Category Archives: Public Interest Law

Today, the Finney Law Firm and attorney Christopher P. Finney  filed an Amicus Brief with the United States Supreme Court in the case of case of Janus v. AFSCME.  The brief was co-authored with attorney Maurice Thompson of the 1851 Center for Constitutional Law, which was also the named client for whom the brief was filed.

The question presented before the Court in Janus is defined in the briefs as:

Should Abood v. Detroit Board of Education, 431 U.S. 209 (1977) be overruled and public sector agency fee arrangements declared unconstitutional under the First Amendment.

From our perspective, this is one of the most important cases before the Court this term.  Should the Plaintiff Mark Janus be successful the case will outlaw mandatory agency fees paid to public employee unions as unconstitutional “compelled speech” or a compelled subsidy of political speech.  The benefits from a Janus victory will impact hundreds of thousands of public employees nationally.

You may read the 1851 Center brief here.

 

The United States Supreme Court almost always has a case holding significant drama and legal change on its docket each term.  The two blockbusters for the 2017-2018 term, from our perspective, are Masterpiece CakeShop and Janus.  Both deal with important public policy and First Amendment issues.

Let me explain.

Masterpiece Cakeshop

In the first major decision addressing gay and lesbian rights since Ogerbefell v. Hodges was decided in 2015 legalizing same-sex marriage in America, the United States Supreme Court tomorrow considers at oral argument a Colorado statute that makes it a crime to refuse to provide services on an equal basis to gays and lesbians in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  The issue presented to the Court is:

Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

Some key links for your reading pleasure:

Argument preview: Wedding Cakes v. Religious beliefs?

Symposium: Shotgun wedding? Forcing religious vendors to participate in wedding ceremonies

Brief of Petitioners Masterpiece Cakeshop Lts., et al.

Brief of respondent Colorado Civil Rights Commission.

Janus

The second major case before the Court, as our firm sees it, is Janus v. AFSCME, which addresses the question of whether government employees can be forced to pay dues to unions against their volition.  The issue as framed before the Court:

Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.

The Finney law Firm has been retained to write and file an Amicus Brief in the Janus case, which is due shortly.

Some key links for your reading pleasure:

Brief of petitioner Mark Janus

Will the third time be the charm for challenge to public-sector union fees?

______________________________

Both cases promise to have far-reaching impacts on public life in this country, especially Janus which fundamentally will change public union collective bargaining.

Stay tuned for decisions on these and other cases by early July.

Scott Pullins, founder of the Ohio Taxpayers Association, wrote a blog entry on Third Rail Politics highlighting our public interest practice entitled “You Can Fight Back When Officials Use Taxpayer Dollars for Politics” last week.  You may read that entry here.

Our firm has helped to blaze a trail of causes of action demanding equal access to public forums (such as schoolyards and lobbies of city buildings), and claiming violations of taxpayer statutes, when government officials misuse tax dollars for campaign purposes, which is not permitted.

We are pleased this work has been recognized.

We are local counsel in the case of the NorCal Tea Party v. IRS. we announced this morning that the case has settled with an admission from the U.S. Attorney General that what occurred was a “gross abuse of power.”

Read the coverage here:

Washington Post: Justice Department agrees to settle lawsuits over IRS scrutiny of tea party groups

Wall Street Journal: Administration Agrees to Settle Tea-Party Suits Against IRS

New York Times: Justice Department Settles With Conservative Groups Over IRS Scrutiny

Public Broadcasting Service:  Tea party groups settle lawsuits over IRS mistreatment The Trump administration has settled lawsuits with tea party groups that received extra, often burdensome scrutiny when applying for tax-exemp… pbs.org       

 CBS News: DOJ announces settlement with Tea Party groups

Fox News: Trump DOJ settles lawsuits over Tea Party targeting by Obama IRS

USA Today: Justice Department settles IRS lawsuits from 400 conservative groups claiming discrimination

New York Daily News: IRS settles Tea Party groups’ suits over delayed nonprofit status

Chicago Tribune: Justice Department agrees to settle lawsuits over IRS scrutiny of tea party groups

Cleveland Plain Dealer: Tea Party groups settle lawsuit against IRS; agency apologizes for discrimination during Obama’s

