Category Archives: Public Interest Law

United States Supreme Court watchers are excited about Monday’s oral argument in Friedericks v. California Teacher’s Association, which could stop once and for all compelled payment of union dues to public employee unions.

Ten teachers in California have sued the teacher’s union claiming they were forced to pay money to support positions advanced by the union — in lobbying, in negotiations and otherwise — with which they disagree.

There is so much happening with this case.  Read here the synopsis from the Center for Individual Rights, which organized the suit and today’s story in the New York Times on the topic.

If the High Court is true to form in the timing of releasing decisions in high-profile cases right before their summer recess, expect a decision in this landmark case at the end of May.

Listed below are legislative bills currently pending in the 131^st Ohio General Assembly. If you would like to view full text of each individual legislation, please click on the links below.

S.B.85 – Property-Tax Complaints

Sponsored by Senator Bill Coley (R)

Introduced to the Senate on February 23, 2015, Senate Bill 85 addresses property tax complaints and is currently pending in the Ways and Means Committee. The Bill would amend sections 307.699, 3735.67, 5715.19, 5715.27, and 5717.01 of the Revised Code to only permit property tax complaints to be initiated by the property owner, the property owner’s spouse or representative, or the county recorder. Right now, the current law allows property owners, the property owner’s spouse or representative, the county recorder, a real estate broker, the board of county commissioners, the prosecuting attorney or treasurer of the county, the board of township trustees, the board of education, or the mayor to file a property tax complaint.

S.B.180 – Anti Discrimination-Employment

Sponsored by Senator Joe Uecker (R)

On June 10, 2015, Senate Bill 180 was introduced to the Senate and is now currently pending in the Senate Civil Justice Committee. Senate Bill 180 would make it an unlawful discriminatory practice for an employer to fire an employee without just cause, refuse to hire a potential employee, or to discriminate against someone regarding matters related to employment just because that person exercised a constitutional right within a house or car not owned by their employer. The Bill would also allow a person to file a charge with the Civil Right Commission if they find that another person has engaged in an unlawful discriminatory practice. The Civil Rights Commission would then investigate the unlawful discriminatory practice.

S.B.201 – Nuisance-Vacant Property

Sponsored by Senator Jim Hughes (R)

Under current law, a “nuisance” property is defined as a real property where prostitution, the illegal manufacturing or selling of alcohol, and/or the production of indecent films takes place. Senate Bill 201, introduced to the Senate on August 10, 2015, would expand the definition of “nuisance property” to include any real property where an offence of violence has occurred or is occurring. Real Property also includes vacant land. For purposes of this Bill, an offence of violence has many definitions, some of which are: robbery, kidnapping, murder, assault, child abuse, riots, burglary, domestic violence, arson, and human trafficking. S.B. 201 would also continue to allow the Attorney General to call an abatement proceeding on the nuisance property, which could eventually result in the property being deemed unavailable for use for one year. As of October 14, 2015, S.B. 201 is pending in the Civil Justice Committee.

H.B.134 – Foreclosure-Vacant Properties

Sponsored by Representative Cheryl Grossman (R) and Representative Michael Curtin (D)

House Bill 134, which addresses a number of issues regarding judicial foreclosure actions, is currently pending in the House Judiciary Committee. First, if a residential property appears to be vacant or abandoned, the Bill would allow the mortgage holder to bring a summary foreclosure action against the property. It would also modify the judicial sale procedure by requiring the sheriff to record the deed of a foreclosed property within a certain time period. If the deed is not recorded within a certain time period, the property will be transferred to the purchaser by the recording of the order of confirmation of sale. In regards to unoccupied property, the Bill would allow a municipal corporation to seek an order of remediation against the owner of the property. Lastly, if H.B.134 passes, it would place additional duties on the clerk of common pleas court pertaining to the notification and service of parties involved in a foreclosure action.

H.B.149 – Attorney’s Fees- Actual Damages

Sponsored by Representative Jonathan Dever (R) and Representative John Patterson (D)

Introduced to the House on April 13, 2015 and currently pending in the House Financial Institutions and HUD Committee, House Bill 149 relates to damages and attorney’s fees in housing discrimination cases. The Ohio Fair Housing Law currently prohibits discrimination when it comes to purchasing, selling, or renting a house. Under this Bill, if the Civil Right Commission finds that someone is engaging in unlawful housing discrimination, the Commission is permitted to require that person to pay actual damages and attorney’s fees. The current law requires the assessment of actual damages and attorney’s fees and permits the assessment of punitive damages in regards to housing discrimination claims.

H.B.226 – Condominium Liens

Sponsored by Representative John Rogers (D)

On May 21, 2015, House Bill 226 was introduced to the House and is now pending in the House Commerce and Labor Committee. H.B. 226 would provide that a lien filed by a condominium association against the owner’s interest in the unit has priority over other liens and encumbrances that were previously recorded, with the exception of political subdivision assessments and real estate tax liens. It would also provide that the condominium lien is a continuing lien and is subject to automatic adjustments for additional fees, costs, assessments and unpaid interest.

