Saturday, March 29, 2014

SBA List & COAST v. Driehaus - State of Ohio Respondent's Brief

Defending the indefensible free speech chilling political speech regulation, comes now the State of Ohio in its Respondent's Brief before the United States Supreme Court.

We must give them credit, the Ohio Elections Commission is not going down without a fight!

The Legacy of Mark Mallory and Roxanne Qualls: City's bond rating lowered

For eight long years, Cincinnati's media and business leaders watched month after month and year after year as the City made one irresponsible fiscal decision after another, and the City sank into fiscal despair.  And they did nothing.

COAST, along with a few Council members -- Smitherman, Murray, Lippert, and eventually Bortz and Berding -- rang the alarm bells.  But Mayor Mark Mallory insisted on driving the train of municipal finances into a brick wall.

As sure as a housing crisis cooked up by Barney Frank and Chris Dodd, the chickens have come home to roost: yesterday Cincinnati's bond rating was again lowered.

Mayor Cranley has it right.  Of the twin effects of higher interest rates and loss of Cincinnati's reputation of being fiscally responsible, the latter is the far greater loss.

Of course, the new Council, drunk with their new power, went on a spending spree from Day #1 with the Cincinnati Streetcar and its annual $5-$10 million in operating expenses.  So Mayor Cranley has to do battle daily with a cabal bent on the same destructive policies that brought us to this place.

Read it in the Enquirer here.

Tuesday, March 25, 2014

Eastside Candidates Night - Thursday Night at Clark Montessori School

COAST's case at the US Supreme Court makes today's New York Times

Adam Liptak of the New York Times, who last year covered Mark Miller's "Tweets" free speech case, today covers the COAST/Susan B. Anthony List case heard by the US Supreme Court on April 22.

It is a well-written piece that covers the highlights.  He is skeptical that the Cato Institute's brief humor will have the desired effect.

Read it here.

Sunday, March 23, 2014

Financial Times has an interesting analysis of the resurgent GOP

The Financial Times has an interesting article on the resurgent GOP, a GOP whose death has been repeatedly predicted.

Here's a good excerpt:

Yet there is something deep within America’s political DNA that recycles first-generation social democrats into second-generation conservatives. For most of the 20th century, Catholic Italians and Irish were a reliable Democratic voting block. Richard Nixon and Ronald Reagan changed that partly by using dog whistles to play on their racial fears and partly by appealing to their upwardly mobile aspirations.

Read the entire article here.

Amicus of the Day - Foundation for Individual Rights in Education

The leading organization aimed toward protecting the individual rights of students and educators filed a blistering amicus brief, calling for the Supreme Court to unlock the courthouse door and allow SBA List and COAST to challenge the Constitutionality of Ohio's Free Speech chilling and Free Thought killing law.

The Foundation for Individual Rights in Education (FIRE) rightly points out that speech chilling laws like Ohio's political speech regulation must be subject to pre-enforcement challenge lest those who seek to silence political critics will be emboldened.

COAST is humbled by the depth and breadth of legal thought that our case is attracting from FIRE and all of the Amici; and we are ever strengthened for the fight not only for our own rights, but to help insure that all Americans - no matter what their politics - are free to express themselves to the Constitutions fullest extent.  

Thursday, March 20, 2014

Cleveland Plain Dealer blasts South Euclid and its Law Director

There seems to be a symbiosis many times between Big Media and Big Government, where the arrogance of the latter is presumed, and promoted, by the former.

However, that is not so in the case of this fantastic editorial from the Cleveland Plain Dealer about the uber-thuggish Law Director of the City of South Euclid, Mike Lograsso, and his enablers, the elected officials in that burb.  He actually called local citizen activists: "lowdown scumbag piece of garbage" in a public meeting, apparently failing to take to heart the term "public servant."

Read it here.  It is a thing of beauty.

Monday, March 17, 2014

Outlook for Ohio Sunshine Week: Cloudy with a chance of showers

This week has been declared "Sunshine Week" in Ohio, dedicated to highlighting Ohio's Sunshine Laws and the performance of public officials and courts under them.