San Francisco Chronicle: Tea party groups settle lawsuits over IRS mistreatment

Yahoo Finance: Tea party groups settle lawsuits over IRS mistreatment

Minneapolis Star: Tea party groups settle lawsuits over IRS mistreatment; will get apology

Townhall: DOJ Starts to Make Amends for Tea Party Scandal

Washington Times: Feds to pay ‘generous’ settlement to tea party groups for targeting

Breitbart News: DOJ Settles with Tea Party Groups on Lois Lerner IRS Scandal

Cincinnati Enquirer: IRS settles tea party cases for millions and an apology

We are pleased to bring you this morning news that the Internal Revenue Service has settled the case of NorCal Tea Party v. IRS filed in the United States District Coiurt for the Southern District of Ohio.  We have served as local counsel in “what may be the only nationwide class ever formed for a claim of this type.”

United States District Court Judge Susan Dlott originally handled the case and certified it as a class action.  It most recently has been handled by Judge Michael Barrett.

U.S. Attorney General Jeff Sessions today weighed in personally on the settlement and the conduct of the IRS:

“There is no excuse for this conduct.  Hundreds of organizations were affected by these actions, and they deserve an apology from the IRS. We hope that today’s settlement makes clear that this abuse of power will not be tolerated.”

The Washington Post has the story here.

The statement by our lead counsel, Eddie Greim of Garrett Graves in Kansas City is below:

The United States Reaches Agreement with a Nationwide Class of Over 400 Targeted Groups in NorCal v United States, Vindicating Plaintiffs’ Claims in a Generous Financial Settlement

KANSAS CITY, MISSOURI, October 26, 2017

The Plaintiffs in NorCal v. United States are pleased to announce that late yesterday, the United States entered into a generous financial settlement to pay the claims of each of over 400 groups in the Plaintiff Class who were targeted by the IRS for their political beliefs. It is a great day for the First Amendment and the promise of fair and impartial government. But this day was too long in coming.

Five groups filed this case, the first claim against the IRS for its targeting of conservative groups, and the only nationwide class action, in May 2013. These five, NorCal Tea Party Patriots, South Dakota Citizens for Liberty, Americans Against Oppressive Laws, San Angelo Tea Party, and the Texas Patriots Tea Party, sacrificed hundreds of hours of time. The lawsuit stretched over four years and was sustained by funding from Citizens for Self-Governance, a non-profit that aids citizen groups. CSG was itself targeted by the IRS during the discovery process, but refused to back down.

In 2015, Judge Susan Dlott of the U.S. District Court for the Southern District of Ohio certified what may be the only nationwide class ever formed for a claim of this type. In 2016, the Sixth Circuit Court of Appeals soundly rejected the IRS’s attempt to use taxpayer protection laws to withhold evidence of its own wrongdoing in the case. In 2016, District Judge Michael Barrett entered a preliminary injunction against the IRS, finding a strong showing of a likelihood of success on Texas Patriots Tea Party’s First Amendment claim. In 2017, Texas Patriots became one of the last groups to have its exempt status recognized. Also in 2017, the Plaintiffs took the first and only deposition of Lois Lerner, which remains under seal in a manner still being litigated by Plaintiffs notwithstanding the proposed settlement. Under federal court rules, District Judge Barrett must still approve the class settlement on the motion of the parties.

By the fall of 2017, dozens of IRS officials had testified under oath, and the case was being prepared for trial. As part of this process, Attorney General Sessions’ Department of Justice carefully reviewed the facts. The generosity of its proposed settlement belies recent, uninformed claims that IRS officials merely mismanaged the files of conservative groups, or subjected liberal groups to similar treatment. To the contrary, Plaintiffs developed evidence showing that IRS managers knew that groups’ views, not their activities, were being used to target them for heightened scrutiny. Even after they gained this knowledge, officials like Lois Lerner failed to release the targeted groups, ordering up more scrutiny and delay even while betraying worry that the “Tea Party matter” was “very dangerous.” This was far more than the “lack of adequate management” the IRS or TIGTA is publicly willing to acknowledge.