H.B.281 – Income Tax Deduction-Higher Education

Sponsored by Representative John M. Rogers (D)

Introduced to the House on July 7, 2015 and currently pending in the House Ways and Means Committee, House Bill 281 would allow recent college graduates to take a personal income tax deduction for specific out-of-pocket higher education expenses. Out-of-pocket higher education expenses would consist of: school supplies, books, tuition, fees, any type of equipment that the student would use in or for class, and room and board expenses.

H.B.330 – Equal Pay Certificate

Sponsored by Stephanie Howse (D) and Representative Kathleen Clyde (D)

House Bill 330 would amend multiple sections of the Revised Code regarding contractors and individuals submitting bids or proposals for state contracts and business entities applying for a grant. As introduce to the House on September 14, 2015, H.B. 330 would require contractors, individuals, and business entities to do the following: prohibit an employer from retaliating against an employee who discusses their wage rate or salary with another employee, eliminate sex-based wage discrepancies and obtain an equal pay certificate. This Bill is currently pending in the House State Government Committee.

 

School administrators have the unenviable responsibilities of both educating our youth and keeping them safe.  As school violence continues to make national headlines administrators are increasingly wary of “off-campus student speech” – think social media postings – made by their students.  How do we balance a school’s need to maintain discipline in the school-setting, with the student’s first amendment rights to free speech?  Do we as a society allow schools to take a more authoritarian approach to disciplining our youth given the spate of violence, or do student’s free speech rights trump the school’s ability to discipline students for conduct that occurs away from the school yard?

The United States Supreme Court established the standard for “on-campus” speech regulation in 1969 in Tinker v. Des Moines.  In that decision, the Supreme Court decided that students who wore black armbands to school in protest of the United States’ involvement in the Vietnam War did not materially or substantially interfere with the operation of the schools or collide with the rights of others.  The Court issued the now oft-quoted refrain that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Yet, at the same time, the Court established that school administrators may restrict student speech that poses a risk of substantial disruption with the work or discipline of the school.

Following Tinker, the Supreme Court continued to refine First Amendment jurisprudence in the public school context, finding that: (1) schools can restrict vulgar and lewd speech (Bethel School District No. 403 v. Fraser); (2) schools can restrict student speech that appears to be sponsored by the school (Hazelwood School District v. Kuhlmeier); (3) schools can restrict student speech promoting illegal drug use (Morse v. Frederick).

The Supreme Court could not have imagined the development of social media and its impact on the student speech when it decided in Tinker in 1969.  As social media continues to expand avenues of communication and expression for our youth, the federal district courts continue to tackle speech issues without further guidance from the Supreme Court.   I first became interested in this issue six years ago in law school while researching student speech issues for a law review article.  Ultimately I published an article that examined off-campus speech in the context of the second circuit’s decision in Doninger v. Niehoff.  In that article, I argued that the Supreme Court’s standard for on-campus speech regulation enunciated in Tinker is workable in the context of off-campus speech. S ix years later the Supreme Court has yet to weigh in on the issue.

The Fifth Circuit Court of Appeals recently addressed the issue in the Bell v. Itawamba County School Board.  In Bell, a high school student and aspiring rapper wrote and recorded a song at a studio unaffiliated with the school and posted the song on his Facebook page and on YouTube using his personal computer.  The song included criticism of and “threatening language against two high school teachers/coaches” who allegedly sexually harassed female students.  In response, the School board suspended Bell and transferred him to an alternative school.  Bell subsequently filed suit against the school arguing that this disciplinary action violated his First Amendment right to free speech.

The District Court granted summary judgment in favor of the school, finding that the school officials acted reasonably.   On appeal, a panel for the appellate court reversed, finding in favor of Bell.  The school then petitioned for the case to be heard by the appellate court en banc, meaning that the entire bench (all of the judges of the court) would hear the case.  Its petition was granted and the appellate court reinstated summary judgment in favor of the school. In doing so, the Fifth Circuit held that the school did not violate Bell’s First Amendment rights.

The Court examined Bell’s case in the context of Tinker and its progeny.  After reviewing these cases, the Court rejected Bell’s arguments that Tinker does not apply to off-campus speech and that, even if it does, Bell’s conduct did not satisfy Tinker’s substantial disruption test.  Instead, the Court held that the school acted appropriately in disciplining Bell because “a school official reasonably could find Bell’s rap recording threatened, harassed, and intimated the two teachers…and a substantial disruption reasonably could have been forecast.”

The Court reasoned that “violence forecast by a student against a teacher does reach the level of the …exceptions necessitating divergence from Tinker’s general rule” and that, due to the advent of new technology such as the internet, smartphones, and digital social media, “off-campus threats, harassment, and intimidation directed at teachers create a tension between a student’s free-speech rights and a school official’s duty to maintain discipline and protect the school community.”  The appellate court found that the school’s interest in being able to act quickly and intervene before speech leads to violence outweighed Bell’s interest in free speech.  As a result, the Fifth Circuit determined that Tinker’s substantial disruption test applies when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimate a teacher, even when the speech originated off campus.