First, the positive:

  • COAST has had dramatic success in southwest Ohio in enforcing Ohio's public records laws, training public officials to promptly and properly respond to records requests.  It used public records requests in 2013 to shine a spotlight on the disastrous Parking Plot, and the Streetcar debacle.  From the aggressive use of the public records statute, through requests and litigation, we have forced a much greater degree of governmental accountability than ever before.
  • As was reported here, we also have had success under the Ohio Open Meetings laws, forcing Clearcreek's Trustees to end a practice of 26 years of illegal pre-meeting meetings, where everything was discussed, deliberated and decided behind closed doors.
  Now, the negative,

  • Courts throughout Ohio and now the Ohio Supreme Court in its South Euclid decisions have shown overt hostility to Oho's Public Records law, and in the most recent two decisions effectively repealed it.  They did so by ruling that as long as the public agency produces the records before a final judgment is rendered (even if after years of litigation), the case is "mooted" and no attorneys fees or costs are awarded.  The net effect of these decisions is that no attorney would ever accept a public records case, and thus the statute has been gutted.  Worse, the decision is cut from whole cloth, and entirely unsupportable by the language of the statute -- in other words, the Court re-wrote the law to suit its whims.
So, there is not so much Sunshine in Ohio this Sunshine Week.  The forecast for open government is cloudy at best.

American Civil Liberties Union Amicus Brief in Support of COAST and SBA List

Wednesday, March 12, 2014

Friday, March 7, 2014

Amicus Curiae join the fight for the First Amendment

The nearly four years' long battle against Ohio's political speech police was recently joined by forty-six friends of the court who filed nineteen separate amicus curiae briefs in our Supreme Court case, SBA List & COAST v. Driehaus, et al. - every one of them in support of the SBA List and COAST.

The amici are a veritable who's who of free speech, limited government and civil liberties organizations (and one of America's pre-eminent humorists) including the American Civil Liberties Union, the American Library Association. It is comforting to know that no matter these groups' divergent political views, they all hold the Constitution dear.

The complete list of amici filings we have received thus far:

Foundation for Individual Rights in Education
American Civil Liberties Union
1851 Center for Constitutional Law
Government Integrity Fund
Alliance Defending Freedom
American Booksellers Association
American Booksellers Foundation For Free Expression,
American Library Association, Association Of American Publishers, Inc.
Comic book Legal Defense Fund
Freedom to Read Foundation
Great Lakes Independent Booksellers Association
Mountain & Plains Independent Booksellers Association
Pacific Northwest Booksellers Association
Southern Independent Booksellers Alliance
Annie Bloom's Books, Changing Hands Bookstore, Inc.
Harvard Bookstore, Inc.
Paulina Springs Books
Powell's Bookstore, Inc.
Schuler Books & Music
Tattered Cover, Inc.
The King's English, Inc.
Weller Book Works
Village Books
Dark Horse Comics, Inc.
Student Press Law Center
United States of America
Southeastern Legal Foundation
Institute for Justice 
Reason Foundation
Individual Rights Foundation
Ohio Attorney General Mike DeWine
General Conference of Seventh-Day Adventists
Review and Herald Publishing Association
Pacific Press Publishing Association
Christian Legal Society
National Association of Evangelicals
National Hispanic Christian Leadership Conference
Queens Federation of Churches and Institutional Religious Freedom
Citizens United
Center for Constitutional Jurisprudence
Center for Competitive Politics
Bioethics Defense Fund
Justice and Freedom Fund
First Amendment Lawyers Association
Cato Institute
P.J. O'Rourke

COAST will be posting an "Amicus of the Day" over the next few weeks to highlight each of the arguments made in the briefs. Check out today's brief here

Bioethics Defense Fund Amicus Brief in Support of SBA List and COAST

Wednesday, March 5, 2014

Toledo Blade blasts Ohio's ill-considered public records decision

As COAST explains here, the recent decision of the Ohio Supreme Court to allow municipalities to "moot" a public records case after its filing by providing records it previously had refused to provide has blasted a hole in the public records law so wide that no Ohio government official ever will fear the statute again.  This is so because government officials now, despite the clear language of the statute, deprive citizens of an award of their attorneys fees thereby making such suits impossible to prosecute.

This week, the Toledo Blade joined others in condemning the decision.  Read it here.

21 "Friend of the Court" briefs filed in COAST challenge to Ohio Elections Commission

COAST has joined with the Susan B. Anthony List, a D.C advocacy group, to throw out Ohio's "False Claims" statute that empowers Ohio's Elections Commission and prosecutors to toss in jail for up to six months someone whose speech they subjectively categorize as "false."