Attorney General Sessions rightly calls this an “abuse of power.” As he says, the Plaintiffs deserve an apology from the IRS. But not even a court can force the IRS to apologize or admit to its wrongdoing. Those remedies are unknown to the law. A true reckoning is finally up to the agency itself. Until the IRS itself steps forward to admit what really happened, we cannot have faith that the same abuse won’t be repeated again. It is easy for the IRS to abuse its toolbox of policies and procedures that seem neutral on their face, just like the superficially innocent process of “centralization” that Lois Lerner and others used as an excuse to abuse the Plaintiffs. So truly, it is not just Plaintiffs who need an apology. Every taxpayer and group, whether or not targeted in this particular scheme, has a right to demand a truthful apology based on the facts and a real reckoning. Before Commissioner Koskinen leaves office, the Plaintiffs call on him to do the right thing.

For questions, please contact counsel Eddie Greim at 816-256-4144.

 

It has been four long years of litigation, class certification, motions, discovery, an interlocutory appeal to the 6th Circuit, and more motions, but the only certified class action against the IRS arising from Tea Party targeting is approaching trial in 2018, if the Plaintiffs survive the IRS’ motion to have the case preemptively disposed of on summary judgment.

Those motions are being briefed right now before U.S. District Court Judge Michael Barrett, and today’s Cincinnati Enquirer has the story on those briefings here.

A few things to note about the case:

• The Jeff Sessions Justice Department continues to defend the suit under President Donald Trump in much the same vigorous fashion as it did under Loretta Lynch and President Obama.
• IRS Commissioner John Koskinen, whom Congressional Investigators accused of stonewalling investigators and covering up for Lois Lerner’s and the IRS’ excesses, remains in his role.
• Judge Barrett has for now sealed the deposition transcripts of Lois Lerner and Holly Paz, the architects of the IRS targeting.  The sealing was at the request of Lerner and Paz who claimed to fear harassment if their testimony were revealed.

This firm is pleased to serve as local counsel, along with David Langdon, to the Tea Party groups in this important litigation.

We love celebrating September 17 each year at the Finney Law Firm, in part because we — as should all Americans — celebrate the document that brought lasting freedom and prosperty to our shores through recognition and respect to property rights, respect of natural rights, and acknowledgement of the failings of man through the checks and balances it contains.  These virtures are as a general proposition underappreciated by the populace and the foundation of the liberties we depend upon, I would humbly submit.

We also love celebrating this day because many of our attorneys have been able to successfully utilize constitutional theories, in some cases cutting-edge constitutional theories, to right the wrongs of our society and the excesses of our government leaders.

Finally, one of the blessings we remember on Constitution Day each year was a special and ironic story of the distinct failure of our elected officials to understand the rights granted by the U.S. Constitution and the corresponding limitations on their powers.

[I’ll update this story when I get a chance to check the docket, but as I recall, the year was around 2011 and the offending goverment was the City of Astabula.]

The facts read like a law school exam question hypothetical.  But, it went like this:

The Ashtabula County Tea Party desired to hold a rally on Constitutuon Day in something in town they called the “Public Square.”  This was a typical town commons or “public square” in the middle of town.  For constitutional novices, it would be what the Courts commonly refer to as a “quintessential public forum,” the type of property where First Amendment liberties are given their greatest latitude.

At first, the City approved their application for the use of the square, later explaining that they thought the “Tea Party” was a group of little old ladies serving tea.  (Yes, the Tea Party was at its zenith at this time, so the City fathers simply must have been living under a rock to think this.)

But, when they learned that the topic of a Constitutuion Day rally in the Public Square was to discuss public policy and rally the faithful towards civic action, the City fathers demurred, and revoked their assembly permit.  In other words, based solely on the content of what was to be discussed and addressed that day (“pass the crumpets” versus “vote the bums out”), the City decided to prohibit the assembly and the attendant speech.

This would be a textbook example of impermissible content-based discrimination in a public forum, a violation of the First Amendment to the United States Constitution.

We, of course, immediately brought suit on behalf of the Tea Party.  Once City officials were staring at a hearing before a Federal Judge to explain themselves, they quickly “got religion” and a newfound understanding of the U.S. Constitution, and allowed the rally.

So, Constitution Day, September 17, has a special meaning for me and our firm, and the fine organizers of the Ashtabula County Tea Party.