Category Archives: Public Interest Law

As we have shared previously, this firm is pleased to act as co-counsel for the only certified class action against the IRS on behalf of Tea Party groups nationwide.  There have been recently interesting developments in that case.

First, Judge Dlott recused herself from the case and it was assigned to Federal District Court Judge Michael Barrett.  Second, Judge Barrett made his first major ruling two weeks ago in that case on a series of motions that resulted in an order requiring the IRS to process the long-delayed application (like six year delay) of the tax exemption application of one of our named clients, the Texas Tea Party Patriots.  You may read that ruling here.

Second, other Tea Party groups are also seeing their applications finally being processed.  Today’s Washington Times reports that after a seven-year delay of the tax exemption application of the Albuquerque Tea Party, the IRS finally denied that application.  Read that story here.

We hope to have further significant developments in that case in the near future.

We have many dedicated and professional public servants, both elected officials and bureaucrats.  But we also have some who are not so dedicated and not so professional, and even the best can get intoxicated by their power, respond to the mob, or fail to understand the constitutional and statutory limitations on their authority.

Fortunately, in this nation, we have a system of checks and balances, and when an elected official steps over the bounds of his authority, we have the courts to check that abuse of power.

At the Finney Law Firm, we take pride in representing our clients and communities by, when necessary, standing a haughty elected official or appointed bureaucrat before a Judge and making them account for their excesses.  The only thing more satisfying than that is both winning and shifting the fees to the government that forced the action to begin with, for which Ohio law allows.

Under Ohio law, both (i) standing is conferred and (ii) an award of attorney’s fees to a prevailing plaintiff is granted for ultra vires acts (acts beyond their power) by government officials.  This is achieved through taxpayer actions.

Standing

“Standing” is a threshold issue in all litigation.  To have standing, an individual must generally have an actual and concrete injury, caused by the conduct of which the individual complains and capable of being redressed by the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).  Because the status of taxpayer is shared by so many, it can sometimes be difficult to establish standing; however, Ohio law has alleviated that problem with statutes such as R.C. 733.59 (for cities/municipalities) and R.C. 309.13 (for counties).

The Ohio taxpayer statutes provide that an individual may request in writing that the city solicitor, village director, or county prosecutor (whichever is applicable), if there is one, initiate an action to hold government actors accountable for their ultra vires acts.  If there is no such solicitor, director, or prosecutor to initiate the action or if they fail to do so upon a taxpayer’s written request, the taxpayer may initiate the suit himself. The action is then brought in his own name on behalf of the municipal corporation or the state, whatever the case may be.  This, in essence, confers standing upon any taxpayer seeking to put a stop to such injustices, regardless of their arguably generalized injury.

In so doing, the taxpayer “volunteers to enforce a right of action on behalf of and for the benefit of the public.” State ex rel. Nimon v. Springdale, 6 Ohio St. 2d 1, ¶ 2 of the syllabus (1966). The only other requirement is that the taxpayer must give a “security” for the cost of the proceeding, presumably to discourage meritless actions.  However, the Ohio First District Court of Appeals, has found that the filing fees satisfy this requirement, although other courts have disagreed and required something more. McQueen v. Dohoney, 1st Dist. Hamilton No. C-130196, 2013-Ohio-2424, at ¶ 21 (June 12, 2013); But see, Bowshier v. Vill. of N. Hampton, 2d Dist. Clark No. 2001 CA 63, 2002-Ohio-2273, at ¶ 27 (May 10, 2002); National Elec. Contrs. Ass’n v. City of Mentor, 108 Ohio App. 3d 373, 381 (11th Dist. 1995).

Attorney’s Fees

 An added benefit for the taxpayers who bring these actions, as well as their attorneys, is that they are entitled to attorney’s fees upon showing that the action resulted in public benefit. State ex rel. White v. Cleveland, 34 Ohio St. 2d 37, ¶ 3 of the syllabus (1973); See also R.C. 733.61 (“If the court hearing a case under section 733.59 of the Revised Code is satisfied that the taxpayer had good cause to believe that his allegations were well founded, or if they are sufficient in law, it shall make such order as the equity of the case demands. In such case the taxpayer shall be allowed his costs, and, if judgment is finally ordered in his favor, he may be allowed, as part of the costs, a reasonable compensation for his attorney.”); R.C. 309.13 likewise provides for reasonable attorney’s fees.  One of Finney Law Firm’s own cases established that “[t]he public benefit need not be monetary in character. That benefit may be of a more intangible character, such as the prevention of illegal government activity.”  City Of Cincinnati ex rel. Smitherman v. City of Cincinnati, 188 Ohio App. 3d 171, 178 (2010), citing Billington v. Cotner, 37 Ohio St.2d 17, 19, 305 N.E.2d 805 (1974).  However, to get attorney’s fees, the taxpayer must produce a contract (fee agreement) showing that he has actually incurred attorney’s fees. Harris v. Carney, 8th Dist. Cuyahoga No. 34733, 1976 Ohio App. LEXIS 8334, *6 (Apr. 8, 1976).

For more information on taxpayer actions, attorney’s fees in such actions, and other fee-shifting provisions, Attorney Chris Finney will be presenting at an NBI seminar in Cincinnati, Ohio titled Local Government Law From Start to Finish on Friday, December 16, 2016.