The Fifth Circuit’s decision illuminates the struggle our federal courts have had in developing a consistent approach to these issues, evidenced by the four dissenting opinions it elicited.  One dissent criticized the majority’s recognition of the school’s right to discipline a student whistle-blower.  Another dissent explained that off-campus, online student speech is a poor fit for any of the First Amendment doctrines and expressed hope that the Supreme Court will soon give the lower courts guidance on how to resolve these cases. The third dissent essentially agreed with the panel majority’s opinion and felt that the en banc majority unnecessarily expanded Tinker to apply in this case.  Finally, the last dissent generally posited that Tinker did not apply to off-campus speech and that, instead, he would apply a modified Tinker standard to allow for the problems current technology poses.  Under even a modified standard, though, the dissenter opined that the school’s discipline of Bell would fail.

As we see in Bell, the courts continue to wrestle with whether and how to apply Tinker and its progeny to off-campus student speech. Ever-increasing technology poses additional questions that the courts will continue to struggle with until the Supreme Court weights in on the issue.

My guess is that Supreme Court will address the question sooner the later. Whether the Tinker substantial disruption test will be adopted for off-campus speech, or some hybrid test is created, remains to be seen. In my mind, although the Tinker Court never imagined the ease of communication in the smart phone era, its test remains a viable and important tool for school administrators to curtail speech when it poses a foreseeable risk of substantial disruption to the school environment.

 

 

The 6th Circuit en banc released an opinion today that allowed an an “extreme and ill-mannered evangelical group” to march on public streets through City streets in Dearbourn, Michigan “with banners, signs, and tee-shirts that displayed messages criticizing Islam and Mohammed.”  The demonstrations occurred during the annual Arab International Festival that attracts more than 300,000 persons over three days.

The group made themselves intentionally controversial, carrying around a severed pig’s head on a spike and and signs that said, “Islam is a Religion of Blood and Murder.” However, all their activities were on publicly-dedicated streets and sidewalks.

The County had argued that the speech of Bible Believers constituted “fighting words” and “incitement to violence” and thus could be banned.

The issue was whether Bible Believers had a right to engage in street preaching, and to parade around with their printed messages. The festival allowed groups to register for an assigned table, under the information tent, but not parade about the festival.  The Plaintiffs, Bible Believers, preferred to move around on the public streets and sidewalks where they could be seen.

The 6th Circuit decision says “fighting words” only means words directed at an individual who is present.  As to incitement, the decision says that Bible Believers did not ask anyone listening to do anything violent.

The case is Bible Believers v Wayne County, Michigan, 13-1635.

The lengthy saga that is the challenge to the Ohio statute making it a criminal offense to lie during the course of a political campaign reaches its latest chapter on December 10 at 9 AM.

Followers of our blog know that Susan B. Anthony List, et al. v. Ohio Elections Commission was first brought in 2010 to challenge the Ohio statute arising from the 1st District Congressional Campaign of Chabot v. Driehaus.  In that campaign, a third party group wanted to advertise that Steve Driehaus’ vote for OabamaCare was a vote in favor of taxpayer funding of abortions.  Steve Driehaus challenged that statement as a lie and a criminal offense with a complaint before the Ohio Elections Commission.

In response, Susan B. Anthony List challenged the constitutionality of the statute in federal court, and Finney Law Firm client, COAST, joined the suit asserting that it wanted to make similar statements but was “chilled” as a result of the oppressive enforcement scheme.

The District Court and the 6th Circuit found that Plaintiffs did not have standing as they “abstained” while the OEC matter was pending.  That issue ascended to the United States Supreme Court in 2014, resulting in a 9-0 decision in favor of our clients.  But all that Supreme Court decision did was place the matter back before the District Court.

In September of last year, Judge Timothy Black declared the statute unconstitutional and enjoined its further application — a complete win on the merits for the Plaintiffs.  That decision has been on appeal for more than a year to the 6th Circuit, and the December oral argument signals a decision by mid-2016 that, hopefully, will affirm Judge Black’s decision.

So, we have maybe another year of litigation over this issue, but soon the OEC’s control of speech in Ohio will be ended.

Ohio has some incredibly well-written Sunshine laws, laws requiring transparency in open meetings and public records in the conduct of official business.  Indeed, Ohio’s laws are some of the best in the nation.

Unfortunately, the rights enshrined by those laws have been slowly and significantly eroded by a series of court decisions in Ohio, all the way up through the Ohio Supreme Court.

Last week, the Ohio Coalition for Open Government released a study of decisions of the Ohio Supreme Court that analyzed Sunshine Law decisions, and confirmed that the trend is against more openness, and in favor of governments that conceal records and keep meetings secret.

You may read the press release here.  The associated documents are linked in the press release.