsor, the Ohio Liberty Council, to start over.

The move places the Ohio Liberty Council in the untenable position of restarting the amendment language approval process and collecting two sets of 402,275 signatures by June 30. The group will ask the Ohio Supreme Court to block the Ballot Board's action.

"The Ohio Ballot Board got it wrong today," said Warren Edstrom of the Ohio Liberty Council. "We will ask the Ohio Supreme Court to uphold our amendment language and correct this error."

Maurice Thompson, executive director of the 1851 Center for Constitutional Law, drafted the amendment language and represented the Ohio Liberty Council at today's hearing. "The Ballot Board's decision is contrary to the law and its past precedent," said Thompson. "I am at a loss to find any logical reason for the board's decision other than its own policy preferences. Board members cited concerns with the single subject rule regarding the amendment. However, if different parts of an amendment address a common purpose, the single subject rule is satisfied. And, this amendment's common purpose is to allow Ohioans the right to choose their health care."

On March 22, the Ohio Liberty Council began the process of the placing a health care freedom constitutional amendment on the November 2010 ballot. The group filed petition summary language and nearly 3,000 signatures from registered voters in 48 counties with the Ohio Attorney General, who later approved the language as truthful and accurate.

The amendment provides that:

* In Ohio, no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system;

* In Ohio, no law or rule shall prohibit the purchase or sale of health care or health insurance; and

* In Ohio, no law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.

The Ohio Liberty Council is a statewide coalition of non-partisan grass roots groups in Ohio including Central Ohio 9/12 Project, Cincinnati Tea Party, Young Americans for Liberty, Dayton Tea Party, Ohio Freedom Alliance and many more grass roots organizations. By working together, the member groups of the Ohio Liberty Council seek to achieve real results to protect and promote liberty in Ohio. More on the Ohio Liberty Council can be found at http://www.ohiolibertycouncil.org.

The 1851 Center for Constitutional Law is non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, voting rights, regulation, taxation, and search and seizures. More on the 1851 Center can be found at http://www.ohioconstitution.org.

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ACORN out of Ohio

I saw this last night, but didn't get a chance to post about, so my apologies if this is old news to some....but even if it is, it bears repeating: ACORN is out of Ohio's elections.

From the Columbus Dispatch:

ACORN, the liberal group notorious for allegedly trying to inflate voter rolls through fraudulent practices, has seen its last election in Ohio.

The Association of Community Organizations for Reform Now will permanently surrender its Ohio business license by June1 as part of a legal settlement with the conservative Buckeye Institute for Public Policy Solutions, both sides said yesterday.

The original announcement of the lawsuit, with details about the case, is available here.

While the settlement is not public, ACORN will surrender its business license by June 1 and, according to Maurice Thompson, director of the 1851 Center for Constitutional Law, they will "cease to operate in Ohio and cease to support or enable other groups to do what they do."

ACORN, of course, claims they did nothing wrong and have already ceased operations in Ohio for 'other reasons,' though they don't explain what those 'other reasons' are. Some are speculating it has to do with the internal issues ACORN is having nationally, as well as cutbacks in their funds from the government.

And then others are wondering how long this will last. Will they reconstitute under another name and continue their operations, despite the agreement to not "support or enable other groups to do what they do"?

Who knows? But I believe that, despite what others claimed are 'good works' by this group, Ohio is better off without the myriad of problems they caused our elections system.

Initiative to repeal Ohio's estate tax begins

This just in via email:

FOR IMMEDIATE RELEASE
Monday, September 14, 2009

Buckeye Institute Sample Language Used for Estate Tax Repeal

COLUMBUS - The Buckeye Institute's 1851 Center drafted language for an initiated statute amendment to eliminate Ohio's estate tax that was adopted by Citizens United to End Ohio's Estate Tax. On Friday the Attorney General approved the language for the group to begin collecting the signatures required to have the state legislature consider the initiative.

"The estate tax causes a significant harm to Ohio's families, specifically families owning small businesses and farmers," said Maurice Thompson, 1851 Center Director. "It also drives many of our wealthiest citizens, who are sometimes our most productive, out of the state."

The Buckeye Institute released a study in cooperation with the American Legislative Exchange Council which finds Ohio's estate tax is the worst in the country, kicking in on estates valued as low as $338,333.

"People shouldn't be forced to move away from their homes and their families in order to avoid an overreaching government," Thompson added.

The language for the initiative is available here.

The Buckeye Institute for Public Policy Solutions, together with its 1851 Center for Constitutional Law, is a nonpartisan research and educational institute devoted to individual liberty, economic freedom, personal responsibility and limited government in Ohio.

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Buckeye Institute threatens to sue Toledo over school zoning requirements

From the Buckeye Institute:

Proposed Toledo Community Schools Regulation Violates Ohio Constitution

Columbus - The Buckeye Institute's 1851 Center for Constitutional Law today notified the City of Toledo Plan Commission that its proposed Minimum School Facility Requirements (MSFR) zoning regulation violates the Ohio Constitution. The measure is currently before the Toledo-Lucas County Plan Commission. If approved, the Institute's legal center will pursue legal action against the city.

Specifically, the legal center will file suit on behalf of the Maritime Academy, a Toledo community school, and a Toledo family whose child's attendance at the school will be placed in jeopardy as a result of the policy.

"The commission's proposal is an attempt to take away the educational choices given to Ohio parents by the Ohio General Assembly," Buckeye Institute President David Hansen said. "If they do not reconsider this ill-advised regulatory power grab, we will defend the interests of Toledo's parents and children in court."

"The proposed Minimum School Facility Requirements are clearly unconstitutional and run contrary to recently enacted state laws and Ohio Supreme Court decisions," Center for Constitutional Law Director Maurice Thompson said. "If the city of Toledo enacts this proposal, it will unnecessarily waste tax dollars defending an obviously flawed regulation."

The proposed requirements are one-size-fit-all mandates on community schools. They require these schools to provide large outdoor play areas, media centers, separate classrooms for every subject, and extremely large gymnasiums and dining areas. Many Toledo-area community schools have non-traditional student bodies that do not demand these facilities, while others offer many of the same benefits in different forms. For example, many community schools have computers in their classrooms rather than in "media centers," as required by MSFR. Moreover, most community schools do not have the space necessary to comply with the commission's prohibitive regulations.

Thompson advised the city plan commission that these requirements would violate the Ohio Community Schools Act. The act establishes a statewide education policy in favor of choice and innovation. Further, the Ohio Constitution precludes city-by-city regulation of education policy.

Also, Thompson advised that MSFR is a misuse of the city's zoning power. "It seems the proposed regulation is an unconstitutional attempt to use zoning law as a back-door mechanism to regulate, control and hamper statewide education policy," Thompson added.

A copy of the letter sent to the Toledo Plan Commission is available online.

The Buckeye Institute for Public Policy Solutions, together with its 1851 Center for Constitutional Law, is a nonpartisan research and educational institute devoted to individual liberty, economic freedom, personal responsibility and limited government in Ohio.