The unconstitutionality of the law is apparent to most thinking Americans, but the 6th Circuit Court of Appeals bars Plaintiffs from even having standing to challenge the statute, rendering it immune from constitutional review in federal courts -- until now.

The United States Supreme Court has granted discretionary review of the 6th Circuit's misguided approach to constitutional review of the statute, and is holding a hearing on the matter on April 22.  As the Supreme Court accepts less than 1% of all petitions for review, this is a pretty big deal.

On Monday, briefs from "Friends of the Court" in support of COAST's position were due, and they flooded in from all over the County -- 21 in all.  The United States of America, the ACLU, the Christian Legal Society, the American Booksellers' Association, Ohio Attorney General Mike DeWine, the 1851 Center for Constitutional Law and more than a dozen others weighed in in support of COAST's position to require the federal courts to review COAST's challenge to the statute.

We will feature (as much as we can keep up) on this blog one of the briefs each day to allow our loyal COAST blog readers to appreciate the breadth of support throughout the nation to overturning this oppressive statute.

Let freedom ring.

Saturday, March 1, 2014

Ohio Supreme Court kills Ohio's Public Records laws

Please do not think this blog entry is hyperbole or over-stating the case.  As will be noted below, other objective commentators agree with the content of this piece.   
Last week, Ohio's Supreme Court effectively judicially repealed Ohio's Public Records Law, a perfectly well-written piece of legislation of which Ohio's Courts have made mincemeat due to their overt hostility to the words it contains.   
It is a sad direction for Ohio public policy, but it is a more sad direction for the integrity of the Ohio judiciary as a group that is to interpret the laws, not write them. 
We also note that COAST's attorneys represented the Plaintiff in this action, which is why we waited for third parties to speak before writing on this topic.    
Last week, the Ohio Supreme Court dealt a death blow to the Ohio Public Records law, and severely damaged the credibility of the judiciary in the process.

In two cases captioned Emilie DiFranco v. South Euclid, the Court said that attorneys fees are not available to Plaintiffs in public records cases so long as the defendant in those cases produces the records before the final judgment in the case is rendered.  In other words, after months and months of stonewalling before a suit is filed, and months and months of litigation, as long as the defendant in records cases produces records before the Court issues an order, the Court may not order attorneys fees to the Plaintiff's counsel.  This decision is notwithstanding the clear language of the statue that fees are mandatory in instances in which the public agency provides no response tot he request whatsoever within a reasonable period of time.

The practical consequence is that no ordinary citizen will ever pursue public records in court ever again.  They cannot afford to.  Moreover, the decision is utterly intellectually dishonest, being a contorted reading of the statute to make it say what it does not say, and certainly what the legislature did not intend.  Justice Kennedy dissented, but the other six Justices should simply be ashamed of themselves.  They knew they were judicially repealing a law rather than interpreting it, but they did it anyway.

In the two cases in question, Plaintiff DiFranco waited, respectively, six months and eight months for the public records sought with no response before filing her Complaint.  According to the Columbus Dispatch, the decision:
could make it financially impossible for people of ordinary means to fight government officials who stonewall them on public-records requests.
The Ohio Newspaper Association explained the facts behind the decisions:

The city stonewalled the citizen requesting the information for months, and she even had to get an accountant to show that records the city claimed it didn’t have really existed.
COAST has aggressively used Ohio's Public Records law to hold local and state government accountable.  For example, last summer we hammered Mayor Mallory, Roxanne Qualls, and the Port Authority over the secretive and outrageous parking deal with a serial release of public records that exposed the many sleazy sides to that transaction.  Without those disclosures, not only would the Parking Deal have gone through, but the Mayoral election and Council election well could have turned out differently.

COAST will say this once, but firmly.  We have a Republican Ohio Supreme Court that has enacted this gross injustice not just to a Plaintiff, but to an important law.  We have a Republican House and a Republican Senate.  We have a Republican Governor.  If they refuse to fix this, they do not deserve to continue to serve in office, period.

Read the two decisions here and here.  (By the way, the Court agonized over both decisions for nearly a year after full briefing before releasing these horrendous decisions.)  Read the Ohio Newspaper Association's warning call about the decisions here.  Read the Columbus Dispatch's editorial on the topic here.