The Finney Law Firm and lead attorney Curt Hartman doggedly pursued discipline by the Ohio Elections Commission in the case of dark money spent against Christopher Smitherman in his 2013 election campaign to Cincinnati City Council.

Mysteriously, more than $300,000 in mailers, flyers and radio and television advertisements were issued during the closing weeks of the campaign, but no committee fessed up to making those expenditures or disclosing their sources of funds.

In July, the Ohio Elections Commissioner finally, after years of litigation found that the wrongdoers had in fact systematically violated Ohio elections law and fined them $15,000.

But the key player in that saga, Cincinnati union leader Rob Richardson, steadfastly refused to submit  to a deposition or present his testimony before the Ohio Elections Commission.

This past week, the Ohio Attorney General initiated a contempt action against Richardson for ignoring a lawfully-issued subpoena.

You may read that suit here.  You may read Smitherman’s press release relating to the same here.

Our firm was pleased to represent the distinguished council member Christopher Smitherman in this action and was pleased to win it after years of delay from the Ohio Elections Commission.

Earlier this year, the Finney Law Firm obtained a favorable settlement for five special needs children within the Kings Local School District who were severely mistreated by their teacher, and the firm continues to proudly represent its clients in other similar cases.  However, a decision by the Sixth Circuit Court of Appeals may have heightened the burden imposed on plaintiffs bringing substantive due process claims, which was one of several causes of action alleged in the Kings case.

Substantive due process, under the Fifth and Fourteenth Amendments, forbids government actors, including public school teachers, from intruding into the fundamental rights promised to individuals under the U.S. Constitution.  Relevant here are the “rights to be free from physical abuse at the hands of state actors, and to enjoy personal security and bodily integrity in an educational setting.” Webb v. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987).

In Domingo v. Kowalski, 810 F.3d 403 (6th Cir. 2016), the Court applied the “shocks the conscience” standard used in substantive due process cases in a way that may very well place an insurmountable obstacle in the way of students seeking to hold their teachers accountable for constitutional violations in the classroom.

The plaintiffs in Domingo, special needs students as young as six years old, brought a substantive due process suit against their teacher alleging that she:

abused her students during the 2003-2004 school year by, among other things, gagging one student with a bandana to stop him from spitting, strapping another to a toilet to keep her from falling from the toilet, and forcing yet another to sit with her pants down on a training toilet in full view of her classmates to assist her with toilet-training.

Despite finding that the teacher’s actions were improper, the Sixth Circuit refused to hold the teacher liable, reasoning that her conduct did not “shock the conscience.” In so finding, the Court borrowed the Third Circuit’s “shocks the conscience” test, which ultimately requires that the actor have malicious or sadistic intent, which the Domingo Court did not find.  Requiring such bad intent is an extremely high standard, making it challenging, at best, for many plaintiffs to meet even in cases as egregious as Domingo. In light of the conduct permitted in Domingo, it is difficult to imagine exactly what type of classroom conduct would shock the conscience.

Earlier this month, an Ohio inmate appealed a state Supreme Court decision holding that a second execution attempt would not violate the inmate’s constitutional rights.

Broom, a convicted murderer, was sentenced to death for his crimes.  In 2009, an attempt to execute him was unsuccessful after 18 stabs at finding a viable vein over a span of approximately two hours ultimately failed.  Broom argued all the way up to the Ohio Supreme Court that a second attempt to execute him would amount to cruel and unusual punishment and violate double jeopardy.  The Ohio Supreme Court rejected Broom’s arguments in a split decision.

Broom has appealed this ruling to the Supreme Court of the United States.  The last time the High Court addressed a death penalty case was in 2015 with its Glossip v. Gross decision.  In that case, the Court upheld a method of execution 5-4 over the challenge of several prisoners. The late Justice Scalia was in the majority.

We know from Glossip that at least four Justices have some concerns about the death penalty, with two of them calling for a re-examination of its constitutionality altogether.  As it takes the vote of only four Justices for the Court to hear a case, it is likely that certiorari will be granted on Broom’s appeal.  If the case is heard before Justice Scalia’s vacancy is filled, and the Justices vote as they did in Glossip, it will be 4-4, and the Ohio Supreme Court decision will stand.

However, filling the SCOTUS vacancy is proving to be a hot issue in this year’s presidential election.  This case may go either way, depending on the outcome and who is appointed by our next president to fill Justice Scalia’s seat.  Thus, it could, interestingly, be decided at the polls on November 8^th – yet another reason to get out and vote!

Deidre Shesgreen of USA Today has a great story up on the long battle that this firm’s attorneys waged on behalf of our client David Krikorian before the Federal Elections Commission.

It took the FEC five long years to act on a simple Complaint on which the facts were largely not in dispute, and they barely slapped the wrist of our former Congressman Jean Schmidt for taking an illegal gift that actually exceeded $650,000.

Our firm carefully researched the facts and the law, and prepared a complaint that irrefutably established the violations of Federal Election Law.

The gist of the story is that the FEC is hopelessly ineffectual, taking interminable amounts of time to decide simple issues and deadlocking on partisan lines over the most obvious violations of law.

Read the story here.